EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS REPORTS OF THE PANEL
Document: Panel Report
Date: 25 November 2013
Document codes: WT/DS400/R; WT/DS401/R; WT/DS400/R; WT/DS401/R.; WT/DS400/R; WT/DS401/R; WT/DS400/R
Complainant: Canada
Respondent: EU
Third parties: Argentina, China, Colombia, Ecuador, Iceland, Japan, Mexico, Norway, Russia, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. I:1, III:4, XI:1, XXIII:1(b)  GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1  Technical Barriers to Trade (TBT)

EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE
IMPORTATION AND MARKETING OF SEAL PRODUCTS
REPORTS OF THE PANEL

Note by the Secretariat:

These Panel Reports are in the form of a single document constituting two separate Panel Reports:
 and The cover page, preliminary pages, sections 1 through 7 are
common to both Reports. The page header throughout the document bears the two document
symbols and , with the following exceptions: section 8 on
pages CAN-183 and CAN-184, which bears the document symbol for and contains the Panel's
conclusions and recommendations in the Panel Report ; and section 8 on
pages NOR-185 and NOR-186, which bears the document symbol for and contains the Panel's
conclusions and recommendations in the Panel Report The annexes, which are a
part of the Panel Reports, are circulated in a separate document ( and

 •

LIST OF ANNEXES

ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Canada B-2
Annex B-2 Integrated executive summary of the arguments of Norway B-24
Annex B-3 Integrated executive summary of the arguments of the European Union B-40
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Colombia C-2
Annex C-2 Integrated executive summary of the arguments of Iceland C-5
Annex C-3 Integrated executive summa ry of the arguments of Japan C-6
Annex C-4 Integrated executive summary of the arguments of Mexico C-12
Annex C-5 Integrated executive summary of the arguments of Namibia C-17
Annex C-6 Integrated executive summary of the arguments of the United States C-22
WT/DS400/R • WT/DS401/R

CASES CITED IN THESE REPORTS
Short Title Full Case Title and Citation
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted
22 April 1998, DSR 1998:III, p. 1003
Argentina – Textiles and
Apparel
Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles,
Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified
by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033
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 Appellate Body Report, Canada – Measures Affecting the Export of Civilian
Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377
Canada – Aircraft Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft,
WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report
WT/DS70/AB/R, DSR 1999:IV, p. 1443
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 – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry,
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by
Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII,
p. 3043
Canada – Wheat Exports and
Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September
2004, DSR 2004:VI, p. 2739
Canada – Wheat Exports and
Grain Imports
Panel Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain, WT/DS276/R, adopted 27 September 2004,
upheld by Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817
China – Publications and
Audiovisual Products
Appellate Body Report, China – Measures Affecting Trading Rights and
Distribution Services for Certain Publications 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 Distribution
Services for Certain Publications and 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
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, adopted 22 February 2012
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R / WT/DS395/R / WT/DS398/R / and Corr.1, adopted
22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R /
WT/DS395/AB/R / WT/DS398/AB/R
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
EC – Approval and Marketing of
Biotech Products
Panel Reports, European Communities – Measures Affecting the Approval
and Marketing of Biotech Products, WT/DS291/R / WT/DS292/R /
WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006,
DSR 2006:III, p. 847
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting
Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted
5 April 2001, DSR 2001:VII, p. 3243
WT/DS400/R • WT/DS401/R

Short Title Full Case Title and Citation
EC – Asbestos Panel Report, European Communities – Measures 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 (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU,
adopted 25 September 1997, as modified by Appellate Body Report
WT/DS27/AB/R, DSR 1997:III, p. 1085
EC – Bananas III (Guatemala
and Honduras)
Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by Guatemala and Honduras,
WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as
modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 695
EC – Bananas III (Mexico) Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by Mexico, WT/DS27/R/MEX,
adopted 25 September 1997, as modified by Appellate Body Report
WT/DS27/AB/R, DSR 1997:II, p. 803
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by the United States,
WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate
Body Report WT/DS27/AB/R, DSR 1997:II, p. 943
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 – Sardines Panel Report, European Communities – Trade Description of Sardines,
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by
Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451
EC – Tariff Preferences Panel Report, European Communities – Conditions 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, DSR 2004:III,
p. 1009
EC – Trademarks and
Geographical Indications
(Australia)
Panel Report, European Communities – Protection of Trademarks and
Geographical Indications for Agricultural Products and Foodstuffs, Complaint
by Australia, WT/DS290/R, adopted 20 April 2005, DSR 2005:X, p. 4603
India – Autos Panel Report, India – Measures Affecting the Automotive Sector,
WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V,
p. 1827
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 – Agricultural Products II Panel Report, Japan – Measures Affecting Agricultural Products, WT/DS76/R,
adopted 19 March 1999, as modified by Appellate Body Report
WT/DS76/AB/R, DSR 1999:I, p. 315
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 – Alcoholic Beverages II Panel Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/R,
WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by
Appellate Body Report WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R,
DSR 1996:I, p. 125
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and
Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, p. 1179
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
WT/DS400/R • WT/DS401/R

Short Title Full Case Title and Citation
Korea – Various Measures on
Beef
Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and
Frozen Beef, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as
modified by Appellate Body Report WT/DS161/AB/R, WT/DS169/AB/R,
DSR 2001:I, p. 59
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
Thailand – Cigarettes
(Philippines)
Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from
the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by
Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, p. 2299
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the
European Communities, WT/DS136/R and Corr.1, adopted 26 September
2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R,
DSR 2000:X, p. 4593
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 – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of
Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by
Appellate Body Report WT/DS406/AB/R
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 – Continued Zeroing Panel Report, United States – Continued Existence and Application of
Zeroing Methodology, WT/DS350/R, adopted 19 February 2009, as modified
as Appellate Body Report WT/DS350/AB/R, DSR 2009:III, p. 1481
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 – 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
US – Large Civil Aircraft (2nd
complaint)
Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft
(Second Complaint), WT/DS353/R, adopted 23 March 2012, as modified by
Appellate Body Report WT/DS353/AB/R
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/345
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, p. 2755
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and
Shrimp Products, WT/DS58/R and Corr.1, adopted 6 November 1998, as
modified by Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, p. 2821
WT/DS400/R • WT/DS401/R

Short Title Full Case Title and Citation
US – Shrimp
(Article 21.5 – Malaysia)
Appellate Body Report, United States – Import Prohibition 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 – Shrimp
(Article 21.5 – Malaysia)
Panel Report, United States – Import Prohibition of Certain Shrimp and
Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia,
WT/DS58/RW, adopted 21 November 2001, upheld by Appellate Body
Report WT/DS58/AB/RW, DSR 2001:XIII, p. 6529
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 Panel Report, United States – Subsidies on Upland Cotton, WT/DS267/R,
Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by
Appellate Body Report WT/DS267/AB/R, DSR 2005:II, p. 299
US – Zeroing (EC)
(Article 21.5 – EC)
Appellate Body Report, 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 and Corr.1,
adopted 11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (EC)
(Article 21.5 – EC)
Panel Report, 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/RW, adopted 11 June 2009,
as modified by Appellate Body Report WT/DS294/AB/RW, DSR 2009:VII,
p. 3117
WT/DS400/R • WT/DS401/R

LIST OF FREQUENTLY CITED EXHIBITS
Exhibit Short Title Full Title
JE-1 Basic Regulation Regulation (EC) No. 1007/2009 of the European Parliament and of
the Council on trade in seal pr oducts, adopted on 16 September
2009
JE-2 Implementing Regulation Commission Regulation (EU) No. 737/2010 laying down detailed
rules for the implementation of the Basic Regulation, adopted on
10 August 2010
JE-20 COWI 2008 Report COWI, Assessment of the Potential Impact of a Ban of Products
Derived from Seal Species (April 2008)
JE-21 COWI 2010 Report COWI, Study on Implementing Measures for Trade in Seal
Products, Final Report (January 2010)
JE-22 EFSA Scientific Opinion European Food Safe ty Authority ("EFSA"), Panel on Animal Health
and Welfare, Scientific Opinion on Animal Welfare Aspects of the
Killing and Skinning of Seals , The EFSA Journal (2007) 610,
pp. 1-122 (6 December 2007)
JE-24 NAMMCO Report (2009) NAMMCO Expert Group, Report on the Meeting on Best Practices
in the Hunting and Killing of Seals (February 2009)
JE-31 VKM Scientific Opinion 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
(8 October 2007)
CDA-33 IVWG Report (2005) S m i t h , B . e t a l . , " I m p r o v i n g H u m a n e P r a c t i c e i n t h e C a n a d i a n
Harp Seal Hunt: A Report of the Indepe ndent Veterinarians’
Working Group on the Canadian Harp Seal Hunt" (August 2005)
CDA-34 Daoust (2012) Daoust, P-Y., and Caraguel, C. , "The Canadian harp seal hunt:
observations on the effectiveness of procedures to avoid poor
animal welfare outcomes", Animal Welfare, vol. 21, pp. 445-455
(2012)
EU-31 Burdon (2001) Burdon, R.L. et al., "Veterinary re port: Canadian commercial seal
hunt, Prince Edward Island" (March 2001)
EU-32 Daoust (2002) Daoust, P.-Y., Crook, A., Bollinger, T.K., Campbell, K.G. and
Wong G., "Animal Welfare and the harp seal hunt in Atlantic
Canada", Canadian Veterinary Journal , vol. 43, pp. 687-694
(2002)
EU-34 Butterworth (2007) Butterworth, A. et al., "Welfare aspects of the Canadian seal hunt"
(31 August 2007)
EU-36 Richardson (2007) Richardson, M., Inherently Inhumane (August 2007)
EU-37 Butterworth (2012) Butterworth A., Richardson M., "A Review of animal welfare
implications of the commercial Canadian seal hunt" , Marine Policy
(2012)
EU-43 NOAH Report (2012) Martinsen, S., Sealing in Norway – Welfare Aspects, report for
NOAH, (6 December 2012)
WT/DS400/R • WT/DS401/R

ABBREVIATIONS USED IN THESE REPORTS
Abbreviation Description
3PCAP Third party conformity assessment
CAP Conformity assessment procedure(s)
CN Combined Nomenclature
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
EFSA European Food Safety Authority
EU Seal Regime The Basic Regulation and the Implementing Regulation combined together
GATT 1994 General Agreement on Tariffs and Trade 1994
IC Inuit or other indigenous communities
NGOs Non-governmental organizations
MFN Most-favoured nation
MRM Marine resource management
PPMs Processes and production methods
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
TAC Total allowable catch
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155
UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization
WT/DS400/R • WT/DS401/R

1 INTRODUCTION
1.1 Complaints by Canada and Norway
1.1. On 2 November 2009, Canada requested consultations with the European Union
1 pursuant to
Article 4 of the Understanding on Rules and Pr ocedures Governing the Settlement of Disputes
(DSU), Article XXII of the General Agreement on Tariffs and Trade (GATT 1994), and Article 14.1
of the Agreement on Technical Barriers to Trade (TBT Agreement), with respect to the measures
and claims set out below.
2 On 18 October 2010, Canada requested supplementary consultations
with the European Union.3
1.2. On 5 November 2009, Norway requested consultations with the European Union pursuant to
Article 4 of the DSU, Article XXII of the GATT 1994, Article 14 of the TBT Agreement, and
Article 19 of the Agreement on Agriculture, with respect to the measures and claims set out
below.
4 On 20 November 2009, Canada requested, pursuant to Article 4.11 of the DSU, to join in
the consultations requested by Norway on 5 November 2009. 5 On 19 October 2010, Norway
requested supplementary consultations with the European Union.6
1.3. On 28 and 29 October 2010, respectively, Ca nada and Norway requested to join each other's
supplementary consultations.7
1.4. Consultations were held on 15 December 2009, and supplementary consultations were held
on 1 December 2010. None of these consultations led to a mutually satisfactory resolution.8
1.2 Panel establishment and composition
1.5. On 11 February and 14 March 2011, respectively, Canada and Norway requested the
establishment of a panel pursuant to Article 6 of the DSU with standard terms of reference.
9
1.6. At its meeting 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
DSU.
10 At its meeting on 21 April 2011, the DSB established a panel pursuant to the request of
Norway in document WT/DS401/5, in accordance with Article 6 of the DSU, and agreed, as
provided for in Article 9 of the DSU in respect of multiple complainants, that the panel established
to examine the complaint by Canada would also examine the complaint by Norway.
11
1.7. The Panel's terms of reference are the following:
To examine, in the light of the relevant pr ovisions of the covered agreements cited by
the parties to the dispute, the matter refe rred to the DSB by Canada in document
WT/DS400/4, and by Norway in document WT/DS401/5, and to make such findings as
will assist the DSB in making the recommendations or in giving the rulings provided
for in those agreements.12
1.8. On 24 September 2012, Canada and Norway requested the Director-General to determine
the composition of the panel, pursuant to Article 8.7 of the DSU.

1 For consistency and ease of reference, these Reports will refer to "the European Union" or "EU" for all
events regardless of their date of occurrence.
2 WT/DS400/1, Canada's request for consultations.
3 WT/DS400/1/Add. 1, Canada's request for consultations. Canada made its supplemental request
pursuant to the same provisions as its original request for consultations with the addition of Article 1 of the
DSU, and Article 14.1 of the TBT Agreement instead of Article 14 of the TBT Agreement.
4 WT/DS401/1, Norway's request for consultations.
5 WT/DS401/3.
6 WT/DS401/1/Add. 1, Norway's request for consultations.
7 WT/DS400/3 and WT/DS401/4.
8 WT/DS400/4, Canada's request for the establishment of a panel; WT/DS401/5, Norway's request for
the establishment of a panel.
9 Canada's request for the establishment of a panel; Norway's request for the establishment of a panel.
11 See WT/DSB/M/295, para. 73, WT/DS400/5 and WT/DS401/6.
12 WT/DS400/5 and WT/DS401/6.
WT/DS400/R • WT/DS401/R

1.9. On 4 October 2012, the Director-General accordingly composed the Panel as follows:
Chairperson: Mr Luzius Wasescha

Members: Ms Elizabeth Chelliah
 Ms Patricia Holmes

1.10. Argentina, Canada (for WT/DS401), China, Colombia, Ecuador, Iceland, Japan, Mexico,
Namibia (for WT/DS401), Norway (for WT/DS400), the Russian Federation
13, and the
United States notified their interest in participating in the Panel proceedings as third parties.
1.3 Panel proceedings
1.3.1 General
1.11. After consultation with the partie s, the Panel adopted its Working Procedures
14 and
timetable on 23 October 2012. Upon request of the parties, the Panel modified the timetable on
4 March 2013 and 8 May 2013.
1.12. The Panel held a first substantive meet ing with the parties on 18-20 February 2013.
A session with the third parties took place on 19 February 2013. The Panel held a second
substantive meeting with the parties on 29-30 April 2013.
1.13. On 19 June 2013, the Panel issued the descriptive part of its Reports to the parties. The
Panel issued its Interim Reports to the parties on 3 September 2013. The Panel issued its Final
Reports to the parties on 8 October 2013.
1.3.2 Procedures for open hearings
1.14. At the organizational meeting held on 15 October 2012, the parties requested and the Panel
agreed that the substantive meetings with the Pa nel would be open to public viewing subject to
additional procedures to ensure the security and orderly conduct of the proceedings.
On 4 December 2012, the Panel submitted proposed additional working procedures to the parties
for comment. After it had received comments from the parties, the Panel adopted on 20 December
2012 additional Working Procedures for its open hearings at the first and second substantive
meetings of the Panel, providing for public viewing by means of simultaneous closed-circuit
television broadcasting of the proceedings to a separate room.
1.3.3 Requests for enhanced third-party rights
1.15. At the organizational meeting held on 15 October 2012, Canada made a request for
enhanced third-party rights to allow third-party access to both substantive meetings and all
written submissions. The European Union objected to Canada's request on the grounds that no
third party had submitted such a request. After considering Canada's request and the views of the
other parties, the Panel informed the parties on 23 October 2012 that it had decided to decline
Canada's request. In reaching its decision, the Pane l took particular note of the fact that Canada's
request was made by a party to the dispute, and that no third party had made a request for
enhanced rights. Furthermore, because the substantive meetings were to be open to public
viewing and thus would serve to provide third-party access to the Panel's substantive meetings,
the Panel did not consider it necessary to grant the enhanced third-party rights requested by
Canada.
1.16. Following the first substantive meeting with the parties on 18-20 February 2013, the Panel
received on 6 March 2013 a request from Namibia "to participate in the second substantive
meeting" in order to rebut comments made by the European Union at the first substantive meeting
regarding the Namibian seal hunt. After consulting the parties on Namibia's request, the Panel

13 On 18 October 2012, the Russian Federation notified its interest to participate as a third party in the
dispute. After receiving the parties' views on this notification, the Panel indicated on 5 November 2012 that the
Russian Federation would be added to the list of third parties. See also WT/DS400/5/Rev.1 and
WT/DS401/6/Rev.1, para. 5.
14 See the Panel's Working Procedures in Annex A-1.
WT/DS400/R • WT/DS401/R

informed Namibia that it had considered Namibia's request, taking into account Namibia's status
as a developing country and the material on the record relating to Namibia, which included
Namibia's third-party written submission, oral statement at the first substantive meeting and its
written responses to the Panel's questions. On the basis of its review and in light of the parties'
comments, the Panel decided that there was no need to provide Namibia with an opportunity for
further rebuttal and therefore declined Namibia's request to participate in the second substantive
meeting.
1.3.4 Amicus curiae submissions
1.17. On 25 January 2013, the Panel received an unsolicited amicus curiae submission from a
group of non-governmental organizations (NGOs).
15 On 29 January 2013, the Panel notified the
parties of the unsolicited amicus curiae submission and advised the parties that any amicus curiae
submission it received would be immediately forwarded to the parties. The parties would be invited
to provide their views on the admissibility and relevance of any amicus curiae submission either at
the first or second substantive meeting. The Panel further informed the parties that any
amicus curiae brief submitted to the Panel after th e second substantive meeting would be
automatically rejected, as the Panel was of the view that the consideration of any new information
at that stage of the proceedings would risk causing undue delays.
1.18. Subsequently, the Panel received four additional unsolicited amicus curiae submissions prior
to the second substantive meeting with the parties.
16
1.19. During the first substantive meeting with the parties, the European Union indicated that it
had incorporated the amicus curiae submission provided by the group of NGOs on 25 January 2013
as an integral part of its written submissions to the Panel.17
1.3.5 Preliminary ruling
1.20. On 19 December 2012, the European Union filed a request for a preliminary ruling to
remove two exhibits from the record. On 16 January 2013, both Canada and Norway responded to
the European Union's preliminary ruling request. In addition, the United States provided comments
on the European Union's request in its third-pa rty written submission pursuant to the Panel's
invitation to all third parties to do so.
1.21. The Panel issued its preliminary ruling to the parties, with a copy to third parties, on
29 January 2013, granting the European Union's request to remove the exhibits from the record
and inviting the complainants to submit replacement exhibits. After consulting with the parties, the
Panel requested the Chairperson of the DSB to circulate its preliminary ruling to all WTO Members.
The Panel further decided that the circulated ruling would be incorporated as an integral part of
the Panel's findings in its Reports.
18 The Panel's preliminary ruling was circulated on
5 February 2013 in documents WT/DS400/6 and WT/DS401/7.

15 This submission was made jointly by a group of the following organizations: Anima, Animal Rights
Action Network (ARAN), Animalia, Bont Voor Dieren (BVD), Change for Animals Foundation (CFAF),
Compassion in World Farming (CIWF), Djurens Rätt (Animal Rights Sweden), Eurogroup for Animals, Fondation
Brigitte Bardot (FFB), Fondation Franz Weber (FFW), Four Paws, Global Action in the Interest of Animals
(GAIA), Humane Society of the United States/Humane Society International (HSUS/HSI), International Fund
for Animal Welfare (IFAW), Lega Anti Vivisezione (LAV), Prijatelji životinja (Animal Friends Croatia), Respect for
Animals, Royal Society for the Prevention of Cruelty to Animals (RSPCA), Svoboda zvířat and World Society for
the Protection of Animals (WSPA).
16 The Panel received submissions from Robert Howse, Joanna Langille, and Katie Sykes, dated
11 February 2013; Pamela Anderson on behalf of People for the Ethical Treatment of Animals (PETA), dated
12 February 2013; the International Fur Trade Federation, dated 28 March 2013; and Jude Law, received
20 April 2013.
17 This submission is included on the record as Exhibit EU-81.
18 In its preliminary ruling, the Panel reserved the right to modify its ruling and observed that the ruling
would be incorporated as an integral part of the Panel's findings in its modified form if any modifications were
made.
WT/DS400/R • WT/DS401/R

1.3.6 Request under Article 13 of the DSU
1.22. On 16 January 2013, the same day that the complainants provided their comments on the
European Union's request for preliminary ruling, No rway requested the Panel to exercise its power
under Article 13 of the DSU to seek copies of the two documents that were the object of the
European Union's request for removal from the record. Further to the Panel's invitation, the Panel
received on 8 February 2013 comments from the European Union and Canada on Norway's
request, as well as third-party comments from the United States. On 8 April 2013, the Panel
informed the parties that the Panel did not consider it necessary to seek the information requested
by Norway. Consequently, the Panel denied Norway's request for the Panel to exercise its authority
under Article 13 of the DSU and indicated that the Panel would provide the reasons for its decision
in its Reports.
19
2 FACTUAL ASPECTS
2.1 Measures at issue20
2.1. The claims brought by Canada and Norway concern the European Union's measures relating
to seal products.
2.2. Canada submits that the measures at issue are the following21:
a. Regulation (EC) No. 1007/2009 of the European Parliament and of the Council, of
16 September 2009 on trade in seal products;
b. Regulation (EU) No 737/2010 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; and
c. For each of the measures referred to above, any amendments, replacements,
extensions, implementing measures or othe r related measures, administrative orders,
directives, or customs guidelines including those issued by individual European Union
member States.
2.3. Canada refers to the Basic Regulation and the Implementing Regulation together as the
"EU Seal Regime".
2.4. Norway submits that the measures at issue are the following22:
a. Regulation (EC) No. 1007/2009 of the European Parliament and of the Council on trade
in seal products, adopted on 16 September 2009 (the "Basic Regulation");
b. Commission Regulation (EU) No. 737/2010, laying down detailed rules for the
implementation of the Basic Regulation, adopted on 10 August 2010 (the "Implementing
Regulation");
c. Omissions to adopt adequate procedures for es tablishing that seal products conforming
to the relevant conditions, set forth in exceptions in the EU seal regime, may be placed
on the EU market; and
d. Any other related measures adopted by the EU or its member States that provide
guidance on, amend, supplement, replace, and/or implement the rules set forth in the
Basic Regulation and Implementing Regulation, whether adopted pursuant to these
regulations or otherwise.

19 The reasoning for the Panel's decision is provided in section 7 of these Reports.
20 The Panel's use of the term "measures" in this Section does not prejudge any disputed factual or legal
issues relating to that term.
21 Canada's request for the establishment of a panel.
22 Norway's request for the establishment of a panel.
WT/DS400/R • WT/DS401/R

2.5. Norway refers to the Basic Regulation an d the Implementing Regulation together as the
"EU Seal Regime".
2.2 Products at issue
2.6. This dispute concerns products, either processed or unprocessed, deriving or obtained from
seals, including meat, oil, blubber, organs, raw fur skins and tanned fur skins, as well as articles
(such as clothing and accessories, and omega-3 capsules) made from fur skins and oil.
23
2.7. In accordance with Article 3(3) of Regulation (EC) No. 1007/2009 of the European Parliament
and of the Council, the EU Commission issued a "Technical Guidance Note Setting Out an
Indicative List of the Codes of the Combined Nomenclature that May Cover Prohibited Seal
Products" (Technical Guidance Note). 24 The Technical Guidance Note includes products listed
according to their Combined Nomenclature (CN) codes. In its foreword, the Note explains that only
"those CN codes with the greatest likelihood of covering products subject to prohibition" are
included therein, and those listed are indicative.25 For example, it includes the following sections of
the CN codes:
 "live animals, animal products" (Section I);
 "animal or vegetable fats and oils and their cleavage products …" (Section III);
 "prepared foodstuffs, beverages, spirits and vinegar …" (Section IV);
 "products of the chemical or allied industries" (Section VI);
 "rawhides and skins, leather, fur skins and articles thereof; … handbags and similar
containers" (Section VIII);
 "textiles and textile articles" (Section XI);
 "footwear, headgear …" (Section XII);
 "… precious metals, metals clad with precious metal, and articles thereof; imitation
jewellery …" (Section XIV);
 "optical, photographic, … , medical or surgical instruments and apparatus; clocks and
watches; musical instruments; parts and accessories thereof" (Section XVIII);
 "miscellaneous manufactured articles" (Section XX); and
 "works of art, collectors' pieces and antiques" (Section XXI).
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1 Canada
3.1. Canada requests that the Panel find that the "EU Seal Regime":
a. is a technical regulation in the sense of Annex 1.1 of the TBT Agreement;
b. is inconsistent with the European Union's obligations under the TBT Agreement,
in particular Articles 2.1, 2.2, 5.1.2, and 5.2.1;

23 See Article 2(2) of the Regulation (EC) No. 1007/2009 of the European Parliament and of the Council;
Canada's first written submission, paras. 61-70; Norway's first written submission, paras. 86-102.
24 Technical guidance note setting out an indicative list of the codes of the combined nomenclature that
may cover prohibited seal products, Official Journal of the European Union, C Series, No. 356
(29 December 2010), (Exhibit JE-3).
25 Ibid. p. 44.
WT/DS400/R • WT/DS401/R

c. is inconsistent with the European Union's obligations under the GATT 1994, in particular
Articles I:1, III:4, and XI:1; and
d. is not justified by Article XX(a) or XX(b) of the GATT 1994.26
3.2. Canada requests, pursuant to Article 19.1 of the DSU, that the Panel recommend to the DSB
that it request the European Union to bring its measures into conformity with its obligations under
the TBT Agreement and the GATT 1994.27
3.3. In the event that the European Union's measures are not found to violate the
European Union's obligations under the TBT Agreement or the GATT 1994, Canada requests that
the Panel find that the EU Seal Regime has nullified and impaired benefits accruing to Canada in
the sense of Article XXIII:1(b) of the GATT 1994, and that the Panel recommend to the DSB that it
request the European Union to make a mutually satisfactory adjustment as required by
Article 26.1 of the DSU.
28
3.2 Norway
3.4. Norway requests that the Panel find that the "EU Seal Regime":
a. violates Articles I:1, III:4 and XI:1 of the GATT 1994;
b. is not justified by Article XX(a) or (b) of the GATT 1994;
c. violates Article 4.2 of the Agreement on Agriculture;
d. is a technical regulation in the sense of Annex 1.1 of the TBT Agreement;
e. violates Articles 2.2, 5.1.2 and 5.2.1 of the TBT Agreement; and
f. nullifies or impairs benefits accruing to Norway in the sense of Article XXIII:1(b) of the
GATT 1994, whether or not it conflicts with relevant provisions.
29
3.5. Norway therefore requests the Panel, pursuant to Article 19.1 of the DSU, to recommend that
the DSB request that the European Union bring the EU Seal Regime into conformity with the
European Union's obligations under the GATT 1994, the TBT Agreement and the Agreement on
Agriculture.
30
3.6. If, and to the extent, that the Panel finds that the EU Seal Regime does not conflict with
relevant WTO provisions, but nonetheless finds that the measures nullify or impair benefits
accruing to Norway in the sense of Article XXIII:1(b) of the GATT 1994, Norway requests the Panel
to recommend that the DSB request the Europe an Union to make a mutually satisfactory
adjustment as required by Article 26.1 of the DSU.31
3.3 European Union
3.7. The European Union requests the Panel to reject all the claims submitted by Canada and
Norway against the "EU Seal Regime".32

26 Canada's first written submission, para. 752; Canada's second written submission, para. 359.
27 Canada's first written submission, para. 753; Canada's second written submission, para. 360.
28 Canada's first written submission, para. 754; Canada's second written submission, para. 361.
29 Norway's first written submission, para. 1039; Norway's second written submission, para. 439.
30 Norway's first written submission, para. 1040; Norway's second written submission, para. 440.
31 Norway's first written submission, para. 1041; Norway's second written submission, para. 441.
32 European Union's first written submission, para. 628; European Union's second written submission,
para. 387. The European Union refers to its regulations at issue in this dispute as the "EU Seal Regime". (See
European Union's first written submission, para. 1).
WT/DS400/R • WT/DS401/R

4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflecte d in their executive summaries, provided to the
Panel in accordance with paragraph 19 of th e Working Procedures adopted by the Panel
(see Annexes B-1, B-2 and B-3).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of Colombia, Iceland, Japan, Mexico, Namibia and the United States are
reflected in their executive summaries, provided in accordance with paragraph 20 of the Working
Procedures adopted by the Panel (see Annexes C-1, C-2, C-3, C-4, C-5, and C-6). Argentina,
China, Ecuador and the Russian Federation did not submit written or oral arguments to the Panel.
6 INTERIM REVIEW
6.1. On 3 September 2013, the Panel submitted its Interim Panel Reports to the parties.
On 17 September 2013, Canada, Norway, and the European Union each submitted written
requests for the review of precise aspects of the Interim Reports. On 24 September 2013, Canada,
Norway, and the European Union submitted comments on a number of requests for review
presented by the other parties. None of the parties requested an interim review meeting.
6.2. In accordance with Article 15.3 of the DSU, this section of the Panel Reports sets out the
Panel's response to the arguments made at the interim review stage, providing explanations where
necessary. The Panel has modified aspects of its reports in light of the parties' comments where it
considered it appropriate to do so, as explained below. The Panel has also made certain technical
and editorial corrections and revisions to the Interim Panel Reports for the purposes of clarity and
accuracy. References to sections, paragraph numbers, and footnotes in this section relate to the
Interim Panel Reports, except as otherwise noted.
6.1 General comments
Reference to "Greenland"
6.3. The complainants observed that the Interim Reports variously refer to "Greenland",
"Greenland (Denmark)", and "Denmark (Greenla nd)" and requested that the Panel follow a
consistent approach. Specifically, Canada proposed that the Panel uniformly refer to
"Greenland (Denmark)" in the Reports. For its part, the European Union noted that the term
"Denmark (Greenland)" does not accurately de scribe the constitutional relationship between
Denmark and Greenland and requested that "Greenland" be used instead.
6.4. The Panel has used the term "Greenland" consistently throughout the Reports.
6.2 Preliminary question on commercial seal hunts (Section 7.3.2.3.2)
6.5. Norway made both general and specific comments regarding the emphasis given to certain
aspects of its hunting practices and regulations as well as practices in other seal hunts. Norway
expressed concern with the Panel's portrayal and characterization of the risks of inhumane killing
in seal hunts. In particular, Norway stated that evidence from the Norwegian hunt of "compliance
with humane seal hunting … is omitted or downplayed" and that, conversely, aspects of other
hunts "that demonstrate a failure to mitigate risks of inhumane killing … are underrepresented".
33
6.6. The Panel addresses below the parties' comments on section 7.3.2.3.2 of the Panel Reports,
additionally addressing comments made with respect to similar subjects in other parts of the
Reports where relevant to the Panel's review.
Use of the term "commercial hunts"
6.7. Norway requested the Panel to review the no menclature that it adopts to distinguish seal
hunts conforming to the IC and MRM exceptions an d those that do not. Norway argued that the

33 Norway's comments on the Interim Panel Reports, para. 40.
WT/DS400/R • WT/DS401/R

use of the terms "commercial hunts" and "IC and MRM hunts" could be taken "to reflect a moral
judgment with respect to the different hunts". 34 Norway further argued that "the Panel's own
findings demonstrate the falseness of the distinction created by the Panel between 'commercial'
and the other types of hunts".
35 Norway suggested that the Panel adopt 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". Canada suggeste d that the phrase "non-conforming hunts" be
used instead of the term "commercial hunts".
6.8. The European Union disagreed with this request and submitted that, based on the Panel's
usage of terms in different parts of its analysis, the use of the term "commercial hunts" is not
confusing.
6.9. The Panel determined that "commercial hunts" are those having commercial profit (rather
than direct use or consumption of seal products) as the sole or primary objective, along with
various other factual characteristics described in section 7.3.2.3.2.2 of the Reports. The Panel
further took note of evidence that such hunts are distinctly designated by a variety of sources as
"commercial", including within Canada and Norway. Where appropriate and as relevant to its
analysis, the Panel noted the existence of a commercial element in IC and MRM hunts. This does
not negate other relevant factual characteristics of hunts that conform to the IC and MRM
exceptions (such as the identity of the hunter or scale of the hunt). We therefore decline to revise
the terminology used in these Reports to distinguish different seal hunts.
Paragraph 7.184
6.10. Norway disputed the assertion that "relativ ely little information is provided regarding the
actual seal hunting conducted in … sealing countries" other than Norway and Canada. Norway
contended that substantial evidence is availa ble dealing with seal hunting in Greenland, and
requested that this evidence be noted and fully reflected by the Panel.
6.11. The European Union considered that the referenced passage deals with scientific information
concerning the animal welfare aspects of seal hunting. According to the European Union, the
documents cited by Norway provide some limited in formation on certain aspects of seal hunting in
Greenland, but the European Union maintained th at there is "hardly any scientific evidence
concerning the animal welfare outcomes of the IC hunts, including those conducted in
Greenland".
36
6.12. The Panel recalls EFSA's observations that "[v]ery little robust information is available … on
the efficacy of" different killing methods employed in seal hunts around the world 37 and that "the
vast majority of available data is from commercial hunts". 38 The Panel observes that it was
provided with a proportionally greater amount of information in the form of scientific and empirical
studies on the Canadian and Norwegian hunts. 39 Further, the Panel referred to available material
on seal hunting in Greenland inter alia in the context of its assessment of the characteristics of
IC hunts and the occurrence of struck and lost seal s. In light of the parties' comments, the Panel
made slight amendments to this paragraph for clarity.
Paragraph 7.188
6.13. Canada requested that the Panel clarify if its conclusion in paragraph 7.188 is that the
physical conditions of seal hunting are not only distinct from other wildlife hunts and the
commercial slaughter of farmed animals, but also pose challenges that are not present in these
other types of hunts. In particular, Canada inquired whether seal hunting is more challenging than
other types of wildlife hunts because of the physical conditions in which it is carried out.

34 Norway's comments on the Interim Panel Reports, para. 37.
35 Norway's comments on the Interim Panel Reports, para. 38.
36 European Union's comments on the Interim Panel Reports, para. 15.
37 EFSA Scientific Opinion, p. 24.
38 EFSA Scientific Opinion, p. 13.
39 See, e.g. IVWG Report (2005), (Exhibit CDA-33); Daoust (2012), (Exhibit CDA-34); VKM Scientific
Opinion, (Exhibit JE-31); Burdon (2001), (Exhibit EU-31); Daoust (2002), (Exhibit EU-32); and NOAH Report
(2012), (Exhibit EU-43).
WT/DS400/R • WT/DS401/R

6.14. The Panel addressed characteristics of the physical environment of seal hunts in connection
with the risks of poor animal welfare arising in th at specific context. The Panel also explained the
limitations on comparing the risks of poor animal welfare in seal hunts, which have been examined
in detail, to those in other wildlife hunts and commercial abattoirs. Therefore, the Panel considers
further comparison to the killing of other animals to be unnecessary.
Paragraph 7.191
6.15. Norway commented that other evidence indicating reasons for targeting the seal's head may
be more fully reflected in this paragraph, including for purposes of effective stunning and
preservation of pelt value. Canada took issue wi th the citation to the length of the limbs as a
reason for targeting the seal's head.
6.16. The reasons mentioned in paragraph 7.191 for targeting the seal's head are not exhaustive,
and correspond to the distinct characteristics of seals. The targeting of the head for purposes of
effective stunning and preservation of the value of skins is addressed elsewhere in the Reports
where appropriate. The Panel slightly amended this paragraph to reflect the referenced material in
light of the parties' comments.
Use of the term "clubbing instrument" (Paragraphs 7.193, footnote 262, 7.200,
and 7.204)
6.17. Norway requested that the Panel not use the term "clubbing instrument" to describe a wide
category of tools including both simple clubs an d the hakapik prescribed by Norwegian regulations
for the effective stunning of seals. Norway consider ed that this term does not convey the different
features, animal welfare implications, and regulatory treatment of distinct instruments to which it
is applied. Accordingly, Norway requested the Panel to replace the term "clubbing instrument" with
a more specific reference to the type of instrument to which the Panel refers.
6.18. The Panel employed the term "clubbing" to refer to the physical act of striking,
notwithstanding different dimensions and specific features of the tools used, in the same fashion
that "shooting" is a general term for the action of employing a firearm, notwithstanding the use of
rifles and ammunition of different power. The Panel therefore used the general designation
"clubbing instrument" to address those tools with which the action of "clubbing" is carried out,
without prejudice to the Panel's observation of the different features of hakapiks and clubs.
Relevant sections (e.g. regarding the applicatio n of stunning methods) address factors and risks
that pertain to the action of clubbing, including the use of hakapiks and slagkroks. The Panel made
revisions to clarify that clubs are not permitted as a stunning instrument in Norway, and considers
that further changes are not necessary.
Paragraphs 7.197-7.198 and 7.222
6.19. Norway proposed noting that not all seal hunting occurs under regulatory conditions that
require application of a humane killing method, specif ically referring to the practice of trapping or
netting in Greenland, and requested reference to its regulatory efforts to minimize poor animal
welfare in seal hunts.
6.20. The European Union argued that it has shown that neither Canada's nor Norway's
regulations prescribe genuinely humane killing methods. Therefore, the European Union contended
that the Panel should reject Norway's request.
6.21. The Panel notes that, as indicated in the heading preceding paragraphs 7.197-7.198, this
sub-section concerns the application of humane killing methods in seal hunts. Consistent with this
focus, the Panel considered evidence relating to sealing regulations insofar as it provides insight
into the conduct of seal hunts, especially rega rding the challenges of applying humane killing
methods and the risks of poor animal welfare. The Panel additionally points out that it addressed
the history and framework of Norway’s seal hunting regulations under the organization and control
of commercial seal hunts, which includes referenc e to Norway’s mandatory training of hunters and
inspectors. The practice of trapping seals underwater in certain hunts as well as the implications of
such practice for animal welfare have been noted in other parts of the Reports as appropriate.
Therefore, the Panel does not consider additional references to this evidence to be necessary.
WT/DS400/R • WT/DS401/R

Paragraphs 7.216, 7.236, 7.268, 7.273, and 7.333
6.22. Norway made various comments concerning hunting regulations and practices within
Norway and elsewhere. Norway requested that th e Panel include reference in paragraph 7.216 to
the prohibition in its regulations of shooting seals in water, and further requested the Panel to
clarify the link between shooting seals in open water and the struck and lost rates in the
Greenlandic hunt. Norway also requested clarification of its regulatory scheme in paragraph 7.236,
particularly the prohibitions against the use of clubs, nets, as well as the shooting of seals in
water. Norway requested explicit reference in paragraph 7.268 to the animal welfare problems
related to open water hunting and trapping and netting. Norway requested revision of
paragraph 7.273, which it considered to imply that "the IC hunts described by the Panel are
'no different' than other seal hunts such as the Norwegian West Ice hunt".
40 Norway also
contended that the hunting methods used in the Norwegian and Canadian commercial hunts are
not "similar", specifically citing its prohibition ag ainst the use of nets and shooting seals in water.
Finally, Norway requested modification of paragrap h 7.333 to reflect that clubs are prohibited in
Norway.
6.23. The European Union commented that the fact that Norway's regulations prohibit shooting
seals in water does not imply that struck and lost is not a problem in the Norwegian hunt. The
European Union added that shooting seals near water is not prohibited, and that the Panel should
specify that shooting seals in water is allowed in Canada's commercial hunt. With respect to
paragraph 7.273, the European Union considered that the difference highlighted by Norway is
already mentioned and therefore no amendment is needed.
6.24. The Panel explained its reference to an d assessment of seal hunting regulations in
connection with Norway's comments on paragraphs 7.197-7.198 and 7.222. In light of the parties'
comments, the Panel added reference to the Norweg ian prohibition on shooting seals in water in
footnote 324 of the Panel Reports as well as a cross-reference in footnote 329 of the Panel Reports
to the Panel's discussion of hunting methods in Greenland. The Panel has also modified
paragraphs 7.236 and 7.333 to reflect the use of different instruments in different countries.
Finally, the Panel does not consider revision to paragraph 7.273 to be necessary.
Footnote 308 to paragraph 7.216 (as we ll as footnote 259 to paragraph 7.196;
footnote 304 to paragraph 7.214; and footnote 324 to paragraph 7.221)
6.25. Norway requested that these references to the inspector's report in Appendix K of the NOAH
Report (2012) be supplemented to mention that the referenced voyage "involved exceptional
conduct" that resulted in criminal prosecutions.
41 The European Union submitted that it rebutted
Norway's assertion that the inspection report in question "involved exceptional conduct" and
therefore called on the Panel to reject Norway's request.
6.26. The Panel notes that Norway's comments concern footnote references to an inspection
report from a Norwegian hunting expedition of th e Kvitungen vessel. The principal statements to
which each footnoted reference corresponds explain the nature of the reference being made. Thus,
paragraph 7.216 states that "there are varying indications from sealing inspectors of the extent to
which struck and lost is a problem in the Norwegian hunt", citing the inspection report in question
along with the report of another sealing inspec tor. In the footnote to paragraph 7.196, the
Kvitungen report is cited amongst several others after the statement that "[i]ndications from both
participants in the hunts and veterinary experts recognize the heavy demands and difficult
conditions of seal hunts". Similarly, in paragraphs 7.214 and 7.221, reference to the Kvitungen
report corresponds to statements for which the report provides support and is made in conjunction
with multiple other cited sources of evidence. Ther efore, the Panel does not consider it necessary
to supplement these references.
Footnote 317 to paragraph 7.218
6.27. With respect to hooking/gaffing seals aboard vessels, Norway requested that the Panel refer
to the specific conditions under which this practice may occur according to Norwegian regulations.

40 Norway's comments on the Interim Panel Reports, para. 63.
41 Norway's comments on the Interim Panel Reports, para. 53.
WT/DS400/R • WT/DS401/R

Norway also requested inclusion of its explanation of the conclusion of the Ministry of Fisheries and
Coastal Affairs referenced in this footnote.
6.28. The European Union submitted that it ha d rebutted Norway's alleged motivation for not
amending the provisions of its hunting regulations on the practices of hooking/gaffing seals. The
European Union requested that, should the Panel accede to Norway's request, it also reflect the
European Union's submissions in this regard.
6.29. The Panel referred to the relevant condit ions under which seals may be hooked aboard
vessels prior to exsanguination under Norwegian regulations and made a minor amendment on the
basis of Norway's comments. Further, the Pane l referred to the conclusion of the Norwegian
Ministry of Fisheries and Coastal Affairs to indicate the ultimate disposition of this matter. The
Panel therefore does not find it necessary to revise this footnote.
Paragraphs 7.219-7.221
6.30. Norway requested revision of these paragraphs to reflect "the distinct approach taken to
monitoring under Norway's sealing regulations".
42 Norway also requested reference to evidence
that greater oversight leads to a lower likelihood of animal welfare problems. Finally, Norway
requested replacement of the term "government inspector" in paragraph 7.220 with the term
"independent veterinary inspector".
6.31. The European Union argued that the inspectors on board Norwegian vessels are government
employees who represent the Norwegian government and take direct orders from the Fisheries
Directorate. According to the European Union, th erefore, such inspectors cannot be considered
"independent".
6.32. The Panel added reference in these paragraphs regarding the animal welfare benefit of
monitoring and enforcement as well as monitoring in Greenland. The Panel notes that these
paragraphs primarily concern the feasibility and/or difficulty of monitoring and enforcement of the
application of humane killing methods, and specif ically draw upon evidence pertaining to the
Norwegian hunt with added reference to the comments of Mr Danielsson. The Panel therefore does
not consider further revision of these paragraphs to be necessary.
6.33. Additionally, as a factual matter, inspectors are "government-mandated" and report to the
Norwegian Directorate of Fisheries.
43 Apart from its factual accuracy, the current wording conveys
the authority of the inspector (as distinct from, for instance, an independent observer 44).
Therefore, no change was made in this respect.
6.3 Specific comments on other parts of the Reports
Paragraphs 7.154, 7.597, and 7.608
6.34. The complainants requested the Panel to re view paragraph 7.154 of the Interim Reports to
note explicitly that the groups of products to be compared in Table 1 are those contained in
cells C+H ( all Canadian seal products), cells A+F ( all domestic seal products) and cells D+I ( all
seal products from Greenland). Norway requested that appropriate references also be made to the
cells in Table 1 in the context of the Panel's analysis of its claims under Articles I:1 and III:4 of the
GATT 1994.
6.35. Further to the complainants' comments, the Panel made modifications in paragraphs 7.154,
7.597, and 7.608 of its Reports.
Paragraphs 7.159, 7.161, and footnotes 195, 891
6.36. The complainants noted that different figures were used in the Panel Reports to describe the
proportion of seal products originating in Cana da that could qualify under the IC exception.

42 Norway's comments on the Interim Panel Reports, para. 56.
43 See Norway's second written submission, para. 297.
44 See Norway's response to Panel question No. 61.
WT/DS400/R • WT/DS401/R

In particular, Canada requested the Panel to refer to its submissions and evidence referencing
Canada's official statistical data. The European Union expressed reservations regarding the
revision of the figures in the Interim Reports but did not object to the Panel adding a reference to
Canada's submission to provide a more complete description of Canada's arguments.
6.37. As the figures at issue relate to the proportion of IC hunts in Canada, the Panel modified the
above-mentioned paragraphs and footnotes of its Reports to make specific reference to the data
provided by Canada.
Paragraph 7.164
6.38. Norway requested the Panel to complete its findings in paragraph 7.164 with additional
evidence, in particular regarding how the IC requirements apply specifically to Greenland. The
European Union requested the Panel to reject No rway's request because the conditions of the
IC exception are origin-neutral and do not apply specifically to Greenland; it is therefore
unnecessary for the Panel to make more factual findings on an issue that is not disputed by the
European Union.
6.39. The Panel notes that evidence on Greenland is referenced in a number of paragraphs of the
Reports. Moreover, given our finding that all, or virtually all, seal products from Greenland may be
eligible under the IC exception, we decline Norway's request to add references to evidence on
Greenland in paragraph 7.164 of the Interim Reports.
Paragraph 7.275
6.40. Norway suggested replacement of the word "can" with the word "do" in the third line of this
paragraph. The European Union considered that using the verb "do" would convey the impression
that all IC hunts, by definition, cause the pain and suffering referenced in paragraph 7.275. The
European Union argued that the fact that some hunting methods used by Inuit communities are
not consistent with humane killing methods does not mean that all IC hunts in every single case
result in poor animal welfare.
6.41. The Panel agrees with the European Union that Norway's suggested revision would alter the
meaning of the sentence as currently phrased. The Panel therefore declines to make the requested
change.
Paragraphs 7.358, 7.363, 7.366, 7.376, 7.421, and 7.629
6.42. Norway made various comments relating to the characterization and summarization of its
arguments, in particular with respect to the objective pursued by the EU Seal Regime.
6.43. The Panel made modifications to paragraphs 7.363, 7.366, 7.421, and accompanying
footnotes to reflect Norway's comments.
Paragraph 7.386
6.44. Norway drew attention to recital (21) of the preamble of the Basic Regulation and requested
reflection of the text of this recital in the Panel's analysis. The European Union submitted that the
passage of recital (21) cited by Norway has a limited purpose of setting out the justification of the
Basic Regulation in light of the principle of subsidiarity under EU law. According to the
European Union, the recital does not purport to explain why the EU legislators chose the
harmonizing measures provided in the Basic Regulation, rather than other possible harmonizing
measures.
6.45. The Panel notes that the objective of in ternal market harmonization is addressed in
paragraph 7.371, as amended by the Panel in the course of the interim review. Therefore, the
Panel does not consider further reference to this objective to be necessary.
WT/DS400/R • WT/DS401/R

Section 7.3.3.1.2 (paragraphs 7.372-7.411)
6.46. Norway sought inclusion of a reference to the European General Court decision in Inuit
Tapiriit Kanatami and others v. Commission with respect to the objective of the EU Seal Regime.
The European Union considered this judgment of the European General Court to be of very limited
relevance for this dispute and, in particular, with regard to the issue raised by Norway.
6.47. In Inuit Tapiriit Kanatami and others v. Commission (Case T-526/10), the European General
Court addressed claims as to the alleged "illegality" of the Basic Regulation under EU law. More
particularly, the Court examined the sufficiency of the Basic Regulation's legal basis under a
specific provision of EU law and whether the obje ctive of the Basic Regulation was such that it
could legitimately be adopted on the basis of that provision.45 Because the European General Court
examined the objective of the Basic Regulation in the context of a substantively distinct inquiry
with different claims and legal provisions at issue than those in the present case, the Panel
declines to accept Norway's request.
Paragraphs 7.458 and 7.478
6.48. Canada noted in its comments that the last sentences of paragraphs 7.458 and 7.478 were
in its view contradictory. Canada requested the Panel to harmonize the two paragraphs and
indicated its preference for the formulation in paragraph 7.458. The European Union argued that
there is no contradiction between the sentence in 7.458 and the findings reported in
paragraphs 7.459, 7.460, and 7.478.
6.49. The Panel does not consider the statements in these paragraphs to be contradictory; the
Panel made minor revisions to paragraph 7.458 for clarity.
Paragraphs 7.588-7.609 (Sections 7.4.2 and 7.4.3)
6.50. Norway argued that the Panel's decision to address Canada's claim under Article 2.1 of the
TBT Agreement before addressing the complainants' claims under Articles I:1 and III:4 of the
GATT 1994 resulted in Norway's position being overlooked in both parts of the Reports.
Specifically, Norway expressed concern regarding the Panel's treatment and disposition of its
discrimination claims under Articles I:1 and III:4 of the GATT 1994 in view of the cross-referencing
made in paragraphs 7.594 and 7.597 to the Panel's analysis of Canada's claim under Article 2.1 of
the TBT Agreement.
6.51. The Panel added references to the arguments and evidence submitted by Norway in support
of its claims under Articles I:1 and III:4 of the GATT 1994 in paragraphs 7.594 and 7.597 of the
Reports, and deleted some of the cross-references to Section 7.3.2 of the Reports.
Other paragraphs and footnotes
6.52. Finally, the Panel made a number of addition al modifications to its Reports further to the
comments by Canada
46 and Norway 47, in cases where the Panel considered that the proposed
changes improved the clarity of the parties' arguments or the overall accuracy of the Reports.
6.4 Additional documents submitted by th e European Union with its comments on the
Interim Reports
6.53. The European Union submitted with it s comments on the Interim Reports additional
documents consisting of letters between official s from the European Commission on the one hand,

45 See, e.g. paras. 22 and 64 of the General Court Judgment.
46 Changes were made in paragraphs 1.3, 1.15, 1.16, 7.2, 7.4, 7.11, 7.30, 7.31, 7.51, 7.90, 7.91,
7.130, 7.144, 7.154, 7.168, 7.191, 7.200, 7.206, 7.216, 7.220, 7.229, 7.248, 7.266, 7.272, 7.275, 7.285,
7.294, 7.311, 7.331, 7.335, 7.336, 7.342, 7.381, 7.400, 7.408, 7.423, 7.425, 7.463, 7.518, 7.522, 7.587,
7.588, 7.594, 7.597, 7.608, 7.612, 7.616, 7.622, 7.650, 7.658, and 7.668; and footnotes 44, 58, 70, 75, 76,
99, 109, 111, 113, 157, 158, 163, 201, 222, 240, 254, 264, 276, 321, 350, 356, 415, 420, 462, 517, 535,
536, 547, 624, 655, 711, 765, 808, 918, 919, and 964.
47 Changes were made in paragraphs 7.4, 7.40, 7.166, 7.192, 7.194, 7.331, 7.363, 7.366, 7.371,
7.421, 7.470, and 7.617; and footnotes 53, 202, 598, 604, and 960.
WT/DS400/R • WT/DS401/R

and the Canadian Government as well as the authorities of Nunavut on the other hand.
The European Union noted that these documents reflected recent developments of relevance to
the state of the requests made by entities to become recognized bodies entitled to deliver
attesting documents for placing seal products on the EU market. The European Union requested
the Panel to make reference to these new documents in its reports.
48
6.54. The complainants objected to the European Union's request on the grounds that the
information provided by the European Union constituted new evidence that should have been
introduced earlier in the proceedings in accordance with the Panel's working procedures. The
complainants further argued that the submission of evidence at this late stage of the proceedings
was inconsistent with the requirements of due pr ocess, and that the European Union's failure to
abide by such requirements could not be remedied at the interim review stage.
6.55. The Panel considers that the documents attached to the European Union's comments on the
Interim Reports constitute new evidence. The lette rs submitted by the European Union are dated
May 2013 and, as such, they could have been introduced at an earlier time in the proceedings
in accordance with the Panel's working procedures. 49 Further, the Panel recalls that in
EC - Sardines, the Appellate Body stated that "[t]he interim review stage is not an appropriate
time to introduce new evidence". 50 For these reasons, the Panel declines to amend relevant parts
of its Reports to reflect the aforementioned information submitted by the European Union.
7 FINDINGS
7.1 Overview of the dispute
7.1. This dispute concerns a 2009 European Union measure relating to the sale of seal products
(EU Seal Regime). Under the measure, the placing of seal products on the market is prohibited in
the European Union unless they satisfy certain conditions. One such condition applies to seal
products obtained from seals hunted by Inuit or indigenous communities (IC condition). The other
applies to seal products obtained from se als hunted for marine resource management
(MRM condition). Travellers may also be able to bring seal products into the European Union in
limited circumstances (Travellers condition). The Regime lays down specific requirements for all
three conditions.
7.2. Canada and Norway claim that the EU Seal Regime violates the European Union's various
obligations under the GATT 1994 and the TBT Agreemen t. First, the complainants allege that the
IC and MRM conditions of the EU Seal Regime violate the non-discrimination obligations under
Articles I:1 and III:4 of the GATT 1994. Canada also presented a claim under Article 2.1 of the
TBT Agreement with respect to the IC and MRM conditions. The complainants argue that the
IC and MRM conditions accord seal products from Canada and Norway (imported products)
treatment less favourable than that accorded to like seal products of domestic origin, mainly from
Sweden and Finland (domestic products) as well as those of other foreign origin, particularly from
Greenland (other foreign products). Second, the complainants argue that the EU Seal Regime
creates an unnecessary obstacle to trade that is inconsistent with Article 2.2 of the TBT Agreement
because it is more trade restrictive than necessary to fulfil a legitimate objective. Third, the
complainants argue that certain procedural requirements under the EU Seal Regime violate the
requirements for conformity assessment under Article 5 of the TBT Agreement. Fourth, the
complainants claim that each of the IC, MRM, and Travellers conditions of the EU Seal Regime
impose quantitative restrictions on trade inconsistently with Article XI:1 of the GATT 1994. Finally,
the complainants submit 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.

48 The European Union proposed that a reference to the new documents be added for instance
in footnote 198 to paragraph 7.162 of the Interim Reports.
49 According to Rule 7 of the Panel's working procedures, "[e]ach party shall submit all factual evidence
to the Panel no later than during the first substantive meeting, except with respect to evidence necessary for
purposes of rebuttal, answers to questions or comments on answers provided by the other party(ies).
Exceptions to this procedure shall be granted upon a showing of good cause."
50 Appellate Body Report, EC – Sardines, para. 301.
WT/DS400/R • WT/DS401/R

7.3. The European Union asserts that the measure is fully consistent with its WTO obligations. The
European Union claims that the EU Seal Regime is aimed at addressing public moral concerns on
the welfare of seals. The EU Seal Regime is thus not based on conservation concerns. The
complainants contest the objective of the meas ure as put forward by the European Union.
According to the complainants, the measure pursues a multiplicity of objectives such as the
protection of seal welfare; the protection of the social and economic interests of Inuit or
indigenous communities; and the promotion of sustainable marine resource management. Based
on its identified objective, the European Union argues that any inconsistencies of the measure
under the GATT 1994 should be justified under the general exceptions provisions of the
GATT 1994, namely Articles XX(a) and XX(b), because the measure is necessary to protect public
morals (regarding the welfare of seals) and to protect seals' health, respectively. Further, the
European Union argues that any distinction ma de under the EU Seal Regime, for instance a
distinction based on the type and purpose of the hunt, is legitimate within the meaning of
Article 2.1 of the TBT Agreement. The European Union also contends that no other measure can
protect its public moral concerns on seals at the same level as does the current Regime.
7.4. Factually, the parties debated extensively whether humane killing methods can be applied,
monitored, and enforced in seal hunts. The European Union's justification of its measure is based
on the premise that the application and enforcement of humane killing methods in seal hunting are
not always feasible because of inter alia the unique environmental conditions in which the hunting
takes place. The European Union asserts that du e to the "inherent" inhumane nature of the hunts,
particularly hunts conducted for commercial purposes, the European public is ethically and morally
repelled by the presence on the EU market of se al products. Hence, a general ban as designed
under the current measure is the only effective way to protect the public moral concerns. The
complainants argue that humane killing methods can be properly enforced in seal hunts. Further,
they underline that as the current measure does not condition market access on the humaneness
with which seals are killed, seal products derived from seals killed inhumanely may be allowed on
the EU market. This, in their view, proves that the current measure is not capable of protecting the
welfare of seals. Both sides have submitted a voluminous amount of evidence, mostly based on
scientific studies and expert statements, pertaining to whether the application and monitoring of
humane killing methods can be enforced in seal hunting practices.
7.5. Legally, the Panel is presented with the task of inter alia examining the obligations under, as
well as the relationship between, the GATT 1994 an d the TBT Agreement. In the current dispute,
the two complainants brought claims under both agreements, namely Articles I:1, III:4, and XI:1
of the GATT 1994 as well as Articles 2.2, 5.1.2 and 5.2.1 of the TBT Agreement. Canada also
brought a claim under Article 2.1 the TBT Agreement.
7.6. These Reports are structured in the following order: (i) preliminary matters; (ii) the
measure's qualification as a technical regulation; (iii) claims under the TBT Agreement; (iv) claims
under the GATT 1994 and the Agreement on Agriculture; (v) non-violation claim under
Article XXIII:1(b) of the GATT 1994; and (vi) our conclusions and recommendations.
7.2 Preliminary matters
7.2.1 Description of the measures at issue
7.7. As described in the Factual Aspects sectio n above, Canada and Norway are challenging the
following two EU legal instruments in this dispute:
a. Regulation (EC) No. 1007/2009 of the Euro pean 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)
51; 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

51 Exhibit JE-1.
WT/DS400/R • WT/DS401/R

and of the Council on trade in seal products, Official Journal of the European Union,
L Series, No. 216 (17 August 2010).52
7.8. For the purpose of this dispute, the Panel will use the following terms: "the Basic Regulation"
for Regulation (EC) No. 1007/2009, "the Implementing Regulation" for Commission Regulation
(EU) No. 737/2010, and "the EU Seal Regime" for these two legal instruments combined
together.53
7.9. We briefly describe the contents of the two Regulations below.
7.2.1.1 The Basic Regulation
7.10. The Basic Regulation consists of a preamble (21 recitals) and eight provisions ((1) "Subject
matter"; (2) "Definitions"; (3) "Conditions for placing on the market"; (4) "Free movement";
(5) "Committee procedure"; (6) "Penalties and enfo rcement"; (7) "Reporting"; and (8) "Entry into
force and application").
7.11. The preamble of the Basic Regulation refers to inter alia concerns and observations on seal
hunting as well as seal products resulting from such hunts. The Panel will examine specific parts of
the preamble in the context of its examination of the parties' claims and arguments.
7.12. Article 3 of the Basic Regulation lays down the 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 shall not undermine the achievement of the
objective of this Regulation.
…
7.13. 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" (IC hunts). The
provision also states that for imported products, these conditions are applied at the time or point
of import.

52 Exhibit JE-2.
53 See section 3 above regarding the parties' usage of "EU Seal Regime" to refer to the measures at
issue.
WT/DS400/R • WT/DS401/R

7.14. Article 3(2) describes two situations where the condition set out in paragraph 1 does not
apply: first, the import of seal products is allowed where it is of an occasional nature and consists
exclusively of goods for the personal use of travellers or their families (Travellers imports);
second, the placing on the market of seal products is 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 (MRM hunts).
7.15. Specific requirements for each of the three conditions for importing and/or placing seal
products on the market are elaborated in the Implementing Regulation.
7.2.1.2 The Implementing Regulation
7.16. The Implementing Regulation comprises a preamble (13 recitals) and twelve provisions.
7.17. The preamble refers to the need to specify detailed requirements for the import and placing
on the market of certain seal products and the principles to be applied in setting out procedures
for adequate verification of compliance with such requirements, as well as for the control of
attesting documents.
7.18. Unlike the Basic Regulation, a specific title is not assigned to each of the provisions in the
Implementing Regulation. The purpos e of the Implementing Regulation is set forth in Article 1: to
"lay [] down detailed rules for the placing on the market of seal products pursuant to Article 3" of
the Basic Regulation.
7.19. Articles 3, 4, and 5 of the Implementing Regulation address the specific requirements for
each of the three conditions mentioned in Articles 3(1) and 3(2) of the Basic Regulation.
7.20. Specifically, Article 3 sets out that, to fall under the IC hunts category, seal products must
originate from seal hunts that satisfy the following three conditions:
a. seal hunts conducted by Inuit
54 or other indigenous communities55 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.
7.21. Article 4 sets out that, to fall under the Travellers imports category, 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 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 … those travellers present to the customs
authorities … the following documents:
i. a written notification of import; and

54 "Inuit" is defined as "indigenous members of the Inuit homeland, namely those arctic and subarctic
areas where, presently or traditionally, 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 (Russia)". (Basic Regulation, Article 2(4)).
55 "Other indigenous communities" is defined as "communities in independent countries who are
regarded as indigenous on account of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or colonisation or the establishment
of present State boundaries and who, irrespective of their legal status, retain some or all of their own social,
economic, cultural and political institutions". (Implementing Regulation, Article 2(1)).
WT/DS400/R • WT/DS401/R

ii. a document giving evidence that the products were acquired in the third country
concerned.
7.22. Article 5 provides that, to fall under the MRM hunts category, seal products must originate
from seal hunts that satisfy the following three conditions:
a. seal hunts conducted under a national or regional natural resources management plan
which uses scientific population models of marine resources and applies the ecosystem-
based approach;
b. seal hunts which does [ sic] not exceed the total allowable catch quota established in
accordance with the plan referred to in point (a); and
c. seal hunts the by-products of which are placed on the market in a non-systematic way
on a non-profit basis.
56
7.23. Articles 3(2) and 5(2) require that, at the time of placing on the market pursuant to
Articles 3(1) and 3(2)(b) of the Basic Regulati on and Articles 3 and 5 of the Implementing
Regulation (i.e. products resulting from IC and MRM hunts), the seal product be accompanied by
the attesting document referred to in Article 7(1) of the Implementing Regulation.
7.24. Articles 6 through 10 prescribe the procedural requirements that must be met to place seal
products on the market. For a seal product to be placed on the market, it must be accompanied by
an attesting document (Article 7) issued by a recognized body (Article 6). A reference to the
attesting 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.
7.2.2 Consideration of the measures at issue
7.2.2.1 Single or multiple measure(s)
7.25. As noted above, the EU Seal Regime consis ts of the Basic Regulation and the Implementing
Regulation. The Basic Regulation was adopted by the European Parliament and Council of the
European Union on 16 September 2009; it sets fort h the "conditions for placing on the market" of
seal products. Pursuant to Article 3(4) of the Basic Regulation, the Implementing Regulation was
subsequently adopted by the European Commission on 10 August 2010. The Implementing
Regulation lays down the specific requirements necessary for implementing the rules in the Basic
Regulation.
7.26. Therefore, 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.
In particular, the Implementing Regulation does not operate on its own as it is a regulation
adopted to "implement" the rules in the Basic Regulation. The parties agree that the EU Seal
Regime should be treated as a single measure.
57 Accordingly, we consider that these two legal
instruments must be examined as an integrated whole.
7.27. Treating both the Basic and Implementing Regulations as a single measure does not mean
that different aspects of the EU Seal Regime cannot be challenged under different provisions of the
WTO covered agreements. In fact, we note that in presenting their claims that the EU Seal Regime
is inconsistent with several provisions of the GATT 1994 and the TBT Agreement, the complainants
focus at times on specific aspects of the EU Seal Regime and at other times on the EU Seal Regime
as a whole.
58

56 "Placing on the market on a non-profit basis" is defined as "placing on the market for a price less than
or equal to the recovery of the costs borne by the hunter reduced by the amount of any subsidies received in
relation to the hunt". (Implementing Regulation, Article 2(2)).
The Regulations do not provide a definition for "placing on the market in a non-systematic way".
57 Parties' responses to Panel question No. 2.
58 For example, the complainants focus on the IC hunts category under the measure with respect to
their claim under Article I:1 of the GATT 1994 and on the MRM hunts category with respect to their claim under
WT/DS400/R • WT/DS401/R

7.2.2.2 Characterization of the measure at issue
7.28. Despite their common understanding that the EU Seal Regime should be treated as a single
measure, the parties disagree on how the EU Seal Regime should be characterized for the purpose
of this dispute. Briefly stated, the complainants argue that the EU Seal Regime provides for three
sets of specific requirements concerning the impo rtation and/or the placing on the market of seal
products. The respondent submits that the EU Seal Regime consists of a general ban on seal
products with certain exceptions.
7.29. As it is important for the Panel to start its analysis with the proper understanding of the
measure at issue, we now turn to the question of how the EU Seal Regime must be characterized.
7.2.2.2.1 Main arguments of the parties
7.2.2.2.1.1 Complainants
7.30. Canada argues that the EU Seal Regime should be viewed as setting out requirements
concerning the importation of seal products.
59 Article 3 of the Basic Regulation and Articles 3, 4,
and 5 of the Implementing Regulation establish a comprehensive regime of conditions that is
simultaneously restrictive and permissive and determines when seal products may be imported
and placed on the market in the European Union, or are prevented from accessing it. According to
Canada, these provisions, when read together ba sed on their design, structure, and expected
operation, lead to the conclusion that the EU Seal Regime is accurately described as "requirements
concerning the importation of seal products". 60 The texts of the Regulations do not support the
characterization of the measure as a general ban wi th certain exceptions as the term "prohibition"
or "ban" is not used.61
7.31. Canada submits that the conditions under the EU Seal Regime are divided into three
categories or sets of requirements: seal products derived from IC hunts; seal products derived
from MRM hunts; and seal products imported as Travellers imports.
62 Seal products that satisfy the
conditions pertaining to the Travellers imports are eligible to be imported; in the case of IC hunts
and MRM hunts, seal products are eligible to be imported and placed on the market. Seal products
that do not fall within any of these categories are not eligible to be imported or placed on the
market, although neither the Basic Regulation no r the Implementing Regulation states expressly
that such products are prohibited from importation or from being placed on the market.
7.32. Norway submits that the EU Seal Regime does not comprise a ban (on the sale or import of
seal products) with separate exceptions.
63 Rather, the Regulations combine permissive and
prohibitive elements both formally and in substa n c e , l a y i n g d o w n t h r e e s e t s o f m a r k e t a c c e s s
conditions that constitute restrictive gateways for the sale and importation of seal products.
Particularly, neither the Basic Regulation nor the Implementing Regulation contains the term
"General Ban" as distinct from "exceptions".
7.33. Norway submits that, in assessing whether a measure imposes a trade "restriction", neither
the generality of a rule nor its association with an exception is important.
64 Rather, what matters is
whether a measure imposes conditions that, by nature or effect, place limits on trade. 65 Hence, in
characterizing a measure for purposes of WTO ob ligations addressing trade restrictions, a panel
must ascertain whether a measure imposes a "limiting condition" and, if so, assess whether that
condition is WTO-consistent. Each of the three requirements in the EU Seal Regime includes a

Article III:4 of the GATT 1994. As regards their claim under Article 2.2 of the TBT Agreement, the complainants
focus on the EU Seal Regime as a whole.
59 Canada's response to Panel question No. 1.
60 Canada's response to Panel question No. 1, para. 24
61 Canada's response to Panel question No. 1.
62 The parties use different terms for these three conditions contained in the Regulations. For the
purpose of these Reports, the Panel will use the terms set out in paras. 7.13-7.14 and 7.56 for these
conditions.
63 Norway's first written submission, paras. 158-170; response to Panel question No. 1; opening
statement at the first meeting of the Panel, paras. 7-16.
64 Norway's opening statement at the first meeting of the Panel, paras. 14-15.
65 Norway's opening statement at the first meeting of the Panel, para. 14 (referring to Appellate Body
WT/DS400/R • WT/DS401/R

series of specific requirements that place limits on EU market access with respect to both the
placing on the market and the import of products . According to Norway, the subject matter of this
dispute is these specific limiting conditions, which are the legal source of the market access
restrictions on Norwegian seal products.
7.34. In response to a question from the Panel on their understanding of the measure as
described in their respective panel requests, the complainants submit that their position on the
characterization of the measure does not substantively differ from that contained in the panel
requests.
66
7.2.2.2.1.2 Respondent
7.35. The European Union argues that the EU Se al Regime should be considered as a "General
Ban coupled with three exceptions".
67 Article 3(1) of the Basic Regulation sets forth the "General
Ban" on the placing on the market of seal products, applied at the point of importation in the case
of imported products, together with the main ex ception (the IC exception) and two additional
exceptions (the MRM exception and the Travellers' exception).
7.36. The European Union argues that the complainants' proposition (i.e. three trade-restrictive
requirements) is overly formalistic. From a logical point of view, the Basic Regulation's conditional
authorization ("the placing on the market of seal products shall be allowed only where") has the
same meaning as other propositions such as "the placing on the market of seal products shall not
be allowed unless" or "the placing on the market of seal products shall be prohibited except
where". The European Union also refers to the legislative history and the recitals of the Basic
Regulation, which in its view confirm that the EU legislators sought to enact a general ban subject
to certain exceptions.
68
7.37. The European Union asserts that the complainants' position is based on their belief that it
allows them to claim that the EU Seal Regime makes no contribution to the overarching policy
objective pursued by the European Union (addressi ng public moral concerns related to animal
welfare). For the European Union, the complainants' argument is a "manifest non sequitur"69 in
that it suggests that the EU Seal Regime as a whole makes no contribution to its stated objective
because none of the three requirements (in reality, exceptions) contributes to the objective. The
European Union maintains that there can be no question that the EU Seal Regime has the effect of
prohibiting the placing on the market of seal products where none of the three so-called
"requirements" is met.
7.38. According to the European Union, the comp lainants' position is also at odds with the
characterization of the measure included in the panel requests. If the EU Seal Regime did not
provide for a ban subject to exceptions, but rath er for three self-standing "requirements", both
Norway's and Canada's panel requests were manifestly incorrect and deficient in that they failed to
"present the problem clearly". Thus, were the Pane l to decide that the EU Seal Regime cannot be
characterized as a General Ban subject to three exceptions, the European Union requests the Panel
to find that the complainants' panel requests do not meet the requirements of Article 6.2 of the
DSU and to reject all the claims submitted by them.
70
7.2.2.2.2 Analysis by the Panel
7.39. We begin our examination of the measure with a consideration of the text of the Basic
Regulation and the Implementing Regulation.
7.40. Article 1 of the Basic Regulation, entitled "Subject matter", states that the Regulation
"establishes harmonised rules concerning the placing on the market of seal products". Article 3,
entitled "Conditions for placing on the market", starts with a paragraph prescribing that the placing

66 Complainants' responses to Panel question No. 102.
67 European Union's first written submission, paras. 1, 11, 35, and 357-358; response to Panel question
Nos.1, 2, and 100.
68 For example, the European Union refers to recital (10) of the Basic Regulation where the phrase "the
placing on the market should … not be allowed" is used.
69 European Union's response to Panel question No. 1.
70 European Union's response to Panel question No. 1, para. 11.
WT/DS400/R • WT/DS401/R

on the market of seal products shall be allowed only where the seal products result from IC hunts.
It also explains that the conditions in the first paragraph shall apply at the time or point of import
for imported products. 71 The wording of the first paragraph of Article 3 thus indicates that this is
the only situation where seal products can be placed on the EU market.72
7.41. 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,
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)).
73 Second, the import by travellers of a seal product is allowed (Article 3(2)(a)) to
the extent that it is not "for commercial reasons". 74 The Regulations do not define the term
"commercial reasons".75
7.42. Based on the text of Article 3 of the Ba sic Regulation, therefore, we understand that the
measure operates as follows:
 seal products derived from IC hunts may be imported and/or placed on the EU market;

 seal products derived from MRM hunts may be placed on the EU market when it is on a
non-profit basis and is not for commercial reasons; the text does not indicate whether the
conditions also apply to imported products; and

 seal products for personal use of travellers or their families may be imported for
non-commercial reasons; however, the placing on the market of such products is prohibited.

7.43. Therefore, although seal products of both Travellers imports and IC hunts, along with seal
products allowed for transit and other commercial activities under the measure76, may be imported
into the European Union (i.e. enter "the customs territory of the Community") 77, only the products
of IC hunts may also be placed on the EU market.
7.44. Further, despite the absence of any reference to imported products, the complainants
consider that, like in the case of seal products obtained from IC hunts, the conditions governing
the placing on the market of seal products of MRM hunts also apply at the point or time of

71 The Basic Regulation defines "import" as "any entry of goods into the customs territory of the
Community". (Basic Regulation, Article 2(5).
The European Union explained further the scope and meaning of "import" as defined by Article 2(5):
"The Basic Regulation is being interpreted by the customs authorities of the Member States as applying to
goods which have been released for free circulation in the customs territory of the European Union after
payment of the duties to which they are liable. The EU Commission has not taken any official position on this
issue. Nor has this matter been resolved by the EU Court of Justice." (European Union's response to Panel
question No. 79, para. 231). The European General Court had occasion to address the meaning of the term
"import" under the Basic Regulation in its decision of 25 April 2013 in Inuit Tapiriit Kanatami and others v.
Commission, observing that the Basic Regulation "does not prevent the entry, warehousing, processing or
manufacture of seal products in the Union, if they are intended for export and are never released for free
circulation in the Union". (European General Court, Case T-526/10, Inuit Tapiriit Kanatami and others v.
Commission (2013), para. 70).
72 The Basic Regulation defines "placing on the market" as "introducing on the Community market,
thereby making available to third parties, in exchange for payment". (Basic Regulation, Article 2(3)).
73 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."
74 More specifically, the import of seal products is allowed "where it is of an occasional nature and
consists exclusively of goods for the personal use of travellers or their families". (Basic Regulation,
Article 3(2)(a)). It further adds that the nature and quantity of such goods shall not be such as to indicate that
they are being imported for commercial reasons.
75 In response to a question from the Panel regarding the MRM requirements, the European Union
explained that "[t]he systematic and repeated way in placing those products on the EU's market would indicate
that the purpose of the hunt in question was commercial. Indeed, if seal products are repeatedly and
systematically placed on the EU's market, e.g. in certain periods of the year or through the same channels of
commerce, this would indicate that they are being sold for a commercial purpose." (European Union's response
to Panel question No. 123, para. 84) (emphasis added)
76 See para. 7.53.
77 Article 2(5) of the Basic Regulation.
WT/DS400/R • WT/DS401/R

importation for seal products of foreign origin. 78 The European Union has also confirmed that this
is a correct understanding.79
7.45. Overall, 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. Canada and Norway
claim, and the European Union does not dispute, th at most of the seal products from Canada and
Norway are derived from hunts that are not IC or MRM hunts as defined by the measure and are
consequently prevented from accessing the EU market.80
7.46. We note that the operative part of the Basic Regulation does not use words such as
"prohibit" or "ban". Rather, as described in the preceding paragraphs, it prescribes the specific
conditions under which the import or placing on the EU market of seal products is allowed.
Nevertheless, the use of the word "only" in the first paragraph of Article 3, combined with the
phrase "by way of derogation" in the second paragraph, signifies that the import and placing on
the EU market of seal products are not allowed other than in the situation specified in the first
paragraph, plus two further circumstances set out in the second paragraph of Article 3. In other
words, having regard to the design and structure of the Basic Regulation, and in the light of the
text of that Regulation, the measure effectively operates as a prohibition on seal products that do
not meet the conditions under the measure.
7.47. The preamble of the Basic Regulation, however, refers explicitly to the notion of a ban,
particularly an import ban, on seal products in several places. For example, recital (1) mentions
the European Parliament's 2006 declaration on banning seal products in the European Union,
which led to the current EU Seal Regime, and the Parliament's request to the Commission to draft
a regulation to ban the import, export and sale of all harp and hooded seal products. Recital (5)
references several EU member States' adoption or intention to adopt legislation regulating trade in
seal products by prohibiting the import and producti on of such products, and recital (21) refers to
"harmonising national bans concerning trade in seal products". Recital (10) makes clear that "as a
general rule", seal products would "not be allowed":
In order to counter barriers to the free movement of products concerned in an
effective and proportionate fashion, the placing on the market of seal products should,
as a general rule, not be allowed in order to restore consumer confidence while, at the
same time, ensuring that animal welfare concerns are fully met. … In order to ensure
effective enforcement, the harmonised rules should be enforced at the time or point of
import for imported products. (emphasis added)
7.48. Several recitals in the preamble also address the economic and social interests of Inuit
communities engaged in seal hunting and the desire to empower the Commission to define the
three conditions as currently reflected in the Basic Regulation for the placing on the market or
import of seal products. The preamble thus describes inter alia the circumstances leading to the
adoption of the Basic Regulation, the general rule under the measure not to allow seal products,
and the need to define the three conditions under which seal products are allowed.
7.49. Turning to the Implementing Regulation, we note that it lays down detailed rules, including
procedural requirements, for the placing on the ma rket of seal products of both domestic and
foreign origin under the three conditions specified in the Basic Regulation. Apart from that, the
Implementing Regulation does not provide any furthe r indication to assist us in understanding the
character of the EU Seal Regime as a whole.

78 Complainants' responses to Panel question No. 1.
79 European Union's response to Panel question No. 77.
80 In response to a question from the Panel, the European Union confirms that commercial imports are
prohibited unless they qualify for the IC or MRM exceptions. (European Union's response to Panel question No.
78). We note that the term "commercial" in this context was used without any specific definition. Nevertheless,
regarding the scope and meaning of the term "commercial hunting of seals" as referenced in recital (10) of the
Basic Regulation, the European Union states that it "should be understood as referring to hunts which are
conducted exclusively or primarily for the purpose of obtaining products, such as skins or oil, which are
subsequently marketed for profit". (European Union's response to Panel question No. 76). Taken together, the
term "commercial imports" appears to be referring to seal products obtained from "commercial hunting of
seals" as defined by the European Union in its responses to questions from the Panel.
WT/DS400/R • WT/DS401/R

7.50. Having examined the texts of the Basic Regulation and the Implementing Regulation, we
also observe that the respective panel requests of the complainants describe the EU Seal Regime
as the "trade ban"
81 or "general prohibition" 82 on the importation and sale of seal products, with
certain exceptions. This suggests to us that the complainants understood the Regime to function
as a ban with exceptions. For the complainants, regardless of the form of the Regime, it operates
as a ban with respect to their seal products, while it does not operate as such with respect to other
seal products, in particular those from the European Union and Greenland.
83
7.51. In their written submissions, both co mplainants emphasize that the EU Seal Regime
combines permissive and prohibitive elements, laying down three sets of market access conditions
that determine when seal products may or may not be imported and/or placed on the EU market.
84
In other words, for the complainants, the EU Seal Regime essentially allows certain seal products
and prohibits all other seal products. Canada asserts that although the EU Seal Regime is on its
face framed as a measure governing the placement of seal products on the EU market, in practical
terms it does little more than impede imports of seal products from Canada, Norway, and other
WTO Members, while continuing to allow seal products from favoured exporting countries such as
Greenland and domestic seal products.
85 Similarly, Norway submits that it characterizes the
measure in the same way the European Union di d when notifying the Implementing Regulation,
namely, the measure establishes three sets of requirements that specify conditions that must be
fulfilled for seal products to be placed on the EU market. Norway notes that these "three sets of
requirements simultaneously combine, both in form and in substance, the prohibitive and
permissive elements of the measure".
86
7.52. Like the complainants, we also consider that it is the three conditions set out in Article 3 of
the Basic Regulation that, taken together, both allow and prohibit the placing on the market of seal
products. By allowing seal products only und er a defined condition complemented by two
derogations, the measure effectively prohibits all seal products that do not fit into the
specifications of those three requirements. For imported products that do not meet the conditions
for one of the three requirements, therefore, th e measure as a whole effectively works as an
import ban. The fact that the measure is phra sed in a positive form does not change the
substantive character of the measure as both proh ibiting seal products and allowing them upon
meeting certain specific conditions.
7.53. Additionally, we observe that under the EU Seal Regime, seal products may also enter the
territory of the Community in the following circumstances: (a) seal products may transit across the
European Union; (b) seal products may be processed in the European Union for export under an
inward processing scheme
87, using seal inputs regardless of their source; and (c) seal products
may be sold for export at EU auction houses. Therefore, in addition to the explicit exceptions
enshrined in the Regulations (i.e. IC, MRM, and Tr avellers exceptions), the EU Seal Regime also
creates implicit exceptions for seal products for transit, inward processing, and importation for
auction and re-export.88
7.54. To the extent that the complainants' conten tion about the nature of the measure is related
to their view that the measure cannot be described as a "general" ban as described by the
European Union because certain seal products are allowed under the measure, we recall the

81 Canada's request for the establishment of a panel, p. 2.
82 Norway's request for the establishment of a panel, p. 2.
83 See, below sections 7.3.2; 7.4.2; and 7.4.3.
84 For example, Canada submits that seal products that do not fall within any of these categories are, in
effect, not eligible to be imported or placed on the market, although neither the Basic Regulation nor the
Implementing Regulation states expressly that such products are prohibited.
85 Canada also argues that the measure operates de facto as a border measure imposing a
discriminatory restriction on the importation of seal products, in violation of Articles I:1 and XI:1 of the
GATT 1994, rather than as an internal measure. (Canada's response to Panel question No. 1; see also Canada's
response to Panel question No. 102).
86 Norway's response to Panel question No. 102.
87 The European Union notes that the EU Seal Regime does not allow the "processing" of seal products
in general but only "inward processing", which it defines as "the processing under customs control of imported
inputs into products intended for export". (European Union's response to Panel question No. 131; see also
European Union's response to Panel question Nos. 75, 79, and 101; complainants' comments on the
European Union's response to Panel question Nos. 100 and 101).
88 See European Union's response to Panel question Nos. 75, 101, 131, and 177; and Canada's and
Norway's comments on European Union's response to Panel question Nos. 75, 101, 131 and 177.
WT/DS400/R • WT/DS401/R

Appellate Body's finding in EC-Asbestos that the measure in that dispute was not a total
prohibition on asbestos fibres because it also included provisions that permitted the use of
asbestos in certain situations.89 The Appellate Body stated further that to characterize the measure
simply as a general prohibition, and to examine it as such, would overlook the complexities of the
measure, which included both prohibitive and permissive elements. Similarly, given the exceptions
under the EU Seal Regime, we do not consider the EU Seal Regime to constitute a "total" or
"general" ban on seal products; rather, the Regime consists of both prohibitive and permissive
components and should be examined as such.
7.55. The measure would have been clearer in expressing its intended purpose and function as a
ban on seal products if it had explicitly prohibited the import and placing on the EU market of seal
products.
90 However, insofar as we can discern the true character of the measure from its design,
structure, and expected operation, we need not second-guess the precise reason why the measure
was formulated in the present manner.
7.56. The considerations above, taken together, demonstrate that the EU Seal Regime in its
entirety 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 (i.e. seal products obtained
from IC hunts, MRM hunts, and those imported unde r the Travellers imports category). In this
connection, for ease of reference, these Reports will refer to these three conditions using the
following terms: the "IC hunts/category/exception/requirements" (for the condition in Article 3(1)
of the Basic Regulation and Article 3 of the Implementing Regulation); the "MRM
hunts/category/exception/requirements" (for the condition in Article 3(2)(b) of the Basic
Regulation and Article 5 of the Implementing Regulation); and the "Travellers
imports/category/exception/requirements" (for the condition in Article 3(2)(a) of the Basic
Regulation and Article 4 of the Implementing Regulation).
91
7.2.3 Order of analysis
7.2.3.1 Main arguments of the parties
7.57. While acknowledging that panels should normally first examine the measure in relation to
the agreement that deals specifically, and in de tail, with the subject matter addressed by the
measure at issue, the complainants suggest, for the reasons set out below, that it is open to the
Panel to follow the sequence of claims and arguments set out in the complainants' first written
submissions in this dispute.
92
7.58. Both complainants have presented their claims and arguments under the GATT 1994 first,
followed by their claims and arguments under th e TBT Agreement. Nothing in these claims and
arguments would require the Panel to examine th e complainants' claims and arguments under the
TBT Agreement before it examines their clai ms and arguments under the GATT 1994. Thus, a
panel may begin with the claims that are common to both parties, therefore examining the
GATT 1994 first in this dispute.
7.59. Moreover, Canada invites the Panel to examine the claims under the GATT 1994 first and,
should it find that the EU Seal Regime violates Articles I:1 and III:4 of the GATT 1994 and that

89 Appellate Body Report, EC – Asbestos, para. 64.
90 For example, and in contrast to the EU Seal Regime, other EU measures in similar contexts include an
explicit ban and exceptions in the text of the measure. (See, e.g. Council Directive 83/129/EEC 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), (Exhibit CDA-12),
Articles 1 and 3; Regulation (EC) No. 1523/2007 of the European Parliament and of the Council of 11
December 2007 banning the placing on the market and the import to, or export from, the Community of cat
and dog fur, and products containing such fur, Official Journal of the European Union, L Series, No. 343
(27 December 2007), (Exhibit EU-6), Articles 3 and 4).
We observe that the European Commission Services advised that the Regulation be framed in positive
terms so as to make it an internal measure rather than a border measure as this would make a potential
challenge at the WTO more difficult. (Non-paper of the Commission Services on the Proposed legislation on
trade in seals – WTO Issues (17 April 2009), (Exhibit NOR-28)).
91 Where appropriate, the Panel will also use these shorthand terms in the sections addressing the main
arguments of the parties.
92 Complainants' responses to Panel question No. 4; Norway's response to Panel question Nos. 5 and 6.
WT/DS400/R • WT/DS401/R

those violations cannot be justified under Article XX thereof, it may be possible for the Panel to
exercise judicial economy with respect to Canada's claims under Article 2.1 of the
TBT Agreement.
93
7.60. The European Union suggests that the Panel start its analysis with the claims under the
TBT Agreement followed by those under the GATT 1994, leaving the analysis under the Agreement
on Agriculture for last. 94 The European Union does not consider that the Panel should take into
account the difference in the scope of claims between the complainants in deciding the order of its
analysis.95
7.2.3.2 Analysis by the Panel
7.61. The complainants in this dispute raised claims under both the GATT 1994 and the
TBT Agreement. Specifically, both complainants br ought claims under Articles I:1, III:4, and XI:1
of the GATT 1994 and Articles 2.2, 5.1.2, and 5.2. 1 of the TBT Agreement. Additionally, Canada
presented a claim under Article 2.1 of the TBT Agreement, and Norway a claim under Article 4.2 of
the Agreement on Agriculture.
7.62. The complainants consider that, given the discrepancy in the scope of claims between the
two complainants (i.e. Article 2.1 of the TBT Ag reement invoked only by Canada), the Panel may
wish to start with the GATT 1994 as this is the agreement under which most of the complainants'
common claims are presented. Further, in their view, it could give the Panel the possibility to
exercise judicial economy with respect to Canada's claim under Article 2.1 of the TBT Agreement.
7.63. The Appellate Body has stated that, as a general rule, panels are free to structure the order
of their analysis as they see fit.
96 Based on this general approach, it is the "structure and logic" of
the provisions at issue in each dispute that deci de the proper sequence of steps in the panel's
analysis, whether the panel's examination involves one provision, or more than one provision or
WTO agreement.
97 In other words, unless there exists a mandatory sequence of analysis which, if
not followed, would amount to an error of law and/or affect the substance of the analysis itself,
panels have the discretion to structure the order of their analysis.
7.64. Here, the Panel is presented with no such mandatory sequence of analysis. We thus need to
determine the order of our analysis by focusing on the "structure and logic" of the provisions at
issue in this dispute. We are also mindful that it may be useful for panels to take account of the
manner in which a claim is presented to them by a complainant Member.
98 H o w e v e r , a s t h e
Appellate Body has clarified, a panel may also depart from the sequential order suggested by a
complaining party.99
7.65. First, turning to our analysis of the "structu re and logic" of the provisions at issue, we recall
the Appellate Body's statement in EC-Asbestos:
We observe that, although the TBT Agreement is intended to "further the objectives of
GATT 1994", it does so through a specialized legal regime that applies solely to a
limited class of measures. For these measures, the TBT Agreement imposes
obligations on Members that seem to be different from, and additional to, the
obligations imposed on Members under the GATT 1994.
100 (emphasis original)

93 Canada's response to Panel question Nos. 4 and 6; Norway's response to Panel question No. 6.
94 European Union's response to Panel question No. 4. The European Union refers to the Appellate
Body's statement in EC-Bananas III that the provision from the agreement that "deals specifically, and in
detail" with the measures at issue should "normally" be analysed first.
Canada also refers to this Appellate Body Report but adds that this discretion did not amount to an
inflexible rule that must be followed without regard to the specific circumstances of a given dispute. (See
Canada's response to Panel question No. 4, para. 36).
95 European Union's response to Panel question No. 6.
96 Appellate Body Report, Canada – Wheat Exports and Grain Imports, paras. 126-129.
97 Appellate Body Reports, Canada – Autos, para. 151; and Canada – Wheat Exports and Grain Imports,
para. 109.
98 Appellate Body Report, Canada – Wheat Exports and Grain Imports, paras. 126-129.
99 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), paras. 277-279.
100 Appellate Body Report, EC – Asbestos, para. 80.
WT/DS400/R • WT/DS401/R

7 . 6 6 . W e t h u s c o n s i d e r t h a t i f a m e a s u r e a t i s s u e i s f o u n d t o f a l l w i t h i n t h e s c o p e o f t h e
TBT Agreement, it is reasonable for such measure to be examined first under the obligations set
out in that agreement. In previous disputes where claims were made under two WTO agreements,
panels usually addressed first the claim under the more specific and detailed agreement, in
accordance with the guidance from the Appellate Body in EC – Bananas III .
101 Following this
guidance, in EC – Sardines where claims were made under both the GATT 1994 and the
TBT Agreement, the panel considered that "if the [measure at issue] is a technical regulation, then
the analysis under the TBT Agreement would precede any examination under the GATT 1994." 102
The same approach was followed in all three rece nt TBT disputes: all three panels addressed non-
discrimination claims under the TBT Agreement first, exercising judicial economy on the
complainants' non-discrimination claims under the GATT 1994 where considered appropriate.103
7.67. Second, the complainants' challenges against the measure at issue under the
TBT Agreement extend to Articles 2.2, 5.1.2, an d 5.2.1 and thus are as broad in scope as their
common claims under the GATT 1994, which are Articles I:1, III:4, and XI:1. As such, it would not
necessarily prove more efficient to proceed with one agreement rather than another because the
claims under both agreements are extensive.
7.68. Finally, we are not persuaded of the possibili ty of exercising judicial economy with respect
to Canada's claim under Article 2.1 of the TBT Agreement in this case. This is particularly so when
there are several claims under each agreement and given that, as mentioned by the Appellate
Body in US – Tuna II (Mexico) , the obligations under the non-discrimination provisions of the
TBT Agreement and the GATT 1994 cannot be assumed to be the same.
7.69. In light of the above, we do not consider that starting with the complainants' claims under
the GATT 1994 would be the most logical or econom ical order of analysis under the circumstances
of this dispute. We therefore consider it appropriate to start our analysis with the complainants'
claims under the TBT Agreement, followed by those under the GATT 1994.
7.70. Before turning to our examination of the claims made with respect to the EU Seal Regime,
we address the preliminary matter of Norway's request to the Panel under Article 13 of the DSU.
7.2.4 Norway's request under Article 13 of the DSU
7.71. As described in Section 1, on 16 January 2013, Norway submitted a request for the Panel to
exercise its authority under Article 13 of the DSU to seek copies of two legal opinions of the Legal
Service of the Council of the European Union (the Opinions). These were also the documents at
issue in the European Union's request for a preliminary ruling.
104 In its letter of 8 April 2013, the
Panel informed the parties of its decision to deny Norway's request. As indicated in the letter, we
are providing the reasons for our decision in these Reports.105
7.72. In its request, Norway contends that the legal opinions would "help complete the record" 106
in that publicly available material on the record refers to the Opinions and the original documents
would allow the Panel to confirm attributed statem ents and provide proper context. Norway also
argues that it is "fair"
107 to request the Opinions from the European Union because it is not seeking
public disclosure but rather disclosure within confidential WTO proceedings.108 In addition, Norway

101 Appellate Body Report, EC – Bananas III, para. 204: "Although Article X:3(a) of the GATT 1994 and
Article 1.3 of the Licensing Agreement both apply, the Panel, in our view, should have applied the Licensing
Agreement first, since this agreement deals specifically, and in detail, with the administration of import
licensing procedures. If the Panel had done so, then there would have been no need for it to address the
alleged inconsistency with Article X:3(a) of the GATT 1994." See also Panel Reports, EC – Sardines,
paras. 7.15-7.16; and EC – Asbestos, paras. 8.16-8.17.
102 Panel Reports, EC – Sardines, para. 7.15-7.16; and EC – Asbestos, paras. 8.16-8.17.
103 Panel Reports, US – Clove Cigarettes; US – Tuna II (Mexico); and US – COOL.
104 See, above Section 1, paras. 1.20-1.21. In the preliminary ruling, the Panel granted the
European Union's request to remove the documents from the record as exhibits and directed the parties as to
how to proceed in light of the rulings. (WT/DS400/6 and WT/DS401/7).
105 See, above Section 1, para. 1.22.
106 Norway's Request under Article 13 of the DSU, section III.A, paras. 10-11.
107 Ibid. section III.B, paras. 12-33.
108 In connection with this argument, Norway disputes the confidential nature of the Opinions under
EU law and stresses the public circulation of the Opinions evidenced in other public documents.
WT/DS400/R • WT/DS401/R

asserts that the Opinions are in the possession of the European Union and that "the most
reasonable means available to the Panel" 109 to access these documents would be to request them
from the European Union. Finally, Norway contends that disclosure of the Opinions is necessary to
ensure due process and proper adjudication of Norway's claims. Norway primarily claims that the
Opinions are "evidence of certain facts relevant to Norway's claims"
110 and therefore are not being
relied upon for their legal conclusions.
7.73. The European Union responds that the Council of the European Union had not authorized
disclosure of the Opinions, and therefore persons or entities in possession of the Opinions had
obtained them unlawfully. 111 Further, the European Union argues that the Opinions are not
necessary for the proper adjudication of the dispute because the Council Legal Service, which
prepared the Opinions, lacks both the authority and capacity to make factual findings. Although
Norway portrays the Opinions as constituting factual evidence, the European Union counters that
all factual material is derivative of information supplied to the Council Legal Service and already on
the record before the Panel. Beyond this, the issues for which Norway cites factual relevance are in
reality issues of legal characterization and conclusion rather than factual matters. The
European Union also contends that it would be "unfair" to request the Opinions as it "could be
required to take position against the legal advice received in confidence from one of its legal
services"
112, which could risk undermining its right to a fair hearing.
7.74. Canada considers that Norway's request for information is well-founded and that "the
designation or classification of that information as confidential by the party in possession of it is
not a barrier to the Panel requesting it".
113
7.75. Further to the Panel's invitation for comments from third parties, the United States
emphasizes that a panel should not use its authority under Article 13 of the DSU to make a party's
prima facie case and considers that Norway's statements regarding the Opinions' factual relevance
to its claims would raise questions in this regard.
114 The United States also notes the very sensitive
issues implicated by Norway's request, such as the relevance of domestic law and evidentiary
status, and that under the present circumstances believes it neither necessary nor appropriate to
address arguments or make findings on such issues.115
7.76. Article 13 of the DSU provides in relevant part:
Article 13: Right to Seek Information
1. Each panel shall have the right to seek information and technical advice from
any individual or body which it deems appropriate. However, before a panel seeks
such information or advice from any individual or body within the jurisdiction of a
Member it shall inform the authorities of that Member. A Member should respond
promptly and fully to any request by a panel for such information as the panel
considers necessary and appropriate. Confiden tial information which is provided shall
not be revealed without formal authorization from the individual, body, or authorities
of the Member providing the information.
2. Panels may seek information from any relevant source …
7.77. The Appellate Body has interpreted Articl e 13 of the DSU as "a grant of discretionary
authority" for panels that enables them to seek information from any source, including from a
Member who is party to a dispute.
116 Moreover, "a panel is vested with ample and extensive

109 Norway's Request under Article 13 of the DSU, para. 37.
110 Ibid. para. 39.
111 European Union's comments on Norway's Request, dated 8 February 2013, paras. 3-10. The
European Union also described the status of the documents in relation to the unauthorized disclosure and
challenged various contentions by Norway with respect to EU law.
112 Ibid. para. 28.
113 Canada's comments on Norway's Request, dated 8 February 2013 (these comments contain no
paragraph numbering).
114 United States' comments on Norway's Request, dated 8 February 2013, para. 3.
115 Ibid. para. 5.
116 Appellate Body Report, Canada – Aircraft, paras. 184-185 (citing Appellate Body Report, Argentina –
Textiles and Apparel, para. 84).
WT/DS400/R • WT/DS401/R

discretionary authority to determine when it needs information and what information it needs".117
Thus, the exercise of authority under Article 13 of the DSU is to be made with regard to the
particular facts and circumstances of each case, including "what information is needed to complete
the record, whose possession it lies within, what other reasonable means might be used to procure
it, why it has not been produced, whether it is fair to request the party in possession of the
information to submit it, and whether the information or evidence in question is likely to be
necessary to ensure due process and a proper adjudication of the relevant claim(s)".
118
7.78. In assessing Norway's request, therefore, the Panel considered Norway's request in the light
of the Appellate Body's guidance, finding particularly relevant in this case the considerations of the
need for the requested information for the Panel's assessment of the matter before it and the
consistency with due process for all parties.
7.79. Regarding the need for the information requested by Norway, we recall that Norway
submitted replacement exhibits for the Opinions following the Panel's preliminary ruling expunging
them from the record. Indeed, Norway noted prior to the Panel issuing its preliminary ruling that
"the facts revealed by the relevant exhibits can also be demonstrated, albeit in a less direct and
immediate manner, by other evidence".
119 Having reviewed the replacement exhibits filed by
Norway in light of the claims before us, we did not consider that the requested information was
needed to complete the record. 120 We also noted Norway's additional arguments that a proper
adjudication of the relevant claims requires disclosure of these documents. While Norway
highlighted various points concerning the factual relevance of the views of the Council Legal
Service to Norway's claims, it did so by reference to publicly available information (including that
found in its replacement exhibits) and specific arguments as to what it considered such public
information to reveal. To the extent, if at all, that the views of the Council Legal Service may be
factually relevant to Norway's claims, we did not consider that requesting the Opinions from the
European Union was necessary for the Panel to make an objective assessment of the matter
before it.
7.80. As to due process, we observed in our preliminary ruling that the complainants had agreed
to withdraw the exhibits at issue and that their due process rights would not be affected by the
removal of the exhibits from the record. We further determined that the complainants would have
an opportunity to provide replacement evidence.
121 Norway specifically referred to its due process
concerns when it requested that the Panel allow replacement of the evidence it had agreed to
withdraw and "an opportunity to address the resulting incomplete sentences and paragraphs in its
submission".122 In our preliminary ruling, therefore, we invited the complainants to provide "a brief
explanation of [the replacement exhibits'] relevance to the complainants' arguments, referring to
the relevant paragraphs in their respective first written submissions".123 Pursuant to this invitation,
Norway filed its replacement exhibits and explanat ion of their relevance with cross-references to
its first written submission. We therefore considered that Norway had been "permitted to make its
case before the Panel"124 and that the requirements of due process had been fully satisfied.
7.81. In light of the above, we did not consider the circumstances of Norway's request to warrant
the exercise of authority under Article 13 of the DSU and thus decided to deny Norway's request.

117 Appellate Body Report, Canada – Aircraft, para. 192. (emphasis original)
The Appellate Body has also underscored the "comprehensive nature" of this authority and consistently
affirmed that the grant of discretionary authority under Article 13 of the DSU is "indispensably necessary" to
enable a panel to discharge the duty imposed by Article 11 of the DSU to "make an objective assessment of
the matter before it". See Appellate Body Reports, US – Shrimp, paras. 104, 106; Japan – Agricultural Products
118 Appellate Body Report, US – Large Civil Aircraft (Second Complaint), para. 1140, cited in Norway's
Request under Article 13 of the DSU, para. 6.
119 Norway's letter of 16 January 2013 to the Panel.
120 With specific regard to Norway's argument that disclosure would provide proper context and confirm
attributed statements in public materials, we note that Norway has already explained the nature and relevance
of its replacement exhibits and the contents thereof have not been called into question by any other party.
121 WT/DS400/6 and WT/DS401/7, Preliminary Ruling of the Panel, para. 3.3.
122 Norway's letter of 16 January 2013 to the Panel.
123 WT/DS400/6 and WT/DS401/7, Preliminary Ruling of the Panel, para. 3.7.
124 Norway's Request under Article 13 of the DSU, para. 38.
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7.3 Claims under the TBT Agreement
7.82. In this section, the Panel examines th e complainants' claims under the TBT Agreement.
Both Canada and Norway presented claims under Articles 2.2, 5.1.2, and 5.2.1. Additionally,
Canada presented a claim under Article 2.1.
7.83. Before considering the complainants' claims under the TBT Agreement , the Panel must first
determine whether the EU Seal Regime constitutes a "technical regulation" within the meaning of
Annex 1:1 of the TBT Agreement and thus falls within the scope of the Agreement.
7.3.1 Whether the EU Seal Regime is a tec hnical regulation within the meaning of the
TBT Agreement
7.84. The term "technical regulation" is defined in Annex 1.1 of the TBT Agreement 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. (explanatory note omitted)
7.85. Based on this definition, the Appellate Bo dy has developed a three-tier test to establish
whether a document qualifies as a technical regulation:
[There are] three criteria that a document must meet to fall within the definition of
'technical regulation' in the TBT Agreement. First, the document must apply to an
identifiable product or group of products. The identifiable product or group of products
need not, however, be expressly identified in the document. Second, the document
must lay down one or more characteristics of the product. These product
characteristics may be intrinsic, or they may be related to the product. They may be
prescribed or imposed in either a positive or a negative form. Third, compliance with
the product characteristics must be mandatory. … [T]hese three criteria are derived
from the wording of the definition in Annex 1.1.
125 (emphasis original)
7.86. The parties do not contest that the EU Seal Regime meets the first and third criteria of the
definition, i.e. that it applies to an identifiable group of products and that compliance with the
measure is mandatory. The parties disagree, however, on the second criterion of the definition,
namely whether the EU Seal Regime "lays down product characteristics or their related processes
and production methods [(PPMs)], including applicable administrative provisions".
7.87. The criteria of the definition are cumulative, and there is no particular order of analysis that
we need to follow in assessing whether the EU Seal Regime is a technical regulation.
126
Accordingly, we start our analysis with the second criterion of the definition, which is the main
issue of contention as to whether the measure at issue qualifies as a technical regulation. We then
address the two other elements of the three-tier test that are not disputed by the parties.
7.3.1.1 Whether the EU Seal Regime lays down one or more characteristics of the
products or their related PPMs, including applicable administrative provisions
7.3.1.1.1 Main arguments of the parties
7.3.1.1.1.1 Complainants
7.88. The complainants argue that the EU Seal Re gime lays down product characteristics in both
positive and negative form. If a product meets th e requirements of the IC, MRM, or Travellers
categories (i.e. the exceptions), it may possess the characteristic of containing seal. Conversely, if

125 Appellate Body Report, EC – Sardines, para. 176 (summarizing the Appellate Body's interpretation of
the definition of "technical regulation" in EC – Asbestos, paras. 66-70). The same test was applied by the
Appellate Body in US – Clove Cigarettes, US – Tuna II (Mexico), and US – COOL.
WT/DS400/R • WT/DS401/R

the product does not meet such requirements, then it may not contain seal. 127 In determining
whether the EU Seal Regime lays down product characteristics, it is not necessary for the
exceptions themselves to prescribe product characteristics. In the complainants' view, the issue is
whether the exceptions, combined with other elements of the measure, lay down product
characteristics.
128
7.89. The complainants further argue that because products falling within one of the three
categories must satisfy certain administrative requirements set out in the Implementing Regulation
in order to be placed on the European Union market, the EU Seal Regime also sets forth
"applicable administrative provisions" within the meaning of Annex 1.1 of the TBT Agreement.129
7.90. As an alternative to the argument that the measure lays down product characteristics,
Norway argues that the EU Seal Regime prescribes related PPMs within the meaning of Annex 1.1.
Based on the ordinary meaning of the terms of the definition 130, Norway asserts that a PPM is laid
down through the IC and MRM exceptions.131 In particular, with respect to the IC category, Norway
argues that the IC requirements prescribe a "proce ss" involving a particular course of action (a
traditional hunt by specified persons) with a de fined end (the production of seal products for
community subsistence). Regarding the MRM catego ry, Norway argues 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). Furthermore, the action also has a defined end (the sale of
MRM by-products).
132
7.91. Canada argues for its part that the identity of the producers of a product could be a relevant
factor in the identification of a PPM. In particular, Canada notes that "certain elements of the Inuit
Communities category could be characterized as processes or production methods".
133
7.3.1.1.1.2 Respondent
7.92. The European Union contests that the EU Seal Regime lays down product characteristics
pursuant to the definition set out in Annex 1.1. 134 The European Union first argues that the
EU Seal Regime prohibits the placing on the market of products which consist exclusively of seal,
such as "pure" seal meat, oil, blubber, organs and fur skins, whether processed or not. 135 The
European Union asserts that this prohibition under the EU Seal Regime is similar to the prohibition
of asbestos fibres "as such" in the measure at issue in EC – Asbestos , which the Appellate Body
found did not constitute a technical regulation.
7.93. As regards products containing seal and other ingredients ("mixed" products), the
European Union argues that it would be inappropriate for the Panel to limit its analysis to the fact
that the EU Seal Regime lays down intrinsic characteristics in the negative form, by providing that
all products may not contain seal. The determination of whether the EU Seal Regime lays down
product characteristics should also take into account the exceptions, 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.
136

127 Canada's first written submission, para. 363; Norway's first written submission, para. 499;
complainants' responses to Panel question No. 127.
128 See, e.g. Norway's second written submission, para. 145.
129 Canada's first written submission, paras. 364-365; Norway's first written submission,
paras. 502-503.
130 Norway defines the term "processes" as "a systematic series of actions or operations directed to
some end". (Norway's second written submission, para. 161 (citing the Panel Report in EC – Trademarks and
Geographical Indications (Australia), para. 7.510)).
131 Norway's opening statement at the first meeting of the Panel, para. 64; second written submission,
para. 161.
132 Norway's second written submission, para. 162.
133 Canada's response to Panel question No. 21, para. 109.
134 European Union's first written submission, para. 199.
135 European Union's first written submission, para. 213.
136 European Union's first written submission, para. 216.
WT/DS400/R • WT/DS401/R

7.94. According to the European Union, what is decisive for the characterization of the EU Seal
Regime is that none of the three exceptions lays down product characteristics. The IC exception
concerns the type of hunters, the traditions of their communities, and the purpose of the hunt, but
not the intrinsic or related features of the products, such as their composition or presentation. 137
The MRM exception imposes requirements relating to the size of the hunt, the intensity and
purpose of the hunt, and the marketing conditions of the products. In the European Union's view,
none of these conditions sets out intrinsic or related features of the products.
138 The
European Union argues that the EU Seal Regime differs in that sense from the measure in
EC - Asbestos, where the exceptions themselves referred to particular characteristics intrinsic to
the product.139
7.95. With respect to the question whether the EU Seal Regime prescribes applicable
administrative provisions, the European Union contends that Annex 1.1 addresses only those
administrative provisions that apply to "product characteristics or their related PPMs". Given that
the procedural requirements set out in the Implementing Regulation are not related to any product
characteristics or their related PPMs, such provisions, according to the European Union, do not
constitute "applicable administrative provisions" within the meaning of Annex 1.1.
140
7.96. Finally, the European Union argues that the EU Seal Regime does not regulate any PPMs. 141
The European Union contends that the measure does not set out methods for the production of
seal products, compliance with which would allow their placing on the market. The ban, together
with the exceptions, allows the placing on the ma rket of seal products depending on the purpose
of the hunt, which has nothing to do with methods for the production of seal products.
142
According to the European Union, to include th e purpose of production within the meaning of
"PPM" would improperly stretch the limit of the concept of "product characteristics and related
PPMs".
143
7.3.1.1.2 Analysis by the Panel
7.3.1.1.2.1 Aspects of the EU Seal Regime to be examined
7.97. The parties agree in principle that in determining whether the EU Seal Regime qualifies as a
technical regulation, the Panel should consider the measure "as a whole". 144 However, the parties
disagree on whether both the prohibition and the exceptions under the Regime must individually
lay down product characteristics or their related PPMs in order for the measure to qualify as a
technical regulation.
7.98. The complainants contend that the exceptions per se do not have to lay down product
characteristics or their related PPMs, as long as the measure as a whole, i.e. through one of its
components, meets the criterion. The European Union submits that a measure cannot be
characterized as laying down product characteristics on the basis of its prohibitive element alone.
If the measure contains not only a ban but also ex ceptions, these permissive elements should also
be taken into account in determining whether the measure as a whole qualifies as a technical
regulation.
145

137 European Union's first written submission, para. 220; response to Panel question No. 127.
138 European Union's first written submission, para. 221.
139 European Union's first written submission, para. 224.
140 European Union's first written submission, paras. 229-234.
141 The European Union observes that the European Commission's proposal would have allowed the
placing on the market of seal products upon proof that these were obtained under conditions which ensured
that the seals were killed and skinned "without causing avoidable pain, distress and any other form of
suffering", which is not the case under the current Regime. (European Union's first written submission,
paras. 226-227).
142 European Union's second written submission, para. 190.
143 European Union's response to Panel question No. 21.
144 See, e.g. Canada's first written submission, para. 351; Norway's second written submission,
para. 145; and European Union's first written submission, para. 208. See also Appellate Body Report,
EC - Asbestos, para. 64.
145 Norway's second written submission, para. 145; and European Union's first written submission,
para. 208.
WT/DS400/R • WT/DS401/R

7.99. We recall that, in EC – Asbestos, the Appellate Body emphasized that the measure should
be examined as a whole "taking into account, as appropriate, the prohibitive and the permissive
elements that are part of it". 146 Based on that premise, the Appellate Body examined both the
prohibitive and permissive aspects of the measure in that dispute and found:
Viewing the measure as an integrated whole, we see that it lays down characteristics
for all products that might contain asbestos, and we see also that it lays down the
'applicable administrative provisions' for certain products containing chrysotile
asbestos fibres which are excluded from the prohibitions in the measure. For these
reasons, we conclude that the measure constitutes a technical regulation under the
TBT Agreement.
147
7.100. In our view, the Appellate Body's analysis of the measure at issue 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 exce ptions must individually lay down product
characteristics or their related PPMs.
7.101. A panel may have to examine different components of a measure separately in order to
make a holistic analysis of the measure's legal character. However, the final decision on the
character of the measure must be based on the measure as a whole, "taking into account, as
appropriate, the prohibitive and permissive elements that are part of it".
148
7.102. With these considerations in mind, we pr oceed 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.
7.3.1.1.2.2 Whether the EU Seal Regime la ys down product characteristics or their
related PPMs, including applicable administrative provisions
7.103. The Appellate Body defined the term "characteristics" in EC – Asbestos as "any objectively
definable 'features', 'qualities', 'attributes', or other 'distinguishing mark' of a product".
149 Such
"characteristics" include not only features and qualities that are intrinsic to the product itself, but
also related characteristics, "such as the means of identification, the presentation and the
appearance of a product".
150 The meaning of the phrase "their related PPMs" has not yet been
examined in a WTO dispute.
7.104. In EC – Asbestos, the Appellate Body found that the prohibition on asbestos fibres as such
did not, in itself, lay down any "characteristics" because it simply banned asbestos fibres in their
natural state.151 The prohibition on asbestos-containing products, however, was found to lay down
a product characteristic in the negative form by requiring that all products must not contain
asbestos.
7.105. As noted above, the EU Seal Regime prohibits all seal products, whether they are made
exclusively of seal or contain seal as an input. The Regime 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.
152 The Implementing Regulation
sets out the specific requirements that seal products must fulfil in each of these three situations.

146 Appellate Body Report, EC – Asbestos, para. 64. In reaching this conclusion, 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.
147 Appellate Body Report, EC – Asbestos, para. 75.
148 Canada's response to Panel question No. 126, paras. 77 and 83.
149 Appellate Body Report, EC – Asbestos, para. 67.
150 Appellate Body Report, EC – Asbestos, para. 67.
151 Appellate Body Report, EC – Asbestos, para. 71.
152 For instance, Article 3(1) of the Basic Regulation provides that "[t]he placing on the market shall be
allowed only where …"; Article 3(2)(b) states that "the placing on the market shall also be allowed where …";
and Article 3(2)(a) provides that "the import of seal products shall be allowed where …".
WT/DS400/R • WT/DS401/R

7.106. Based on the text of the Regulations, and in light of the reasoning of the Appellate Body in
EC – Asbestos , we 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.
153
7.107. Further, the Appellate Body considered that, through its exceptions, the measure in
EC - Asbestos set out the "'applicable administrative provisions, with which compliance is
mandatory' for products with certain objective 'characteristics'". 154 On this question, the
Appellate Body relied on the panel's finding that the marketing criteria applying to products falling
under the exceptions "relate to the characteristics of one or more given products or processes or
production methods relating to them".
155 According to these criteria, products containing chrysotile
asbestos could be marketed provided that there was no substitute fibre available (i) that presented
less occupational health risk to workers than chrysotile fibre; and (ii) that met all technical
guarantees of safety appropriate to the use. Th e panel noted that such requirements had to be
read in conjunction with administrative provisions requiring a statement and supporting documents
to attest that the criteria of the exceptions were satisfied.
7.108. Similarly, we find that the EU Seal Regime sets out, through its exceptions, the "applicable
administrative provisions with which compliance is mandatory" for products with certain objective
"characteristics". First, the exceptions define the scope of the prohibition in the EU Seal Regime,
albeit implicitly. Second, the nature of the exceptions is to allow products containing seal on the
EU market, subject to compliance with strict admini strative requirements. Finally, the scope of the
exceptions is determined under the Regime based on a set of criteria.
7.109. Specifically, in 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 hunter (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).
156 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 ac companied by an attesting document at the time
of placing on the market. 157 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.158
7.110. The criteria under the exceptions thus identify the seal products that are allowed to be
placed on the European Union market. They do so by defining the categories of seal that can be
used as an input for such products; only seals obtained from the specific type of hunter and/or the

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 analogues 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 are 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).
154 Appellate Body Report, EC – Asbestos, para. 74 (quoting Panel Report, para. 8.69). The panel in that
dispute found that:
[A]rticle 2 of the Decree sets out the criteria for marketing the products identified in the Decree and not
solely the criteria for excluding products from the market. The second sentence in Article 3.I of the Decree
completes these criteria. In our view, the marketing criteria in Article 2.I of the Decree relate to the
characteristics of one or more given products or processes or production methods relating to them. This is
particularly true of the second subparagraph on the technical guarantees of safety appropriate to use … We
also note that Article 2.II and Article 3 in particular cover the administrative provisions applicable to the
technical regulations. (Panel Report, EC – Asbestos, paras. 8.68-8.69, (cross-referencing para. 8.1 of the Panel
Report)).
156 The conditions for a seal product to qualify under the IC and the MRM exceptions are described
above in section 7.2.1.
157 See Implementing Regulation, Articles 3(2), 5(2), and 7(1). A model form for the attesting document
is annexed to the Implementing Regulation.
158 European Union's response to Panel question No. 160, para. 245. See Annex of the Implementing
Regulation, item 7.
WT/DS400/R • WT/DS401/R

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.
7.111. In sum, the EU Seal Regime considered as a whole lays down characteristics for all
products that might contain seal. The Regime also lays down the applicable administrative
provisions for certain products containing seal inputs that are exempted from the prohibition under
the measure.
7.112. We recall that in order to meet this criter ion of the definition of technical regulation under
Annex 1.1 of the TBT Agreement, the complainan t s m u s t p r o v e t h a t t h e d o c u m e n t l a y s d o w n
either "product characteristics" or "their related PPMs". Since we have found that the measure as a
whole lays down product characteristics within the meaning of Annex 1.1 of the TBT Agreement,
we do not find it necessary to examine whether the EU Seal Regime also lays down PPMs.
7.3.1.2 Whether the EU Seal Regime applie s to an identifiable product or group of
products
7.113. The parties do not contest that the EU Seal Regime applies to an identifiable group of
products. The Regime determines whether products may or may not contain seal, depending on
whether they meet the conditions of the IC, MRM, or Travellers imports exceptions.
159 The range of
products covered by the European Union's measure is identifiable by virtue of the presence or
absence of the characteristic of being derived or manufactured from, or of containing, seal.
7.114. The EU Seal Regime establishes rules concerning the placing on the market of seal
products.
160 The term "seal products" is defined in 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". 161 As discussed in section 7.2.2.2 above, in order
to be imported and/or placed on the European Union market, products may not contain seal,
unless they meet the conditions under the IC, MRM, or Travellers' imports exceptions.
7.115. We note that in EC – Asbestos , the measure at issue also prescribed a characteristic that
effectively applied to all products, namely that they must not contain asbestos. Although the
prohibition applied to a large group of products which could not be determined from the terms of
the measure itself, the Appellate Body found that th e measure applied to an "identifiable" group of
products. Like the measure in EC – Asbestos, the prohibition under the EU Seal Regime applies to
an identifiable group of products by prescribing that all products may not contain seal.
162
7.116. In addition, we note that numerous product categories to which the EU Seal Regime
applies were identified in the European Commission's Technical Guidance Note. 163 In our view, this
list of products, albeit indicative, is further evidence that the EU Seal Regime applies to an
identifiable group of products.164

159 Canada's first written submission, para. 356; Norway's first written submission, para. 496.
160 Basic Regulation, Article 1.
161 Basic Regulation, Article 2(2).
162 The subject matter of the Basic Regulation is to establish harmonized rules concerning the placing on
the market of seal products. (See Basic Regulation, Article 1).
163 Canada's first written submission, para. 358; Norway's first written submission, para. 497 (referring
to Exhibit JE-3). The document submitted in Exhibit JE-3 was issued pursuant to Article 3(3) of the Basic
Regulation. According to recital (18) of the preamble of the Basic Regulation, such technical guidance notes
were to be issued by the Commission "[w]ith the aim of facilitating enforcement operations carried out by the
relevant national authorities".
164 As stated in the "Foreword" section of the document, the tariff codes identified in the list are those
that have the "greatest likelihood of covering products subject to the prohibition". The European Commission
also indicates in the document that more products than those covered by the tariff codes identified in the list
are likely to be affected by the prohibition. (Technical Guidance Note, (Exhibit JE-3), p. 44).
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7.117. In light of the above, the Panel consid ers that the EU Seal Regime applies to an
"identifiable group of products" in accordance with Annex 1.1 to the TBT Agreement.165
7.3.1.3 Whether compliance with the EU Seal Regime is mandatory
7.118. The Appellate Body in EC – Asbestos clarified the concept of "mandatory" under Annex 1.1
as follows:
A "technical regulation" must … regulate the "characteristics" of products in a binding
or compulsory fashion. It follows that, with respect to products, a "technical
regulation" has the effect of prescribing or imposing one or more "characteristics" –
"features", "qualities", "attributes ", or other "distinguishing mark". 166
(emphasis original)
7.119. The Appellate Body also found that enfo rceability throug h the application of sanctions
indicated mandatory compliance.167
7.120. As we stated above in the section on Preliminary Matters, the combined effect of the Basic
and Implementing Regulations is to prohibit se al products from the European Union market,
except in cases where the products meet the conditions prescribed in Article 3 of the Basic
Regulation and Articles 3 and 5 of the Implementi ng Regulation. These conditions are compulsory
from the point of view of seal products being placed on the market; unless these conditions are
met, seal products are denied access to the EU market.
7.121. We further note that the Basic Regulation contains language of a mandatory nature.
For example, Article 3(1) provides that "[t]he pl acing on the market of seal products shall be
allowed only where …". 168 By way of derogation from Article 3(1), Article 3(2) also sets out
circumstances where the placing on the market of se al products "shall be allowed". The use of the
words "shall" and "shall only" in the above-mentioned provisions indicate that the terms of the
provisions are obligatory. Several provisions of the Implementing Regulation contain similar
wording of a mandatory nature.
169
7.122. The European Union's Regime is also supported by enforcement measures, as penalties
may apply in case of infringement of the regulation. In particular, under Article 6 of the Basic
Regulation, "[EU] Member States shall lay down the rules on penalties applicable to infringements
of [the] Regulation".170
7.123. Finally, we note that both the Basic an d Implementing Regulations state that "[the]
Regulation shall be binding in its entirety and directly applicable in all Member States."
The Appellate Body in EC – Sardines interpreted similar wording contained in the measure at issue
in that case as meaning that compliance with the regulation was mandatory.171
7.124. In light of these considerations, the Pane l is of the view that the EU Seal Regime is
mandatory within the meaning of the definition in Annex 1.1 of the TBT Agreement.
7.125. Based on our analysis of the three criteria set out in Annex 1.1 of the TBT Agreement,
we find that the EU Seal Regime is a document which "lays down product characteristics …

165 Appellate Body Report, EC – Asbestos, para. 70. See also Appellate Body Report, EC – Sardines,
para. 180.
166 Appellate Body Report, EC – Asbestos, para. 68.
167 Appellate Body Report, EC – Asbestos, para. 72.
168 Basic Regulation, Article 3(1). (emphasis added)
169 For example, Articles 3(1) and 5(1) of the Implementing Regulation provide that "[s]eal products…
may only be placed on the market where …", and Articles 3(2) and 5(2) provide that "the seal product shall be
accompanied by the attesting document …". Article 4 also states that seal products for the personal use of
European Union residents and their families "may only be imported where one of the following requirements is
fulfilled". The use of the terms "may only" and "shall" in the above-mentioned provisions indicates that
compliance with such provisions is obligatory rather than voluntary.
170 According to this provision and as emphasized in recital (19) of the preamble of the Basic Regulation,
it is for the European Union member States to lay down rules on penalties and to ensure their implementation.
171 Canada's first written submission, para. 372; Norway's first written submission, para. 508 (referring
to Appellate Body Report, EC – Sardines, para. 194).
WT/DS400/R • WT/DS401/R

including the applicable administrative provisions, with which compliance is mandatory".
Accordingly, the EU Seal Regime constitutes a technical regulation within the meaning of
Annex 1.1 of the TBT Agreement.
7.3.2 Canada's claim under Article 2.1
172
7.126. We recall our finding in the previous section that the EU Seal Regime is a technical
regulation within the meaning of Annex 1.1 of the TBT Agreement. As such, the EU Seal Regime is
subject to the obligations set forth in Article 2.1 of the TBT Agreement.
7.127. Article 2.1 of the TBT Agreement provides that:
With respect to their central government bodies … Members shall ensure that in
respect of technical regulations, products imported from the territory of any Member
shall be accorded treatment no less favourable than that accorded to like products of
national origin and to like products originating in any other country.
7.128. We note that Article 2.1 contains a most-favoured-nation (MFN) and a national treatment
obligation. In the present dispute, Canada makes claims in respect of both obligations.
With respect to the MFN treatment obligation, Canada contends that the EU Seal Regime gives less
favourable treatment to Canadian imports of seal products than to like seal products originating
from Greenland. Regarding the national treatment obligation, Canada argues that the EU Seal
Regime gives less favourable treatment to its imports of seal products as compared to the
treatment accorded to like domestic products.
7.129. In order to establish that the EU Seal Regime is inconsistent with Article 2.1 of the
TBT Agreement, Canada must demonstrate the fo llowing: (a) the imported and domestic/other
foreign products at issue are like products; and (b) the treatment accorded to imported products is
less favourable than that accorded to like domestic and/or other foreign products (less favourable
treatment).
173
7.130. The Appellate Body explained the meaning of the term "less favourable treatment" under
Article 2.1 of the TBT Agreement as follows: "[ A] panel examining a claim of violation under
Article 2.1 should seek to ascertain whether the technical regulation at issue modifies the
conditions of competition in the market of the re gulating Member to the detriment of the group of
imported products vis-à-vis the group of like domestic products".174 The Appellate Body added that
"[h]owever … the context and object and purpos e of the TBT Agreement weigh in favour of
interpreting the "treatment no less favourable" requirement of Article 2.1 as not prohibiting
detrimental impact on imports that stems exclusively from a legitimate regulatory distinction".175
7.131. Accordingly, once imported and domestic/other foreign products are found to be like, two
elements must be examined to determine whether the measure at issue accords imported
products less favourable treatment than that accorded to like domestic/other foreign products:
(a) whether the measure causes a detrimental impact on competitive opportunities for the group
of imported products vis-à-vis the group of domestic/other foreign products; and (b) whether the

172 Although Norway did not put forward a claim under Article 2.1 of the TBT Agreement, to the extent
that Norway holds the same view as Canada with respect to Canada's claim under Article 2.1 and presented its
arguments and evidence in other parts of its claims, we also refer to them, as necessary and as appropriate, in
this section. (See, for example, Norway's opening statement at the first substantive meeting of the Panel,
paras. 103-105). In the context of its claim under Article 2.2 of the TBT Agreement (legitimacy of objective),
Norway presents its view on the alleged legitimacy of the distinction between commercial and non-commercial
seal hunting under the measure.
173 Appellate Body Report, US – Clove Cigarettes, para. 87. The other element mentioned by the
Appellate Body, i.e. that the measure at issue must be a technical regulation, was addressed in section 7.3.1
above.
174 Appellate Body Report, US – Clove Cigarettes, para. 180.
175 Appellate Body Report, US – Clove Cigarettes, para. 181.
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detrimental impact on imports, if found to exist, stems exclusively from a legitimate regulatory
distinction rather than reflecting discrimination against the group of imported products.176
7.132. In sum, to determine whether the EU Seal Regime violates the MFN and national treatment
obligations under Article 2.1 of the TBT Agreem ent, we need to examine the following three
elements:
a. whether the imported and domestic/other foreign seal products are like products;
b. whether the EU Seal Regime causes a detrimental impact on competitive opportunities
for the group of imported seal products vis-à-vis the group of domestic/other foreign
seal products; and
c. whether the detrimental impact on imports, if found to exist, stems exclusively from a
legitimate regulatory distinction rather than reflecting discrimination against the group of
imported products.
7.133. We examine these elements in turn.
7.3.2.1 Like products
7.134. The first element of Article 2.1 of the TBT Agreement that we examine is whether
imported seal products are like domestic and/or other foreign seal products at issue.
177
7.135. According to the Appellate Body, the inte rpretation of the concept of "likeness" in
Article 2.1 of the TBT Agreement entails the following considerations:
The interpretation of the concept of "likene ss" in Article 2.1 has to be based on the
text of that provision as read in the context of the TBT Agreement and of Article III:4
of the GATT 1994, which also contains a similarly worded national treatment
obligation that applies to laws, regulations, and requirements including technical
regulations. … [T]he determination of likeness under Article 2.1 of the TBT Agreement,
as well as Article III:4 of the GATT 1994, is a determination about the nature and
extent of a competitive relationship between and among the products at issue . To the
extent that they are relevant to the examin ation of certain "likeness" criteria and are
reflected in the products' competitive relationship, regulatory concerns underlying

176 In setting out this analytical framework, the Appellate Body in US – Clove Cigarettes specifically
referred to the situation "where the technical regulation at issue does not de jure discriminate against
imports". (Appellate Body Report, US – Clove Cigarettes, para. 182).
177 Canada submits that conforming and non-conforming seal products are like because the products
falling within both categories are in a competitive relationship and thus substitutable on the EU market.
(Canada's first written submission, paras. 311-321). Conforming and non-conforming seal oil or seal skins,
for instance, have the same physical characteristics, end-uses, and tariff classification. According to Canada,
the evidence points to the fact that consumers (e.g. producers of seal oil, tanners, or manufacturers of
garments and accessories made of seal fur skins) valued the quality of the seal input rather than the fact that
products were derived from Inuit, marine resource management, or commercial hunts. (Canada's first written
submission, paras. 312-315 and 319-320, cross-referencing Norway's first written submission, paras. 301,
305, and 319-320 (referring to Statement of Ms Linn Elice Kanestrøm on behalf of Fortuna Oils AS (31 October
2012), (Exhibit NOR-46); Statement of Mr Anders Arnesen on behalf of GC Rieber Skinn AS (31 October 2012),
(Exhibit NOR-53); and Statement of Mr Helge Reigstad on behalf of Topaz Arctic Shoes AS (30 October 2012),
(Exhibit NOR-54)); Canada's response to Panel question No. 38, para. 148, and Exhibits CDA-88-90. See also
Norway's first written submission, paras. 301-302, 305-307, and 319-320).
Furthermore, Canada notes that prior to the entry into force of the EU Seal Regime, consumers did not
distinguish between seal products on the basis of whether they were derived from commercial, IC, or MRM
hunts. (Canada's first written submission, para. 316 (referring to Seals and Sealing Network website
information on Denmark (Greenland), (Exhibit CDA-69)). In support of its argument, Canada observes that
seal skins derived from its commercial (non-Inuit) hunts were in fact imported by Greenland for the purpose of
rendering them into various seal products.
The European Union acknowledges that all seal products are like regardless of the type and purpose of
the hunt. (European Union's first written submission, para. 254).
WT/DS400/R • WT/DS401/R

technical regulations may play a role in the determination of likeness. 178 (emphasis
added)
7.136. We thus assess the likeness of products based on inter alia the following criteria: (a) the
properties, nature, and quality of the products; (b) the end-uses of the products; (c) consumers'
tastes and habits; and (d) the tariff classification of the products. 179 As emphasized by the
Appellate Body in EC – Asbestos, these four criteria provide a framework for analysing the likeness
of particular products on a case-by-case basis and are meant to serve as tools to assist in the task
of sorting and examining the relevant evidence.
7.137. The complainants' claims in this dispute relate to the treatment of seal products in general.
As noted above, the EU Seal Regime covers a broad range of products falling under different
chapters of the Combined Nomenclature.
180 The dispute between the parties is based on the
distinction made between seal products that are prohibited under the EU Seal Regime
(non-conforming) and seal products that are allo wed because they meet the specific requirements
under the exceptions (conforming).
7.138. We recall that the complainants argue that conforming and non-conforming seal products
are like. The European Union does not contest that all seal products are like products, irrespective
of the distinction drawn in the measure between non-conforming and conforming products.
7.139. The Panel shares the parties' view
181 that the type or purpose of the seal hunt does not
affect in any way the final product's physical characteristics, end-use, or tariff classification.
As regards the criterion of consumers' tastes an d habits, the complainants presented evidence to
demonstrate that, prior to the EU Seal Regime, consumers did not make any distinction between
seal products based on the type or purpose of the hunt.
182 This evidence consists of statements by
manufacturers and producers of seal products who ma intain that the quality of the product, rather
than the type or purpose of the hunt, was the main factor for consumers' choice. We note that the
European Union has not contested this evidence.
7.140. Based on the above, we conclude that conforming and non-conforming seal products are
like products within the meaning of Article 2.1 of the TBT Agreement.
7.3.2.2 Whether the EU Seal Regime causes a detrimental impact on imported products
7.3.2.2.1 Main argument of the parties
7.3.2.2.1.1 Canada
7.141. Canada claims that the EU Seal Regime de facto discriminates against the group of
Canadian imports of seal products. Canada argues that a determination as to whether there has
been less favourable treatment entails comparing the entire universe of like products (including
both conforming and non-conforming seal products), as opposed to making a
"category-to-category" comparison within the group of like products (i.e. comparing conforming to
conforming, and non-conforming to non-confor ming seal products), as suggested by the
European Union.
183
7.142. According to Canada, the purpose and scale of the hunt or the ethnic identity of the hunter
are irrelevant for the purpose of establishing whether a measure accords less favourable treatment
to certain products.
184 In Canada's view, to be able to justify differences in treatment between

178 Appellate Body Report, US – Clove Cigarettes, para. 120. The Appellate Body also noted that "the
concept of like products serves to define the scope of products that should be compared to establish whether
less favourable treatment is being accorded to imported products." (Appellate Body Report, US – Clove
Cigarettes, para. 116).
179 Appellate Body Report, EC – Asbestos, para. 102.
180 See section 2.2 above.
181 See footnote 177 above.
182 See Canada's first written submission, para. 316 and response to Panel question No. 38, para. 148.
183 Canada's second written submission, para. 231; comments on the European Union's response to
Panel question No. 124.
184 Canada's opening statement at the first meeting of the Panel, para. 60.
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sub-groups of like products on such a basis would eliminate the possibility of finding de facto
discrimination.185 The main element that needs to be taken into account is whether the EU Seal
Regime affects the conditions of competition to the detriment of Canadian seal products.186
7.143. Canada maintains that in the case of the IC exception, the conditions that must be
satisfied effectively permit all seal products from Greenland to be placed on the market and to
circulate freely between European Union member States. 187 At the same time, the conditions
exclude the "vast majority" of Canadian seal products from the EU market because the commercial
harvest from which the products are derived does not meet the requirements under the
IC exception.188 Canada argues that the "design, structure and expected operation" of the
IC exception indicate that the Regime will have a detrimental impact on the competitive
opportunities of Canadian seal products as compared to their like counterparts from Greenland.
189
The fact that there is equal treatment granted to Inuit seal products from Canada and Greenland
does not change the fact that there is discrimination against nearly all Canadian seal products.190
7.144. Similarly, regarding the MRM exception, Canada submits that the Regime effectively allows
domestic seal products from Sweden, Finland, and possibly the United Kingdom to be placed on
the EU market while excluding virtually all Canadian seal products. 191 Through its requirements,
the MRM exception conditions market access on the basis of whether seal products are derived or
manufactured from seals culled under specific types of marine management programs. Canada
asserts that the requirement to adopt an "ecosystem-based approach" for the management plan
will likely operate to exclude Canadian seal products from the market because Canadian hunts are
based on the sustainability of seal populations and not the eco-system.
192 Furthermore, the
"non-systematic" and "non-profit" requirements w ill prevent Canadian imports of seal products
from being placed on the Community market because the east coast harvest in Canada is
conducted based on a "fixed plan or system", on a yearly basis and for the specific purpose of
commercial gain.
193 In contrast, according to Canada, "the design, structure, and expected
operation of the category indicate that EU seal products are likely to meet those conditions".194
7.3.2.2.1.2 European Union
7.145. The European Union does not consider that conforming and non-conforming seal products
should be compared for the purpose of assessing whether the EU Seal Regime has a detrimental
impact on Canadian imports. For the European Union, conforming and non-conforming seal
products are in "different situations". Therefore, the two groups of products cannot be compared
to establish whether the measure has detrimentally affected the conditions of competition of
Canadian seal products.
195 According to the European Union, the analysis must be undertaken
within each category of the group of like products, namely by comparing conforming to conforming

185 Canada's second written submission, para. 233.
186 Canada's opening statement at the first meeting of the Panel, para. 60; second written submission,
para. 237.
187 Canada's first written submission, para. 407. Canada notes that Greenland is a self-regulating part of
the Kingdom of Denmark. As such, Greenland is not part of the European Union but rather a country or
territory associated with the European Union in accordance with the provisions of Part Four of the Treaty on the
Functioning of the European Union, Article 355 of the Treaty on the Functioning of the European Union, and
Protocol No. 34 on Special Arrangements for Denmark (Greenland). As regards the status of Greenland in the
WTO, Canada notes that Greenland was notified in 1951 by Denmark as a territory to which the GATT 1947
applied. Denmark makes WTO notifications and statements on behalf of Greenland and has stated that it
represents Greenland (which is not part of the European Union) in the WTO. (Canada's first written submission,
paras. 124-125; Norway's first written submission, paras. 71-72).
(See, for instance, The Territorial Application of the General Agreement: A Provisional List of Territories
to Which the Agreement Is Applied, (Exhibit NOR-20) and Preparations for the 1999 Ministerial Conference,
Communication from Denmark, WT/GC/W/384 (8 November 1999)).
188 Canada's first written submission, para. 323.
189 Canada's first written submission, para. 324; opening statement at the first meeting of the Panel,
para. 66.
190 Canada's opening statement at the first meeting of the Panel, para. 61; response to Panel question
No. 23, paras. 120-121.
191 Canada's first written submission, para. 341.
192 Canada's first written submission, para. 344.
193 Canada's first written submission, para. 339.
194 Canada's first written submission, para. 337; opening statement at the first meeting of the Panel,
para. 65.
195 European Union's first written submission, paras. 295 and 325.
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and non-conforming to non-conforming seal produc ts. Under the EU Seal Regime, products of all
origin falling within the same category are treated equally in terms of their access to,
or prohibition to access the EU market.
196
7.146. For the European Union, the fact that most of Canada's seal products cannot be placed on
its market, while most of the like domestic or other foreign products can be placed on the
EU market, is insufficient to establish the existence of a detrimental impact on Canadian seal
products.
197 When the treatment granted to the group of Canadian imports of seal products as a
whole is compared to the treatment granted to the entire group of like products from
domestic/other origin, there is no alteration of the aggregate competitive opportunities of
Canadian seal products as compared to seal products of domestic or other origin.198
7.147. With regard to the IC exception in particular, the European Union argues that non-Inuit
seal products from Canada and Inuit seal products from Greenland are in "different situations"
because the two types of hunts differ in respect of their purpose (subsistence on the one hand,
profit on the other hand), their intensity, and the moral perception of the EU public.
199 The
European Union further argues that Canadian Inuit seal products are treated in the same manner
under the EU Seal Regime as Greenlandic Inuit seal products. 200 The fact that the portion of
Greenlandic seal products falling under the IC exception is greater than the portion of Canadian
seal products qualifying under the same exception does not make the EU Seal Regime
discriminatory per se.201 Moreover, Canada's allegation that the IC exception benefits Greenlandic
seal products is unfounded, as not all seal products originating in Greenland will automatically be
covered under the IC exception.
202
7.148. Regarding the MRM exception, the European Union argues that seal products derived from
MRM hunts and seal products derived from the Canadian commercial hunts cannot be compared
for the purpose of determining whether Canadian imports have been treated less favourably.
203
According to the European Union, the two groups of products essentially differ in terms of their
scale and their commercial or non-commercial motivations. 204 The European Union asserts that
Canada could, in principle, carry out MRM hunts and place the by-products of such hunts on the
EU market.205 However, the European Union notes that Canada has not requested to be included in
the list of recognized bodies authorized to issue attesting documents for placing on the market
under the MRM exception.
206

196 European Union's first written submission, para. 324; second written submission, paras. 205
and 552.
197 European Union's opening statement at the second meeting of the Panel, para. 55.
198 European Union's first written submission, paras. 293 and 324; second written submission,
para. 204; response to Panel question No. 124. The European Union notes that it does not produce any non-
conforming seal products. However, the European Union asserts that the fact that there are no domestic like
products falling within the category of non-conforming seal products is not an obstacle to making a "category-
to-category" comparison of the treatment granted by the EU Seal Regime, i.e. examining the potential
treatment that those domestic like products would receive under the EU Seal Regime.
199 European Union's first written submission, paras. 295-300.
200 European Union's first written submission, para. 294.
The European Union recalls that 5 per cent of Canadian seal products could potentially fall under the
IC exception (a fact that is not denied by Canada) and that Norway could also qualify under the IC exception.
However, neither Canada nor Norway has submitted any request to the European Commission to be included in
the list of recognized bodies authorised to issue the necessary attesting documents for their products to be
placed on the European Union market. (European Union's first written submission, paras. 551 and 562).
201 European Union's first written submission, paras. 289 and 561.
202 European Union's first written submission, para. 295 citing COWI 2010 Report, (Exhibit JE-21),
Annex 5, p. 17.
203 European Union's first written submission, para. 323.
204 European Union's first written submission, paras. 325-329.
205 European Union's second written submission, paras. 247 and 250.
206 European Union's first written submission, footnote 446; response to Panel question No. 123,
paras. 91-92; second written submission, para. 250 (citing Canada's Marine Mammal Regulations,
(Exhibit CDA-21), Article 26.1). The European Union notes that according to Canada's own regulations, licences
(which are mandatory for hunting seals) may be granted for commercial use, for personal use, and for
"nuisance seal" hunts. Seal products derived from such nuisance seal hunts would in principle qualify under the
MRM exception.
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7.3.2.2.2 Analysis by the Panel
7.149. Before we engage in our analysis of wh ether the EU Seal Regime causes a detrimental
impact on competitive opportunities for the group of Canadian imported products vis-à-vis the
group of domestic and/or other imported products, we must first determine the groups of products
to be compared.207
7.150. The "universe" of products covered in this dispute, as agreed by the parties, is reflected in
Table 1 below.
Table 1: Group of like seal products

Distinction Domestic
Seal Products
Norwegian
Seal Products
Canadian
Seal Products
Other Foreign
Seal Products
Greenland Other
Non-conforming A B C D E
Conforming
(IC and MRM hunts) F G H I J

7.151. We recall that while the parties agree in principle that all seal products are like, they
disagree on the groups of like products to compare for the purpose of determining whether the
EU Seal Regime is consistent with Article 2.1 of the TBT Agreement.
7.152. Canada is of the view that the entire group of imported seal products (including
conforming and non-conforming products) should be compared to the entire group of domestic
and/or Greenlandic seal products. The European Union considers that the treatment granted under
the EU Seal Regime to conforming and non-conforming seal products cannot be compared because
these products are in "different situations".
7.153. We note that the question of the groups of products to be compared was also addressed
in US – Clove Cigarettes. In analysing Indonesia's claim under Article 2.1 of the TBT Agreement,
the Appellate Body compared clove cigarettes (t he imported product subject to the ban) and
menthol cigarettes (the domestic product exempted from the ban). The fact that certain non-clove
cigarettes from Indonesia were exempted from the ban was not considered relevant to Indonesia's
claim that the competitive opportunities for its clove cigarettes, comprising the "vast majority" of
Indonesia's exports to the United States, were being negatively affected vis-à-vis menthol
cigarettes from the United States, comprising the "v ast majority" of like domestic cigarettes in the
United States.
208
7.154. Thus, contrary to the European Union's position, the Appellate Body's approach suggests
that the group of imported products should be compared with the group of domestic or other origin
products. Thus, for the purpose of considering Canada's claim under Article 2.1 and with reference
to Table 1 above, Canada's seal products (cells C+H), the vast majority of which are
non-conforming products, are to be compared to domestic seal products (cells A+F) and to
Greenlandic seal products (cells D+I) respectively. That is so even if a small percentage of seal
products from Canada may still be eligible to qualify for placement on the EU market under one of
the exceptions.
7.155. With this in mind, we turn to the ques tion of whether the EU Seal Regime causes a
detrimental impact on competitive opportunities for the group of Canadian imported products
vis-à-vis the group of other imported or domestic like seal products.
7.156. The Appellate Body confirmed that this qu estion requires consideration of the totality of
the facts and circumstances before the panel, and an assessment of the implications for
competitive conditions discernible from the design, structure, and expected operation of the

207 See Appellate Body Report, US – Clove Cigarettes, paras. 190 and 192.
208 Appellate Body Report, US – Clove Cigarettes, paras. 197-200.
WT/DS400/R • WT/DS401/R

measure. Furthermore, the examination of the measure's impact on the market need not be based
on the actual effects of the contested measure in the market place.209
7.157. For the purpose of our analysis, we must therefore assess the "design, structure, and
expected operation" of the EU Seal Regime, as we ll as any other relevant features of the market,
which may include the particular characteristics of the industry at issue, the relative market shares
in a given industry, consumer preferences, as well as historical trade patterns.210
7.158. We recall that under the EU Seal Regime, only seal products that meet the requirements
under the IC or MRM exceptions may be placed on the EU market. The prohibition against placing
on the market applies to all seal products other than those that satisfy the IC and MRM
requirements.
7.159. Considered in light of the specific requirements of the IC and MRM categories, the majority
of seals hunted in Canada would not qualify under the exceptions. Canada argues that the
prohibition under the EU Seal Regime was specifically targeted at the Canadian non-conforming
seal hunt, from which some 95 per cent of all Canadian seal products derive.
211 The evidence
referenced by Canada suggests that the EU legislation on seals was in fact primarily aimed at
excluding seal products resulting from the non-conforming seal hunt in Canada. 212 This is not
disputed by the European Union.
7.160. We note that Canada relies on a study conducted at the request of the European
Commission in 2010 by COWI, a Danish Consulting Group (COWI 2010 Report), which concludes
that only a minority of Canadian seal products are expected to qualify under the IC exception.
213
In contrast, the Report finds that the Greenlandic hunt is likely to meet the IC requirements.214
7.161. Relevant data before us also demonstrate that most if not all of Greenlandic seal products
are expected to conform to the requirements under the IC exception, as compared to roughly 5%
in Canada, where only a small portion of the overall seal harvest is hunted by Inuit
communities.
215 Therefore, the share of the total production that would not be eligible to be placed

209 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
210 Appellate Body Report, US – COOL, para. 269 (footnotes omitted) (referring to Appellate Body
Report, Canada – Autos, paras. 81 and 85-86; Appellate Body Report, US – Clove Cigarettes, para. 206;
Appellate Body Report, Thailand – Cigarettes (Philippines), para. 130; Appellate Body Report, US – Tuna II
(Mexico), paras. 233-234; Panel Report, Mexico – Taxes on Soft Drinks, para. 8.119; and Appellate Body
Report, Korea - Various Measures on Beef, para. 145).
211 Canada notes that "[r]oughly 95 per cent of Canada's seal harvest in the last five years that has
been placed into commerce has come from the east coast commercial hunt." Canada explains that this figure is
derived from the average proportion of Canada's total seal harvest attributable to the commercial harvest in
the years 2006-2011. (See Canada's first written submission, para. 286 and footnote 391).
212 See, e.g. European Parliament Debates – Item A6-0118/2009 (4 May 2009), (European Parliament
Debates) (Exhibit JE-12). See also Parliament Declaration, (Exhibit JE-19), point A (reference by the European
Parliament to the hunting of harp seal pups in the "North West Atlantic").
213 The COWI 2010 Report stresses that:
Inuit products make up only a very small share of Canadian seal trade, and the amount of products
currently ending on the EU market is negligible. Whether products from the commercial hunt now directed to
the EU will be replaced by Inuit products depend on a number of factors, but several stakeholders have already
indicated that it will not be possible in any case – nor desirable as far as the Inuit communities are concerned –
to increase significantly the scale of the Inuit hunt. (COWI 2010 Report, (Exhibit JE-21), pp. 64-65; see also
European Union's first written submission, para. 292).
214 Canada's first written submission, para. 277; opening statement at the first meeting of the Panel,
para. 66 (citing COWI 2010 Report, p. 30). The COWI Report indicates that in Greenland about 90% of the
total population is Inuit; there is a long tradition of seal hunting which has been part of the cultural heritage of
the communities; and seals are not hunted for the sole purpose of placing products on the market, but are
consumed and used in the local community and contribute to the local economy. We note that these facts are
also corroborated by the report of the Greenlandic Government on the management and utilization of seals in
Greenland. (Government of Greenland: Ministry of Fisheries, Hunting & Agriculture, Management and
Utilization of Seals in Greenland (April 2012), (Exhibit JE-26), pp. 15-16).
215 See Canada's first written submission, para. 286 and footnote 391; Norway's first written
submission, para. 391 and Table 1 on "Indigenous Communities Requirements" compiling relevant data from
COWI 2010 Report; 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), (Nunavut Report (2012)),
(Exhibit JE-30); Management and Utilization of Seals in Greenland, (Exhibit JE-26); Icelandic Marine Research
Institute, Summary of State of Marine Stocks in Icelandic Waters 2011/2012; Prospects for the Quota Year
2012/2013 (2012) (Exhibit NOR-21); Joint Norwegian/Russian Fisheries Commission, Report of the Working
WT/DS400/R • WT/DS401/R

on the market under the IC exception is relatively high (i.e. some 95%) for Canada, whereas most
if not all of Greenland's seal products are eligible.216
7.162. The European Union asserts that seal products from Canada could be eligible for placement
on the market under the IC exception, although no entity in Canada has yet made any request to
be added to the list of recognized bodies. 217 The European Union further contends that it has
engaged in "multiple efforts" to assist the Inuit in Canada to benefit from the IC exception. 218
Canada does not deny the fact that some of its Inuit seal products could in principle qualify under
the IC exception. Canada argues, however, that placing these products directly on the market may
be difficult for the Inuit because they have limited access to the distribution networks, processing
facilities, and marketing opportunities needed to export their seal products to the
European Union.
219
7.163. However, as observed above, the Appellate Body in US – Clove Cigarettes clarified that the
fact that a small group of imported products was exempted from the ban in question was not
considered relevant when assessing the ban's overall impact on the vast majority of imported
products vis-à-vis the majority of like domestic products . Likewise, the possibility that some of
Canada's Inuit seal products could enter the EU market does not change the fact that the vast
majority of Canada's seal products are in fact excluded from the same market on the basis that
they derive from a "non-conforming" seal hunt.
7.164. We note that Greenland's Department of Fisheries, Hunting and Agriculture was recently
recognized for the purpose of Articl e 6 of the Implementing Regulation.
220 As such, Greenland is

Group on Seals to the 40th Session – Appendix 8, (Exhibit NOR-22); United States Department of Commerce,
Marine Mammals; Subsistence Taking of Northern Fur Seals – Harvest Estimates, Federal Register, Vol. 77, No.
27 (9 February 2012), (Exhibit NOR-23); and Norwegian Ministry of Fisheries and Coastal Affairs, Facts about
Fisheries and Aquaculture 2010 (Exhibit NOR-63).
216 COWI observes in its 2010 Report that "[i]t is unlikely that all of the Greenland harvest is eligible
under Article 3.1 [of the Basic Regulation]." (See COWI 2010 Report, Annex 5, p. 17). However, COWI does
not elaborate on the reasons for its assertion. Given the recent authorization of a Greenlandic entity to act as a
recognized body pursuant to Article 6 of the Implementing Regulation, it is possible that all seal products from
Greenland will be allowed for placement on the EU market under the IC exception.
217 Canada's response to Panel question Nos. 84, 85, and 117.
218 European Union's response to Panel question No. 116. The European Union states that "based on the
requirements of the IC exception and based on the best information available, seal products derived from
hunts conducted by the Inuit in Canada would qualify under the exception." (See also NunatsiaqOnLine, dated
23 April 2013, "European Commission representative visits Iqaluit on good-will trip, Christian Leffler says
commission wants to give effect to Inuit exemption" (Exhibit EU-145)).
219 For instance, Inuit from Nunavut (Canada) have an annual production of less than 8,000 pelts of
ringed seals, which they view as insufficient to generate market interest alone on an international scale. The
ringed seal pelt industry in Nunavut benefits from the harp seal industry by "piggybacking" on markets that are
created and maintained by the much larger harp seal industry. Any variation in the market demand for harp
seal products deriving from Canada's commercial hunts would also be felt by Nunavut's ringed seal industry.
Commenting on the European Commission's Proposal, the Nunavut Government noted that "[t]his market
reality is one of the major factors contributing to the ineffectiveness of the Inuit exemption to the EU Seal
ban". (Nunavut Report (2012), (Exhibit JE-30), p. 9).
Canada notes that it considered options to address the negative impact of the EU Seal Regime on the
ability of Canadian Inuit to market their seal products internationally. (Canada's response to Panel question
Nos. 116 and 117). The COWI 2010 Report draws the following conclusions on the likely impact of the EU Seal
Regime:
As [the Canadian commercial] hunt is unlikely to fulfil the conditions of [the Basic Regulation],
some of the sourcing for blubber may shift towards notably Greenland, which is likely to fall
within the conditions under Article 3. This may even result in additional investments in Greenland
in collection and/or processing facilities. … It is likely that only Greenland will be able to make
the investments needed to make use of the exemptions, as the scale of the Canadian hunt is too
small and not as centrally organized as that in Greenland (Canadian Inuit hunt essentially uses
the sales and marketing chains of the commercial hunt, implying it would need to invest heavily
in separating its Inuit products from the rest). For buyers and producers alike, the investments
are not likely to outweigh the benefits due to the limited amount of products concerned.
(COWI 2010 Report, pp. 62 and 72)

220 See European Union's response to Panel question No. 156; Commission decision of 25 April 2013
recognising the Greenland Department of Fisheries, Hunting and Agriculture (APNN), (Exhibit EU-149), p. 3.
The European Union confirmed that prior to the Greenlandic entity obtaining recognized body status, the
Danish customs authorities had processed imports based on certificates issued by the Greenlandic authorities.
The European Union notes that this was based on an interpretation of the Implementing Regulation, whereby
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entitled to deliver attesting documents for the placing on the EU market of Greenlandic seal
products. In light of this fact, and taking into account the arguments of the parties, we believe that
all, or virtually all, seal products from Greenland are eligible to access the EU market under the
IC exception, while the majority of like products produced by Canada do not conform to the
requirements of the IC exception and thus are ineligible to benefit under the EU Seal Regime.
7.165. With regard to the MRM exception, Canada further argues that the requirements a priori
exclude virtually all of its seal products. In particular, Canadian seal products would not be eligible
under the MRM exception because they derive from seal hunts that take place on a "systematic"
and organised basis. Furthermore, sealing is a commercial activity in Canada and therefore the
hunt could not qualify under the non-profit requirement. In addition, although the seal hunt in
Canada is based on sustainability principles, it does not follow an "ecosystem-based approach"
as required under the MRM exception.
7.166. The European Union notes that, currently, seal products from Sweden accompanied by the
relevant document in accordance with Article 5(2) of the Implementing Regulation can be placed
on the market under the MRM exception.
221
7.167. The evidence submitted by the complain ants suggests that while European Union seal
products are likely to benefit from the MRM except ion, Canadian seal products are not expected to
benefit from the same market access opportunities under the EU Seal Regime. 222 A study
conducted by COWI in 2008 (COWI 2008 Report) found that a complete prohibition on the placing
on the market of seal skins and products derived therefrom would have only a minor economic
impact on EU member States.
223 This finding was based on the assumption that the transit of seal
skins and other products would continue to take place under the EU Seal Regime. 224 Conversely,
the COWI 2008 Report concludes that the economic impact of the measure would be more
significant for non-EU sealing states, such as Canada and Norway
225, based on the importance of
the EU market and the fact that the size of the hunt is much larger in these countries.226
7.168. We observe that the volume of seal products derived from seal hunts covered or
potentially covered by the MRM exception is limited. 227 Currently, only entities from Sweden are
certified as recognized bodies entitled to deliver attesting documents for placing seal products on
the EU market.228 In the Panel's view, however, the limited impact of the exception is not relevant
to assessing whether the MRM exception negatively affects the competitive opportunities for
imported products vis-à-vis like domestic products on the EU market. Even if the MRM exception
concerns only a small number of seal products, most of the European Union's seal products are
potentially eligible for placement on the EU market under this exception, while virtually all
Canadian seal products are not. In light of the above, the Panel considers that the requirements
under the IC and MRM exceptions were designed, structured, and expected to operate so as to

the issuance of attesting documents complying with the Implementing Regulation would also be allowed during
the application process for recognized body status and not only once the process had been completed.
(European Union's response to Panel question No. 161).
221 European Union's first written submission, para. 519. See also List of recognized bodies in
accordance with Article 6 of the Implementing Regulation, (Exhibit EU-77), and Commission decision of 18
December 2012 recognising the Swedish County Administrative Boards, (Exhibit EU-159). The European Union
observes that small-scale hunts or hunts for the purpose of managing marine resources also take place in
other countries within the European Union, namely in Finland. (European Union's first written submission,
para. 320, footnote 429).
222 Canada's first written submission, paras. 99-102; response to Panel question No. 167, para. 207
(where Canada notes that the products of nuisance seal hunts in Canada "may not be commercialized");
European Union's first written submission, paras. 320, , 519, 521, and footnote 429; COWI 2010 Report, p. 66
and Annex 4.
223 COWI 2008 Report, p. 117.
224 COWI 2008 Report, p. 117.
225 Canada's first written submission, para. 276; COWI 2008 Report, p. 118.
226 We note that the COWI 2008 study also considers the impact of a total prohibition of trade in seal
products, i.e. one that would extend also to the transit of seal products. COWI concludes that the economic
impact would be more important for EU member States (in particular Finland and Germany) than a prohibition
limited to the placing on the market. (COWI 2008 Report, p. 120).
227 The European Union asserts that the number of seals covered by the MRM exception in 2011 in
Sweden was 86. (European Union's response to Panel question No. 122, para. 77).
228 The European Union notes that no other entity, in Finland or elsewhere in the European Union, has
requested authorization to be a recognized body in accordance with the Implementing Regulation.
(European Union's second written submission, para. 236).
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exclude seal products deriving from the majority of Canadian seal hunts, which are not IC or MRM
hunts, from being placed on the EU market. In ot her words, by virtue of its design, the measure
excludes all but a very small percentage of potential products from Canada, while at the same
time permitting the majority or all of like products from certain EU members.
7.169. As a final observation, we address the European Union's position that the treatment
granted under the EU Seal Regime to conforming and non-conforming seal products cannot be
compared, because these products are in "different situations" with regard to the type of hunt
from which each category of products are derived. We note that despite its position on this
particular point, the European Union considers that conforming and non-conforming seal products
are "like". Based on the examination of the "nat ure and extent of the competitive relationship
between the products in the [EU] market", we found that Canada's seal products are "like" seal
products of Greenlandic and EU origin.
229 In our view, because the two groups of products were
found to be "like", such products can be compared for the purpose of determining the implications
of the measure on their competitive relationship on the EU market. We are not persuaded by the
European Union's assertion that products found to be "like" may not be compared for the purpose
of determining whether one group of products are negatively affected in terms of their
competitiveness on the market against another group. In our view, the European Union's
argument that conforming and non-conforming seal products are in "different situations" is
relevant to the justification of the regulatory distinction under the EU Seal Regime. As such, this
argument can be more appropriately assessed in the context of our subsequent analysis of
whether any detrimental impact caused by the measure to the imported products reflects
discrimination against such products.
7.170. On the basis of our examination of the de sign, structure, and expected operation of the
EU Seal Regime, as well as evidence relating to other relevant features of the market, the Panel
finds that the Regime has a detrimental impact on the competitive opportunities of Canadian
imported products vis-à-vis Greenlandic imported and EU domestic products. Next, we turn to the
question of whether such detrimental impact caused by the EU Seal Regime results in according
less favourable treatment to the imported seal products in violation of Article 2.1 of the
TBT Agreement.
7.3.2.3 Whether the detrimental impact caused by the EU Seal Regime "stems
exclusively from legitimate regulatory distinctions"
7.171. We recall the Appellate Body's explanation that the "treatment no less favourable"
requirement of Article 2.1 should not be interpreted as prohibiting detrimental impacts on
competitive opportunities for imports in cases where such detrimental impact on imports stems
exclusively from legitimate regulatory distinctions rather than reflecting discrimination against
imported products.
230
7.172. Regarding how to assess whether a detrimental impact on imports stems exclusively from
legitimate regulatory distinctions, the Appellate Body stated:
[S]ome technical regulations that have a de facto detrimental impact on imports may
not be inconsistent with Article 2.1 when such impact stems exclusively from a
legitimate regulatory distinction. In contrast, where a regulatory distinction is not
designed and applied in an even-handed manner — because, for example, it is
designed or applied in a manner that constitutes a means of arbitrary or unjustifiable
discrimination — that distinction cannot be considered "legitimate", and thus the
detrimental impact will reflect discrimination prohibited under Article 2.1. In assessing
even-handedness, a panel must "carefully scrutinize the particular circumstances of
the case, that is, the design, architecture, revealing structure, operation, and
application of the technical regulation at issue.
231

229 See Appellate Body Report, US – Clove Cigarettes, para. 191.
230 See Appellate Body Reports, US – Clove Cigarettes, paras. 169, 174, 182, and 194; US – Tuna II
231 Appellate Body Report, US – COOL, para. 271. On this point the Appellate Body was referring in this
respect to its earlier report in US – Clove Cigarettes, para. 182.
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7.173. We recall that we have found that the IC and MRM exceptions cause a detrimental impact
on competitive conditions for Canada's seal products imported on the EU market. In light of the
Appellate Body's guidance on the obligations under Article 2.1 of the TBT Agreement, we proceed
to examine whether the European Union has established that such detrimental impact stems
exclusively from legitimate regulatory distinctions.
232 As part of that analysis, we will also evaluate
whether the regulatory distinctions are designed and applied in an even-handed manner and thus
do not reflect discrimination against Canadian seal products.
7.174. Our examination of this question entails an analysis of two main questions: (a) first, what
are the relevant regulatory distinctions under the EU Seal Regime; and (b) second, are such
regulatory distinctions "legitimate".
233 We address these questions in turn.
7.3.2.3.1 "Regulatory distinctions" drawn under the EU Seal Regime
7.175. The EU Seal Regime distinguishes between seal products that conform to the IC or the
MRM requirements under the exceptions (conforming products) 234, on the one hand, and those
that do not conform to these requirements (n on-conforming products), on the other hand. 235
Specific requirements for the exceptions are set out in Article 3 of the Basic Regulation and
Articles 3 and 5 of the Implementing Regulation; only those products satisfying the IC or MRM
requirements under these provisions are allowed on the EU market.236
7.176. As indicated in the text of the concerned provisions, and as observed in the section on the
definition of a technical regulation 237, the distinction between conforming and non-conforming
products is based on specific criteria relating to seal hunts from which seals are derived and used
as inputs in the final products. These criteria include the identity of the hunter (Inuit or
indigenous); the type of hunt (traditional Inuit hunts
238); 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). The criteria at issue thus do not contain any
requirements concerning specific hunting methods.
7.177. Accordingly, the regulato ry distinction drawn by the measure is linked to seal hunts; a
particular category of the hunt from which a seal is derived determines whether a certain product
containing seal is conforming or non-conforming under the measure. Put simply, products with
seal inputs derived from IC or MRM hunts as defined under the measure are allowed, whereas
products with seal inputs derived from any other hunts are prohibited. The regulatory distinction
that the European Union must justify is therefore that between IC and MRM hunts and hunts that
are not IC or MRM hunts.

232 See Appellate Body Report, US – Tuna II (Mexico), para. 216. With respect to the allocation of the
burden of proof, we note the Appellate Body's statement in US – Tuna II (Mexico) that "[a]lthough the burden
of proof to show that the US 'dolphin-safe' labelling provisions are inconsistent with Article 2.1 of the
TBT Agreement is on Mexico as the complainant, it was for the United States to support its assertion that the
US 'dolphin-safe' labelling provisions are 'calibrated' to the risks to dolphins arising from different fishing
methods in different areas of the ocean." (Appellate Body Report, US – Tuna II (Mexico), para. 283 (referring
to Appellate Body Report, Japan – Apples, para. 157)).
233 See, for example, Appellate Body Report, US – COOL, para. 341.
234 We recall that seal products qualifying under the Travellers exception are also allowed to be imported
(as that term is defined in the Regulation) under Article 3(2)(a) of the Basic Regulation. For its claim under
Article 2.1 of the TBT Agreement, however, Canada has not taken issue with that particular exception.
235 The parties do not contest that the distinction drawn by the measure is between non-conforming and
conforming seal products. (See Canada's second written submission, para. 245; Norway's second written
submission, para. 259; European Union's response to Panel question No. 28. See also Appellate Body Report,
236 See sections 7.2.1.and 7.2.2 above.
237 See section 7.3.1 above.
238 The criteria of the EU Seal Regime pertain to "hunts traditionally conducted by Inuit and other
indigenous communities", which, for clarification, does not refer to the methods of hunting but rather to the
requirement that a community have a tradition of seal hunting "in the geographical region". (See Basic
Regulation, Article 3(1); Implementing Regulation, Article 3(a); European Union's response to Panel question
No. 30).
WT/DS400/R • WT/DS401/R

7.178. The European Union asserts that this distinction is based on the purpose of the hunt from
which seal inputs used in a given product are derived. 239 Products from hunts allegedly conducted
for "non-commercial" purposes, namely IC and MRM hunts, are allowed, and products from hunts
that are "commercial" in nature are prohibited. The European Union contends that these two types
of hunts (non-commercial and commercial) present different moral considerations and different
levels of animal welfare risks in seal hunting.
240 Canada disagrees with the European Union,
arguing that the distinction drawn by the European Union between "commercial" and
"non-commercial" hunts is not legitimate. According to Canada, seal welfare concerns exist equally
in all seal hunts, irrespective of the type and purpose of the hunt. Further, the purported
distinction between commercial and non-commercial seal hunting is illusory because all seal hunts
have commercial dimensions.
241
7.179. Given the parties' positions, we must determine whether the distinction between IC and
MRM hunts, on the one hand, and commercial hunts, on the other hand, is legitimate and does not
reflect discrimination against imported seal products derived from non-IC and non-MRM hunts.
In this regard, we are mindful that the parties contest whether the purposes of these hunts can be
characterized as "non-commercial" and "commercia l" as such. For ease of reference in these
Reports, and without prejudice to our ultimate view on the question, we will use the term
"commercial hunts" for hunts other than IC or MRM hunts. For the so-called "non-commercial
hunts" as referenced by the European Union to indicate IC and MRM hunts, we will use the specific
terms "IC hunts" and "MRM hunts".
7.180. We will begin our analysis with factual aspects of commercial hunts as it is the main
distinction drawn by the measure against both IC and MRM hunts. We will then evaluate the
specific distinction between commercial hunts and IC hunts and that between commercial seal
hunts and MRM hunts to determine whether the respective distinctions are "legitimate" within the
meaning of Article 2.1 of the TBT Agreement.
7.3.2.3.2 Preliminary question on commercial seal hunts
7.181. Throughout the proceedings, the parties debated extensively the characteristics of
commercial seal hunts.
242
7.182. In essence, the European Union asserts that seal hunting is inherently inhumane and
raises moral concerns especially when the hunting is conducted for commercial purposes. Further,
the profit-oriented nature of the hunt increases the risk that seals may be killed inhumanely.
Based on inter alia scientific opinions, the European Union takes the position that a humane killing
method cannot be applied effectively and consistently in the circumstances of commercial seal
hunts, which constitute the majority of seal hunts in Canada and Norway.
243
7.183. The complainants emphasize the equal presence of a commercial component in all types of
seal hunting. On that premise, they assert th at the distinction between commercial and other
types of hunts has no relevance to animal welfare outcomes in seal hunting. Further, they contest

239 The European Union explains that the "purpose" of the hunt is not different from the "type" of the
hunt in the sense that there are three "types" of hunts in view of their "purpose", namely commercial, IC, and
MRM hunts. (European Union's response to Panel question No. 30). We note the confirmation from the
European Union that the non-commercial purpose of subsistence to which the IC exception corresponds is tied
to the identity of the hunter as well. Specifically, the EU Seal Regime distinguishes hunts conducted "for
subsistence purposes, where seals are killed primarily in order to contribute to the subsistence of Inuit and
other indigenous communities". (European Union's response to Panel question No. 29, para. 100).
240 European Union's response to Panel question Nos. 122 and 133.
241 See Canada's response to Panel question No. 28, para. 130 and second written submission,
paras. 262-264. Norway takes a similar view as Canada concerning the European Union's position based on the
distinction between commercial and non-commercial hunts, particularly the European Union's factual
arguments regarding so-called "commercial" hunts. (See complainants' comments on the European Union's
response to Panel question No. 133).
242 As explained in footnote 172, we also address Norway's arguments in this section.
243 See, e.g. European Union's first written submission, paras. 37 and 122. The European Union submits
that the question it is asking is whether its view that a humane killing method cannot be applied effectively and
consistently in the circumstances of Canada's and Norway's commercial seal hunts finds adequate support from
qualified scientific evidence. (European Union's opening statement at the first substantive meeting of the Panel,
para. 11).
WT/DS400/R • WT/DS401/R

whether there are "inherent obstacles" in seal hunts to the application of humane killing methods
and monitoring and enforcement of regulations.244
7.184. In this section, to make an objective assessment of factual assertions advanced by the
parties regarding commercial seal hunts, we examine all factual evidence, including scientific
opinions and video recordings, submitted by the parties regarding seal hunting. 245 In our review of

244 See, e.g. Canada's opening statement at the first substantive meeting of the Panel, paras. 12-34;
response to Panel question No. 55, para. 239; second written submission, para. 264; Norway's opening
statement at the first substantive meeting of the Panel, paras. 147-202; response to Panel question No. 55,
paras. 301-313; second written submission, paras. 217-219.
245 We note that the parties have made various contentions as to the credibility and weight of certain
evidence, particularly with respect to scientific reports and video recordings.
With respect to video evidence, we note that the complainants have cited the EFSA Scientific Opinion in
support of their argument that video evidence is of limited value. (See, e.g. Canada's opening statement at the
first substantive meeting of the Panel, para. 23; Norway's opening statement at the first substantive meeting
of the Panel, para. 169). The cited passage of the EFSA Scientific Opinion, however, refers to "the difficulties in
evaluating whether or not a seal has been rendered unconscious by a blow to the head or by a bullet at a
distance or on videotape". (EFSA Scientific Opinion, p. 54) (emphasis added) We do not read this statement as
denying the probative value and reliability of video evidence. Viewed in its context, EFSA's statement, which is
applied equally to first-hand observation at a distance, serves to explain divergence in interpretation among
different studies. Although this suggests reason for caution in the interpretation of video evidence (as it also
does for recorded first-hand observations), we consider that video recordings may be usefully consulted as part
of the totality of the evidence. Indeed, the complainants have not argued that video evidence should be
disregarded, and we find acknowledgement from both Canada and Norway of the utility of video technology in
the monitoring of seal hunts and enforcement of regulations. (See Canada's response to Panel question
Further, Canada called into question the value of several exhibits relied upon by the European Union. In
particular, Canada characterizes Butterworth (2012) as a "re-packaged version of the same data used" in
Butterworth (2007) and states that "it is framed as an advocacy document rather than an objective scientific
paper". Canada further criticizes Butterworth (2012) for its reliance on "the type of video footage that EFSA
dismissed as being unreliable as evidence". (Canada's
 opening statement at the first substantive meeting of
the Panel, para. 23). Canada also states that the authors of Burdon (2001), Butterworth (2007), Richardson
(2007), and Butterworth (2012) do not have extensive experience or expertise in seals. Further, Burdon
(2001) and Butterworth (2007) were organized and funded by NGOs opposed to the Canadian commercial seal
hunt. (Canada's
 opening statement at the first substantive meeting of the Panel, para. 29). Canada contrasts
this with the IVWG Report (2005) (which included veterinarians with specific seal expertise) and Daoust (2012)
(veterinary experts with direct observation). (Canada's opening statement at the first substantive meeting of
the Panel, paras. 24 and 30. See also Canada's second written submission, para. 21). Finally, Canada objects
to Richardson (2007) and Butterworth (2012) for lacking original empirical research and the lack of peer review
for Richardson (2007). (Canada's second written submission, paras. 28-29. See also Canada's opening
statement at the second substantive meeting of the Panel, paras. 10-17).
In Norway's opening statement at the first substantive meeting of the Panel, it pointed out that Daoust
(2002) and Daoust (2012) are the only veterinary studies on the methods employed in seal hunting that are
published in peer-reviewed scientific journals, whereas Burdon (2001) and Butterworth (2007) are
"unpublished, non-peer reviewed reports, that base all their conclusions on analysis of extracted sequences of
video clips and/or examination of abandoned carcasses". (Norway's opening statement at the first substantive
meeting of the Panel, para. 169, comments of Dr Knudsen). Norway additionally contends that "all of the
studies relied on by the European Union (with the exception of papers by Daoust), lack scientific methodology
and are the basis for erroneous conclusions by the European Union." (Norway's second written submission,
footnote 393 (referring to Second Statement by Dr Knudsen, (Exhibit NOR-162), paras. 4-32)). Norway
specifically asserts that studies relied on by the European Union, i.e. Burdon (2001), Butterworth (2007), and
Richardson (2007), "are all unpublished reports or statements, made by individuals or NGOs, that have not
been subjected to peer-review". (Second Statement by Dr Knudsen, (Exhibit NOR-162), para. 5). Further,
Butterworth (2012) "does not report any new studies or new research results", and refers to other unpublished
reports relied on by the European Union (Burdon (2001) and Butterworth (2007)). (Second Statement by Dr
Knudsen, (Exhibit NOR-162), para. 6). In Norway's view, scientific articles published in merited scientific
journals cannot be compared to unpublished reports that have not been subjected to peer-review, and Norway
questions the value of analysis of extracted sequences of video clips and/or post-mortem examinations of
carcasses. (Norway's second written submission, footnote 393; Second Statement by Dr Knudsen,
(Exhibit NOR-162), paras. 8-32).
The European Union responds that formal peer-review is just one of many ways that a study may be
reviewed, and, in particular, refers to Burdon (2001) and Butterworth (2007) as having undergone some form
of expert review in subsequent studies (including the EFSA Scientific Opinion and peer-reviewed publications
such as Daoust (2002) and Butterworth (2012)). The European Union also draws a comparison between
Burdon (2001) and the IVWG Report (2005) as having been designed to produce recommendations to the
Canadian government for regulatory review. (European Union's second written submission, paras. 5-13). The
European Union defends the relevant expertise of the authors of several reports and other experts relied upon,
including: Burdon (2001) (six veterinarians, three with experience in seals and wildlife and another part of
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the evidence before us, we have given due consideration to the arguments of the parties regarding
the reliability and credibility of various sources. Specifically, in assessing the evidence in its
entirety, we have taken into account inter alia analytical and empirical rigor; relevant expertise of
the authors; and the purpose and/or mandate of the studies, statements, and reports submitted to
the Panel. The majority of this evidence concerns hunts conducted in Canada and Norway;
relatively little scientific or empirical information is provided regarding the actual animal welfare
outcomes in hunting conducted in other sealing countries.
246 We also note that in support of their
respective positions, the parties have extensively cited the findings and conclusions of the
Scientific Opinion of the European Food Safety Authority (EFSA Scientific Opinion) on the animal
welfare aspects of the killing and skinning of seals.
247 The reliability and accuracy of the EFSA
Scientific Opinion has not been challenged by any party. Based on the entirety of such evidence,
therefore, we will assess the characteristics of seal hunting in general and subsequently the
alleged characteristics of commercial seal hunting in particular.
7.3.2.3.2.1 Characteristics of seal hunting in general
7.185. The alleged unique conditions in seal hunting include the physical environment of the
hunts, characteristics of seals, and the applicatio n of killing methods in seal hunting. We examine
these conditions in turn.
Physical environment
7.186. The parties do not dispute that the phys ical environments in which seals live and are
hunted can, in certain respects, be distinguished from those existing in the hunting of other wildlife

IVWG); Richardson (2007) (experts in zoology, marine mammal veterinary science and humane slaughter with
experience of direct observation of hunt, post-mortem examinations, and review of video evidence); and
Professor Broom as a "world leading authority in the field of animal welfare". (European Union's second written
submission, paras. 14-19). The European Union also contends that scientific research is not unreliable merely
because it has been commissioned or facilitated by NGOs with a non-commercial interest. In the case of the
Canadian commercial seal hunt, observation can practically only occur with the facilitation of the Canadian
government or an NGO with government permission. (European Union's second written submission,
paras. 20-23). The European Union highlights links of Dr Daoust to the Canadian fur industry, adding that had
these links been disclosed to EFSA he would not have been permitted to be a member of the Working Group
that prepared its Scientific Opinion. (European Union's second written submission, paras. 24-28). The
European Union defends the reliability of video evidence, and, pointing out that Canada claims to use such
evidence for its monitoring of the hunt, specifically contends that it is in several ways more accurate than
first-hand observation/memory and that it is obtained in a random fashion. (European Union's second written
submission, para. 35-53). Lastly, the European Union states of Mr Danielsson, who has provided multiple
statements to the Panel as to practices and animal welfare in seal hunts (Exhibits NOR-4, NOR-128, and
NOR-163), that he "participated in the hunts as a government employee and cannot be regarded as an
independent party", and "the statements consist entirely of bare assertions, unsupported by evidence and have
been prepared expressly for the purpose of this dispute under the control of the Norwegian authorities."
(European Union's second written submission, para. 56).
246 See EFSA Scientific Opinion, p. 24: "Seal hunts have occurred in various parts of the world
throughout history, and the different stunning and killing methods used have been documented in various
ways. Very little robust information is available, however, on the efficacy of each of these methods and their
respective advantages and disadvantages in relation to animal welfare."
With respect to Namibia, which is one of the principal sealing countries, the European Union introduced
video evidence and commentary on the harvesting of Cape fur seals during the first meeting of the Panel.
247 EFSA Panel on Animal Health and Welfare, Scientific Opinion on the Animal Welfare aspects of the
killing and skinning of seals (2007).
The EFSA Scientific Opinion addresses the biology of various species of seals; different killing and
skinning methods and how they should be used in theory; the use of the killing methods in practice; the
neurophysiological aspects of the determination of death; and the training and competence of sealers. (EFSA
Scientific Opinion, (Exhibit JE-22), p. 12).
In this connection, as part of the stakeholders' consultation of the EFSA process, the Norwegian
Scientific Committee for Food Safety ("VKM") provided an opinion on the subject with an ad hoc group of
national experts to prepare the necessary scientific documents. (VKM Panel on Animal Health and Welfare,
Scientific Opinion on Animal Welfare Aspects of the Killing and Skinning in the Norwegian Seal Hunt (2007),
(VKM Scientific Opinion), (Exhibit JE-31)).
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or in the commercial slaughter of farmed animals. 248 The parties' disagreement concerns whether
the prevalence of such conditions amount to inherent obstacles to humane killing.249
7.187. The Panel notes that various seal species are found throughout the world along the coasts
of polar, sub-polar, and temperate regions. 250 The seal hunts to which the specific physical
conditions at issue may be ascribed are those occurring within or near Arctic and sub-Arctic
regions, particularly in the Arctic and northern Atlantic Oceans as well as the Barents, White, and
Greenland Seas.
251 In these regions, seals must be hunted in their marine habitats among varying
ice formations, which can create attendant conditions of seal hunting such as variable winds,
ocean swells and waves, and low/freezing temperatures. 252 This therefore distinguishes the
physical environment of seal hunts from that of terrestrial wildlife hunts 253 or commercial
slaughterhouses.254 Further, we observe that deterioration of ice conditions in sealing regions has
been observed in recent years 255 and that the volatility of ice conditions may impact the working
environment for sealers.256

248 See European Union's first written submission, paras. 127, 412; response to Panel question No. 105,
paras. 28-32; Canada's response to Panel question No. 55, para. 239; Norway's response to Panel question No.
55, paras. 301-313.
249 See, e.g. Norway's opening statement at the first substantive meeting of the Panel, paras. 177-192
(comments by experts); Canada's opening statement at the first substantive meeting of the Panel,
paras. 12-34.
250 EFSA Scientific Opinion, pp. 13-23 and 87.
We note that Cape fur seals are distributed along the southern and western coasts of Southern Africa.
In Namibia, which has a history of harvesting seals dating from the 17th century, Cape fur seals occupy
colonies located either on the mainland or on small, rocky islands, and Namibia is the only major sealing nation
in the southern hemisphere. Harvesting in Namibia is limited to three mainland colonies, and is conducted on
dry land by driving selected seals away from the sea. Namibia has submitted to the Panel information about its
legislative framework on seal harvesting, including with respect to animal welfare and sustainable ecosystem
management. (See Namibia's third-party submission, pp. 4-14). In addition, Namibia is of the view that the
EU Seal Regime is discriminatory and fails to achieve the objective of protecting animal welfare. (Ibid. pp. 14-
34).
251 EFSA Scientific Opinion, pp. 13-23; Canada's Department of Fisheries and Oceans, Overview of the
Atlantic Seals Hunt, 2006-2010, (DFO Overview of the Atlantic Seals Hunt 2006-2010), (Exhibit EU-40), pp. 6-
7; VKM Scientific Opinion, pp. 10-18; Norwegian Ministry of Fisheries and Coastal Affairs, Geographic
Distribution of Seal Hunt (September 2009), (Exhibit NOR-14). This would therefore exclude practices for
harvesting of Cape fur seals in Namibia.
252 Butterworth (2012), pp. 7-8 and Table 3 (providing data on wind speeds and wave heights on the
opening days of the commercial seal hunt from 2007-2011); IVWG Report (2005), p. 5 (recognition of "the
specific challenges presented by weather, sea and ice conditions" in seal hunts); EFSA Scientific Opinion Annex
A, footnote 1 (explanation of risk characterization parameters that "[g]ood weather refers e.g. to fine and ideal
weather and bad weather refers e.g. to poor visibility, heavy swells and gusty winds."); Video presented by the
European Union at the first meeting of the Panel, (Exhibit EU-79).
253 We note that complainants' references to the hunts of wild animals have consisted of reference to
terrestrial animals.
254 The EFSA Scientific Opinion notes, for example, that in contrast to "an abattoir where the floor
should be stable, even and not slippery, seals are killed on different substrates e.g. on land, in the water, on
solid ice, loose pack ice, moving ice floes, in environmental conditions that may rapidly alter the position of
both sealer and seal, and in weather conditions that may affect visibility". (EFSA Scientific Opinion, p. 88; see
also Ibid. p. 35 ("Seals are wild animals and so it is valid to compare the criteria used and the controls in how
we kill other wild animals, as well as how domesticated animals are killed in abattoirs … Care should be taken
when comparing the efficacy of these different methods of killing because of the great variation in
environmental conditions involved."); VKM Scientific Opinion, p. 38; NOAH Report (2012), p. 19 and
Appendix D, p. 4 (statement by Norwegian sealing inspector)).
255 See DFO Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), p. 6 ("Although variable
ice conditions have been observed historically, there has been an increased frequency of poor ice cover in
recent years."); EFSA Scientific Opinion, p. 25 (commenting that "poor ice conditions" in the southern Gulf of
St. Lawrence had resulted in a shift of the Canadian hunt towards the northern Gulf). See also Canada's
Department of Fisheries and Oceans, 2011-2015 Integrated Fisheries Management Plan for Atlantic Seals,
(DFO Integrated Seals Management Plan 2011-2015), (Exhibit EU-42), pp. 6 ("Although variable ice conditions
have been observed historically, there has been a dramatic decline in harp seal-friendly ice cover in recent
years. 2010 saw the lowest ice cover ever observed in the Gulf, and suitable ice occurred much further north
than is normal at the Front."), 14, and 16-17; NOAH Report (2012), pp. 21-22, Appendix G, p. 5, and
Appendix P, pp. 4-5; Canadian Department of Fisheries and Oceans, Canadian Commercial Seal Harvest
Overview 2011 (October 2012), (DFO Commercial Seal Harvest Overview 2011), (Exhibit JE-27), p. 3.
256 The European Union argues that two factors affect the working environment for sealers by causing
more broken and unstable surfaces: first, seasonal effects of hunting seals a few weeks older than in past
hunts; and second, the alleged impacts of climate change. (European Union's first written submission,
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7.188. By contrast, certain conditions such as the visibility afforded by the wide open habitat and
the manoeuvrability of boats in open ice formations have been suggested to present possible
advantages in seal hunting.
257 The evidence taken as a whole, however, indicates that the physical
conditions of seal hunting are distinct from those present in the hunting of other wildlife or in the
commercial slaughter of farmed animals and pose certain additional challenges in seal hunting.
Further, the parties agree that the environmental conditions of the Canadian and Norwegian seal
hunts are similar in respect of factors influencing the conduct and humaneness of the hunt.258
Characteristics of seals
7.189. The European Union argues that seals have certain unique features enabling them to stay
under water for long periods and that, as a result, seals may experience suffering "peculiar to that
species".259
7.190. The Panel observes that seals have special anatomical and physiological adaptations as
compared to other animals, such as the ability to withstand poor levels of oxygenation over
extended periods of time.
260 This has been understood by some to create potential for prolonged
life and comparatively prolonged suffering, raising concerns as to the application of 'conventional'
slaughter processes to seals. 261 As a result of these adaptations seals may continue to prolonged
display activity while unconscious and even after deat h, though this characteristic is not limited to
seals and is observed in other animals following acute trauma to the brain. 262 At the same time, it
has been pointed out that the adaptations of seals do not have any effect on killing times for tools
causing extensive brain damage (even if they may affect post-stunning or post-mortem
reactions).
263
7.191. Although "seals conform to the general mammalian [anatomical] pattern" in terms of their
skeleton and internal organs, it has been noted th at "compared to terrestrial animals of the same

para. 125; opening statement at the first meeting of the Panel (comments of Professor Broom)). The
complainants acknowledge variability in ice conditions and do not dispute the observed reduction of ice cover in
recent years. (Canada's response to Panel question No. 65, paras. 285-288; Norway's response to Panel
question No. 65, paras. 356-362).
With respect to the seasonal element, we note that some present day hunts do target older seals (in
Canada in Norway, for instance, where it is no longer permitted to hunt whitecoat pups) with the result that
the hunt takes place later in the spring when the melting and breaking up of ice floes may be more advanced.
(Butterworth (2012), p. 2; Richardson (2007), p. 38). Female harp seals give birth in March, and young harp
seals are weaned after approximately 12 days, following which they are typically hunted in the "beater" stage
of development (i.e. harp seals approximately 3-4 weeks old) as the main target of the hunt. (See
Daoust (2002), pp. 1-2; Daoust (2012), p. 445; EFSA Scientific Opinion, pp. 20, 24; see also Johnston et al.,
"Variation in sea ice cover on the east coast of Canada from 1969 to 2002: climate variability and implications
for harp and hooded seals", Climate Research, Vol. 29:209-222 (2005), (Exhibit EU-41) (research paper
explaining scientists' observation on variation in sea ice over, its potential impact on certain seal populations,
and the possible implications of observed changes in climate)).
257 Daoust (2002), p. 7; VKM Scientific Opinion, p. 27.
258 See parties' responses to Panel question No. 72.
259 European Union's first written submission, para. 407. We note that the complainants have not
directly challenged the European Union's assertion that seals' physiological capacities may have implications for
the killing process. However, Canada has called into question the evidence relied upon by the European Union
as "speculative" and of questionable relevance in the context of killing methods that involve the destruction of
the brain. (Canada's second written submission, para. 32 and comments on the European Union's response to
Panel question No. 155, para. 127). Norway has also advanced arguments regarding "stun/kill" methods
causing destruction of the brain. (See, e.g. Norway's opening statement at the first meeting of the Panel,
paras. 157-158 and 164-165).
260 See e.g. EFSA Scientific Opinion, p. 69 (noting that seals have a "relatively large total oxygen storing
capacity"); VKM Scientific Opinion, p. 25 (stating that seals "are endowed with an enhanced tolerance to lack
of oxygen (hypoxia)" and "have a large and impressive capacity to stay submerged for extended periods of
time"); NAMMCO Report (2009), p. 10 (describing the "diving physiology of seals" based on certain
"morphological and physiological adaptations, including the "ability to store substantial amounts of oxygen in a
large blood volume" and economize oxygen stores, as well as "enhanced tissue hypoxia tolerance at the
cellular level").
261 Butterworth (2012), pp. 6-7.
262 See e.g. VKM Scientific Opinion, p. 25; First Statement by Dr Knudsen, (Exhibit NOR-5), para. 41;
E. O. Øen, The Norwegian Sealing and the Concept of ‘Humane Hunting’ (2006), (Exhibit NOR-36), p. 5 ("reflex
movements can continue for several minutes after the seal is unconscious and brain dead" and "other organs
like the seal’s heart may be beating for a long time after the seal is dead").
263 NAMMCO Report (2009), pp. 10-11; VKM Scientific Opinion, p. 25.
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size the seal's body is characteristically torpedo- shaped, the limbs are short and there is a lack of
external landmarks on its torso". 264 In terms of behaviour, seals may move when or even after
they are shot or hit by a hakapik posing a challenge to sealers. 265 However, seals have been
regarded by some as relatively docile compared to other hunting targets.266
Methods for hunting seals
Humane killing methods in seal hunting
7.192. The parties acknowledge generally accepted principles of humane killing, described by
EFSA as "the act of killing an animal that reduces as much as possible unnecessary pain, distress
and suffering i.e. that causes no avoidable pain, distress, fear or other suffering".267 Based on such
principles, the parties agree that a three-step killing method is the commonly recognized
benchmark for the humane killing of seals.
268 This method consists of (a) effective stunning that
results in loss of consciousness; (b) checking to ensure loss of consciousness 269; and (c) effective
bleeding out. These three steps are described below.
7.193. EFSA and other scientific studies explain that the most commonly applied methods of
stunning involve targeting the seal's head with either firearm or clubbing instrument to render it
irreversibly unconscious. 270 The principal tools used for this purpose are: hand-held striking
instruments such as a hakapik (consisting of a wooden handle with a metal ferrule at one end that
has a slightly bent spike on one side and a blunt projection on the other) 271 or club 272; and

264 VKM Scientific Opinion, p. 23. The VKM Scientific Opinion goes on to conclude that "[t]herefore,
unlike most other forms of wildlife hunts, the head (and brain) is the preferred target rather than the thorax as
in terrestrial large game."
265 EFSA Scientific Opinion, p. 41; NOAH Report (2012), pp. 10 and 25 (statements by a Norwegian
sealer and a sealing inspector); VKM Scientific Opinion, p. 35.
266 Daoust (2002), p. 7; First Statement by Mr Danielsson, (Exhibit NOR-4), para. 30. Note that younger
seals (predominantly hunted in Norway and Canada) are regarded as more docile, whereas adult seals have
been noted to be more responsive to human presence and likely to attempt to escape. (European Union's
opening statement at the first meeting of the Panel (statement of Professor Broom)).
267 EFSA Scientific Opinion, p. 117 (definition of "Humane killing"). See also VKM Scientific Opinion,
p. 10; IVWG Report (2005), p. 2; Butterworth (2012), p. 4; E. O. Øen, The Norwegian Sealing and the Concept
of ‘Humane Hunting’ (2006), (Exhibit NOR-36), p. 1; American Veterinary Medical Association ("AVMA"),
Guidelines on Euthanasia (June 2007), (Exhibit NOR-91); AVMA Guidelines for the Euthanasia of Animals: 2013
Edition, (Exhibit NOR-133); Canada's first written submission, para. 91; Norway's first written submission,
268 Canada's first written submission, paras. 93-98 (describing its Marine Mammal Regulations as
patterned on the three-step method); response to Panel question No. 62 (considering that "the three-step
process represents the best available scientific knowledge for best practices to ensure a good animal welfare
outcome"); Norway's first written submission, paras. 172-180 (describing what is formally a two-step process
of stunning and bleeding, but referring to the first step as an outcome that must be assured before bleeding);
response to Panel question No. 62 (describing its second step as "second stunning" with a hakapik spike and
explaining the stun/kill concept of its approach); European Union's first written submission, paras. 98-105
(recognizing the three-step method as a "recommended killing method"); response to Panel question No. 63
(explaining that a "genuinely humane method for killing seals [could be] based on the three-step method").
See also DFO Integrated Seals Management Plan 2011-2015, (Exhibit EU-42), p. 7; Statement of Mr
Landmark, (Exhibit NOR-8), para. 38.
269 See footnote 309 below with respect to the practice of "second stunning" used in Norway to ensure
irreversible unconsciousness as the second step of the killing process.
270 See, e.g. EFSA Scientific Opinion, p. 68; VKM Scientific Opinion, p. 28; NAMMCO Report (2009),
p. 11; IVWG Report (2005), pp. 7-8; Burdon (2001), p. 4.
271 We note also the existence in Norway of a modified version of the hakapik called a "slagkrok". This is
an iron club with a sharp hooked spike opposite the club. (VKM Scientific Opinion, pp. 7, 33-34). EFSA
observed that "slagkroks are now rarely used" and therefore limited reference to the slagkrok "to when its use
is different from the hakapik". (EFSA Scientific Opinion, p. 38). Other studies have included reference to the
slagkrok in connection with discussion of the hakapik. (See VKM Scientific Opinion, pp. 32-35; NAMMCO Report
(2009), p. 17 and Appendix 1, Section 2.2).
272 Generally speaking, clubs are distinguished from the hakapik by the absence of a spiked metal
ferrule at one end. (See EFSA Scientific Opinion, pp. 41-42).
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firearms.273 It may entail multiple shots/blows either to ensure that the seal has been effectively
stunned or to cure any previously unsuccessful attempt.274
7.194. After stunning, the next step requires ch ecking to ensure that the seal is in fact
unconscious and insensible to pain. Two generally recognized methods for checking loss of
consciousness are "blinking tests" to check corneal reflex and skull palpation to assess physical
brain damage. There are certain challenges associated with this step, such as those posed by the
physical conditions of seal hunts and neurophysiological features of seals.
275
7.195. Bleeding (or exsanguination) is to be performed on an effectively stunned and checked
seal so as to terminate blood flow to the brain and ensure death at the time the seal is skinned. 276
In some instances where the seal is killed by the application of stunning, bleeding can be a
precautionary step rather than the primary means of killing.277
7.196. Furthermore, there is considerable evidence to show that the effectiveness of the method
used to kill seals is at least partially dependent on the abilities and competence of sealers. For
instance, EFSA explained that for any given killin g method "the best practice for that method"
would involve a competent person with well-maintained equipment
278 and that differing
observations between studies of seal hunts might be accounted for by "individual differences in
sealer behaviour and competence".279
Application of humane killing methods in seal hunting
7.197. The European Union argues that, although it could be possible in theory to prescribe a
humane method for killing seals, in practice the unique conditions in which seal hunting takes
place make it impossible to apply and enforce any such method in an effective and consistent
manner.
280 The complainants submit that the conditions in which seal hunts occur do not create

273 See EFSA Scientific Opinion, pp. 37-45.
274 See para. 7.205 below regarding the application of humane killing methods as to the competing
views about the humaneness of applying multiple shots/blows for stunning. Although Norway does not require
"checking" in the sense of monitoring the animal, its requirement of "second stunning" is intended to serve the
similar function of confirming irreversible unconsciousness.
275 See paras. 7.208-7.210 discussing the application of checking seals and paras. 7.217-7.218
regarding hooking/gaffing conscious seals.
276 See EFSA Scientific Opinion, p. 49.
277 See e.g. EFSA Scientific Opinion, p. 94, General Recommendation 2 ("Seals should be killed and
skinned in a way that meets the three steps of effective stunning or killing, effective monitoring and effective
bleeding out, before being skinned".); Burdon (2001), p. 1; IVWG Report (2005), p. 2; Daoust (2012), p. 446
(illustration: "Poster provided to Canadian sealers illustrating a three-step process for killing young harp seals,
with the purpose of inflicting minimal or no pain to the animal".).
Note that some suggest that there may be a fourth step in a humane killing, namely ensuring that
unconsciousness persists throughout the bleeding process. (See e.g. Richardson (2007), p. 17 and amicus
curiae submission by Anima et al., pp. 61-62 (Exhibit EU-81), pp. 12-13). Richardson notes that "[t]he
potential for tests of unconsciousness to be inaccurately performed in the context of the seal hunt, paired with
the reality that neither test [corneal reflex and cranial palpation] confirms irreversible unconsciousness
necessitates a fourth step in humane killing at the commercial seal hunt – re-stunning the seal if needed
during exsanguination." Richardson then goes on to add, "[t]here is good reason to believe this four step killing
process would not be effectively and consistently carried out in the physical environment in which the Canadian
seal hunt takes place." (Richardson (2007), p. 17).
278 EFSA Scientific Opinion, p. 37.
279 EFSA Scientific Opinion. p. 54. See also ibid. p. 43 ("Besides the power of the rifle and ammunition
used, a rifle is only as effective in its ability to stun/kill an animal as the marksmanship of the hunter and the
conditions under which the hunt is conducted").
Indications from both participants in the hunts and veterinary experts recognize the heavy demands and
difficult conditions of seal hunts. (See e.g. NOAH Report (2012), p. 12 and Appendix K, pp. 6, 9 (noting
indications of sealers' fatigue over the course of a hunt); p. 24 and Appendix P, p. 4 (comment by the
Norwegian Fisheries Directorate); IVWG Report (2005), pp. 5, 8-9 (noting of a specific location, the Canadian
Front, that "[b]ecause of ice, sea and weather conditions there are greater challenges for hunters to carry out"
the recommended killing method)).
280 European Union's first written submission, para. 373.
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inherent obstacles to humane killing and that, in fact, seals are killed humanely in their respective
hunts.281
7.198. The Panel examines, based on the evidence before it, the parties' arguments concerning
the application of generally recognized humane killi ng methods at each step of the seal killing
process.
Stunning (clubbing282 or shooting)
7.199. The parties contest whether the physical environment and conditions in which seal hunting
occurs form an inherent obstacle to accurate and effective stunning.283
7.200. The Panel first recalls that the most commonly applied stunning methods in seal hunts
involve targeting the seal's head with either firearm or clubbing instrument to render it irreversibly
unconscious. The evidence before us shows that physical conditions can affect the choice of
instrument as well as the manner in which the stunning takes place.
284 EFSA, for example, notes
that more solid ice accumulation can facilitate the application of short-range tools such as
hakapiks, whereas more unstable and sparse ice formations will favour the use of stunning from
longer ranges with firearms.
285 In light of the observed deterioration of ice conditions in recent
hunts, EFSA concludes that the use of rifles is likely to continue to dominate and even to increase
if the poor ice conditions persist.
286
7.201. Against this backdrop, we proceed to examine the degree to which stunning methods in
seal hunts can be effectively and consistently applied.

281 Canada's opening statement at the first meeting of the Panel, paras. 12-14; Norway's opening
statement at the first meeting of the Panel, paras. 140-143.
282 We note that, unless otherwise indicated, the use of the term "clubbing" in these Reports refers
generally to the striking of seals and is not limited to the use of a specific instrument. The general term
"clubbing" may be understood as corresponding to EFSA's reference to "physical methods (e.g. hakapik or
club)", and therefore is not confined to clubs (as distinguished from hakapiks). (See EFSA Scientific Opinion,
p. 68).
283 European Union's first written submission, paras. 127-138; Norway's opening statement at the first
meeting of the Panel, paras. 177-192 (comments by experts); Canada's opening statement at the first meeting
of the Panel, paras. 12-34.
284 In this connection, various exhibits explain the unsuitability of other tools and methods of stunning in
light of the physical environment and conditions of seal hunting. (See VKM Scientific Opinion, p. 42 (noting that
"neither the use of electricity, gas, nor captive bolts would be practical nor realistic to try in the environmental
conditions in which the seal hunting is carried out" and that captive bolt methods" would not function well
under arctic conditions" and direct placement against the seal's head may not be practicable for unrestrained
seals); EFSA Scientific Opinion, p. 48 (commenting on unsuccessful research using pistols and that "proper
maintenance of such weapons under cold and wet conditions on the ice floes would be difficult"; "captive bolts
may not be appropriate [because] they may not function properly under harsh weather conditions" and use on
"unrestrained animals on the ice would pose additional limitations"; and that poisoning/anaesthetic drugs had
not been found to be practical; see also NAMMCO Report (2009), p. 13; E. O. Øen, The Norwegian Sealing and
the Concept of ‘Humane Hunting’ (2006), (Exhibit NOR-36), p. 4 ("[p]istols and revolvers would be too
inaccurate", "penetrative or non-penetrative captive bolt pistols used in slaughterhouses … would probably be
even poorer than pistols", and "[t]he use of shotguns is unthinkable")).
Note, however, that other factors of a given seal hunt may also be relevant to the choice of instrument.
(See, e.g. VKM Scientific Opinion, p. 27 (explaining the skull thickness of younger seals making hakapiks
appropriate)).
285 EFSA Scientific Opinion, pp. 25 (depending on ice conditions and the size of ice floes, "hunters either
shoot the seal from their boats or go down on the ice and strike the animals with a hakapik") and 27
(regarding the Norwegian hunt "[t]he percentage of young seals which are shot (as opposed to the hakapik
being used as the primary killing method) may vary somewhat depending on the time of year and the
conditions of the hunt (i.e. stability and thickness of ice)"); Daoust (2012), p. 445 ("[d]epending on ice
conditions, these seals are hunted mainly with one of two regulation tools …: the hakapik … in years of good
ice, when the sealers can get down on the ice and approach the animals; or a rifle … where ice floes are
typically much smaller and more spread out"); Butterworth (2007), p. 8.
286 EFSA Scientific Opinion, pp. 45 and 89, point 5. See also Daoust (2002), p. 2 ("Ice conditions, which,
in recent past, have varied considerably from year to year, also influence the nature of the hunt. Years of poor
ice formation, with predominance of small ice floes, have led to a larger proportion of the animals being shot
rather than struck with a hakapik."); NAMMCO Report (2009), p. 17 ("The environmental conditions and the
nature of the hunt determine to a large extent whether the hakapik is being used as the primary tool or not.
For example the use of the hakapik as the primary tool has been reduced due to poor ice conditions and
changes in targeted age classes").
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7.202. Regarding the effectiveness of firearms for stunning, the main risk is "the targeted animal
being hit with insufficient force and/or accuracy to cause instantaneous death or unconsciousness,
and possibly escaping wounded".
287 Contributing factors to this risk include firing from excessive
distance and unstable platforms (e.g. by the relati ve motion of the boat and of the ice floe on
which the seal is resting). Multiple scientific reports have explicitly correlated the accuracy (and
thus effectiveness) of firearms with such environmental factors and the small size of the target
(head and upper neck).
288
7.203. At the same time, there is evidence of means employed to enable effective stunning with
firearms and to mitigate the risks of inaccurate shooting. For example, the use of optical sights
with magnifying lenses on modern rifles can serve to enhance accuracy at the shooting distances
relevant for seal hunting.
289 Additionally, several sources stress the destructive power of various
firearms and ammunition used for stunning that can help ensure that struck animals will be
rendered unconscious. 290 Finally, there are also suggestions that hunters may exercise their
judgment to refrain from attempting to stun seals wh en poor conditions pose a risk of ineffective
stunning.291
7.204. With respect to what EFSA terms "physical methods" of stunning, namely by striking with a
hakapik or other clubbing instrument, there is also evidence detailing the circumstances in which
such methods may result in ineffective stunning. As with firearms, an effective stun will largely
depend on the accuracy and force of the blow, which in turn can be affected by the stability of the
platform, the balance of the hunter, and the hunter's position relative to a potentially moving

287 EFSA Scientific Opinion, p. 44.
288 EFSA Scientific Opinion, pp. 43-44 and 89; VKM Scientific Opinion, p. 32 ("There are disadvantages
from the use of firearms in the hunt. The risk for bad shots (i.e. strayshots or hits outside vital areas) is
present and increase with longer shooting ranges (>50m) and/or if the boat (platform) is moving heavily or
the ice floes are in motion in bad and windy weather conditions. The seal might also suddenly move its head.
In such situations, the shot might either miss completely, or wound and injure the animal. Seals shot and
wounded might escape before they are re-shot."); Butterworth (2012), p. 5. See also NOAH Report (2012),
p. 19 and Appendix D, p. 4 (description by sealing inspector of relevant factors to accurate shooting); Letter
from Norwegian Fishing Vessel Owners Association, (Exhibit EU-44) (noting that a sealing vessel will be "in
motion due to swell, waves and its own progress").
289 EFSA Scientific Opinion, p. 44 ("Modern rifles with optical sights, possibly combined with rangefinder
are very accurate weapons at shooting distances relevant for seal hunting, and shots fired at the brain will
usually be grossly destructive with severe bleeding and tissue damage".); First Statement by Mr Danielsson,
(Exhibit NOR-4), para. 29 (stating that shooting ranges are usually from 30-40m, but may be between
10-70m, which can be "effectively very close" with magnification lens); Third Statement by Mr Danielsson,
(Exhibit NOR-163), para. 5.
290 See e.g. VKM Scientific Opinion, pp. 30-31; NAMMCO Report (2009), p. 14; First Statement by Mr
Danielsson, (Exhibit NOR-4), paras. 41-46; First Statement by Dr Knudsen, (Exhibit NOR-5), para. 22
(stunning involving "a massive impact to the seal's brain" and in the case of rifles potentially causing "complete
destruction of the brain after impact of the high-velocity expanding bullet").
291 EFSA Scientific Opinion, pp. 40, 45; First Statement by Mr Danielsson, (Exhibit NOR-4), para. 38;
Second Statement by Mr Danielsson, (Exhibit NOR-128), paras. 4-5 (recognizing that hunting is an outdoor
activity with conditions that "could affect the accuracy of a shot", but that hunters may adjust for this factor)
and para. 22 (stating that hunting may not proceed under inclement conditions). But see also NOAH Report
(2012), p. 10 (comments of a penalized captain of a vessel describing the difficulty of exercising judgment,
stating "[t]here will always be an evaluation from the hunter if he dares to shoot. You seldom get a perfect
situation in hunting. In our line of business many wrong decisions are made …").
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seal.292 On the other hand, there are indications of th e suitability and effectiveness of the hakapik
on younger seals due to their relatively weaker skulls and lesser reaction to human intrusion.293
7.205. We note that the parties have made specific arguments as to the practice of inflicting
multiple blows and/or firing multiple shots on a targeted seal during the stunning process. 294 On
this matter, we do not consider that the infliction of multiple blows or repeated shots is per se
unacceptable in terms of animal welfare, given th at this practice may be precautionary and not
necessarily a consequence of ineffective stunning. 295 As a remedial action for an ineffective first
stunning attempt, multiple blows or shots could be consistent with humane killing principles to the
degree they were performed accurately and rapidly. At the same time, we observe that attempts
at re-stunning (particularly with firearms) may pose the same challenges to accurate and effective
stunning as in the original instance, but with the possibility of additional obstacles from the
motions of a struck seal and the difficulty of determining whether re-application of stunning is
required.
296
7.206. The European Union has described the difficulties of effective stunning as part of the
inherent obstacles to humane killing in seal hunts. Although the complainants also accept the
possibility of ineffective stunning in seal hunts, they dispute the prevalence of its occurrence and
implications for the general characterization of the humaneness of methods applied in seal
hunts.297 In this regard, EFSA observes that there is a generally a limited amount of data available
on animal welfare in seal hunts, including with respect to effective stunning 298, and that existing
data may give rise to conflicting conclusions, "i.e. uncertainty is high in data interpretation". 299

292 EFSA Scientific Opinion, pp. 39 (noting possibility that the "first blow from the hakapik may not stun
the animal immediately if it does not hit the calvarium but hits, for example, the jaw or snout or other part of
the body"), 40 ("The hunter has to be close to a seal, and if it moves its head or moves away, the accuracy of
the strike may be compromised. … The hunter should withhold striking a blow if it is unlikely to be of sufficient
force or accuracy e.g. if he is off-balance or if the animal is in a position to escape into the water."), 41 (notes
as disadvantage of clubbing that "the accuracy of blows is compromised by the fact that the targets are nearly
always in motion"), 70 ("The angle of striking the skull of a seal with a rounded club or hakapik may influence
the impact energy delivered to skull, the direction of travel for the spike of the hakapik and, as a consequence,
the efficacy of the strike".), and 88, point 4 ("The accuracy of the strike may be compromised if the seal moves
its head, or moves away and this depends very much on the behaviour of the seal species, the skill of the
hunter and the environmental conditions in which the hunt takes place".); NAMMCO Report (2009), p. 17
("When using the blunt projection of the hakapik the hunter's relative position to the animal is less important
than a stable platform"); Butterworth (2007), p. 41.
293 EFSA Scientific Opinion, p. 39; VKM Scientific Opinion, p. 45. See also Norway's opening statement
at the first meeting of the Panel, paras. 163-170 (comments of Dr Knudsen regarding the effectiveness of the
hakapik when properly used and consistency with AVMA guidelines); Daoust (2012) (regarding use of hakapiks
on seals at the 'beater' stage of development).
294 See European Union's first written submission, paras. 114 and 172; Canada's second written
submission, paras. 49, 60-61; Norway's opening statement at the first meeting of the Panel, para. 167. There
is some conflicting evidence as to the animal welfare implications of such practice, as some experts have
considered the practice unacceptable (See e.g. Burdon (2001), pp. 1 and 13; Richardson (2007), p. 13;
Butterworth (2012), p. 6) whereas other have highlighted its effect of ensuring effective stunning (See e.g.
EFSA Scientific Opinion, p. 38; IVWG Report (2005), p. 8). Various sources point to the option of firing follow-
up shots in the case of any doubt that a seal has been effectively stunned with the first shot. (See e.g. Daoust
(2002), p. 6; First Statement by Mr Danielsson, (Exhibit NOR-4), para. 29).
295 See EFSA Scientific Opinion, p. 38 (explaining that observations of sealers striking seals multiple
times can be pursuant to regulatory standards or "in order to for the sealer to ensure that the animal is indeed
stunned or killed, not necessarily because the extra blows are needed").
296 In the case of follow-up shots with a rifle, even assuming that the seal’s state of consciousness was
clearly ascertained, "the erratic movements of the wounded animal, coupled with the bobbing movements of
the vessel, would not guarantee the success of the 2nd shot." (Daoust (2002), p. 6; see also
paras. 7.208-7.210 regarding the difficulties of checking consciousness).
297 See Canada's and Norway's responses to Panel question No. 69 (both referring to the EFSA finding
that no killing method will work at all time and under all circumstances).
298 See, e.g. EFSA Scientific Opinion, pp. 12 and 76.
299 EFSA Scientific Opinion, p. 91.
The data and findings of various scientific reports submitted to the Panel draw upon eyewitness
accounts and inspections; review of video of the Canadian hunt in different locations and years; and post-
mortem skull and carcass examinations. (See EFSA Scientific Opinion, pp. 53-61; NOAH Report (2012), pp. 12,
18-19, and 25-27 (comments of Norwegian sealing inspectors and sealers); Butterworth (2007), pp. 3, 36, and
41; Butterworth (2012), pp. 2-3; VKM Scientific Opinion, p. 32; Transcript of statements to the radio station
CBH-FM (28 December 2008), (Exhibit EU-105), pp. 10-11 (comments of Canadian sealer)). This evidence is
predominantly taken from the Canadian commercial seal hunt, and certain limitations have been noted in the
availability of data on the Norwegian hunt. (See Norway's response to Panel question Nos. 56 (para. 322)
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Having due regard for these limitations, our review of available evidence confirms that inaccurate
and ineffective stunning by both hakapik and firearms does occur and that seal hunting poses
inevitable risks that some seals will not be instantly and effectively stunned.
300
7.207. There is some evidence in the form of data samples and sealing inspector observations
that indicate potentially high rates of accurate stunning. 301 T h o u g h t h i s m a y s e r v e a s e m p i r i c a l

("Statistics on the incidence of poor animal welfare outcomes have not historically been maintained for the
Norwegian seal hunt.") and 61 (para. 345) (regarding independent observers). See also EFSA Scientific
Opinion, pp. 28, 66; VKM Scientific Opinion, p. 3 ("scientific, peer-reviewed studies and scientific data on the
actual performance of the Norwegian hunt are very limited")).
300 We note that the parties have devoted considerable argument to the comparability of stunning in
seal hunts and commercial abattoirs. At the same time, all parties have recognized that there are significant
differences in the physical environments of the two settings. (See e.g. Canada's response to Panel question No.
56; second written submission, footnote 66; Norway's response to Panel question No. 56; second written
submission, paras. 290-294). Also, as we have noted above, stunning tools commonly employed in
slaughterhouses (such as captive bolts) have been generally deemed unsuitable for use in seal hunts on
account of basic environmental factors and the challenge of hunting unrestrained wild animals approached
from a distance in their marine habitat. In our view, these basic differences limit the value and relevance of a
comparison to the stunning in commercial slaughterhouses when determining the risks of inhumane stunning
and killing in seal hunts in particular. (See e.g. VKM Scientific Opinion, p. 39; NAMMCO Report (2009), p. 16).
For similar reasons, we find comparisons to terrestrial wildlife hunts to be of limited value in the determination
of such risks based on inter alia differences in the hunting tools, areas targeted on the animal, and physical
settings of the hunts. (See EFSA Scientific Opinion, p. 36; VKM Scientific Opinion, pp. 36-38; E. O. Øen, The
Norwegian Sealing and the Concept of ‘Humane Hunting’ (2006), (Exhibit NOR-36), p. 2; NAMMCO Report
(2009), p. 15).
In any event, the evidence before does not clearly establish that effective stun rates in the seal hunt are
comparable to those in a commercial abattoir, as argued by the complainants. EFSA has estimated that the
rate of mis-stunning in an abattoir is 4 to 6.6% for captive bolt shooting, and notes of a field study of cattle
stunning with captive bolt that "[a]ll catle where the first shot missed were immediately restunned". (EFSA
Scientific Opinion, p. 36; see also Daoust (2012), p. 453 (comparing findings on the Canadian seal hunt to
hunts of deer, waterfowl, and noting that "the success rate (ie no return to sensibility) for stunning cattle in
the best slaughter plants under the best conditions averages 97-98%", though pointing out lower rates in other
samples); Tables summarising the evidence available on the rates of mis-tuns and delays in commercial
sealing and in slaughterhouses, (Exhibit EU-128)). Canada has compared its struck and lost rate of 5% to the
figures given by EFSA, but we note that this comparison does not account for welfare outcomes of inhumanely
stunned seals that were ultimately recovered rather than lost. (See Canada's response to Panel question No.
56, para. 252). It is also difficult to draw any conclusion with respect to the Norwegian hunt due to the lack of
representative data on stunning rates. Further, it is unclear that the animal welfare consequences of mis-
stunning in a slaughterhouse are the same as those in a seal hunt. For example, the circumstances and
challenges of re-stunning in a commercial abattoir are distinguishable from those in a seal hunt based on inter
alia the proximity to and restraint of the animal, though this may present distinct challenges for re-stunning in
a slaughterhouse that are not present in a seal hunt. (See e.g. NAMMCO Report (2009), p. 15; EFSA Scientific
Opinion related to welfare aspects of the main systems of stunning and killing the main commercial species of
animals, EFSA Journal (2004), (Exhibit CDA-47)).
In this connection, we note the complainants' arguments that seal hunts do not pose the pre-killing
stress experienced in commercial slaughters. While it is true that seals are not kept in captivity, there is some
evidence indicating that seals can experience distress before stunning. Behavioural change during pain and
fear in seals (including escape attempts, vocalisations, freezing, rearing up in a defensive posture, opening the
mouth, and violent body movements) have been clearly observed in seals immediately prior to being clubbed,
though they were generally noted to be relatively short-term events. (See Butterworth (2007), p. 38 and Video
footage cited in Butterworth (2012), (Exhibit EU-38), "Fear and Distress"). Ultimately, however, we do not
consider the pre-killing condition of the seal to be relevant to the question of humane killing and the related
risks to seals of poor animal welfare in seal hunts.
301 For instance, Daoust (2012), a 2012 study of the Canadian hunt, compiled results from four sealing
seasons in the Canadian Front and Gulf. The most empirically robust of the data from this study are taken from
the 2009 hunt at the Canadian Front east of Newfoundland and Labrador, from which observations were made
from a sealing vessel of the complete killing process for 280 seals (only two of which were killed with a
hakapik) with the collection of detailed information on several parameters associated with the process. Of
particular note, the study records the original site of injury for 245 seals, of which 218 seals (89%) were struck
in the head, 25 seals (10.2%) in the neck, and two seals (0.8%) in the "cranial thoracic region". Fourteen
(5%) out of the 278 seals that were shot were considered to have had a poor animal welfare outcome as they
were not killed immediately with the first shot and were not shot again before being retrieved. This study also
recorded the skull damage to over 200 seals stunned by hakapik in the 2005 hunt in the Gulf of St. Lawrence
(the majority of which received multiple blows), revealing a completely crushed skulled in all but 12 seals that
had varying severity of fractures. (Daoust (2012), p. 449-450). In addition, records maintained by an inspector
of the Norwegian hunt show very low struck and lost rates for 5,647 seals hunted in two years, suggesting
some degree of accuracy and effectiveness in the use of the rifle. (Second Statement by Mr Danielsson,
(Exhibit NOR-128), Annex; see also VKM Scientific Opinion, pp. 29-30; E. O. Øen, The Norwegian Sealing and
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confirmation that humane stunning can be carried out in some instances, it does not contradict the
existence of risks of ineffective stunning and thus poor animal welfare. 302 It is also not clear that
the studies claimed to reflect high levels of animal welfare can be conclusively generalized, as they
may lack "adequate sampling that is representative of the entire hunt with respect to sample size
and sampling design".
303 However, even if such data could be extrapolated to the entire hunt, a
p o o r w e l f a r e r a t e o f 5 % ( a s f o u n d i n t h e m o s t r o b u s t d a t a s a m p l e o f D a o u s t ( 2 0 1 2 ) w i t h t h e
greatest continuity of evidence) would still refl ect a risk of inhumane killing in seal hunts that,
depending on the scale of the hunt, could represent the suffering of a large number of seals.
Furthermore, there are studies showing potentially less accurate and effective applications of
stunning methods
304, and accounts given by seal hunt participants likewise demonstrate a certain
level of risk and inaccuracy in stunning.305
Checking
7.208. There is disagreement among experts abou t the most appropriate method for checking
seals to ensure irreversible loss of consciousne ss. The two principal methods are a corneal reflex
"blink test"306 and palpation of the seal's skull. 307 While the loss of a blink reflex can indicate loss
of consciousness, there have been concerns about its reliability and the difficulty of interpreting
seals' reflexes. Skull palpation directly examines the physical damage to the seal's skull and brain,

the Concept of 'Humane Hunting' (2006), (Exhibit NOR-36) (Norwegian study carried out on 349 weaned harp
seal pups shot with rifles showing 418 fired shots of which 384 struck seals, with extra shots fired at seals shot
outside the neck and head area; 343 (98.3%) of the seals were considered to have been rendered instantly
unconscious or dead, while two of the 338 seals hit in the head and four of the other 11 seals were judged to
be alive)).
302 As stated in Daoust (2012) of the hakapik and rifle, and affirmed by its empirical findings above,
"neither tool offers a complete guarantee of instant death". (Daoust (2012), p. 453).
303 EFSA Scientific Opinion, p. 51. See also Canada's response to Panel question No. 172, para. 220;
Norway's response to Panel question No. 172, para. 333.
304 An earlier study by Dr Daoust et al., Daoust (2002), combined first-hand observations in different
locations and years of the Canadian hunt along with post-mortem cranial examination of seven killed seals. The
recorded observations in the different locations were of a different nature according to the type of examination
performed, the number of seals examined, and the instrument used to stun the seal. Thus, from the 1999 hunt
at the Canadian Front examining 47 carcasses of shot seals: 35 (75%) were shot in the head; six (13%) were
shot in the neck with complete transection; three (6%) were shot in the ventral region of the neck with tissue
damage but no bone fracture; the remaining three (6%) were shot in thorax or abdomen, one of which was
found alive by itself on an ice floe. In the 1999 hunt in the Gulf, "a minimum of 225 carcasses" were examined
and showed only four (1.8%) skulls without multiple calvarial fractures (highlighted by some as evidence of
high stunning rates, despite the limitations noted in the EFSA Scientific Opinion, p. 57). For the 2001 hunt at
the Canadian Front, a total of 167 seals shot or stuck on the head were observed, recording those brought on
board (158) and lost (9), and considering three of seals to be alive after even after they were brought on
board. The specific skull damage caused by a hakapik was recorded for 100 seals with the following results:
"86 had a completely crushed calvarium with complete destruction of both cerebral hemispheres" and the
remaining 14 had partial fractures (e.g. only one side or frontal portion of the calvarium). Other studies
involving post-mortem cranial examinations show findings that were interpreted to indicate inaccurate stunning
attempts with a hakapik. (See e.g. Burdon (2001) (76 cranial evaluations showing 17% without any apparent
skull fractures, leading to the conclusion that it was highly unlikely that the seals would have been
unconscious, and 25% with "minimal" or "moderate" fractures) and Butterworth (2007) (17 post-mortem
examinations of seals killed in 2007, all of which had been clubbed and one that had also been shot, noting
that 47% had been clubbed on the face or neck, and 82% had ocular damage)).
305 See e.g. Transcript of statements to the radio station CBH-FM (28 December 2008),
(Exhibit EU-105), pp. 10-11 (comments of Canadian fisherman and sealer that not "every shot is a clean one,
and no matter what, how good the people are at controlling the hunt is, there’s going to be some animals
that’s [sic] going to have to be given the second shot"); NOAH Report (2012), Appendix L, p. 6 ("Shooting
whilst moving, in sea swell and/or on moving ice is highly demanding. Different degrees of wounding of
animals will therefore arise, but my impression was that the proportion of animals wounded by gunshot lies
within the framework of what one would necessarily expect with this kind of hunting.") and Appendix I, p. 4
(instances of wounded but not killed seals due "to a large sea swell, which during parts of the hunt made
accurate shooting very difficult").
306 See EFSA Scientific Opinion, p. 72 (explaining that "absence of a corneal reflex" can be "used as an
indicator of brain damage or brain failure"); Burdon (2001), p. 4 (stating that "bilateral loss of corneal reflexes
('blinking eye' reflexes) is generally accepted as the most accurate means of confirming a loss of
consciousness").
307 IVWG Report (2005), p. 7 ("Checking (palpation of the skull) is the process of manually depressing
the skull to ensure that the crushing process has been thorough (including both hemispheres of the brain) and
has resulted in the desired irreversible loss of consciousness or death.").
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but has drawn concern that consciousness (and therefore sensibility to pain) may persist despite
severe damage.308
7.209. The parties specifically dispute the feasib ility of determining the consciousness of seals
from a distance when hunted with firearms. 309 There is evidence showing that a successful stun
can be associated with complete immobility as well as with seizures of varying intensity resulting
in a "swimming reflex". 310 Furthermore, there is evidence that an unsuccessful stun can be
indicated by both continued movement (especially coordinated or "directed" movements) as well
as immobility from "fear-induced paralysis".311 Observations have been made that some potentially
distinguishing features between these various states would make checking unconsciousness in
seals plausible.
312 Nevertheless, there is a general recognition that the neurophysiological

308 EFSA Scientific Opinion, pp. 72 (noting the divergence in some studies as to the indicative value of
the corneal reflex test for loss of consciousness, and that skull palpation would need to be accompanied by
criteria "before any particular degree or extent of damage felt during palpation could be reliably interpreted for
field use"), 40, 50-51, and 60; Burdon (2001), p. 4 ("skull palpation is not the most reliable as a means of
interpreting death or level of consciousness. The location and severity of crush injuries involving the CNS will
affect the possible outcome; it is therefore open to misinterpretation. The bilateral loss of corneal reflexes
(‘blinking eye’ reflexes) is the most accurate means of confirming a loss of consciousness."); Daoust (2002),
p. 6 (nothing that "[c]omplete collapse of the calvarium can be verified quickly and reliably by palpation
through the skin and blubber" and "[d]isappearance of the corneal reflex implies at least severe depression of
brain stem activity"); IVWG Report (2005), p. 16 ("Properly used, the absence of corneal reflex is an accepted
method to determine deep unconsciousness. However, the process for checking the corneal reflex is not
simple, and can be very difficult to perform by a sealer on the ice. The nature of some head injuries may lead
to the eyes being fixed and staring, despite the seal being conscious and perceiving pain."); Richardson
(2007), p. 15; Butterworth (2012), p. 6; Daoust (2012), p. 452.
309 European Union's first written submission, para. 119 and response to Panel question No. 57;
Norway's opening statement at the first meeting of the Panel, para. 156; Canada's second written submission
para. 50; Parties' responses to Panel question No. 57.
In this connection, the complainants emphasize the possibility of re-shooting of any conscious seal. (See
e.g. Canada's second written submission, para. 67; Norway's opening statement at the first meeting of the
Panel, para. 156). We simply note that this would require an assessment of the seal’s consciousness from a
distance on a moving boat followed and an accurate shot of a seal that, if conscious, may be a moving target
that is capable of exhibiting directed and/or escape movements.
We also recognize that in Norway, "second stunning" is used in place of checking and serves as a
precaution to ensure irreversible unconsciousness. (Norway's response to Panel question No. 62; VKM Scientific
Opinion, pp. 27, 34). The parties dispute whether this is a faster and more reliable way of guaranteeing the
success of stunning attempts. (See Third Statement by Mr Danielsson, (Exhibit NOR-163), paras. 11-12, 17-
18; European Union's first written submission, para. 172). We note that although this may avoid the challenges
of applying a blink test or skull palpation, its capacity to ensure irreversible unconsciousness will depend on
delivery of an accurate strike of sufficient force and may require some interval of time before performance of
the second step at close proximity.
310 See EFSA Scientific Opinion, p. 71: "When stunned or killed by acute trauma to the brain, harp seals,
like other animals, may undergo a period of tonic and clonic seizures. These consist of tonic contraction and
lateral movements which can be very strong in some animals, and tended to be accompanied by contralateral
movements of the cranial portion of the body."
311 EFSA Scientific Opinion, p. 71, footnote 15: "A behaviour known as 'fear-induced paralysis' (the
equivalent of tonic immobility or freezing behavior shown in poultry and rabbits) and characterized by tonic
contraction of the whole body, has been described in a young harp seals and is shown by some animals that
feel threatened. Such immobile seals might be interpreted as dead but would still be conscious." (citations
omitted) See also C. Lydersen and K.M. Kovacs, "Paralysis as a defence response to threatening stimuli in harp
seals (Phoca groenlandica)", Canadian Journal of Zoology, Vol. 73 (1995), (Exhibit CDA-113), p. 486 (finding
that 328 of 382 harp seal pups tested (86% ) and 26 of 46 adult seals tested (57%) exhibited the passive
defence response of paralysis).
312 See EFSA Scientific Opinion, p. 71:
Despite these strong movements the animal moves non-directionally, as opposed to the
directional flight response of a threatened animal. These reactions have been described as the
'swimming reflex' and may be … viewed as the movements of a successfully stunned animal …
When complete relaxation of the body is seen, it is likely to be associated with complete
destruction of the brain and brain stem, and with no breathing. On the other hand if an animal is
immobile with some muscle tone (head raised off the ice, flippers load bearing) or it exhibits a
state of fear-induced paralysis, and remains immobile, with its head retracted and its front
flippers flat against its body, it may still be conscious. (footnote omitted)

See also Norway's opening statement at the first meeting of the Panel, paras. 154-170 (comments of Dr
Knudsen); IVWG Report (2005), p. 17; Butterworth (2007), p. 18; Canada's and Norway's responses to Panel
question No. 57 (emphasizing the relaxation, contraction, or motion of the seal's head as a factor to distinguish
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responses of seals to physical trauma do pose a challenge to the assessment of consciousness,
particularly since forms of both movement and immobility can be consistent with either effective or
ineffective stunning.313
7.210. In the event of a gunshot powerful enough to destroy a seal's head, it would be possible to
verify death by visual inspection. 314 However, even following extensive brain damage seals may
"on rare occasions display some coordinated activity, if those parts of the brainstem that are
responsible for basal control of breathing and/or motor activity remain intact".
315
Bleeding
7.211. There does not seem to be any dispute that, as an isolated step, bleeding out can be
performed effectively in seal hunts. However, the main concerns regarding bleeding out relate to it
being performed expeditiously after successful completion of the preceding steps, i.e. on a dead or
irreversibly unconscious seal.316
Areas of concern in the application of humane killing methods in seal hunting
Delay
7.212. The European Union has argued that when seals are shot from a distance it may take
extended periods of time for sealers to manoeuvre their vessels into place to retrieve the
animals.
317 The complainants have argued inter alia that the issue of delay is often irrelevant as
shooting seals serves as a combined "stun/kill" method for a majority of seals such that there is no
subsequent suffering.318

successful stunning from the freezing reflex and directed/coordinated movements from unconscious
movements such as the swimming reflex).
At the same time, there is evidence that reflex motions may not be easily distinguished from directed
movements of the upper-half of the body. For example, Daoust (2012), while defining the swimming reflex as
"lateral motions … of the caudal portio n of the body", goes on to note that "[c]lose observation of post mortem
reflex movements … showed that they were frequent and could also involve front flippers." (Daoust (2012),
p. 452). The same study also recounts the poor animal welfare outcome of seven seals shot on the ice "[m]ost
of [which] did not move at first, having presumably been stunned by the shot. By the time they showed some
evidence of consciousness, mainly through head movements, the vessel was already too close to the ice floe,
thus preventing the hunter from taking another shot for safety reasons." (Daoust (2012), p. 450; see also
NOAH Report (2012), p. 4 and Annex R, p. 3 (of 250-300 seals hooked aboard the vessel, "[t]wo animals
showed signs of life after being taken on board with an extended fishhook. It was not obvious that these
animals were conscious prior to their being hooked. This shows that it is difficult to assess whether an animal is
dead from the deck of the ship."))
313 EFSA Scientific Opinion, p. 71 ("These 'swimming' reflex movements can last for a considerable
period of time and such seals have been verified as dead by veterinarians. Nevertheless, there is a concern, in
the absence of other indicators such as skull palpation, that some seals showing a swimming reflex may not be
unconscious … Some of these conscious responses may resemble swimming reflexes, and it is not always be
[sic] easy to distinguish between conscious and unconscious reactions from a distance, and particularly, when
it is not possible to examine the animal clinically … There is a potential paradox between a successful stun
being evidenced by seizures and also by relaxation."); Burdon (2001), pp. 1, 4; Daoust (2002), pp. 2, 6 ("The
frequent occurrence of strong swimming actions in seals killed by trauma complicates the determination of
their death from a distance" and "the pattern of this reflex activity can be erratic and does not necessarily
decrease gradually in intensity from the time of death"; further, "[c]omplete immobility immediately following
a blow to the head should actually alert the sealer to the possibility that the animal is still conscious"); IVWG
Report (2005), p. 16; Daoust (2012), pp. 449, 452.
The physiological features of seals discussed in paras. 7.189-7.191 have been cited in explaining the
prolonged reflex reactions of seals (including muscle contraction and cardiac activity). (See NAMMCO Report
(2009), pp. 10-11; Daoust (2002), p. 6).
314 See VKM Scientific Opinion, p. 30.
315 NAMMCO Report (2009), p. 11 (further that a "brainless (i.e. decapitated and consequently pain
free) animal might actually continue to display breathing activity for several minutes").
316 European Union's first written submission, paras. 120-121; EFSA Scientific Opinion, p. 49; IVWG
Report (2005), pp. 9-10; Butterworth (2007), p. 5; Daoust (2012), p. 449 and Table 2.
317 See European Union's first written submission, paras. 139-144.
318 Norway's second written submission, para. 289; Canada's second written submission paras. 38
and 51. The complainants further contend that the proximity required for use of a hakapik means there will not
be a delay if this instrument is used. (Norway's opening statement, paras. 154-170 (comments by Dr
Knudsen); Canada's second written submission para. 44 (although Canada also acknowledges delay is
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7.213. Several sources emphasize that for the three-step method to be an effective and humane
way of killing seals, each step must be completed and pursued in immediate (or at least rapid)
succession for any given seal.
319 We note that there is some divergence as to what degree of delay
between steps can still be consistent with humane killing.320 While not being in a position to decide
based on the evidence presented to us a discret e minimum lapse of time between completion of
the steps of the three-step method for a kill to be regarded as humane, we observe that delay
between steps in the killing method can lead to prolonged suffering in seals and enhance the
magnitude of poor welfare outcomes.
321
7.214. Regarding actual delays in the killing proc ess in seal hunts, evidence indicates that delays
between steps in the killing process are an occurrence in seal hunts and that such delays can be
attributable to pervasive characteristics of the hunts, including the physical conditions and the
instruments used.
322 Evidence specifically confirms that the likelihood of delay is greater when a
firearm is the stunning instrument used because of the distance between the sealer and the
seal.
323

"endemic to all wild animal hunts" and that "generally accepted animal welfare standards recognize the
legitimacy of a time lag"); see also Canada's and Norway's responses to Panel question No. 60).
However, given the trend of firearms being the predominant stunning instrument and the attendant
risks of inaccurate shooting, we consider that the risks of delay persist for any seal that is not rendered
unconscious by an effective "stun/kill" application.
319 See, e.g. Burdon (2001), p. 1 ("We recommend that a process of rapid stunning (resulting in a rapid
loss of consciousness), followed immediately by a bilateral corneal reflex check to assess loss of consciousness,
followed immediately by bleeding out to ensure death occurs, are followed in order to reduce these levels of
suffering."); Richardson (2007), p. 52; Butterworth (2012), p. 4; Norway's Fisheries Directorate, Proposal to
amend the rules on seal hunting (2010), (Exhibit EU-45), pp. 3-4.
320 For example, EFSA recommends that "[t]he time between shooting and monitoring of the state of the
shot animal should be short" and that "[s]eals should be bled-out as soon as possible and, preferably
immediately, after they have been successfully stunned and checked to ensure that they are irreversibly
unconscious or dead". (EFSA Scientific Opinion, pp. 89-90; see also IVWG Report (2005), p. 2 ("The three
steps in the humane killing process -- stunning, checking that the skull is crushed (to ensure irreversible loss of
consciousness or death), and bleeding -- should be carried out in sequence as rapidly as possible".); Daoust
(2002), p. 6 ("No interval between an animal being shot and losing consciousness will ever be acceptable to
some people.")).
We note that some reports, including EFSA, have provided recommendations and conclusions within a
limited mandate to provide an opinion on the minimization of pain and suffering in seal hunts, taking account
of practical limitations, which may affect the allowance for delay. (See EFSA Scientific Opinion, p. 49
("Considering the safety issues associated with the difficult working conditions often encountered during certain
seal hunts (e. g. the small size of some of the ice floes on which seals may be stunned), and that animals may
be shot from a distance, a regulation requiring the animal to be bled immediately after stunning may not
always be practicable, depending on the hunt.")).
321 See EFSA Scientific Opinion, pp. 75-82. We note that EFSA's risk assessment to identify hazards to
seal welfare relied upon "a qualitative evaluation of the nature of the adverse effect associated with the hazard
in terms of intensity and duration." Ibid. p. 75 (emphasis added) Consequently, the duration of an adverse
effect was one of the key determinants (along with intensity and probability) of EFSA's evaluation of the risks
to animal welfare in seal hunting.
322 There are certain empirical measurements of delays in seal hunts. Daoust (2002) examined IFAW
video recordings of six seals and found that "the average interval between the seal being shot and being struck
with a hakapik or, in one instance, being shot and hooked (in order to be brought on deck) and then bled and
skinned without being struck, was 45.2 s (range 12-111 s)." (Daoust (2002), p. 4). Daoust (2012) measured
the interval between steps one and two for 254 seals with a mean duration of 63.5 seconds. This increased to
91.95 seconds for seals shot in water (20 seals) and to 76.5 seconds for seals retrieved with a gaff (90 seals).
(Daoust (2012), Table 2).
323 See e.g. Daoust (2012), p. 447; NAMMCO Report (2009), pp. 18, 21, Appendix N, pp. 6-7, and
Appendix G, p. 5; EFSA Scientific Opinion, p. 44 (of the use of a rifle, the "distance between hunter and seal
implies a necessary delay in verifying the results of the shot" absent clear demonstration that the seal is only
wounded); IVWG Report (2005), p. 9 ("The Group understands that at the Front, where seals are shot at
distances of approximately 40-50 meters, there is often a delay in sealers being able to check for effective
stunning."). There are also indications that the time required to reach a seal and complete the stun with a
hakapik could be reduced by shooting again from the vessel (re-stunning). However, as we have found above,
this again poses the risks of inaccurate shooting combined with the difficulties of assessing a seal's condition
from a distance as well as the potentially erratic movements of the struck and still conscious seal. (See Daoust
(2002), p. 6). The complainants have argued in this regard that what constitutes an "acceptable lapse of time"
between steps in the killing process depends on the killing method used. (See Canada's and Norway's
responses to Panel question No. 60).
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Struck and lost
7.215. Seals that are wounded and escape beneath the surface of the water are known as "struck
and lost". Seals that are struck and lost can die shortly after escaping or survive with injuries that
can profoundly affect their continued survival in the wild. There is evidence (including video
recordings) showing that instances of "struck and lost" do take place as a part of seal hunting and
that shooting seals in open water can contribute to its occurrence.
324 Moreover, as concluded by
EFSA, "struck and lost rates will also vary with the skill of the hunter and other variables, such as
weather conditions."325
7.216. We note that the available information from different sealing countries, while confirming
struck and lost seals, suggests that the actual rates may not be the same. The Canadian
government currently estimates a 5% struck and lost rate in the commercial seal hunt, which in
many years may be tens of thousands of seals.
326 E m p i r i c a l d a t a f r o m N o r w a y a r e g e n e r a l l y
scarce327, and there are varying indications from sealin g inspectors of the extent to which struck
and lost is a problem in the Norwegian hunt. 328 In Greenland, authorities have explained that the
hunting of harp seals occurs "exclusively" from small boats with rifles and that the "shooting of
seals at substantial distances is the cause of most hunting losses". 329 However, because the hunt
is conducted year-round, the loss rate varies according to the fat content of seals during different
seasons and the salinity of different hunt localities. 330 The government of Greenland has reported
results from a questionnaire survey showing that 34 per cent of hunters report struck and lost as
an ordinary catch when reporting their annual harvest.
331
Hooking/gaffing conscious seals
7.217. Physical conditions and concerns for sealers' safety may demand that the seal be hooked
onto the boat if it cannot be checked on the ice. 332 This may have potent ially severe negative

324 See EFSA Scientific Opinion, pp. 25, 58, and 89; NOAH Report (2012), p. 27 and Appendix K; IVWG
Report (2005), p. 2; Daoust (2012), p. 451; Daoust (2002), p. 4; B. Sjare and G.B. Stenson, "Estimating
Struck and Loss Rates for Harp Seals (Pagophilus Groenlandicus) in the Northwest Atlantic", Marine Mammal
Science, Vol. 18 (2002), (Exhibit CDA-115), pp. 710-720; A Review of Animal Welfare Implications of the
Canadian Commercial Seal Hunt, cited footage, (Exhibit EU-38); Video presented by the European Union at the
first meeting of the Panel, (Exhibit EU-79).
We note that shooting seals in water is prohibited under Norwegian regulations. (See Norwegian
Ministry of Fisheries and Coastal Affairs, Regulation Relating to the Conduct of the Seal Hunt in the West Ice
and East Ice, (Exhibit NOR-15), section 6).
325 EFSA Scientific Opinion, p. 58.
326 EFSA Scientific Opinion, p. 58; Butterworth (2012), p. 4. In its oral presentation at the first
substantive meeting, the European Union noted that more than 136,000 seals would have been "struck and
lost" at sea in the past decade alone. In a more isolated example, one study recorded that of 278 seals shot all
were retrieved, i.e. none were struck and lost. Although a portion (8.6%) of these seals were shot in the water,
the authors of the study record that all seals shot in the water floated and thus were able to be retrieved.
(Daoust (2012), p 449).
With respect to Nunavut, "the largest Inuit territory where approximately 50 per cent of all Canadian
Inuit live", COWI commented that the figure for seal catch levels "excludes hunting loss", which would require
an "adjustment of at least 10%-20%" to ring seal catch figures. (COWI 2010 Report, p. 27, footnote 22).
327 We note that "[t]here are no official statistics on numbers or percentages of seals struck and lost,
either alive or dead during Norwegian hunts". (VKM Scientific Opinion, p. 32).
328 See, e.g. Second Statement by Mr Danielsson, (Exhibit NOR-128), Annex (records kept by a sealing
inspector showing extremely low levels of struck and lost rates for 5,647 seals hunted in two years); NOAH
Report (2012), p. 27 and Appendix K, (2009 comments of a sealing inspector):
Of the last 20 animals shot … 9 took wounding shot s and were lost – almost a 50% rate of wounding
shots over more than 2 hours. Many of these animals were then shot in the sea and 2 took 6 shots to the body
on the ice before taking the last 2 shots in the sea … A total of 58 animals took wounding shots and were lost
in the sea, and around 10 were "lost" because of breaking ice. Then there were animals that took wounding
shots on the ice and took more than 2 non-fatal shots to the body … but there were more than 200 of them.
329 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 19 (Box 4). See also
para. 7.268 regarding the Greenlandic use of rifles from boats in "open water hunting" as a hunting method.
330 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 19 (Box 4).
331 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 28. See also COWI 2008
Report, p. 46; EFSA Scientific Opinion, p. 66 (providing the results of a questionnaire survey of seal hunters in
Greenland according to which part-time hunters reported a mean struck and lost rate of 26% whereas full-time
hunters reported a mean rate of 21%).
332 See IVWG Report (2005), p. 10 ("Some members of the Working Group feel that bleeding should be
a requirement of the Marine Mammal Regulations (2003), making it an offence not to bleed a seal before
WT/DS400/R • WT/DS401/R

impacts on animal welfare if a seal is conscious and sensible to pain during this process. In
recognition of this, EFSA has recommended that "[u]nless they are in the water, [seals] should not
be moved, i.e. gaffed, hauled or moved from the position they have come to rest, until it has been
confirmed that they are dead or irreversibly unconscious, or have been bled-out."
333 Nonetheless,
there are many reports and recorded instances of hooking/gaffing of potentially conscious seals in
the evidence.334
7.218. The parties dispute the extent to which hooking/gaffing of conscious seals presents a
problem in terms of animal welfare. 335 The parties agree, however, that in actual hunts seals are
recovered onto vessels with the use of hooks and gaffs 336, which is consistent with the possibility
of unstable ice conditions (so as to preclude performance of the three steps on ice) and the
concomitant increase in the use of firearms. We find compelling evidence to show that the
possibility of retrieving seals by hook/gaff is important to the feasibility of commercial seal hunting
in Canada
337 and Norway 338. Furthermore, given the difficulties of assessing the consciousness of

hooking or skinning. Other members of the Group feel that worker safety and the difficulties presented by the
natural environment in which the hunt takes place were considerations that could make such a regulation
difficult to apply, specifically in relation to hooking a seal."); Exhibits EU-44 and EU-45 (assessments of the
Norwegian Fisheries Directorate of the safety of sealers and the difficulty of complying with narrow conditions
to allow bleeding to take place on board).
As noted in the context of delay, we observe that some sources that have addressed the issue of
hooking and gaffing before checking have given explicit consideration to accommodation of the practical
demands of seal hunting. (See IVWG Report (2005), p. 7 ("The Group recognizes that part of contributing to
improved animal welfare and reduced suffering is to produce recommendations that are realistic in the context
of the hunt, so that sealers will accept and implement them. There needs to be a realistic balance between
ideal procedure and methodology, and what is practical and achievable".)).
333 EFSA Scientific Opinion, p. 90.
334 See e.g. Daoust (2012), pp. 449-450 (documenting instances of gaffing); Daoust (2002), p. 4;
Burdon (2001), Appendices 3-5 (results of review of video footage showing many instances of hooking alive);
Butterworth (2012), p. 4; A Review of Animal Welfare Implications of the Canadian Commercial Seal Hunt,
cited footage, (Exhibit EU-38); Video presented by the European Union at the first meeting of the Panel,
(Exhibit EU-79).
335 For example, in Norway, gaffing of unchecked seals is permitted by regulation only under specified
circumstances that Norway argues serve to obviate welfare concerns, namely with seals that are judged to be
dead. (VKM Scientific Opinion, p. 27; First Statement by Mr Danielsson, (Exhibit NOR-4), para. 28; see also
footnote 338 below). Norway also contends that the European Union exaggerates the problem of
hooking/gaffing conscious seals. (Norway's second written submission, para. 301).
336 See Canada's and Norway's responses to Panel question No. 153.
337 See Canada's response to Panel question No. 153, para. 183 ("Not all seals can be bled before being
recovered, so a total prohibition on retrieval prior to bleeding is likely not feasible in practice."). See also IVWG
Report (2005), p. 10.
338 Under Norwegian regulations, "[i]t is prohibited to use a hook to lift seals that have not been bled
out on board the vessel", however "[seals less than one year old] that have been shot may be lifted on board
using a hook if there is no doubt that they are dead and the ice conditions make it unadvisable to walk on the
ice". (Norwegian Ministry of Fisheries and Coastal Affairs, Regulation Relating to the Conduct of the Seal Hunt
in the West Ice and East Ice, (Exhibit NOR-15), Section 10).
In connection with this rule, we note that the Norwegian Fisheries Directorate issued a proposal to
amend the regulations based on "several reported violations" relating to requirements "that the animals must
be bled on the ice immediately after they have been shot, and provisions on the use of hooks". Specifically, the
Fisheries Directorate identified the practice of hooking seals aboard as occurring due to a regulatory exception
for "sporadic hunting" being "redefined in practice" by sealers in addition to "worsening ice conditions". While
recognizing that "banning the use of hooks on seal pups could in certain respects make hunting difficult", the
Fisheries Directorate proposed revoking the exception for their use. (Norway's Fisheries Directorate, Proposal
to amend the rules on seal hunting (2010), (Exhibit EU-45), p. 5; see also Consultation of Norway's Fisheries
Directorate on the proposed amendment, (Exhibit EU-44), p. 5 (assuming that, due to poor ice conditions, "the
extent of hooking and bloodletting on board the vessel can be expected to increase"); NOAH Report (2012),
Appendix Q, pp. 4-5 and Appendix R, p. 3 (inspectors' statements of hooking making the hunt more efficient
and uncertainty whether it was being done in accordance with regulations)).
 The proposal was opposed by the
Norwegian Fishermen's Association (which stated that the "changes will substantially reduce the efficiency of
seal hunting") and the Fishing Vessel Owners Association (which considered that "[i]ce conditions will usually
not permit hunting if hooking is prohibited" and "the proposed tightening of the regulations could affect the
economic viability of hunting"). (Consultation of Norway's Fisheries Directorate on the proposed amendment,
(Exhibit EU-44)). The Ministry of Fisheries and Coastal Affairs ultimately "concluded that amending the
regulation was not required". (See Norway's response to Panel question No. 170, para. 326).
WT/DS400/R • WT/DS401/R

the seal and the challenges of re-stunning by firear m, there is a possibility that some seals will be
conscious when hooked or gaffed leading to severe negative consequences for animal welfare.339
Monitoring and enforcement of the applic ation of humane killing methods in seal
hunting
7.219. Both Canada and Norway have adopted regulations pertaining to the method for killing
seals and for monitoring and enforcing such regulations, and provide for certain monitoring
resources and activities for the purpose of achieving compliance with seal hunting regulations.
340
7.220. There is evidence indicating that monito ring and enforcement of humane killing standards
in seal hunts can be beneficial from an animal welfare perspective 341 but is challenging due to a
variety of factors. In particular, the scale of a seal hunt and the large territory over which it can be
dispersed contribute to the difficulties of monitoring and enforcing requirements related to humane
killing.
342 We take note of the fact that there may be different situations with respect to monitoring
and enforcement in the seal hunts of different countries. For example, the Canadian hunt is carried
out by a considerably greater number of vessels operating in different locations, and many of the
regulatory resources are either land-based or confined to a limited number of DFO vessels and
helicopter(s).
343 The Norwegian hunt is typically conducted with a smaller number of vessels and
requires the presence of a government inspector to be on board. 344 By way of comparison, in the

339 Evidence shows that the practice of hooking unchecked and potentially conscious seals aboard
vessels can be a consequence of the cumulative difficulties of stunning, checking, and the distinct
environmental factors of seal hunts. See Daoust (2012), p. 453:
Because of the variable ice conditions at the hunt, seals killed with a rifle shot may be in the water or on
icefloes too small to allow a sealer to stand on. In such cases, a gaff must be used to retrieve the animal, and
this may raise welfare concerns since verification of the animal’s death or state of irreversible unconsciousness
has not yet been performed with step two of the three-step process and, therefore, conscious or partly
conscious animals may be gaffed. Whereas shooting seals in the water can be avoided, it is not always evident
to a gunner shooting a seal on the ice from a long distance whether the ice floe on which the seal rests is thick
enough to support the weight of a sealer and thus allow him to retrieve the animal manually.
340 See para. 7.237.below on "organization and control" of commercial hunts for greater detail on the
regulations of Canada and Norway.
341 See EFSA Scientific Opinion, p. 95 ("Independent monitoring of hunts (without commercial/industry
and NGO links) to provide certain critical information on seal killing and stunning from a welfare perspective
should be instigated."); Daoust (2002), p. 5 (qualifying the recording of a relatively high proportion of
completely crushed skulls with the possibility that the presence of an observer "may have incited sealers to hit
the seals' skulls more vigorously").
342 IVWG Report (2005), p. 11 (of competitive factors and the scale of the Canadian commercial hunt
"notes that these conditions can make it difficult for DFO to undertake effective monitoring and enforcement")
and 12 ("The physical realities of the Canadian harp seal hunt present a significant set of challenges for
observation, supervision, monitoring and enforcement" and, with regards to the Canadian Front, which was
supposed to account for two-thirds of the hunt, "[b]ecause of its remoteness and difficult environmental
conditions, it is generally considered not to be well observed or monitored.").
343 See Canada's first written submission, paras. 113-114; response to Panel question Nos. 89 and 90.
Canada has clarified that in recent years its monitoring, control, and surveillance resources have
included a Canadian Coast Guard ice breaker and two to three Coast Guard helicopters, and various authorities
and officers aboard the ice breaker. Land-based fisheries officers are also available for either coastal or aerial
patrols and/or accompanying sealing vessels (though the extent and regularity of these monitoring activities
has not been made clear). We note that Canada has provided detailed inspection data from the 2011 and 2012
hunts providing observations from these various sources, and has claimed that the data show a rate of
"compliance with the three-step method" that exceeds 95 per cent. (DFO, Compliance Statistics for Three-step
Method, 2011 and 2012, (Exhibit CDA-96); Canada's second written submission, para. 90; response to Panel
question No. 173). We first note, however, that 1,636 and 2,998 seals were observed in 2011 and 2012,
respectively, which may only constitute a relatively small portion of seals actually hunted (for example, more
than 40,000 harp seals were killed in the 2011 hunt). Even within this sample, although the data record the
number of seals monitored "with 3-step process issues", it is not clear what kind of "anomalies indicating a
possible lack of compliance" were considered to fall into this category. (See Canada's response to Panel
question No. 173, para. 226). Thus, on the basis of what we have been provided, there appear to be
limitations on the amount of hunting actually monitored as well as on the interpretive value of "compliance
with the [Marine Mammal Regulations'] three-step method" for conclusive assessments of overall animal
welfare standards. (See European Union's comments on Canada's response to Panel question No. 173
(highlighting inter alia the imbalance between the number of sealers and vessels compared to surveillance
resources)).
344 See Norway's first written submission, paras. 40, 252-257; Norwegian Ministry of Fisheries and
Coastal Affairs, Regulation relating to regulatory measures and the right to participate in hunting of seals in the
West Ice and East Ice in 2012, (Exhibit NOR-13), Section 10; COWI 2008 Report, p. 67; VKM Scientific
WT/DS400/R • WT/DS401/R

Greenlandic hunt, conducted by a combination of full-time and part-time hunters year-round and
in many locations along the Greenlandic coast, there is some provision for monitoring by wildlife
officers.
345
7.221. Nonetheless, we consider there to be difficulties of monitoring and enforcement (as
commented upon in the context of each hunt) that exist in seal hunting generally notwithstanding
specific differences in the manner of hunting and monitoring. Apart from the scale and large
territory of the hunt, additional factors include the constraints of surveillance resources/personnel
as well as overall difficulties in sealers' application of regulatory requirements under the actual
circumstances of seal hunting.
346
Overall assessment
7.222. Based on the examination of all available evidence in the record, the Panel finds that the
circumstances and conditions of seal hunts present certain specific challenges to the humane
killing of seals. Such challenges result in a risk in any given seal hunt that the targeted animals
may suffer poor animal welfare outcomes of varying intensity and duration.

Opinion, p. 41. See also European Union's response to Panel question No. 64, para. 205 ("Norway's commercial
hunt is a smaller operation and, a priori, easier to monitor.").
Although Norway requires the presence of an inspector on board every sealing vessel, EFSA has
commented that the number of vessels in Canada would make it "much more difficult to institute a programme
in Canada similar to that in Norway". (EFSA Scientific Opinion, p. 74).
345 See Management and Utilization of Seals in Greenland, (Exhibit JE-26); COWI 2008 Report,
pp. 49-52 (noting that wildlife officers are employed by the Fisheries and Licence control, though the dispersed
and opportunistic characteristics of the hunt pose a challenge to control); Government of Greenland reply to
the Commission of 29 January 2013, (Exhibit EU-154) (providing explanation as to the monitoring of legal
requirements regarding seal hunting, particularly the control of hunting licences).
346 See IVWG Report (2005), pp. 11-12; Richardson (2007), p. 45; DFO Integrated Seals Management
Plan 2011-2015, (Exhibit EU-42) (referring to the difficulty of tracking unregistered vessels, "especially in such
a widespread activity as the seal harvest"); Consultation of Norway's Fisheries Directorate on the proposed
amendment, (Exhibit EU-44), p. 5 ("The Fisheries Directorate would like to point out once again that since the
hunting season 2005 infringements have been recorded of the regulations governing the practice of sealing,
and that this mainly applies to provisions that were introduced in response to the industry's request for catch-
enhancing measures. Experience suggests, therefore, that all catches are conditional on hunters complying in
good faith with the rules that are applicable at any given time, and that the regulations themselves cannot in
principle prevent infringements occurring.") (emphasis added); Norway's Fisheries Directorate, Proposal to
amend the rules on seal hunting (2010), (Exhibit EU-45), p. 2 (desire "to propose rules that did not leave
much scope for exercising discretion, since this would have placed high demands on both hunters and
inspectors and would have had the potential to lead to unfounded disputes").
A report prepared by NOAH (a Norwegian animal rights NGO) compiles interviews with multiple past
sealing inspectors describing the challenges of overseeing the seal hunt on account of practical difficulties and
potential social pressures. (See NOAH Report (2012), p. 3). For example, a former sealer stated in a 2000
interview that "[i]t is practically impossible for one person to control everything that is going on during the
hunt; then you would need one inspector for each sealer! All inspectors I have talked to agree that it is
impossible to manage a proper control." A former sealing inspector stated in a 2010 interview that "[o]ne man
can of course not see all that is happening. … there is a lot that you do not see. You have one inspector and
several hunting teams, often the hunting teams go far away from the vessel on the ice. … The system is no
guarantee that regulations are followed." (See also NOAH Report (2012), Appendix A, p. 1; Appendix B, p. 2;
Appendix K, pp. 7, 12 (inspectors' accounts of the observational limitations faced by an inspector); pp. 5-6,
11-12 (inspectors' statements of compromised objectivity of inspectors as participants in the hunt and
colleagues of hunters, as well as possible unwillingness of sealers to follow inspectors' guidance); Appendix K,
p. 9 (sealing inspector account of tension on board over reporting witnessed infractions)). We also note that
another Norwegian sealing inspector has opined that "the inspector can effectively monitor the hunt" when
hunting takes place from the main boat, and can either join small boats when used or observe them with
binoculars from the main boat. This same inspector added that "[i]n order to monitor effectively, it is not
necessary to see every kill at close distance. An inspector can have a very good control on what is going on by
keeping a more general overview." (Third Statement of Mr Danielsson, (Exhibit NOR-163), paras. 24-27).
With regard to monitoring and enforcement, we also take into consideration references to the
challenges of conducting empirical research and the obstacles that seal hunts pose to gathering concrete data.
EFSA, for example, points out that "there are logistical difficulties inherent in assessing objectively the
processes involved when these hunts are conducted under very different, remote, uncontrolled and unverifiable
conditions". (EFSA Scientific Opinion, p. 24; see also Daoust (2012), pp. 447-448 (indications that the
opportunistic and sequential observations of researchers could only give detailed information on a portion of
the total observed samples, which themselves were of limited size)).
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7.223. Specifically, there are characteristics of the physical environment of seal hunting that
affect the way seals are stunned and that can impact the degree of effectiveness of stunning
attempts. We have also noted that attempts to strike or shoot a targeted seal more than once may
not ameliorate the risks of ineffective stunning. Combined with the difficulties of assessing the
consciousness of seals, seal hunting can present delays in carrying out the killing process and may
pose specific animal welfare problems for seals that are struck and lost as well as for seals that are
gaffed and hauled onto a sealing vessel while conscious.
7.224. The challenge of reconciling the requirements of humane killing with the practical risks and
difficulties of seal hunting, together with the potentially large territory of the hunt, poses an
obstacle to monitoring and enforcement of th e application of humane killing methods. Our
assessment of the evidence taken together indicates that these risks to seal welfare are present in
seal hunts in general.
7.3.2.3.2.2 Characteristics of commercial seal hunting
7.225. The European Union refers to commercia l seal hunts as hunts conducted "for commercial
purposes, where seals are killed primarily or exclusively in order to make a profit out of the skins,
oil and other products from the hunted seals".
347 Apart from the motive to make profits, according
to the European Union, this commercial purpose is reflected in other characteristics of the hunt,
such as its size (usually large-scale involving tens or hundreds of thousands of seals); intensity
(systematic, competitive, and over a short timeframe); and the end-use of the derived
products.
348 The European Union argues that these conditions characterizing commercial seal
hunts therefore distinguish commercial seal hunts from IC and MRM hunts.349
7.226. Canada and Norway do not contest that the majority of seal hunting conducted in Canada
and Norway are commercial hunts with the motive to make profits. Canada and Norway contend
however that their commercial hunts are strictly regulated, conducted in a humane manner, and
sustainable.
350 They further contest that their hunts can be distinguishable from IC and MRM hunts
based on the purpose of the hunt as asserted by the European Union: Canada and Norway
emphasize the equal presence of a commercial component in all types of seal hunting. We address
the parties' arguments on this question in the subsequent section.
Factual aspects of commercial seal hunting
Identity of the hunter
7.227. Most commercial sealers in Canada are fisherman for whom the seal hunt supplements the
income from fisheries. 351 There is some conflicting evidence as to the economic significance of
sealing to the Canadian coastal communities where the majority of the hunt occurs.352

347 European Union's response to Panel question No. 29, para. 100.
348 European Union's response to Panel question Nos. 8, 29, and 30.
349 European Union's response to Panel question No. 8, para. 19.
350 See e.g. Canada's first written submission, paras. 85, 91-121; opening statement at the first
meeting of the Panel, paras 13-20; Norway's first written submission, paras. 47-55, 231-266.
351 COWI 2008 Report, p. 24. See also COWI 2008, p. 22, (providing the history of Canadian commercial
seal hunting dating back to the 18th century); COWI 2010 Report, Annex 2 (pp. 1-2).
352 See DFO website, Sealing in Canada – Frequently Asked Questions, (Exhibit JE-28), p. 8 (stating
based on estimates from the DFO and province of Newfoundland and Labrador find that "between 5,000 and
6,000 individuals derive some income from sealing", i.e. approximately 1% of the total provincial population
and 2% of the labor force, which is "a substantial number of individuals in the context of small rural
communities"); DFO Integrated Seals Management Plan 2011-2015, (Exhibit EU-42), pp. 3-4 ("The harvest
provides important seasonal income and food to residents of small coastal communities where there have been
fishery closures and employment opportunities are limited.") and 13 ("Canada's seal harvest is also an
economic mainstay for numerous rural communities in Atlantic Canada, Quebec and the North. It supports
many coastal families that can derive as much as 35% of their annual income from this practice."); DFO
Empirical Base for Canada’s Seal and Seal Products Industry, (Exhibit CDA-17), pp. 4 (noting that the volume
and value of landings are not recorded against licence numbers, making it difficult to estimate individual
incomes from seals) and 9 ("the seal hunt is an economic mainstay for numerous rural communities in Atlantic
Canada, Quebec and the North. Canada's seal hunt supports many coastal families who can derive as much as
35% of their annual income from this practice."); DFO website, Canadian Seal Harvest – Myths and Realities,
(Exhibit CDA-38), p. 1.
WT/DS400/R • WT/DS401/R

7.228. The participants in the Norwegian commercial seal hunt mainly come from communities in
northern Norway. 353 Norway states that seal hunting contributes to the sustainability of the
settlements and workplaces of coastal communities.354
Purpose of the hunt
7.229. Commercial gain is recognized as one of the main reasons for which seals are killed. 355 As
noted by EFSA, the rationale for a particular hunt can however include one or more purposes. For
example, a commercial seal hunt may generate some products that are consumed or used within
the sealers' community while products sold commercially provide income for the livelihood of
sealers.
356 While noting the possible overlap of purp oses, EFSA maintains a distinction between
"subsistence hunts" and "commercial hunts", for example when referring to data availability
"as the vast majority of available data is from commercial hunts".
357
7.230. Nevertheless, information before us confirms that a "commercial hunt" has commercial
profit (rather than direct use or consumption of seal products) as its sole or primary objective.358
Scale of the hunt
7.231. The size of commercial seal hunts appears to be characterized by a large number of seals
killed. There is, however, evidence of differences between commercial hunts in the exact amount
of seals killed as well as potentially large fluctuations of seals killed over time for a given
commercial hunt. For example, the Canadian harp seal hunt over the past decade has harvested a
peak of roughly 365,000 seals, which has declined to just over 40,000 seals in 2011. The

See also IFAW, Economics of Canada's Commercial Seal Hunt (2011 update), (Exhibit CDA-5), p. 1
(comparing the "minor economic importance to Newfoundland and Labrador" of commercial sealing as
compared to other fisheries).
353 COWI 2010 Report, p. 31.
354 Norway's first written submission, paras. 267-268. See also O. Vollan, The Seal Hunt in the Nordic
Countries (Forlaget Nordvest, 1985), (Exhibit NOR-10), p. 35 (noting that Norwegian vessels began leaving for
the Arctic on a regular basis starting in the 19th century and that "sealing became more important to provide
income in both the northernmost and the southernmost parts of the country").
355 For example, EFSA distinguishes this from the other two principal reasons for killing seals, namely
"subsistence and cultural purposes" or "because seals are perceived as pests or competitors with humans and
their activities … or as threats to other species of concern". (EFSA Scientific Opinion, p. 12; see also
para. 7.225 above).
356 EFSA Scientific Opinion, pp. 12-13. See also Canada's response to Panel question No. 132
(recognizing a "spectrum" between a "pure commercial hunt" and a "pure subsistence harvest", and that
certain hunts may fall closer to one end of the spectrum than the other depending on the proportion of seal
products sold commercially); Norway's opening statement at the first meeting of the Panel, paras. 92-93 and
103-105; response to Panel Question No. 28, paras. 183-185; second written submission, paras. 217-224;
response to Panel question No. 132 (arguing that seal hunting will typically have a range of purposes and that
it is not possible to distinguish between "commercial" and "non-commercial" hunts); European Union's
comments on Canada's and Norway's responses to Panel question No. 132.
357 See also COWI 2008 Report, pp. 22-24 and 61 (distinguishing a "commercial hunt" in both Canada
and Norway).
358 We note that there are multiple exhibits, including government documents from sealing countries,
which recognize commercial sealing as a distinct activity, notwithstanding the contribution of sealing to the
income and livelihood of those engaged in the seal hunt. (See DFO Integrated Seals Management Plan
2011-2015, (Exhibit EU-42) (generally referring to the "commercial" harvesting of seals as distinct from
personal use and aboriginal subsistence hunting) and pp. 21-23 (explaining allocation and sharing
arrangements of TAC quotas with a specific "commercial allocation" and quota allocations "set aside for special
projects outside the developed commercial structure", as well as distinct rules in Canada applied to hunts by
aboriginal peoples); DFO Empirical Base for Canada’s Seal and Seal Products Industry, (Exhibit CDA-17), pp. 1
("Seals are hunted commercially on the Atlantic coast of Canada, and a subsistence hunt is carried out by
Aboriginal peoples in the Canadian Arctic.") and 3 ("Although [the subsistence hunt] is not a commercial hunt,
cash is generated from the sale of sealskins in order to help finance the hunt, which has become more and
more expensive due to higher capital and operating costs, as well as the need to travel greater distances to
hunt."); DFO Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), pp. 7 and 17-20.
See also COWI 2008, pp. 22 (identifying one of the "main types" of seal hunting in Canada as being
"organised commercial seal hunting" and identifying its focus as "the commercial large scale hunt"), 61
(distinguishing the "Norwegian commercial seal hunt" from the coastal hunt that is "much smaller than the
commercial hunt" and a separate hunt "carried out by a limited number of hunters" in Spitsbergen and Jan
Mayen), and 64 ("According to Norwegian law, the hunt is considered commercial if it contributes to the
[income] of the hunter, separately or combined with other incomes.").
WT/DS400/R • WT/DS401/R

Norwegian hunt involved between 15,000 and 20,000 se als prior to the adoption of the EU Seal
Regime, but has since fluctuated between approximately 1,000 and 10,000 seals harvested.359
7.232. Canada has been reported to annually issue around 15,000 seal hunting licenses, though a
significantly smaller portion may actually be used. 360 In previous years, between 1,500 and 2,200
boats participated in the hunt annually 361, although this number has been reduced more
recently.362
7.233. In Norway, the commercial seal hunt is typically carried out by a relatively small number of
larger vessels (approximately 60 meters long). 363 In recent years, usually two to four ships have
participated in the annual hunt in the West Ice, each with a crew of 13 to 15 people.364
Seal hunting period
7.234. Under Canadian regulations, the season fo r the commercial hunt of harp and hooded seals
in the Front is generally from November 15 to May 15. The specific timing of the hunt can depend
on the movement and condition of ice floes, and the majority of the hunt occurs between late-
March to mid-May
365 beginning around the third week of March in the southern Gulf of St.Lawrence
and around the second week of April in the Front.366
7.235. The Norwegian commercial seal hunt is di vided between the "East Ice" and "West Ice"
hunts with seasons from April 10 to June 30 and March 23 to May 15 respectively. 367 Further, the
period of the hunt is determined on the basis of breeding and moulting times of harp seals so as to
ensure compliance with the ban on hunting un-weaned pups.368

359 See Table 3.
360 EFSA Scientific Opinion, p. 25; COWI 2008 Report, p. 24 (stating that only between 5,000 and 6,000
licences are actually used); DFO Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), Section 3.2
("In 2005 the number of participants (active licence holders) was 7,000, representing 50% of the commercial
sealing licences issued."); DFO Commercial Seal Harvest Overview 2011, (Exhibit JE-27), p. 2 ("Approximately
225 active professional seal licence holders participated in the Atlantic Canada Seal harvest in 2011" and 117
participated in 2010); DFO website, Sealing in Canada – Frequently Asked Questions, (Exhibit JE-28), p. 6
(stating that in 2011 there were approximately 14,000 commercial licences issued to sealers in 2011, but only
an estimated 5,000 to 7,000 of those were active); DFO Integrated Seals Management Plan 2011-2015,
(Exhibit EU-42), p. 14 (stating that there are approximately 6,400 active commercial licences in Atlantic
Canada and "In 2010, approximately 390 people participated in the Atlantic Canada Seal harvest. This number
is down significantly from 2009 which reported 1,755 active participants.").
361 EFSA Scientific Opinion, p. 25; DFO Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40),
Section 3.2
362 DFO Integrated Seals Management Plan 2011-2015, (Exhibit EU-42), pp. 13-14 (stating that "the
number of active vessels in 2010 dropped to 106, from 540 active vessels the previous year"); DFO Empirical
Base for Canada’s Seal and Seal Products Industry, (Exhibit CDA-17), p. 2 ("Participation varies from year to
year, and depends upon ice conditions, price of pelts, etc.").
363 EFSA Scientific Opinion, p. 26; COWI 2008 Report, pp. 61-62 (less than ten vessels participating in
the commercial hunt over a range of years); Norwegian Ministry of Fisheries and Coastal Affairs, English
Summary of White Paper No. 27 (2003-2004) on Norway’s Policy on Marine Mammals, (Exhibit NOR-9), p. 4.
364 Norway's first written submission, para. 51.
365 See EFSA Scientific Opinion, pp. 24-26; COWI 2008 Report, pp. 23-24.
366 DFO website, Sealing in Canada – Frequently Asked Questions, (Exhibit JE-28), pp. 4-5; DFO
Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), Section 3.2; DFO Integrated Seals
Management Plan 2011-2015, (Exhibit EU-42), p. 23 (also stating that the "peak commercial harvest" in the
Gulf is in early April).
Further, there are indications that the majority of Canadian commercial hunt can occur within a
narrower timeframe (of even a few days) during the designated hunting period. DFO Integrated Seals
Management Plan 2011-2015, (Exhibit EU-42), p. 23; DFO website, Sealing in Canada – Frequently Asked
Questions, (Exhibit JE-28), p. 7 (indicating that the first day of the harvest is the most lucrative); DFO
Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), Section 3.2 and JE-29, p. 23; Canada's first
written submission, para. 55 ("In practice, the harvest season is fairly short, lasting only a few weeks in the
spring, beginning on March 15 and ending some time in mid-April to mid-May, depending on the ice
conditions."); Richardson (2007), p. 43 (that as many as 145,000 seals have been killed in less than two
days); Butterworth (2012), p. 1 (that most seals are killed in "just a few days").
367 VKM Scientific Opinion, p. 9 (referring to the opening and closing dates of the seasons for 2007);
EFSA Scientific Opinion, p. 26.
368 Statement of Mr Landmark, (Exhibit NOR-8), para. 33.
WT/DS400/R • WT/DS401/R

Hunting methods
7.236. According to sealing regulations in each country, the permitted hunting tools include
hakapiks in both Canada and Norway (as well as clubs in Canada) of specified dimensions as well
as firearms of specified power and ammunition. The use of nets is not allowed in the Canadian and
Norwegian commercial seal hunts.
369
Organization and control of the hunt
7.237. Both Canada and Norway maintain a licensing system for seal hunting that determines
conditions of participation in the hunt. 370 In addition, both Canada and Norway establish annual
total allowable catch (TAC) quotas, both of which administer these quotas through regional
allocations for the various geographic areas of the commercial seal hunt.
371 Finally, there are
regulations in Canada and Norway imposing requirements on the manner in which the seal hunt is
conducted and dealing with the qualifications and training of sealers.372

369 See Marine Mammal Regulations, (Exhibit CDA-21) and 2011-2012 Seal License Conditions for
Newfoundland and Labrador, (Exhibit EU-39); Norwegian Ministry of Fisheries and Coastal Affairs, Regulation
relating to regulatory measures and the right to participate in hunting of seals in the West Ice and East Ice in
2012, (Exhibit NOR-13) and Norwegian Ministry of Fisheries and Coastal Affairs, Regulation Relating to the
Conduct of the Seal Hunt in the West Ice and East Ice, (Exhibit NOR-15). See also EFSA Scientific Opinion,
p. 26; COWI 2008 Report, pp. 28-29; DFO website, Sealing in Canada – Frequently Asked Questions,
(Exhibit JE-28), p. 6. See paras. 7.192-7.196 above regarding seal hunting methods.
370 See COWI 2008 Report, p. 24; 2011-2012 Seal License Conditions for Newfoundland and Labrador,
(Exhibit EU-39); Norwegian Ministry of Fisheries and Coastal Affairs, Regulation relating to regulatory
measures and the right to participate in hunting of seals in the West Ice and East Ice in 2012,
(Exhibit NOR-13); Norway's first written submission, para. 51; Canada's first written submission,
paras. 105-112.
371 EFSA Scientific Opinion, pp. 25 and 27; COWI 2008 Report, p. 27, 62-63, and 66-67; VKM Scientific
Opinion, pp. 14-15; DFO website, Sealing in Canada – Frequently Asked Questions, (Exhibit JE-28), p. 5; DFO
Integrated Seals Management Plan 2011-2015, (Exhibit EU-42), pp. 17, 21-26; DFO Empirical Base for
Canada’s Seal and Seal Products Industry, (Exhibit CDA-17), p. 1; Norwegian Ministry of Fisheries and Coastal
Affairs, English Summary of White Paper No. 27 (2003-2004) on Norway’s Policy on Marine Mammals,
(Exhibit NOR-9); Norwegian Ministry of Fisheries and Coastal Affairs, Regulation relating to regulatory
measures and the right to participate in hunting of seals in the West Ice and East Ice in 2012,
(Exhibit NOR-13); Joint Norwegian/Russian Fisheries Commission, Report of the Working Group on Seals to the
40
th Session – Appendix 8, (Exhibit NOR-22); Norway's first written submission, para. 52; Statement of
372 See Marine Mammal Regulations, (Exhibit CDA-21) and 2011-2012 Seal License Conditions for
Newfoundland and Labrador, (Exhibit EU-39); Norwegian Ministry of Fisheries and Coastal Affairs, Regulation
relating to regulatory measures and the right to participate in hunting of seals in the West Ice and East Ice in
2012, (Exhibit NOR-13) and Norwegian Ministry of Fisheries and Coastal Affairs, Regulation Relating to the
Conduct of the Seal Hunt in the West Ice and East Ice, (Exhibit NOR-15).
The parties have provided a great deal of information and arguments pertaining to the regulations of
the Canadian and Norwegian hunt, including the development of the current regulatory schemes. While the
relevant issue before us is not the adequacy of the complainants’ sealing regulations, we have considered this
evidence to the extent it provides insight into the conduct of seal hunts, especially regarding the challenges of
applying humane killing methods and the risks of poor animal welfare. (See Norway's opening statement at the
first meeting of the Panel, para. 143 ("the issue is not whether Norway’s sealing regulation or practices achieve
an appropriate level of protection. The issue is whether it is possible for the EU, as part of an alternative
measure, to legislate market access requirements that would ensure humane killing of seals."); Canada's
second written submission, paras. 55-69 (defending various aspects of its sealing regulatory framework, such
as that steps be carried out "as soon as possible" when rifles are used and that checking occur "immediately"
after use of a hakapik or club).
Canada explains that the most recent amendments to its Marine Mammal Regulations came into force
on 12 February 2009, reflecting in particular the recommendations of the IVWG Report (2005). These
amendments consisted of: the prohibition of the use of the hakapik or club as the primary killing instrument for
any seal over one year of age; licence conditions in certain regions imposing "a daily harvest limit based on the
size of the vessel with the objective of slowing the pace of the harvest"; and, for 2014, mandatory training in
the three-step process for all commercial sealers, which is presently mandatory for all personal use sealers.
(See Canada's response to Panel question No. 54 and first written submission, paras. 91-98). Regarding the
training of sealers, for many years the basic qualification for becoming a professional sealer in Canada was to
serve two years as an apprentice to an existing licensed sealer. More recently a training program was
developed through the cooperation of several agencies covering aspects of the Marine Mammal Regulations,
approved weapons, and the three-step process, which, although currently voluntary, will be mandatory as of
2014. (Canada's response to Panel question No. 59 and first written submission, paras. 105-112).
WT/DS400/R • WT/DS401/R

7.238. The Canadian commercial seal hunt is carried out by small vessels (less than 35') and
"longliners" (35'-65'), and larger vessels may only participate as collector vessels. Smaller vessels
may have a crew of 2-5 sealers and generally land daily to offload their catches, while longliner
vessels carry larger crews and tend to stay out for a few days at a time.
373
7.239. The Norwegian commercial seal hunt is carried out by registered ocean-going vessels
found suitable and equipped for seal hunting. 374 The particular manner in which the Norwegian
commercial seal hunt is conducted requires the use of large vessels that can operate with
equipment and provisions for several weeks at a time.375
Use of products derived from the hunt
7.240. Evidence shows that commercial hunts are primarily directed toward the sale of seal
products such as skins, blubber or oil, and meat . Historically, seal skins and furs have been the
primary commodity sold commercially.376
7.241. Seal skins are used to make a wide variety of garments and accessory items, including
jackets, hats, boots, slippers, mittens, purses, wallets, and novelty items.377 Seal oil and blubber is
refined and processed to make Omega-3 products, the commercial trade of which has been noted
to have surpassed seal skin products in recent years. 378 The international trade in seal meat is a
relatively smaller part of the commercial sale of seal products.379

Norway has described the regulatory history of instituting the three-step method; requirements
regarding qualifications and training of those participating in the hunt; rules regarding the first stunning
weapon; strengthened rules on the three-step process, for example through assignment of one person per
marksman to second and third steps; a prohibition against shooting seals if the conditions are such that they
cannot be struck with a hakapik or slagkrok afterwards and be bled out on the ice; and a penal provision.
(Norway's response to Panel question No. 54 and first written submission, paras. 231-257; EFSA Scientific
Opinion, pp. 27-28). As to training, all participants in Norway, including inspectors, must attend courses held
by the Directorate of Fisheries. Hunters must pass a test on the use of a hakapik and marksmen must pass a
government approved shooting proficiency test prior to every seal hunting season. (Norway's response to Panel
question No. 59 and first written submission, paras. 248-251).
The European Union has taken issue with the Canadian amendments as being inadequate in several
respects from the perspective of animal welfare, and cites the most recent amendments of Norway’s sealing
regulations in 2003 as "a major step backwards in terms of animal welfare", namely the exception allowing
seals to be hooked on board before the final two steps are carried out. (European Union's second written
submission, paras. 75-85 and first written submission, paras. 112-121, 171-175).
373 DFO Integrated Seals Management Plan 2011-2015, (Exhibit EU-42), pp. 3-4; DFO Overview of the
Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), Section 2. See also DFO Empirical Base for Canada’s Seal and
Seal Products Industry, (Exhibit CDA-17), p. 5.
374 See EFSA Scientific Opinion, p. 27; Norwegian Ministry of Fisheries and Coastal Affairs, Regulation
relating to regulatory measures and the right to participate in hunting of seals in the West Ice and East Ice in
2012, (Exhibit NOR-13), section 3; Statement by Mr Landmark, (Exhibit NOR-8), para. 29; Norway's first
written submission, para. 51.
375 See Norwegian Ministry of Fisheries and Coastal Affairs, English Summary of White Paper No. 27
(2003-2004) on Norway’s Policy on Marine Mammals (19 March 2004), (Exhibit NOR-9), p. 8.
376 See Canada's first written submission, paras. 61-70; Norway's first written submission,
paras. 85-102.
377 See, e.g. DFO website, Sealing in Canada – Frequently Asked Questions, (Exhibit JE-28), p. 8; DFO
Empirical Base for Canada’s Seal and Seal Products Industry, (Exhibit CDA-17), pp. 8-9. The European Union
has characterized products derived from commercial hunts (such as clothing and accessories) as "inessential"
items. (See, e.g. European Union's first written submission, para. 39).
378 See Canada's first written submission, paras. 79-80; DFO Commercial Seal Harvest Overview 2011,
(Exhibit JE-27), table 12.
379 Canada's first written submission, paras. 61-70; Norway's first written submission, paras. 86-102;
COWI 2010 Report, pp. 37-38; DFO Commercial Seal Harvest Overview 2011, (Exhibit JE-27) (providing a
recent update and outlook on trade in seal skins, seal oil, and seal meat); DFO website, Sealing in Canada –
Frequently Asked Questions, (Exhibit JE-28), p. 8 ("Seal pelts are transformed into a wide range of final
products including coats, vests, hats, boots, mittens, trims, seal leather items, and novelty items. Seal oil is
used in Omega 3 health products, in paints and for fuel in Northern/Inuit communities. Seal meat is sold in a
variety of raw and prepared forms for both human and animal consumption"); DFO Integrated Seals
Management Plan 2011-2015, (Exhibit EU-42), p. 13 ("Traditionally, seals have been harvested for meat and
for pelts, both to use locally and to sell. Pelts have been historically the most commonly-sold commercial
product although prices have been highly volatile over the years, resulting in large fluctuations in the economic
value of the industry."); DFO Empirical Base for Canada’s Seal and Seal Products Industry, (Exhibit CDA-17),
pp. 7-8; Government of Newfoundland, Commercial Utilization, (Exhibit CDA-23).
WT/DS400/R • WT/DS401/R

7.242. With respect to the commercial purpose of the hunt and its relation to the seals killed,
Canada states that the pelts of beaters (a weaned harp seal of 3 weeks to 3 months old that has
moulted its white lanugo fur) are of higher quality and have greater value in the marketplace.
380
Application of humane killing methods in commercial seal hunting
7.243. We recall our conclusion above that seal hunts in general pose various risks to the welfare
of seals, including the risks of ineffective stunning , delays in the killing process, struck and lost
seals, and the hooking of conscious seals.
7.244. In this section, we have examined evidence of the competitive nature of commercial hunts,
including how the competitive pressures in the seal hunt may have changed over time.
In particular, the allocation of quotas, in combination with the specific time window for hunts
381,
has been noted to place pressures on sealers to the potential detriment of animal welfare. 382 In a
similar vein, there is evidence that hunts with commercial profit as their sole or primary objective
operate with the incentive to kill more seals in order to maximize profit.383 By contrast, commercial
considerations have also been asserted to promote humane practices in seal hunting on the
grounds that sealers may want to kill seals efficiently and thus preserve pelt quality by only
targeting the seal's head. 384 As noted, commercial hunts are also conducted in accordance with
licensing schemes and sealing regulations which determine inter alia who may participate in the
hunt and when it occurs.

380 Canada's response to Panel question No. 91.
381 DFO Integrated Seals Management Plan 2011-2015, (Exhibit EU-42), p. 23; DFO website, Sealing in
Canada – Frequently Asked Questions, (Exhibit JE-28), p. 7 (indicating that the first day of the harvest is the
most lucrative); DFO Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), Section 3.2; Richardson
(2007), p. 43 (that as many as 145,000 seals have been killed in less than two days and that in 2005, 78 per
cent of the harp seals killed in the commercial seal hunt were slaughtered in just six days).
382 See EFSA Scientific Opinion, pp. 24-27 (describing the compressed sealing season and quota system
in both Canada and Norway); DFO Overview of the Atlantic Seals Hunt 2006-2010, (Exhibit EU-40), pp. 17-18
(quota overrun by 10,000 seals in 2005 "largely due to the competitive nature of the hunt", also commenting
on "a competitive race for seals in the Gulf of St. Lawrence in 2004 and 2005"); NOAH Report (2012), p. 10
and Appendix H, pp. 11, 15 (identifying certain "negligent infringements" of the regulations on hooking and
gaffing seals "committed because hunters were excessively focused on capturing as many animals as possible,
which must be considered in the company's interest."). See also NOAH Report (2012), pp. 10-13 and 21-22;
Consultation of Norway's Fisheries Directorate on the proposed amendment, (Exhibit EU-44) (describing
aspects of tension between commercial interest and animal welfare); Butterworth (2012), p. 8; DFO Integrated
Seals Management Plan 2011-2015, (Exhibit EU-42), pp. 17, 22, and 25; IVWG Report (2005), p. 13;
Butterworth (2007), pp. 4 and 13.
We note that Canada states that it has taken steps to limit the number of seals that individual vessels
can take per day through seal licensing conditions. (Canada's opening statement at the first meeting of the
Panel, para. 19). Canada notes, however, that such limits are not imposed in some regions "because the
different nature of the hunt [in the Gulf] makes such limits unnecessary". (Canada's second written
submission, para. 78). Canada submits that "the implementation of daily limits has slowed down the hunt
considerably", and has clarified that limits are not applied elsewhere "because the number of sealing vessels is
considerably smaller and thus there is less competition". (Canada's response to Panel question No. 171,
para. 217). The European Union responds citing "public data made available to IFAW by DFO" to argue that
"quota overruns" have occurred during years of high pelt prices in the region where daily limits are not
currently applied by the seal licence conditions. (European Union's comments on Canada's response to Panel
question No. 171). Norway has submitted comments denying a "race between sealers" and pointing out that
catches have been below quota levels in recent years. (Norway's opening statement at the first meeting of the
Panel, para. 188; Third Statement by Mr Danielsson, (Exhibit NOR-163), paras. 6-8).
383 See Butterworth (2007), pp. 12-13; Richardson (2007), pp. 43-44; Butterworth (2012), p. 8. See
also Norway's comments on the European Union's response to Panel question No. 118 (commenting in the
context of the Greenlandic hunt that "[p]rofessional seal hunters have an incentive to maximize their income
by hunting more seals.")
384 Canada's second written submission, para. 59; Second Statement by Mr Danielsson,
(Exhibit NOR-128), paras. 34-37; EFSA Scientific Opinion, p. 49; DFO Empirical Base for Canada’s Seal and
Seal Products Industry, (Exhibit CDA-17), pp. 12-13 (outlining Canada's pelt grading and classification system
that indicates lower quality grading for pelts with holes). See also Canada's and Norway's responses to Panel
question No. 70.
At the same time, it has been suggested that preserving the commercial value of the pelt can provide a
disincentive to attempt to re-shoot seals that may still be conscious, thus causing delay in the killing process
and prolonging suffering. European Union's opening statement at the first meeting of the Panel; Richardson
(2007), p. 39.
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7.245. Based on the evidence presented before us, therefore, we find that to the extent that
commercial motives lead to killing a greater number of seals in hunts conducted within a limited
period of time, this may additionally contribute to subjecting seals to the animal welfare risks
identified above with respect to seal hunts in general.
7.3.2.3.3 Whether the distinction between commercial hunts and IC hunts is legitimate
7.3.2.3.3.1 Main arguments of the parties
Complainant (Canada)
385
7.246. Canada argues that the detrimental impact of the EU Seal Regime on Canadian seal
products through the IC exception is not related exclusively to a "legitimate regulatory
distinction".
386 To determine whether the detrimental effect on Canadian imports stems from a
legitimate regulatory distinction, Canada suggests that the Panel take into account the following
factors: first, whether the regulatory distinction at issue is necessary in order to achieve the
objectives of the measure; second, whether there is a rational connection between the regulatory
distinction and the objectives of the measure in that if there is no rational connection, then the
distinction is arbitrary and therefore not legitima te; and, third, whether the evidence shows that
the distinction is intended to discriminate against imports as this would undermine the "legitimacy"
of the regulatory distinction.
387
7.247. Canada argues that the regulatory distinction between seal products derived from Inuit
hunts and those derived from non-Inuit hunts in no way contributes to the advancement of the
EU Seal Regime's animal welfare objective.
388 The cultural heritage or ethnicity of the hunters is
not a legitimate regulatory distinction because it is unrelated to the central objective of the
E U S e a l R e g i m e o f r e s p o n d i n g t o c o n c e r n s a b o u t a n i m a l w e l f a r e .389 Canada points out that the
European Union is not imposing any animal welfare requirements on Inuit from Greenland, and
refers to evidence suggesting that a significant number of seals in Greenland are killed
inhumanely, i.e. in a manner likely to lead to avoidable pain or suffering.
390
7.248. Furthermore, Canada argues that, to the extent that seal products derived from hunts in
Canada and in Greenland exhibit the same characteristics, they should be afforded the same
treatment from a regulatory standpoint. 391 Canada contends that there are significant similarities
between the historical and socio-economic contexts of seal hunting in Canada and Greenland.
According to Canada, in both cases, the practice of sealing is deeply rooted in the culture and
tradition of the communities where the hunt takes place; the by-products of seal hunts are not
only marketed outside of the country or territory but are also consumed and used in the local
economy; seal hunting provides much needed employment in areas where there are otherwise not
many opportunities for employment; and seal hunting is a vital and essential source of income for
the community. Canada posits further that the Greenlandic seal hunt has also a significant
commercial aspect and is "very sophisticated, extensive, well-organized, well-marketed, and
international in scope".
392 In this respect, Canada argues, the Greenlandic seal hunt is very similar
to the Canadian east coast seal harvest.393
7.249. For Canada, given these similarities between the hunt in Canada and Greenland, the
regulatory distinction under the EU Seal Re gime is not even-handed, and therefore not
"legitimate".394 Canada asserts that the regulatory distinction arbitrarily and unjustifiably

385 As mentioned in footnote 172 above, as relevant and as appropriate, we will refer to Norway’s
arguments in this section. (See, for example, Norway's second written submission, paras. 256-266).
386 Canada's first written submission, paras. 335-346.
387 Canada's first written submission, para. 387
388 Canada's first written submission, para. 402.
389 Canada's first written submission, para. 406.
390 Canada's first written submission, para. 402; response to Panel question No. 8; second written
submission, para. 248. Canada refers to the COWI 2008 Report, where it is stated that 16 per cent of seals in
Greenland are caught using nets, and that causing death by suffocation as a result of trapping seals under
water is considered as "inherently inhumane". (COWI 2008 Report, p. 52).
391 Canada's first written submission, para. 403.
392 Canada's first written submission, para. 406.
393 Canada's first written submission, para. 406.
394 Canada's first written submission, para. 405.
WT/DS400/R • WT/DS401/R

discriminates against the vast majority of Canadian seal products 395 and observes that except for
the condition relating to the 'indigenous' status of the hunter, the Canadian seal hunt meets all of
the conditions under the IC exception. Canada maintains that the distinction in the IC category is
thus fundamentally one between permitted and prohibited seal products based on the "indigenous"
status of the harvester.
396
7.250. Finally, Canada observes that since the adoption of the EU Seal Regime in 2009, Greenland
has now surpassed Canada to have the world's largest seal harvest.397
Respondent (European Union)
7.251. The European Union submits that the "regulatory distinction" under the EU Seal Regime
between IC hunts and commercial hunts is "legitimate" because (a) it is based on a legitimate
objective, and (b) it is designed and applied in an even-handed manner.
398
7.252. The European Union asserts that if the objective of the IC exception is found to be
legitimate, then a fortiori , the regulatory distinction should also be considered "legitimate". 399
On this basis, the European Union highlights the importance of seal hunting for the subsistence,
cultural identity, and social cohesion of Inuit and indigenous communities. 400 Furthermore, the
European Union notes that the sale of seal skins, an important by-product of the hunts, serves to
cover the hunting expenses incurred by Inuit and indigenous communities.
401
7.253. Further, the European Union submits that the IC distinction is neither "rationally
disconnected" from nor does it "undermine" the objective pursued by the EU Seal Regime. 402
For the European Union, when assessing the moral implications of seal hunting it is both legitimate
and appropriate to take into account the purp ose of each type of hunt. The European Union
contends that traditional hunts conducted for subsistence purposes do not raise the same moral
concerns as commercial hunts conducted solely for the purpose of obtaining products, such as fur,
to be used in manufacturing inessential goods.
7.254. The European Union argues that, in light of the "unique" situation in which Inuit and
indigenous communities find themselves, it would have been "morally wrong" for the EU legislator
to prohibit the placing on the market of seal products resulting from the hunts traditionally
conducted by those communities.
403 In essence, for the European Union, seal hunts conducted for
the subsistence of Inuit and indigenous communities benefit from an "inherent legitimacy" that
"overrides the general concerns over the killing methods for purely commercial motives".
404 The
European Union stresses that its regulatory approach on seal products, in particular regarding the
IC exception, is in line with a consistent body of international law echoing the legitimacy of
protecting the interests of Inuit and indigenous communities, and that the European Union is
bound by these international legal instruments.
405
7.255. According to the European Union, the IC exception is designed and applied in an
even-handed manner406; it is "calibrated" and does not go beyond what it is necessary to achieve
its purpose.407 Moreover, the European Union maintains that the IC exception is not discriminatory

395 Canada's first written submission, para. 405.
397 Canada's first written submission, para. 406.
398 European Union's first written submission, para. 259; second written submission, paras. 219-234.
399 European Union's first written submission, para. 261; second written submission, paras. 220-227.
400 European Union's first written submission, paras. 263-266.
401 European Union's first written submission, para. 266.
402 European Union's opening statement at the first substantive meeting of the Panel, paras. 12-17.
403 European Union's first written submission, para. 268.
404 European Union's first written submission, para. 268; second written submission, para. 221.
405 European Union's first written submission, paras. 270-272; second written submission,
paras. 223-224 and footnote 245 (citing UN Department of Economic and Social Affairs, "State of the World's
Indigenous People", ST/ESA/328 (2009), p. 10, available at
http://www.un.org/esa/socdev/unpfii/documents/SOWIP_web.pdf)).
406 European Union's first written submission, para. 301; second written submission, paras. 228-233.
407 European Union's second written submission (citing Appellate Body Report, US – Tuna II (Mexico),
para. 297).
WT/DS400/R • WT/DS401/R

because it is equally available with regard to all hunts conducted by indigenous communities,
including the Canadian Inuit.408
7.3.2.3.3.2 Analysis by the Panel
7.256. In this section, we address the question of whether the distinction drawn by the EU Seal
Regime between commercial hunts and IC hunts, and consequently between products derived from
each category of hunts, is legitimate within the meaning of Article 2.1 of the TBT Agreement.
409
7.257. We recall the Appellate Body's explanat ion that the "legitimacy" of the regulatory
distinctions drawn by a measure must be analysed in light of the objective of the measure and
based on inter alia the particular circumstances of the dispute, including the measure's design,
architecture, structure, operation, and application of the measure. 410 The Appellate Body further
explained that where a regulatory distinction is not designed and applied in an even-handed
manner — because, for example, it is designed or applied in a manner that constitutes a means of
arbitrary or unjustifiable discrimination — that distinction cannot be considered "legitimate". 411
7.258. Given the close relationship between the TBT Agreement and the GATT 1994 412, including
the similarities in their texts 413, we find it useful, in examining the measure's consistency with the
TBT Agreement, to recall the Appellate Body's guidance in previous disputes concerning the
obligations under the chapeau of Article XX of the GATT 1994. According to the Appellate Body,
analysing whether discrimination is "arbitrary or unjustifiable" under the chapeau would entail an
analysis that relates primarily to the "cause" or the "rationale" of the discrimination "put forward
[by a regulating Member] to explain its existence".
414
7.259. The guidance provided by the Appellate Bo dy regarding an analysis of the requirements
under Article 2.1 of the TBT Agreement and the chapeau of Article XX of the GATT 1994 therefore
suggests that the 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
415, taking into account the particular

408 See, e.g. European Union's second written submission, para. 207.
409 See paras. 7.130-7.131 above.
410 Appellate Body Report, US – COOL, para. 271 (referring to Appellate Body Report, US – Clove
Cigarettes, para. 182).
411 Appellate Body Report, US – COOL, para. 271 (referring to Appellate Body Report, US – Clove
Cigarettes, para. 182).
412 See Appellate Body Report, US – Clove Cigarettes, paras. 91-101. The Appellate Body observed that
"the two agreements [the TBT Agreement and the GATT 1994] overlap in scope and have similar objectives."
413 The chapeau of Article XX of the GATT 1994 provides:
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 … (emphasis added)

The fifth recital of the preamble of the TBT Agreement provides:
Recognizing that no country should be prevented from taking measures necessary to ensure the quality
of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the
prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they
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, and are otherwise
in accordance with the provisions of this Agreement. (emphasis added)
414 Appellate Body Report, Brazil – Retreaded Tyres, paras. 225-226 (citing Appellate Body Reports,
US – Gasoline, pp. 25-26 and 28-29; US – Shrimp, paras. 166 and 172; US – Shrimp (Article 21.5 – Malaysia),
paras. 144 and 147).
The Appellate Body in Brazil – Retreaded Tyres observed that the Appellate Body's analysis of the
measures under the chapeau of Article XX of the GATT 1994 in previous disputes focused on whether
discrimination that might result from the application of those measures had a legitimate cause or rationale in
the light of the objectives listed in the paragraphs of Article XX of the GATT 1994.
415 See Appellate Body Report, Brazil – Retreaded Tyres, paras. 226-234.
The Appellate Body stated, "we have 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." (emphasis added)
WT/DS400/R • WT/DS401/R

circumstances of the current dispute; and, third, is the distinction concerned, as reflected in the
measure, "designed or applied in a manner that constitutes arbitrary or unjustifiable
discrimination" such that it lacks "even-handedness".
416
7.260. We examine these questions in turn.
Whether the IC distinction is connected to the objective of the EU Seal Regime
Characteristics of IC hunts
Identity of the hunter
7.261. The EU Seal Regime defines "Inuit" as "indigenous members of the Inuit homeland, namely
those arctic and subarctic areas where, presently or traditionally, 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
417) and Yupik (Russia)" 418; and "other
indigenous communities" as "communities in independent countries who are regarded as
indigenous on account of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or colonisation or the
establishment of present State boundaries and who, irrespective of their legal status, retain some
or all of their own social, economic, cultural and political institutions".
419
7.262. The complainants do not contest the definition of "Inuit" or "other indigenous
communities" as stipulated in the EU Seal Regime.
Purpose of the hunt
7.263. Seal hunting by Inuit or other indigenous communities appears to largely serve two
purposes: first, for their own use and consumption as part of their culture and tradition 420; and

In our view, the Appellate Body's reasoning in US – Clove Cigarettes also supports our approach here.
In that dispute, regarding the legitimacy of the regulatory distinction drawn by the measure in question (i.e.
distinction between clove and menthol cigarettes), the Appellate Body examined the following questions: first,
whether the distinction was connected to the objective of the measure that justified the prohibition of clove
cigarettes; and, second; in the negative, whether the United States provided any reasons independent of the
objective of the measure that could justify the distinction ("the reasons presented by the United States for the
exemption of menthol cigarettes from the ban"). (Appellate Body Report, US – Clove Cigarettes, para. 225).
416 See Appellate Body Report, US – COOL, para. 340.
In this connection, we take note of Canada's point that the conditions for the IC and MRM exceptions
are not the distinctions that must be assessed under the legitimate regulatory distinction test but can be
evidence indicating whether the distinction between conforming and non-conforming products is administered
in an even-handed manner. (Canada’s response to Panel question No. 28, paras. 127-129; second written
submission, para. 246).
417 Ninety per cent of the total population (56,600) in Greenland is Inuit. (COWI 2010 Report, p. 28;
Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 11).
418 Basic Regulation, Article 2(4).
419 Implementing Regulation, Article 2(1).
According to the COWI 2010 Report, Inuit or indigenous communities with a tradition of seal hunting
that are likely to meet the definitions of such status under the EU Seal Regime are located in Alaska, Canada,
Greenland, Norway, Russia, and Sweden. (COWI 2010 Report, pp. v, 23-33; see also Figure 3-1 in the COWI
2010 Report for an overview of the geographical spread of Inuit and other indigenous communities. Ibid.
p. 23).
Further, the COWI 2010 Report explains that a hunter's status as belonging to an Inuit or indigenous
community is based on self-determination. (See Annex 3, p. 1 (referring to United Nations Declaration on the
Rights of Indigenous Peoples, Resolution of the General Assembly 61/295, September 2007, (UN Declaration),
Article 3; ILO Convention 169, Indigenous and Tribal Peoples Convention, 1989, (ILO Convention), Art. 1; and
Charter of the Inuit Circumpolar Council (Article 6 of which defines Inuit as "indigenous members of the Inuit
homeland recognized by Inuit as being members of their people and shall include the Inupiat, Yupik (Alaska),
Inuit, Inuvialuit (Canada), Kalaalit (Greenland) and Yupik (Russia)").
420 See COWI 2010 Report, pp. 24, 26, 29, and 32. For example, in describing Inuit and indigenous
communities in Northern and North-Eastern Canada, the Report notes that "seal meat is a traditional staple
component in the Inuit diet and Inuit continue to hunt predominantly ring seals for their meat and skins …
Sharing of seal meat fosters relationships throughout the community, while the hunt is a means for learning
across generations, not just about the hunt itself, but about the environment in which Inuit live and survive.
Clothing made of sealskin is still regularly worn both for practical and cultural reasons. Finally, selling some of
WT/DS400/R • WT/DS401/R

second, albeit to varying degrees depending on the Inuit or indigenous community concerned, for
the exchange of by-products of seals such as seal skins either through barter for other goods, or
sale on the market to generate income. 421 In some cases, and particularly in the case of
Greenland, seal products such as skins obtained from Inuit hunters may also be traded in
international markets.422
7.264. We address below the parties' specific arguments concerning the purpose of IC hunts in
the context of our analysis of the European Union's justification for the distinction between
commercial hunts and IC hunts.
Scale of the hunt
7.265. Inuit or members of other indigenous communities hunt seals mostly on an individual basis
using small boats or using sledge dogs and catching a few seals at a time.423
7.266. Although relatively little information on the number of seals hunted by Inuit or indigenous
communities other than Greenland has been submi tted to us, available data suggest potentially
wide variation in the scale of different Inuit hunts. For example, the annual average catch of harp,
ringed, and hooded seals in Greenland is reported to be approximately 164,000 seals. 424 COWI
provides various data showing a "harvest of as many as 1,600 animals" by Alaskan Aleuts and
indigenous populations and 35,000 (predominantly ring) seals annually hunted in Nunavut in
Canada.425
Seal hunting period
7.267. In contrast to commercial hunts, which were noted to occur during limited time periods
within established seasons, IC hunts are typically conducted throughout the year.426

the sealskin to markets provides additional income for a population group that has an average income far
below the Canadian average." With respect to an Inuit community in Alaska (Aleut), it describes that "the
current hunt in Alaska by Aleut takes place purely for subsistence, with most products consumed locally, or
shipped to Aleut communities outside Alaska. It acts as a supplement to the Aleut diet and is still seen as
contributing to social and cultural traditions." (Ibid. pp. 26-27). Concerning Inuit or indigenous communities in
Russia, the Report states that "the majority of seals that are hunted by Inuit or indigenous communities are
not industrialised, but consist of small-scale hunts serving as input to the daily life of these communities …"
(Ibid. p. 32).
See also Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 11 ("The hunting of seals
is a vital component of everyday life and culture in Greenland. It provides a significant amount of nutritious
food and income to families living in remote coastal communities."); Nunavut Report (2012), (Exhibit JE-30),
pp. 1 and 8.
421 See Nunavut Report (2012), (Exhibit JE-30), p. 2; Management and Utilization of Seals in Greenland,
(Exhibit JE-26), pp. 25-28; COWI 2008 Report, pp. 26 (describing both the sale of seal skins by Inuit hunters
in Canada to generate income as well as economic contribution from "production of meat and skins for
garments and arts and crafts") and 45 (distinguishing the "formal economy" of Greenlandic sealing that refers
to economic transactions and the "informal economy" covering "the use of the catch for own consumption,
barter or [unreported] sales").
422 See Management and Utilization of Seals in Greenland, (Exhibit JE-26), pp. 25-28; Nunavut Report
(2012), (Exhibit JE-30), p. 2; COWI 2010 Report, p. 29; COWI 2008 Report, pp. 26 and 45-46.
423 COWI 2010 Report, p. 27; Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 11.
424 See Management and Utilization of Seals in Greenland, (Exhibit JE-26), pp. 1-2 (indicating
approximate annual catch levels of 82,000 harp seals; 78,000 ringed seals; and 4,600 hooded seals). Full time
hunters constitute almost 7% of the work force (approximately 32,000) in Greenland. In Canada, by
comparison, 38,018 harp seals were taken in 2011, and less than 100 hooded seals have been taken in recent
years.
The COWI 2010 Report describes seal hunts in Greenland as "large scale" stating that "the nature and
scale of the hunt vary considerably across the sealing countries. From large scale commercial hunt in Canada,
Greenland, Namibia, Russia to small scale hunting in Sweden and Finland with a few hundred seals killed on an
annual basis … All countries with the exception of Greenland have seal management plans in place and/or
quotas for a yearly total allowance catch (TAC)." (COWI 2010 Report, pp. iv-v).
425 COWI 2010 Report, pp. 23 and 27.
426 See COWI 2010 Report, pp. 27-28; Nunavut Report (2012), (Exhibit JE-30), p. 1; Management and
Utilization of Seals in Greenland, (Exhibit JE-26), pp. 18-20.
WT/DS400/R • WT/DS401/R

Hunting methods
7.268. Inuit communities use both traditional me thods/tools (e.g. harpoons, kayaks, dog sleds)
as well as more modern equipment (e.g. rifles, boats, snowmobiles). 427 Evidence also shows that
methods such as "trapping and netting" are used in IC hunts.428 The COWI 2010 Report explains in
this regard that the notion of "hunts traditionally conducted" referred to in Article 3.1 of the Basic
Regulation can be defined as "hunts that are part of the cultural tradition of a given community
located in a specific geographical area"
429, and does not indicate "hunts conducted traditionally,
i.e. in a traditional manner". Based on information concerning Greenland, the use of rifles from
boats in "open water hunting" or trapping and netting appear to be the main hunting methods for
Greenlandic Inuit.
430
Organization and control of the hunt
7.269. IC hunts take place mostly on an individu al basis and Inuit hunters are not usually subject
to monitoring or enforcement of sealing regulations in their hunts.431
7.270. However, we observe that Greenland requires a full time hunter to have a licence to qualify
for selling the skins to the tannery Great Greenland A/S. 432 According to a document published by
the Government of Greenland, a large number of hunters use "the possibility to sell skins to the
tannery in total a couple of months a year".
433
Use of products derived from the hunt
7.271. Inuit and other indigenous communities us e all parts of the hunted seals. They consume
seal meat as an essential part of their diet and use seal skins and other parts of seals for a variety
of purposes as part of their culture and tradition.
434 As noted above, Inuit and other indigenous
communities also sell by-products of the hunted seals, mostly seal skins, to markets.435
Connection between the IC distinction and the objective of the EU Seal
Regime
7.272. Based on our examination of the evidence pertaining to IC hunts described above, we have
determined that there are certain characteristics that are unique to IC hunts 436, namely: they are

427 See Parties' responses to Panel question No. 67.
428 Netting and underwater trapping as a killing method are intended to "restrain the seal in a
submerged position long enough for it to exhaust its oxygen supply and to die from asphyxiation" (EFSA
Scientific Opinion, p. 46). Nets are currently employed in Artic regions where seasonal and environmental
factors make other hunting methods unviable. Whereas humane killing methods, and the three-step method in
particular, are designed to minimize the suffering experienced by the targeted animal, netting has raised
severe animal welfare concerns for subjecting seals to prolonged durations and intense magnitudes of
suffering. (See EFSA Scientific Opinion, pp. 46-48; NAMMCO Report (2009), p. 11).
429 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 9.
430 Management and Utilization of Seals in Greenland, (Exhibit JE-26), pp. 18-20; see also Nunavut
Report (2012), (Exhibit JE-30), p. 1.
431 See EFSA Scientific Opinion, p. 13; COWI 2008 Report, pp. 25 and 44.
432 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 21; see also COWI 2008
Report, p. 45.
433 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 21 (stating that selling
sealskins is for many hunters a very important secondary income, and approximately 100 hunters make more
than EUR 10,000 yearly on sealskins).
434 COWI 2010 Report, pp. 24, 26; Management and Utilization of Seals in Greenland, (Exhibit JE-26),
pp. 2 and 11; Parties' responses to Panel question No. 66. Canada submits that in east coast sealing
communities, seal meat is consumed and very popular. Norway submits that meat from seal hunted in Norway
(non-Inuit) is sold to restaurants, at local markets, or directly to consumers who come to the ships to buy.
In Greenland, seal meat is also used as food for sledge dogs, which power the sledges from which ice-
fishing takes place. (Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 11).
435 In Greenland, for instance, ringed seal was the most important species in relation to food supply and
income, but the demand from the fur industry made it more attractive to hunt harp seals as Greenlandic
hunters in some years offered a slightly better price for sealskins from harp seals compared to those from
ringed seals. (Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 22)
436 The European Union highlights the uniqueness of IC hunts based on the following elements: (a)
identity of the hunter: hunts conducted by Inuit or other indigenous communities characterized by its high
dependence on seal hunting and a tradition of seal hunting in the geographical region; (b) end-use of the
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conducted by Inuit and indigenous communities with a tradition of seal hunting dating back
thousands of years437; they are normally carried out on an individual basis using small boats; and
they take place throughout the year. In addition, by-products of the hunted seals are usually used
and consumed by the community and, depend ing on the Inuit or indigenous community
concerned, also sold on the market to generate income.
438
7.273. We recall our assessment above that the circumstances and conditions of seal hunts
present certain challenges to effecting humane killing of seals and that there is a risk in any given
seal hunt that the targeted animals may suffer poor animal welfare outcomes of varying intensity
and duration.439 IC hunts are no different; they are conducted in a similar physical environment
often using similar hunting methods as described above. Thus, similar challenges to effecting
humane killing of seals exist in IC hunts. Furthe r, evidence shows that hunting methods used by
Inuit or indigenous communities such as "trapping and netting" are not consistent with humane
killing methods.440
7.274. As discussed in detail in section 7.3.3.1 below, the objective of the EU Seal Regime is to
address the moral concerns of the EU public with regard to the welfare of seals. Specifically, the
EU public moral concerns as described by the European Union are two-fold. They include: (a) the
incidence of inhumane killing of seals; and (b) EU citizens' individual and collective participation as
consumers in, and their exposure to, the economic activity which sustains the market for seal
products derived from inhumane hunts. As part of our analysis in section 7.3.3.1, we also found
that the EU public concerns on seal welfare relate to seal hunting in general and are not confined
to any particular type of hunts.
7.275. Given that the same animal welfare concerns as those arising from seal hunting in general
also exist in IC hunts, and considering the evid ence showing the use by Inuit hunters of methods
such as "trapping and netting", we find that IC hunts can cause the very pain and suffering for
seals that the EU public is concerned about. Accordingly, the IC distinction does not bear a rational
relationship to the objective of addressing the moral concerns of the EU public on seal welfare.
441
7.276. Canada submits that this rational disco nnection between, on the one hand, the regulatory
distinction between IC hunts and other hunts, and, on the other hand, the objective of protecting
the welfare of seals or the public morals to which they relate, indicates that the distinction in
question is not justifiable, and hence discriminatory contrary to Article 2.1 of the
TBT Agreement.
442 The European Union does not contest that seal products potentially qualifying

by-products of the hunt: partial or entire use, consumption or processing of the by-products of the hunt within
the communities according to their traditions; and (c) subsistence purpose of the hunt: contribution of the hunt
to the subsistence of the community. (European Union's Response to Question 66; see also COWI 2010 Report,
p. 27 (explaining that the majority of seal products are consumed locally by Canadian Inuit and where only one
third of sealskins end up on the market) and pp. 29-30 (explaining local consumption by Inuit in Greenland);
Canada's response to Panel question No. 74, para. 320; Norway's response to Panel question No. 41, para. 217
(confirming that half of the skins are traded in and exported from Greenland, while the other half are
consumed locally)).
437 The European Union explains that a "tradition of seal hunting" does not relate to the methods of
hunting but rather means that the community in question must have a tradition of seal hunting in the
geographical region. (European Union's opening statement at the first substantive meeting of the Panel,
para. 14 (also referring to Canada's response to Panel question No. 67, para. 292 ("the hunt itself is traditional
and a fundamental element of the Inuit culture and society")).
438 See para. 7.263.
439 See paras. 7.222-7.224 above.
440 Some of the Greenlandic harvesting practices have in fact been recognized as creating poor animal
welfare outcomes. (EFSA Scientific Opinion, p. 47). The "trapping and netting" method which is used in
Greenland precisely because of the environmental factors that prevail during the winter months (limited
sunlight), is "problematic" from an animal welfare perspective. EFSA has concluded that netting of seals is
"inhumane". (EFSA Scientific Opinion, p. 89; see also Management and Utilization of Seals in Greenland,
(Exhibit JE-26), p. 19). Norway claims that hunts that the European Union labels "non-commercial" pose
severe animal welfare problems. (See, e.g. Norway’s first written submission, paras. 680-684; response to
Panel question No. 73, para. 408).
441 We note our consideration in section 7.3.3.1 that the aim, purpose, and target of the EU Seal Regime
could not be considered as protecting the economic and cultural interests of Inuit or indigenous communities.
442 Canada's second written submission, para. 251. Canada argues that although the Inuit hunt may not
be as widespread, organized, systematic, intensive, or competitive as commercial hunts, the European Union
has adduced no evidence to show that the existence of these factors produces a different animal welfare
WT/DS400/R • WT/DS401/R

under the IC exception do not conform to the objective of protecting animal welfare and can in fact
compromise it.443 The European Union explains, however, that the application of certain hunting
methods such as "trapping and netting" is indispensable for the subsistence of the Inuit, who
otherwise would not be able to hunt during almost half of the year, and this therefore overrides
the animal welfare concerns.
444
7.277. We turn to examine the rationale submitte d by the European Union as a justification for
the distinction between commercial and IC hunts.
Whether the cause or rationale put forward by the European Union for the
distinction between commercial and IC hunts is justifiable
7.278. We understand the European Union's justification of the distinction between commercial
and IC hunts to rest on two premises. First, if the objective of the IC exception is found to be
legitimate, then, a fortiori , the regulatory distinction should also be considered "legitimate". 445
Second, highlighting the alleged uniqueness of IC hunts, the European Union argues that IC hunts,
which are conducted for the "subsistence" of Inuit and indigenous communities, benefit from an
"inherent legitimacy" that "overrides the general concerns over the killing methods for purely
commercial motives". 446 According to the European Union, therefore, the purpose of the hunt
distinguishes IC hunts from commercial hunts and justifies any risk of suffering inflicted upon seals
as a result of the hunts conducted by those communities. 447 The European Union explains further
that, because the subsistence of the Inuit and other indigenous communities and the preservation
of their cultural identity provide benefits to humans, from a moral point of view, this outweighs the
risk of suffering inflicted upon seals as a result of the hunts conducted by those communities.
7.279. First, we are not persuaded by the Eu ropean Union’s premise that a distinction in
treatment is justified on the basis of the legitimacy of the objective of the distinction itself, in this
case the IC exception. We do not read the Appella te Body guidance on Article 2.1 to support this
interpretation. Under Article 2.1 of the TBT Agre ement, the inquiry, according to the Appellate
Body, is whether the detrimental impact caused by a measure stems from a legitimate regulatory
distinction drawn in the measure. If it does, then the detrimental impact is justified and will not
offend the non-discrimination obligation under Article 2.1. The analysis of determining the
legitimacy of a regulatory distinction is not, as the European Union suggests, simply whether there
is a legitimate objective, for example, within the meaning of Article 2.2. In our view, the existence
of a legitimate objective will not automatically imbue the discrimination under Article 2.1 with
legitimacy; were that to be the case, one would simply need to assess whether the detrimental
impact stems from a "legitimate" objective. Even if the objective of the IC exception were
separately examined and found to be a "legitimate" policy objective within the meaning of
Article 2.2, that alone would not necessarily lead to establishing the legitimacy of drawing the
distinction – as opposed to the legitimacy of a certain policy objective per se – between

outcome. (Canada's second written submission, para. 249 (referring to European Union's response to Panel
question No. 8, para. 20)).
See also Norway’s first written submission, paras. 698-703. According to Norway, the same animal
welfare conditions prevail in all countries where seals are hunted because all seals are equally vulnerable to
hunting that does not respect animal welfare. Norway also makes reference to the EFSA Scientific Opinion,
which states that traditional or "subsistence" hunts have "few, if any, regulations and are poorly monitored".
Norway infers from this conclusion that "some traditional methods used in 'subsistence' hunts may be
detrimental to animal welfare". (See Norway's first written submission, para. 680 and footnote 980 (citing
EFSA Scientific Opinion, p.13)).
443 European Union's response to Panel question No. 10, para. 44.
444 European Union's response to Panel question No. 8, paras. 22-23; second written submission,
para. 232 (citing Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 19 ("[F]rom October to
the end of March, netting is the prevailing method since it is impossible to use any other technique during the
dark winter months")).
445 European Union's first written submission, para. 261; second written submission, paras. 220-227.
In using the term "legitimate"" in this context, the European Union did not clarify whether the objective
of the IC exception is "legitimate" within the meaning of Article 2.2 of the TBT Agreement. Further, the
European Union took the position in the context of Article 2.2 that the protection of the interests of Inuit or
indigenous communities is not an independent objective of the EU Seal Regime as a whole. (See, below
section 7.3.3.1).
446 European Union's first written submission, para. 268; second written submission, para. 221.
447 European Union's second written submission, paras. 230, 232. See also European Union's response
to Panel question No. 10.
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commercial and IC hunts through the IC exception within the meaning of Article 2.1. The objective
of the IC exception is an element that may be ex amined as part of the "cause" or "rationale" put
forward by the European Union to seek to justify the IC distinction. But it is not determinative of
the issue of the legitimacy of the regulatory distinction.
7.280. Next, based on the alleged uniqueness of IC hunts, in particular the "subsistence" purpose
of IC hunts, the European Union argues that IC hunts are justifiably distinguishable from
commercial hunts conducted primarily or exclusively for commercial purposes.
448 According to the
European Union, the regulatory distinction made by the EU Seal Regime between conforming and
non-conforming seal products is primarily based on the "purpose" of the hunt from which a given
product was derived; the term "purpose" is used to refer to the principal aim of the hunt in
question, i.e. the primary reason why the seal in qu estion is killed. The purpose of the hunt is also
reflected in other characteristics of the hunt, such as its size, intensity or end-use of the products,
which together constitute a "type".
449
7.281. Canada does not contest the unique characteristics of IC hunts. In fact, Canada
acknowledges that, regardless of hunting methods, the Inuit hunt itself is traditional and a
fundamental element of Inuit culture and society. 450 For example, Canada states that the purpose
of the Canadian Inuit hunt today is not material ly different from the hunt 1,000 years ago,
although the emergence of a monetized society and new technologies has caused the Canadian
Inuit to commercialize some output to generate income. 451 Canada however disagrees with the
European Union on whether the purpose of IC hunt s ("subsistence" purpose) and the purpose of
commercial hunts ("primarily or exclusively commercial reasons") can strictly be distinguishable as
asserted by the European Union. Canada argues that the "subsistence" purpose of IC hunts can
equally be used to describe the Canadian east coast seal hunt (commercial hunts).452
7.282. To assess the issue of whether the alleged difference in the purpose of the hunt constitutes
a justifiable rationale or cause for the distinction in question, despite its disconnection from the
objective of the measure, we must examine two questions: first, whether, and, if so, how, the
purpose of IC hunts differs from the purpose of commercial hunts; and, second, whether any
distinction found in the purpose of the hunt justifies the distinction drawn under the measure
between commercial and IC hunts.
Whether the purpose of IC hunts differs from the purpose of commercial
hunts
7.283. The term "subsistence"453 is not defined in the EU Seal Regime. A dictionary definition of
the term provides inter alia the following: "the action or condition of subsisting or of supporting
life, the provision of food etc", "means of support ing life; livelihood", "a bare or minimal level of
existence; an income providing this", or "food supply, provisions". 454 Dictionary definitions thus

448 European Union's response to Panel question No. 30; see also footnote 60 (referring to debates
within European Parliament in submitting amendments to the Commission Proposal. See Report on the
Proposal for a Regulation of the European Parliament and of the Council concerning Trade in Seals Products (5
March 2009), (Parliament Report), (Exhibit JE-4), p. 64).
For the term "commercial" in this context, the European Union explains that it means the following:
"seals are killed with a view to making profit out of the sale on commercial markets of products such as skins
or oil". Further, according to the European Union, commercial seal hunts are "organised hunting, on a wide
scale with reference to the hunting area and/or the number of animals killed, by people paid to do this in order
to supply seal product processing enterprises on a regular and continuous basis for commercial purposes".
449 European Union's response to Panel question No. 29.
450 Canada's response to Panel question No. 67.
451 Canada's response to Panel question No. 67.
452 Canada's comments on the European Union's response to Panel question No. 121. Canada submits
that seal hunting has a long tradition in the Atlantic region, dating back to the 15th century, and plays a role in
the social and economic well-being of these communities.
453 According to the preamble of the Basic Regulation, seal products deriving from hunts traditionally
conducted by Inuit communities and which contribute to their subsistence should not be covered by the
prohibitions provided for by this Regulation. COWI explains that this recital indicates that the intention of the
regulation is to protect the given communities by avoiding negative impacts on the community, hence taking a
broad interpretation of the term subsistence. (COWI 2010 Report, p. 9).
See also Basic Regulation, Article 3.1(c).
454 Shorter Oxford English Dictionary, 6th edn, A Stevenson (ed.) (Oxford University Press, 2007), Vol. 2,
p. 3087. ("7. The action or condition of subsisting or of supporting life, the provision of food etc. … 8. (A)
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suggest that subsistence is closely linked to the notion of providing food or income to support life
or livelihood.455
7.284. We observe that EFSA also correlates the subsistence purpose of the hunt to the identity of
the hunter: "the term 'subsistence hunt' is often used to describe a hunt where the seal is killed by
an aboriginal for personal consumption". 456 Indeed, the European Union acknowledges that the
distinction for hunts conducted for "subsistence purposes" relates specifically to hunts "where seals
are killed primarily in order to contribute to the subsistence of Inuit and other indigenous
communities".
457
7.285. Information submitted to the Panel confirms that certain Inuit or indigenous communities
also sell by-products, mostly seal skins, of their hunts on the market. The extent of such
commercial transactions seems to vary, however, depending on the particular Inuit or indigenous
community concerned (e.g. bartering with other goods, placing meat or skins on the local market,
or selling skins for international markets). 458 For example, based on the information in the COWI
2010 Report, the current hunt in Alaska by Aleut takes place purely for subsistence, with most
products consumed locally, or shipped to Aleut co mmunities outside Alaska. The same is true for
Inuit in Russia; "the majority of seals that are hunted by Inuit or indigenous communities are not
industrialised, but consist of small-scale hunts serving as input to the daily life of these
communities …".
459 As regards Canadian Inuit, most of the seal products are consumed locally by
Canadian Inuit themselves and only one third of sealskins end up on the market. 460 In Greenland,
where 90 per cent of the population are Inuit, half of the skins are consumed locally, and the other
half are traded in and exported from Greenland.461
7.286. The European Union agrees that qualifying IC hunts may "have a commercial
dimension".462 According to the European Union, if this were not the case, the IC exception would
have served no purpose under the EU Seal Regime . The European Union explains that part of the
cultural heritage of seal hunting involves bartering the outputs for necessary goods. It also
maintains that, now that bartering is rarely practised, that cultural heritage is continued through
placing the products on the market and then using the proceeds to buy necessary goods and
finance the cost of conducting seal hunting.
7.287. To us, the commercial aspect of IC hunts resembles the purpose of commercial hunts,
which is to earn income (and make profits) by selling by-products of the hunted seals. Further, in
our view, this commercial aspect of IC hunts is related more to their need to adjust to modern
society rather than to continuing their cultural heritage of bartering. The European Union has not
explained their position that the commercial aspect of IC hunts is merely a modern version of
bartering.
7.288. Nevertheless, based on the definition of the term "subsistence" as well as the evidence
concerning Inuit and indigenous communities with a tradition of seal hunting, we consider 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 tr adition, but also a commercial component, to the
extent that Inuit or indigenous communities also exchange some by-products of the hunted seals

means of supporting life; (a) livelihood. Now spec., a bare or minimal level of existence; an income providing
this. B Food supply, provisions.").
455 We also note that "subsistence" can be defined as "using wildlife locally for food, clothing, and
shelter, and for making tools, rather than putting wildlife products into trade." (Andrew Linzey , Public Morality
and the Canadian Hunt (2005), (Exhibit EU-35), p. 35 (referencing inter alia D. Lavigne, V. Scheffer, and S.
Kellert, "The evolution of North American attitudes toward marine mammals"' in J.R. Twiss Jr. and R. R. Reeves
(eds), Conservation and Management of Marine Mammals (Washington and London: Smithsonian Institution
Press, 1999), p. 37).
456 EFSA Scientific Opinion, p. 13.
457 European Union's response to Panel question No. 29, para. 100. (emphasis added)
458 COWI 2010 Report, pp. 27, 29-30; Canada's response to Panel question No.74, para. 320; Norway's
response to Panel question No. 41, para. 217.
459 COWI 2010 Report, p. 32.
460 Evidence indicates that "less than 2% of aboriginal people in Canada are involved in commercial
trapping of animals for fur." (Andrew Linzey , Public Morality and the Canadian Hunt (2005), (Exhibit EU-35),
p.13)
461 See Management and Utilization of Seals in Greenland, (Exhibit JE-26), pp. 11 and 25.
462 European Union’s response to Panel question No. 32, para. 112; closing statement at the second
substantive meeting of the Panel, p. 4.
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for economic gain. As observed by EFSA, a part icular hunt may have one or several purposes. 463
Unlike commercial hunts, however, most Inuit and indigenous communities do not appear to hunt
seals for the sole or primary purpose of selling them on the market. Rather, seal hunting is a
manifestation of a way of living for Inuit and indigenous communities and is an activity that
defines them as Inuit.
464 The commercial aspect of IC hunts is thus not the same in its extent as
that associated with commercial hunts.
7.289. In conclusion, while IC hunts may also have a commercial aspect, we are persuaded that
the subsistence aspect of IC hunts, combined wi th the identity of the hunter as Inuit, has
significance for their culture and tradition as well as for their livelihood. 465 To that extent, the
primary purpose of IC hunts is distinguishable from that of commercial hunts.466
Whether the difference in purpose between commercial and IC hunts justifies
the distinction drawn under the measure between these two hunts
7.290. Having determined that there is no rational connection between the objective of the
EU Seal Regime as a whole and the distinction between commercial and IC hunts, in essence
because the IC hunts pose at least the same risks to the animal welfare of seals as the commercial
hunts, we then examined whether the distinction could nevertheless be justified. The first element
of this analysis involved a consideration of whether the primary purpose of the IC hunts could be
distinguished from the primary purpose of the commercial hunts. In this we determined that the
purpose of the two hunts were distinguishable. The second element of the examination involves an
analysis of whether this difference in purpose
 justifies the IC distinction.
7.291. In this regard, we recall the Appellate Body's statement that:
the task of interpreting [the chapeau of Article XX of the GATT 1994] is 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 right of other Members under
varying substantive provisions … of the GATT 1994. … This line of equilibrium is not
fixed and unchanging and moves "as the kind and the shape of the measures at stake
vary and as the facts making up specific cases differ."
467 (emphasis added)
7.292. The European Union points out that the prot ection of the economic and social interests of
Inuit or indigenous communities is recognized at the international level as illustrated, for example,
in the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration)
468 and in

463 EFSA Scientific Opinion, pp. 12-13.
464 See European Union's responses to Panel questions Nos. 8, para. 20; and 30, para. 103.
465 See for instance paragraph 7.272 above.
466 European Union's second written submission, para. 231 (referring to Canada's response to Panel
question No. 67, para. 292).
467 Appellate Body Report, US – Shrimp, para. 159. See also Appellate Body Report, Brazil – Retreaded
Tyres, para. 224.
See also the Appellate Body's approach in US – Clove Cigarettes as noted above in footnote 415.
468 The UN Declaration is a Resolution of the UN General Assembly (General Assembly Resolution
A/RES/61/295 of 13 September 2007) affirming indigenous peoples' right to self-determination (Articles 3
and 4) and "to maintain and strengthen their distinct political, legal, economic, social and cultural institutions"
(Article 5). States are called on to "provide effective mechanisms for prevention of, and redress for … [a]ny
action which has the aim or effect of dispossessing them of their … resource s" (Article 8(2)(b)).
In this vein, further recognition of various social and economic interests, including the preservation of
cultural heritage and control over resources, is reiterated throughout the UN Declaration. See e.g. Article 20(1)
("Indigenous peoples have the right to maintain and develop their political, economic and social systems or
institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage
freely in all their traditional and other economic activities".); Article 26(2) ("Indigenous peoples have the right
to own, use, develop and control the lands, territories and resources that they possess by reason of traditional
ownership or other traditional occupation or use, as well as those which they have otherwise acquired".);
Article 29(1) ("Indigenous peoples have the right to the conservation and protection of the environment and
the productive capacity of their lands or territories and resources".); Article 32 ("Indigenous peoples have the
right to determine and develop priorities and strategies for the development or use of their lands or territories
and other resources".)
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the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO
Convention).469
7.293. Further, the recognition of the interests of Inuit or indigenous communities is also reflected
in the legislative history of the EU Seal Regime as well as in Canadian sealing regulations.
The legislative history of the EU Seal Regime and other measures with respect to seal hunting
show that the interests of the Inuit have consistently been addressed and/or taken into account in
the form of exceptions. For example, the 1983 Di rective banning imports of skins of whitecoat
pups of harp seals and of pups of hooded seals (b lue-backs) was limited to "only apply to products
not resulting from traditional hunting by the Inuit people".
470 In addition, the 2006 Declaration of
the European Parliament prompting the legislativ e process of the EU Seal Regime contemplated
that the final regulation "should not have an impact on traditional Inuit seal hunting".471
7.294. Canada also exempts Inuit from certain provisions of its sealing regulations. 472 Further,
Canada acknowledges the conflicting interests at issue between seal welfare and the interests of
Inuit and other indigenous communities engaged in seal hunting. For example, Canada notes 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."
473 We also observe Inuit exceptions in similar measures adopted by
other WTO Members on trade in products derived from marine mammals.474
7.295. In our view, these sources, taken in their entirety as factual evidence 475, demonstrate the
recognized interests of Inuit and indigenous peoples in preserving their traditions and cultures.

469 The ILO Convention (Convention No. 169 of 27 June 1989) similarly exhorts governments to account
for and protect the interests of indigenous peoples through inter alia "promoting the full realisation of the
social, economic and cultural rights of these peoples with respect to their social and cultural identity"
(Article 2(2)(b)). The ILO Convention recognizes that "the integrity of the values, practices and institutions of
[indigenous] peoples shall be respected" (Article 5(b)). Most relevantly, the ILO Convention states that the
"rights of [indigenous peoples] to the natural resources pertaining to their lands shall be specially safeguarded.
These rights include the right of these peoples to participate in the use, management and conservation of
these resources"(Article 15(1)).
We note that the definition of "other indigenous communities" in the Implementing Regulation mirrors in
identical language provisions from the ILO Convention on its scope of application. See Article 1(b) of the ILO
Convention and Article 2(1) of the Implementing Regulation.
470 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), p. 30, (Seal Pups Directive), (Exhibit CDA-12), Article 3. We note that, although
the Directive was predicated on concerns about the population status of harp and hooded seals, preamble
recitals highlighted that "the exploitation of seals … is a natural and legitimate occupation and in certain areas
of the world forms an important part of the traditional way of life and economy".
472 Canada argues that the European Union is incorrect when it states that Canada itself exempts the
Inuit from the animal welfare requirements provided in Canada’s hunting regulations. According to Canada, the
coverage of the MMR is determined by a complex set of constitutionally determined parameters in Canada, with
some Aboriginal hunters subject to them while others are not. Inuit hunters in Nunavut – where most Inuit seal
hunting occurs – are also subject to their own regulatory regime, which is determined by a land claims
agreement negotiated between the federal government and the Inuit. It is therefore also not correct to say
that Canada "allows" the Inuit to hunt seals by netting them, as this would imply that federal regulations
include a permissive provision in this regard.
Based on Canada's explanation on this issue and the European Union's comments on Canada's
explanation, the Panel understands that certain Inuit in Canada are subject to parts of the sealing regulations,
but not all of the regulations. We observe in this regard the European Union's statement that as the regulations
apply only to the designated seal hunting areas in Canada and exclude the areas where Inuit sealers operate,
Inuit are exempted from, for example, the "prohibition against the use of nets or other weapons otherwise
deemed to be unacceptably cruel". (See Canada's response to Panel question No. 114 (referring to the
European Union's response to Panel question No. 8, para. 24) and the European Union's comments on
Canada's response to Panel question No. 114).
473 See Canada’s second written submission, para. 251.
474 See, e.g. United States Marine Mammal Protection Act of 1972, (Exhibit JE-15), section 101(a)
(laying down a "moratorium on the taking and importation of marine mammal products") and section 101(b)
exempting "the taking of any marine mammal" by Alaskan natives for "subsistence purposes or for making
"native articles of handicrafts and clothing"; Ley General de Vida Silvestre (amendment of 26 January 2006),
(Exhibit EU-29), Artículo 55bis (prohibiting the importation, exportation and reexportation of any species of
"mamífero marino y primate") and Capítulo II "Aprovechameiento para fines de subsistencia".
475 In taking into account the recognition given by international instruments in the context of the United
Nations and the ILO to the interests of Inuit and indigenous communities, the Panel is mindful that these
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More specifically, in the case of seal hunts, the evidence before us shows that seal hunting
represents a vital element of the tradition, culture, and livelihood of Inuit and indigenous
communities.
7.296. Although we agree with Canada that a cause or rationale for a certain distinction may not
be justifiable if such cause or rationale is not connected to the main objective of the measure, we
are mindful that the justifiability of a specific cause or rationale provided for a given distinction
must be examined on a case-by-case basis.
476 In the circumstances of this dispute, the interests to
be balanced against the objective of the measure at issue are grounded in the importance,
recognized broadly in national and international instruments, of the need to preserve Inuit culture
and tradition and to sustain their livelihood, particularly in relation to the significance of seal
hunting in Inuit communities.
7.297. Further, the factual circumstances of this dispute can be differentiated from those of a
previous dispute where a rationale or cause for a certain exception or regulatory distinction was
not found justifiable. In US – Clove Cigarettes, the United States explained the distinction at issue
(i.e. allowing menthol cigarettes while prohibiting clove cigarettes) was based on the alleged risks
(namely health care costs and black market smuggling) arising from withdrawal symptoms that
would afflict menthol smokers. The Appellate Body did not find this reason persuasive enough to
justify the distinction between prohibited (clove cigarettes) and permitted (menthol cigarettes)
products which were found to be "like" and presen ted the same health risks for smokers. We also
note that in Brazil – Retreaded Tyres , certain imports of retreaded tyres were excluded from the
scope of the ban on the grounds that the MERCOSUR arbitral tribunal made a ruling to that effect
(i.e. to respect trade rules under the MERCOS UR). The Appellate Body found the exception
arbitrary and unjustifiable due to the lack of any rational connection to the objective of the ban
(i.e. environmental purposes), and the rationale for the exception, namely the MERCOSUR ruling
was not considered by the Appellate Body sufficien t to justify the exception in the face of the
rational disconnection to environmental purposes.
7.298. Unlike the situations in US – Clove Cigarettes or Brazil – Retreaded Tyres , the cause or
rationale for the exception granted under the EU Seal Regime to products derived from IC hunts is
justifiable despite the rational disconnection to protecting seal welfare
477, because it is founded on
the unique interests of Inuit and indigenous communities, which are and have been recognized
broadly, as discussed above. Additionally, as no ted above, evidence shows that Inuit interests
have always been raised as an important consideration when adopting a regulation relating to seal
products, including the current measure.
478 Under these circumstances, we are persuaded that the
protection of Inuit interests justifies the distinction between commercial and IC hunts. We thus
consider that the European Union has explained sufficiently the basis for distinguishing IC hunts
from commercial hunts through the IC exception.
7.299. Before turning to our conclusion on th e justifiability of the rationale given by the
European Union for the distinction between IC and commercial hunts, we recall the
European Union’s reference to the alleged moral concerns of the EU public concerning the
economic and social interests of Inuit and indigenous communities. According to the
European Union, the "standard of the EU public's morality" requires examining in each case
whether the suffering inflicted upon animals is outweighed by the benefits to humans (such as
Inuit and other indigenous communities) or to other animals.
479 Although we found based on
available evidence that the EU public had moral co ncerns on seal welfare in general, we did not
consider that the evidence before us supports 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. 480

instruments are not WTO instruments and they do not set out WTO obligations per se. We are considering the
content of these instruments as part of the evidence submitted by the European Union to support its position
concerning the interests of Inuit and indigenous communities, not as legal obligations of Members.
476 See para. 7.172 above.
477 By definition, the term "exception" refers to "a particular case or individual that does not follow some
general rule or to which a generalization is not applicable". (Shorter Oxford English Dictionary, 6th edn,
A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 885).
478 In contrast, the exceptions in Brazil – Retreaded Tyres, for instance, were introduced during the
application of the ban.
479 European Union's response to Panel question No. 31.
480 See para. 7.410 and footnote 676.
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Nor are we presented with evidence establishing the precise scope of the "basic morality" of
EU citizens as claimed by the European Union.481
7.300. In conclusion, based on the factors considered above, we are persuaded by the
European Union's explanation that the primary purpose of IC hunts, namely to preserve the
tradition and culture of Inuit and to sustain their livelihood, is distinguishable from that of
commercial hunts, and justifies the IC distinction, which protects IC interests. We do not find,
however, in the evidence presented to us that th e rationale or the cause of the distinction can be
linked to the alleged "standard of the EU public’s morality" in general.
482
7.301. We next proceed to examine whether this distinction between commercial and IC hunts, as
reflected in the EU Seal Regime through the IC exception, is designed and applied in an even-
handed manner.
483
Whether the distinction between commercia l and IC hunts, as reflected in the
IC exception of the EU Seal Regime, is designed and applied in an even-handed
manner
7.302. The IC exception is embodied in Article 3(1) of the Basic Regulation. It provides that "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".
7.303. To implement this provision, Article 3(1) of the Implementing Regulation sets out that, to
fall under 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.
7.304. Canada submits that with respect to Greenland in particular and its qualification under the
IC exception, Greenland's commercialization of output is considerably more extensive and
organized than Inuit elsewhere, with a large-scale commercial enterprise (Great Greenland A/S),
significant capital investment, such as processing and manufacturing facilities, and sophisticated
distribution channels. Greenland's production volume and value dwarfs the commercialized output

481 Referring to the panel reports in US – Gambling and China – Audiovisual Products, the
European Union states:
The European Union considers that, once it is established that the basic standard of conduct
which the EU Seal Regime seeks to uphold is part of the European Union's "public morals", it is
not necessary to prove that each of the individual outcomes from the application of that rule in
specific situations is regarded by the EU public as a separate rule of public morality on its own.
Instead, the mere fact that the EU legislator has made a proper application of the basic rule of
morality would be sufficient to confer upon each of those outcomes the status of "public morals".
(European Union's response to Panel question No. 31)

The guidance provided by previous panels, as referenced by the European Union to support its position
in this regard, pertained to the scope of "public morals" with respect to the policy objective pursued by the
regulating Member through the main measure at issue. Therefore, the context in which such reasoning was
developed in the previous disputes is not the same as in the current context where the European Union must
justify the existence of the regulatory distinction under the measure through an exception (i.e. IC exception).
482 See paras. 7.401-7.402.
483 We recall the Appellate Body's statement in US – Gasoline:
The chapeau by its express terms addresses, not so much the questioned measure or its specific
contents as such, but rather the manner in which that measure is applied … The 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. To proceed down that path would be both to empty the chapeau of its contents and to
deprive the exceptions in paragraphs (a) to (j) of meaning. (Appellate Body Report, US – Gasoline, pp. 22-
23)(emphasis added, original footnote omitted)
WT/DS400/R • WT/DS401/R

of Canada's Inuit; whereas commercial sale of sealskins by Nunavut Inuit is clearly a mere adjunct
to the more central purpose of the Canadian Inuit hunt, which is subsistence, Greenlandic Inuit are
major commercial operators and conduct the largest commercial seal hunt in the world since
2009.
484 In that sense, according to Canada, the hunts occurring in Greenland and in Canada both
have strong commercial elements. Therefore, the artificial distinction created by the
European Union by virtue of IC hunts has no basis and is simply unjustified.485
7.305. At the outset, we observe that Canada does not contest the status of Greenland as Inuit.
Rather, Canada’s argument is focused on the fact that compared to other Inuit and indigenous
communities practising seal hunts, the Greenlandic seal hunts practically have a commercial
aspect that closely resembles that of commercial hunts. This, according to Canada, demonstrates
the arbitrariness in the design and application of the distinction between commercial and IC hunts
as reflected in the IC exception under the measure.
7.306. We observe that since the introduction of the EU Seal Regime in 2010, Greenland has been
the only Inuit community that has applied for and obtained the benefits of the IC exception under
the measure. Although such fact alone is not suffi cient to establish arbitrariness in the design or
application of the IC exception, it may be an indication that a certain inherent flaw in the design
and structure of the IC exception prevents othe r potentially qualifying Inuit and indigenous
communities from benefiting from the exception. Against this background, we examine whether
the IC exception is designed or ap plied such that only Greenland can de facto benefit from the
exception.
7.307. Based on a variety of considerations, we considered above that the "subsistence" purpose
of IC hunts includes the need to preserve the culture and tradition of Inuit and indigenous
communities and to sustain their livelihood. We found that this purpose of IC hunts, combined with
the identity of the hunter as Inuit, distinguishes IC hunts from that of commercial hunts.
7.308. Based on the text, we consider that the 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 us e of by-products from the hunted seals, and the
contribution of the hunts to the subsistence of the community. The scope and meaning of the
"subsistence" criterion under the requirements, however, is not defined under the measure.
486
Regardless, the parties do not dispute that all of the communities mentioned in the illustrative list
of Inuit and indigenous communities under the Basic Regulation, including from Canada’s Nunavut
and from Greenland, would potentially qualify under the measure.
487
7.309. Having regard to the actual application of the IC requirements, particularly the commercial
aspect of the subsistence criterion, the information before us indicates that, compared to IC hunts
in Canada, Alaska, or Russia where most of the hunted seals are used for personal use, over
50 per cent of the hunted seals in Greenland are sold to the tannery of Great Greenland A/S. The
tannery, Great Greenland A/S, is owned by the Go vernment of Greenland and is equipped with a
modern facility using state of the art technology in the processing of sealskins.
488 In fact, the
tannery of Great Greenland A/S is currently claimed to be "one of the world's leading in producing
high quality furs and leather from sealskins".
489 Seals in Greenland are hunted by paid, full time
seal hunters (2,100 over the last five years) and paid, leisure time hunters (5,500). 490 It is also

484 Canada's response to Panel question No. 67.
485 Norway also emphasizes the commercial aspect of Greenland's hunts whereby 53 per cent of seal
hunting is described as a "commercial activity". (Norway's comments on the European Union's response to
Panel question No. 121).
486 We note an observation in the COWI 2010 Report that for a hunt to qualify as a hunt for
"subsistence" under the Basic Regulation, the following criteria must be met: (a) the hunt is not conducted for
the sole purpose of placing on the market (i.e. the motivation behind the hunt is not purely commercial); (b)
part of consumption is on the local market (i.e. the seal is not killed in order to export the products for a
commercial profit); and (c) contribution to maintaining the community economically or socially. It also states
that the hunt must not be organized on a large scale. (COWI 2010 Report, p. 13).
487 Canada agrees that seal products from Inuit and other indigenous communities located in Canada
would qualify to be imported and placed on the market in the European Union based on the IC requirements
under the measure. (Canada's response to Panel question No. 116)
488 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 25.
489 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 25. The tannery operates 46
trading stations all over the country, making it possible for hunters in small communities to sell their sealskins.
490 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 21.
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noted that since 2009 a hunter requires a licence as a full time hunter in order to qualify for selling
the skins to the tannery Great Greenland A/S.
7.310. Based on available data, we further observe that the number of seals caught annually in
Greenland has always been over 163,000 for the period of 1993-2009. Half of these skins are
normally traded, and it is reported that Greenla nd has stored around 300,000 sealskins since the
introduction of the EU Seal Regime. 491 By contrast, in the case of Nunavut in Canada, "in 2006,
over 6,000 sealskins were exported". The volume of seals hunted and traded in Greenland is thus
comparable to that of commercial (rather than IC) hunts in Canada 492, and much larger than other
Inuit or indigenous communities that may potentially qualify under the IC exception. Although the
scale of the hunt per se is not a determinative in distinguishing IC hunts from commercial hunts,
we recall that the large scale of the hunt was highlighted as one of the factors characterizing
commercial hunts.
493
7.311. We also take insight from the following statement in "Management and Utilization of Seals
in Greenland":
Previously, ringed seal was the most important species in relation to food supply and
income, without any doubt. However, the demand from the fur industry has now
made it more attractive to hunt harp seals since Greenlandic hunters in some years
were offered a slightly better price for sealskins from harp seals compared to sealskins
form ringed seals, as prizes [sic] are fixed while the skins are subsidized by the
Government of Greenland. The increasing numbe rs of harp seals have also played an
important role in the choice of hunting method.
494
7.312. The processing of, and trade in, seal products are also integrated among Greenland,
Canada, and Norway. 495 For instance, when the supply of sealskins from local hunters were low
due to weather conditions, the tannery of Great Greenland A/S found it necessary to import raw
sealskins from Canada to make the best possible use of the capacity at the tannery, and thus also
be able to continue to offer local Inuit hunters reasonable prices for their sealskins.
7.313. The factors considered above, namely the level of development in the commercial aspect
of Greenlandic seal hunts; the volume of sealskins traded in Greenland; and the integrated nature
of the seal product industries in Greenland, Canada , and Norway, indicate that the purpose of seal
hunts in Greenland has characteristics that are closely related to that of commercial hunts.
Although we recognize that about half of the hunted seals are also used for personal purposes in
Greenland and form an important part of their cu lture and tradition as Inuit, the degree of the
commercial aspect of their hunts is comparable to that of the commercial hunts. Greenlandic seal
hunts are thus the most commercialized among any other Inuit or indigenous communities. The
Government of Greenland itself acknowledges that "Greenland is a country of contrasts. We have
culture and tradition that go 4000 years back in time. The Greenlandic society is also part of the

491 See Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 22, table 2. See also
Canada's first written submission, paras. 127-128; opening statement at the first meeting of the Panel,
para. 84; response to Panel question No. 41.
We observe that Greenland is cited as one of the "large-scale commercial" sealing countries in certain
exhibits. (See, e.g. Parliament Report, (Exhibit JE-4), p. 32).
We also recall the Appellate Body's guidance that the effects of discrimination [regulatory distinction]
might be a relevant factor, among others, for determining whether the cause or rationale of the discrimination
is acceptable or defensible and, ultimately, whether the discrimination is justifiable; however, it cannot be an
exclusive factor. (Appellate Body Report, Brazil – Retreaded Tyres, paras. 225-226).
492 See Table 2 and 3.
493 The COWI 2010 Report also states that the hunt must not be organized at large scale for a hunt to
qualify as an IC hunt under the EU Seal Regime.
494 Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 22.
495 Parties' responses to Panel question No. 152; COWI 2010 Report, pp. 41-46 (illustrative scenarios for
trade in seal products).
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modern and developing world today". 496 Hunting of seals for Greenland therefore is now a "mixed
economy, with subsistence and monetary elements coexisting".497
7.314. As noted above, no other Inuit or indigenous communities, potentially eligible for the
IC requirements, have applied for the IC exceptio n since the introduction of the EU Seal Regime.
For example, with respect to Inuit seal hunts in Canada, Canada explained that due to the reliance
of the Canadian Inuit on the marketing channel provided by commercial hunts for the sale of their
products, and given the limited volume of products derived from Canadian Inuit hunts, it is not
cost effective under the current circumstances to segregate Inuit products from other products.
We also observed that seals hunted by Inuit or indigenous communities in Russia or Alaska are
almost entirely used for personal use and consum ption. Therefore, based on available evidence,
among a small number of Inuit and indigenous communities that may potentially satisfy the
specific requirements of the IC exception, Inuit in Greenland and Canada are the most likely, if not
the only, beneficiaries under the measure. Give n the factual circumstances of the Inuit and
indigenous communities in Canada as explained above, however, currently, Greenland, with the
most commercialized of IC hunts, is in fact the only beneficiary of the IC exception.
7.315. The legislative history of the EU Seal Regime suggests that this is not merely an incidental
effect of the application of the measure. We obse rve that prior to the crafting of the specific
requirements of the IC exception in the Implem enting Regulation, seal hunts in Greenland were
considered to be the only Inuit hunts that could benefit from the IC exception. In fact, the COWI
Reports anticipated that no other Inuit and indigenous communities would be able to benefit from
the IC exception "as only Greenland will be able to make the investments needed to make use of
exemptions" and "the scale of the Canadian hunt is too small and not as centrally organized as
that in Greenland".
498 Canada also explains that it is not economically feasible for Canadian Inuit
to develop their own processing and distribution chains, given that the Inuit have relied on
synergies with southern producers; as those netw orks may no longer be viable because of the
EU Seal Regime, considerable investment woul d be needed to develop a new processing and
distribution centre.499
7.316. Moreover, in the actual operation of the IC exception, Danish customs authorities
processed imports based on certificates issued by the Greenlandic authorities prior to the
Greenlandic entity obtaining recognized body st atus within the meaning of the Implementing
Regulation.
500 The European Union explains that Danish customs authorities proceeded in that
manner "based on [their] interpretation of the Im plementing Regulation whereby the issuance of
attesting documents complying with the Implementing Regulation would also be allowed during
the application process for recognized body st atus and not only once the process has been
completed".
7.317. The considerations above, namely the text of the IC exception, its legislative history, and
the actual application of the IC exception, ca st serious doubt on the even-handedness of the
design and application of the IC exception. Spec ifically, the rationale or cause of the exception
(i.e. the distinction between the IC hunts and commercial based on their purpose) was the
"subsistence" of Inuit and indigenous communities in terms of their culture and tradition as well as
their livelihood. However, under the measure, the IC exception is available de facto exclusively to
Greenland, where the Inuit hunt bears the greatest similarities to the commercial characteristics of
commercial hunts. This suggests in our view that the IC exception was not designed or applied in

496 Management and Utilization of Seals in Greenland, (Exhibit JE-26), pp. 1 (foreword) and 24
("Hunting of seals continues to be an important part of everyday life and culture in Greenland.").
497 Management and Utilization of Seals in Greenland, (Exhibit JE-26), pp. 25-26: "Today, hunting seals
is not economically viable without a subsidy. However, harvesting provides the basic food supply for most
communities."
498 COWI 2010 Report, p. 84. It further notes that Canadian Inuit hunt essentially uses the sales and
marketing chains of the commercial hunt, implying it would need to invest heavily in separating its Inuit
product from the rest. (See Parliament Report, (Exhibit JE-4), p. 34). We also find a similar assessment in the
COWI 2008 Report, noting that the Canadian Inuit hunt is small and not centrally organized, and the
infrastructure for commercial trade is already in place in Greenland. (COWI 2008 Report, p. 26).
499 Canada's first written submission, paras. 37-48; response to Panel 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 there has not been
much incentive to pursue the marketing of seal products under the IC category.
500 European Union's response to Panel question No. 161. See also certificates issued by Greenlandic
authorities prior to obtaining recognized body status, (Exhibit EU-162).
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an even-handed manner so as to make the benefi ts of the exception available for all potential
beneficiaries.
7.318. The European Union argues that any effects derived from the fact that operators in one
country (like Canada) choose not apply for the IC exception cannot be attributed to the EU Seal
Regime. In our view, this argument fails to take into account that the absence of the even-
handedness in the design and application of th e distinction between commercial and IC hunts is
linked to the fact that the IC exception, as currently designed and applied under the measure, is
not equally available to all Inuit or indigenous communities. Only those in Greenland have been
able to benefit from it and this, in our view, is directly attributable to the regime itself and not to
the actions of the operators in countries like Canada.
7.319. In light of the above, we conclude that although the distinction between commercial and
IC hunts based on the purpose of the hunt is justifiable having regard to the explanations given by
the European Union concerning the benefits to Inuit or indigenous communities, it is not designed
and applied in an even-handed manner. Therefore, we find 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 the detrimental impact
caused by the IC exception on Canadian seal products stems exclusively from a legitimate
distinction.
7.3.2.3.4 Whether the distinction be tween commercial hunts and MRM hunts is
legitimate
7.3.2.3.4.1 Main arguments by the parties
Complainant (Canada)
7.320. Canada argues that the EU Seal Regime draws an arbitrary distinction between commercial
and MRM hunts by imposing conditions that are unrelated to the Regime's underlying policy
objectives.
501 For Canada, the commercial purpose of the hunt has no bearing on whether seals
are killed humanely. 502 Canada argues that the distinction between commercial and MRM hunts
under the EU Seal Regime is "illusory" because MRM hunts are motivated primarily if not
exclusively by commercial gain. 503 In particular, Canada notes that the MRM exception only
eliminates profit-making at the hunt level while allowing profit-making through the processing,
manufacturing and retailing of seal products.
504
7.321. Canada observes that the EU Seal Regime does not draw any distinction between seal
products on the basis of animal welfare criteria. 505 Therefore, seal products placed on the
EU market under the MRM exception may still contain seal that suffered pain and distress at the
time of killing.
506 For Canada, such a result is counterproductive to achieving the objective of
protecting seal welfare. 507 In addition, Canada argues that the seal hunters' inability to sell seal
products for profit may encourage hunting methods that run counter to positive animal welfare
outcomes.
508

501 Canada's first written submission, para. 393.
503 Canada's first written submission, para. 392; response to Panel question No. 28, para. 130; second
written submission, paras. 263-264; and opening statement at the second meeting of the Panel, para. 55.
504 Canada's first written submission, para. 392; response to Panel question No. 28, para. 130; second
written submission, paras. 263-264; and opening statement at the second meeting of the Panel, para. 55.
505 Canada's second written submission, paras. 222 and 265; response to Panel question No. 28.
Canada argues that the European Union could contribute to the protection of animal welfare by conditioning
market access for seal products on compliance with animal welfare standards. In Canada's view, "[e]vidence of
such compliance can be provided by the country from which the seal product originates which thus minimizes
concerns that the EU Seal Regime is being applied extra-territorially". (See Canada's response to Panel
question No. 135(a)).
506 Canada's second written submission, paras. 222 and 265.
507 Canada's second written submission, para. 257.
508 Canada's second written submission, para. 257. See Canada's opening statement at the second
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7.322. Moreover, Canada argues that the alleged moral basis for the MRM exception rests on an
unfounded and speculative assumption that marine resource management hunters are more likely
to meet animal welfare standards if they have a commercial incentive to recover their costs.
509
According to Canada, the European Union has provid ed no evidence in support of this argument
showing: (a) that hunters were complying with animal welfare standards prior to the EU Seal
Regime510; (b) that eliminating the MRM category would result in more suffering for seals culled in
such circumstances 511; or (c) that seal culls in EU member States are conducted in a manner
consistent with the animal welfare standards that the European Union accuses Canada of failing to
apply.512
7.323. In addition, Canada claims that the MRM exception is not applied even-handedly, and that
the conditions under the exception are arbitrary and unjustifiable. 513 In particular, the small-scale,
non-systematic and non-profit requirements of the MRM category effectively prevent the
placement on the EU market of seal products from countries such as Canada, where seals are also
harvested in sustainable numbers in accordance with a marine resource management plan. 514 The
conditions under the MRM exception are thus unrelated to the objective of sustainable marine
resource management 515, and to the central objective of th e EU Seal Regime of addressing
concerns relating to seal welfare. 516 The regulatory distinction thus arbitrarily favours marine
management programmes involving small populations of seals, such as those of Sweden, Finland
and the United Kingdom. 517 Canada claims that the European Union's willingness to accommodate
the interests of its member States while "completely ignor[ing]" the interests of other
WTO Members is "plainly discriminatory" and "unjustifiable".
518
Respondent (European Union)
7.324. The European Union explains that the MRM exception was intended to exempt from the
ban seal products deriving from small-scale, occasional hunts conducted with the purpose of
managing marine resources. 519 According to the European Union, such hunts are conducted in
several countries within and outside the European Union territory. 520 The European Union argues
that the conditions in which MRM hunts take place are in principle more favourable to the humane
killing of seals than the commercial hunt. 521 For instance, the commercial nature of the hunt
creates an incentive for hunters to kill as many seals as possible over a short period of time,
thereby potentially disregarding the manner in which the seals are killed; this is not the case for
MRM hunts which target specifically seals that pose a threat to fish stocks or fishing equipment.
522
7.325. The European Union recognizes that there is also a commercial dimension present in the
MRM hunts.523 However, the European Union explains that if hunters were not permitted to recoup

509 Canada's opening statement at the second meeting of the Panel, para. 58.
510 Canada's opening statement at the second meeting of the Panel, para. 58.
511 Canada's opening statement at the second meeting of the Panel, para. 58.
512 Canada's second written submission, para. 265 (referring to COWI 2008 Report, p. p. 38 and 86).
513 Canada's first written submission, para. 393; second written submission, paras. 219-226.
514 Canada's comments on the European Union's response to Panel question No. 123, paras. 59 and 61.
515 Canada's first written submission, paras. 391, 510-523; second written submission, para. 252; and
opening statement at the second meeting of the Panel, para. 54.
516 Canada's first written submission, para. 391; second written submission, paras. 221 and 252.
517 Canada's first written submission, para. 391; second written submission, para. 256; and opening
statement at the second meeting of the Panel, para. 53.
518 Canada further argues that where a measure is premised on an objection to conduct that takes place
outside the territory of the regulating Member, there should be additional efforts to engage in negotiations to
regulate the conduct in question. (See Canada's response to Panel question No. 135(a), paras. 118 and 119).
519 European Union's first written submission, paras. 309-310 (citing the opinion of the European
Parliament's Committee on Agriculture and Rural Development in the Parliament Report, (Exhibit JE-4), p. 57
and Comments from EU Member States on Proposal for a Regulation of the European Parliament and of the
Council concerning trade in seal products, (Exhibit JE-10), p. 16). The European Union explains that seals
considered as pests, also referred to as "nuisance seals", pose a threat to fish stocks and can also damage
fishing gear. (See European Union's response to Panel question No. 123(a)).
520 European Union's first written submission, para. 320. The European Union notes that seal products
derived from the hunts of nuisance seals in Canada could, in principle, fall under the MRM exception provided
that all the relevant conditions were met. (European Union's second written submission, para. 250).
521 European Union's response to Panel question No. 8, paras. 19 and 26.
522 European Union's first written submission, paras. 326, 328, and 333.
523 The European Union notes in this regard that "[t]he fact that … hunts for managing marine resources
have or may have a commercial dimension does not mean that those hunts are comparable to the hunts
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their costs by placing on the market seal products derived from MRM hunts, they would be more
likely to resort to inappropriate killing methods; such an outcome could compromise the objective
of protecting seal welfare.
524 In this regard, the European Union asserts that the MRM exception is
rationally connected to the overall objective of the EU Seal Regime. 525 Moreover, in the
European Union's view, prohibiting the marketing of products derived from MRM hunts would not
contribute to reducing the suffering of seals because these hunts would continue to take place in
any event.
526
7.326. The European Union notes that the MRM exception addresses the longstanding moral
concerns of the EU public with regard to the pr esence on the EU market of seal products by
permitting the placing on the market of certain "morally acceptable" seal products in view of the
type and purpose of the hunt from which they derive.
527 According to the European Union,
although the MRM exception is not subject to compliance with animal welfare requirements, the
benefits arising from the placing on the market of products deriving from these hunts, for humans
and other animals outweigh the risk of suffering being inflicted upon seals. 528 To the extent that
the EU Seal Regime would permit the placing on the market of seal products deriving from seals
hunted inhumanely, it would still be in accordance with the EU's standard of morality that the
Regime seeks to uphold.
529
7.327. Finally, the European Union argues that th e MRM exception is designed and applied in an
even-handed manner.530 The conditions set out under the MRM exception are essentially aimed at
avoiding a potential circumvention of the ban on trade in seal products. 531 Also, the fact that the
MRM exception allows profit-making at the do wnstream level does not show a lack of
even-handedness; the exception aims at affectin g the conduct of the hunter by eliminating the
incentives to kill seals in an inhumane manner. The fact that other manufacturers or processors
down the line can make a profit does not affect the hunter's behaviour when hunting seals.
532
7.3.2.3.4.2 Analysis by the Panel
7.328. We turn to examine whether the distin ction drawn by the measure between commercial
and MRM hunts, and consequently between products derived from each category of hunt,
is legitimate within the meaning of Article 2.1 of the TBT Agreement. As we did in connection with
the IC exception, we assess the legitimacy of the regulatory distinction between commercial hunts
and MRM hunts 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
rationale connection to the objective of the Regime
533, taking into account the particular

conducted for commercial purposes, where the hunter is paid to kill as many seals as possible in a short period
of time and with a view to the further processing and marketing of seal products through commercial
channels." (European Union's closing statement at the second meeting of the Panel, p. 4).
524 The argument made by the European Union is that the possibility for the hunter to recover his costs
(without necessarily making a profit) provides a motivation to retrieve the carcass of the seal hunted and thus
to avoid "struck and lost" seals. It further provides a motivation for clean headshots rather than just shooting
seals without regard to which part of the body is hit, or ensuring that the seal is dead. (European Union's
response to Panel question No. 8, para. 27. See also European Union's first written submission, para. 316).
525 European Union's first written submission, para. 316.
526 European Union's first written submission, para. 315; response to Panel question No. 8,
paras. 27-28.
527 European Union's first written submission, paras. 308, 317, and 329.
528 European Union's second written submission, para. 255.
529 European Union's opening statement at the second meeting of the Panel, para. 59. According to the
European Union, the potential suffering of seals is outweighed by the benefits accruing to humans and other
animals under the IC and MRM exceptions, respectively. (See the European Union's response to Panel question
No. 136 and Canada's comments on the European Union's response to Panel question No. 136).
530 European Union's second written submission, paras. 257-263.
531 European Union's second written submission, para. 260.
532 European Union's first written submission, para. 334; second written submission, para. 261.
533 See Appellate Body Report, Brazil – Retreaded Tyres, paras. 226-234.
The Appellate Body stated that 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" (emphasis added)
In our view, the Appellate Body's reasoning in US – Clove Cigarettes also supports our approach here.
In that dispute, regarding the legitimacy of the regulatory distinction drawn by the measure in question (i.e.
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circumstances of the current dispute; and, third, is the distinction concerned, as reflected in the
measure, "designed or applied in a manner that constitutes arbitrary or unjustifiable
discrimination" such that it lacks "even-handedness".
534
Whether the MRM distinction is rationally connected to the objective of the EU Seal
Regime
Characteristics of MRM hunts535
Identity of the hunter
7.329. MRM hunts are conducted essentially on a voluntary basis by fishermen whose fish stocks
or fishing equipment are endangered by individual se als, or by the seal population in a particular
area.536 To proceed with a marine resource management hunt, a special licence or permission from
the local authorities is normally required.537
Purpose of the hunt
7.330. The European Union notes that while compliance with a resource management plan is one
of the conditions under the MRM exception, the exception is not aimed at promoting a better
management of marine resources; the European Union uses other instruments to achieve this
purpose.538 Rather, the MRM exception takes into account that, alongside large-scale hunts carried
out mainly for commercial purposes, there are also small-scale hunts conducted on an occasional
basis for the purpose of ensuring that individual seals are eliminated for pest control ("nuisance
seals"), or that seals are killed because accord ing to scientific studies their population in a
particular area poses a threat to fisheries and/or the ecosystem (seal culling).539
Scale of the hunt
7.331. All sealing countries with the exception of Greenland conduct their seal hunt on the basis
of marine resource management plans based on scientifically established TAC.540 The complainants
claim that their commercial seal hunt is fully consistent with the objective of sustainable marine

distinction between clove and menthol cigarettes), the Appellate Body examined the following questions: first,
whether the distinction was connected to the objective of the measure which justified the prohibition of clove
cigarettes; and, second; in the negative, whether the United States provided any reasons independent of the
objective of the measure that could justify the distinction ("the reasons presented by the United States for the
exemption of menthol cigarettes from the ban") (AB Report, US – Clove Cigarettes, para. 225).
534 See Appellate Body Report, US – COOL, para. 340.
535 This information is drawn mainly from COWI 2008 Report and COWI 2010 Report, which assess the
potential impacts of the MRM exception on the different sealing states.
536 European Union's response to Panel question No. 123, para. 91. The European Union submits, with
respect to the seal hunt in Sweden, that "[t]here are only a few hunters able to conduct seal hunt as it is not a
very easy hunt and they also must have a permission [to hunt]." For example, in 2007, out of the 50 hunters
who reported to have shot one or more seals, 20-30 of these hunters were commercial fishermen whose
primary aim was to keep the seal away from their fishing equipment and reduce the damage created by seals
to equipment and catch. (European Union's response to Panel question No. 123, paras. 86-87 (referring in part
to Sweden's response of 6 October 2001 to the Commission deficiency letter, (Exhibit EU-158))).
537 European Union's response to Panel question No. 123, para. 86.
538 European Union's first written submission, para. 41.
539 European Union's response to Panel question No. 123(a), paras. 91-92. The European Union refers to
the definition of "nuisance seals" in Canada's Marine Mammal Regulations, namely "a seal that represents
danger to the fishing equipment despite deterrence efforts or, based on a scientific recommendation, to the
conservation of fish stocks. (Marine Mammal Regulations, (Exhibit CDA-21), p. 2). According to EFSA, some
hunts are conducted "because seals are perceived as pests or competitors with humans or their activities (e.g.
direct or indirect impacts on fishing, aquaculture, or as vectors of fish parasites) or as threats to other species
of concern (e.g. predation upon endangered species). In cases where individual animals (vs. population cull)
are the focus, the animals are often referred to as 'nuisance seals'." EFSA Scientific Opinion, pp. 12-13. In
Canada, the licences issued for the hunt of nuisance seals do not allow culling. (Canada's response to Panel
question No. 167, para. 208). Data available on the number of licences granted for nuisance seal hunts in
Canada and the total catch per region on an annual basis suggest that this type of hunt concerns only a small
number of seals. (See National Nuisance Seal Licence Operational Guidelines and Procedures,
(Exhibit CDA-143)).
540 COWI 2010 Report, pp. iv-v.
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resource management and takes place within the limits of their respective TAC. 541 One of the main
distinguishing factors between MRM hunts and other types of hunts is the size of the hunt. 542
The COWI 2010 Report indicates that small-scale hunts for marine resource management purposes
are conducted in Sweden
543, Finland544, and Scotland.545 Nuisance seal hunts are also conducted in
Canada.546
Seal hunting period
7.332. The hunting period varies depending on the range country and the type of seals hunted.
For instance, in Sweden and Finland, the Grey and Baltic ringed seals may be hunted with a
licence during their respective hunting seasons. The hunting season in Sweden runs from 16 April
to 31 December; in Finland, seal hunts of grey seals are carried out from 16 April to 31 December,
while ringed seals are hunted from 16 April to 31 December and 1 September to 15 October.
547
In the United Kingdom (Scotland), the season extends from 1 September to 31 December for grey
seals and from 1 June to 31 August for harbour seals. 548 There are annual "closed" seasons set for
grey and common seals corresponding to the breed ing period of both species; outside of the
closed seasons, no licence is required to remove seals.549 In Canada, nuisance seal hunts generally
take place during the open season pursuant to the Marine Mammal Regulations 550; however,
licences may also be delivered during the closed season.551
Hunting methods
7.333. The hunting methods used for MRM hunts are generally similar to the methods used in
commercial hunts. In Sweden, for instance, the seal hunt is conducted only with firearms. 552
In Finland and the United Kingdom (Scotland), the main weapons are firearms 553 but other killing
methods may also be used, such as harpoon s, clubs, spears, traps, hooks or nets. 554 In Canada
and Norway, hakapiks (as well as clubs in Canada) may be used in addition to firearms.555
Organization and control of the hunt
7.334. While MRM hunts are not monitored per se, most range countries that conduct seal hunts
on a small scale exercise control over the hunts through a licensing scheme.556 For instance, in the

541 Canada's comments on the European Union's response to Panel question No. 123, para. 50;
542 See European Union's response to Panel question No. 123(a), para. 80; COWI 2010 Report, Annex 4,
p. 5; COWI 2008 Report, pp. 36 and 87.
543 The number of seals killed in 2010 was approximately 100-115 seals for a total quota of about
200 seals for the year.
544 COWI reports that the seal hunt in Finland is mainly recreational but that reducing the negative
impact of seals on fisheries is also a consideration in the hunt. According to the Finnish Ministry of Agriculture
and Forestry, between 800-1000 hunters of grey seals are licensed annually with a corresponding 400-500
grey seals hunted. While ringed seals are also found in the Baltic Sea region of Finland, no licences are issued
for their hunt. COWI 2010 Report, pp. 27-28.
545 The number of seals killed in Scotland annually is estimated at 3,500 seals.
546 Marine Mammal Regulations, (Exhibit CDA-21), Article 26.
547 See EFSA Scientific Opinion, p. 32; COWI 2008 Report, pp. 82 and 88.
548 See EFSA Scientific Opinion, p. 32; COWI 2008 Report, pp. 82 and 88. EFSA reports that the
Habitats Directive (Directive 92/43/EEC) protects five seal species regularly occurring within the
European Union. EU member States are obliged to designate special areas of conservation and to monitor the
conservation status of identified species. The Habitats Directive also lists the prohibited methods and means of
capture and killing, and modes of transportation. (EFSA Scientific Opinion, p. 32).
549 EFSA Scientific Opinion, p. 33.
550 National Nuisance Seal Licence Operational Guidelines and Procedures, (Exhibit CDA-143).
551 Canada's response to Panel question No.167 (referring to National Nuisance Seal Licence Operational
Guidelines and Procedures, (Exhibit CDA-143)).
552 EFSA Scientific Opinion, pp. 24 (Table 2), 31 and 33.
553 EFSA Scientific Opinion, pp. 24 (Table 2), 31 and 33.
554 EFSA Scientific Opinion, pp. 32.
555 COWI 2008 Report, p. 28.
556 This is the case, for instance, in Sweden, Finland, United Kingdom (Scotland), and Canada.
For instance, in Sweden and Finland, samples of the seal must be returned by the hunter for analysis. (See
COWI 2008 Report, pp. 35-44 and 78-87). In Canada, a licence is required for hunting "nuisance seals".
(Marine Mammal Regulations, (Exhibit CDA-21), Article 26.1; see also National Nuisance Seal Licence
Operational Guidelines and Procedures, (Exhibit CDA-143)).
WT/DS400/R • WT/DS401/R

case of Sweden, quotas of seals to be felled ar e decided by the Swedish Environmental Protection
Agency and set specifically on an annual basis for each county. There are areas within the counties
where no hunting is allowed. To hunt seals in a particular area, the hunters will have to seek
permission by applying to the County Administrative Board in the county where they intend to
conduct the hunt. Permission will be granted provided the quota level has not been reached. For
this purpose, the Swedish Coast Guard keeps a daily record. Hunters must contact the Swedish
Coast Guard at the end of each day to report the result of their hunt. The County Administrative
Board receives daily reports from the Swedish Coast Guards who, in addition to keeping track of
daily catch, also patrol the waters.
557 In Canada, nuisance seal hunts are also subject to strict
conditions, including compliance with the animal welfare requirements imposed under the Marine
Mammal Regulations.
558
Use of products derived from the hunt
7.335. Seals killed in the context of MRM hunts are normally used on a private basis or sold in the
local community.559 This is the case, for instance, for products derived from seal hunts in Sweden
where the skin and meat are generally used by the hunter himself or sold on the local market. 560
The European Union notes that the by-product of MRM hunts that may end up on commercial
markets would be a small amount of fur skin.
561 In Canada, seals harvested under the authority of
a Nuisance Seal Licence cannot not be sold, bartered or traded.
Connection between the MRM distinction and the objective of the EU Seal
Regime
7.336. Based on the description above, MRM hunts are characterized by the fact that they are
conducted occasionally on a small scale, primarily for sustainable marine resource management,
particularly for controlling nuisance seals and seal culling.
7.337. The evidence shows that MRM hunts, though much smaller in scale than commercial hunts,
also give rise to concerns regarding seal welfare that are present in seal hunting in general. 562
Although there is limited evidence on the animal welfare outcomes of the seal hunt in countries
that engage in small-scale hunts, such as Sweden and Finland
563, based on the evidence presented
to the Panel, it would seem that seal hunts conducted in EU member States are not subject to
onerous animal welfare requirements.
7.338. For instance, according to the COWI 2008 Report, seal hunting regulations in Sweden and
Finland do not require hunters to apply the three-step method of humane killing. COWI reports
that in Sweden, it is unclear how well monitored the hunt is due to the relative scarcity of
inspectors564; in the case of Finland, hunters are largel y self-regulated, and it is unclear whether
there is any independent monitoring of the seal hu nt. Therefore, there is no way of ensuring that
MRM hunts are conducted in accordance with the objective of addressing the EU public concerns on
seal welfare. 565 In this connection, we find it speculative that the possibility for the hunters to
recover the costs of the hunt through the placing on the market of seal products under the MRM

557 European Union's response to Panel question No. 123(a), para. 86 (citing COWI 2008 Report,
pp. 81-86 and Sweden's response of 6 October 2001 to the Commission deficiency letter, (Exhibit EU-158)).
558 Canada's response to Panel question No. 167. See National Nuisance Seal Licence Operational
Guidelines and Procedures, (Exhibit CDA-143) (outlining the conditions under which fishing licences are issued
pursuant to Canada's Marine Mammal Regulations, (Exhibit CDA-21)).
559 European Union's first written submission, para. 327 (citing COWI 2010 Report, (Exhibit JE-21),
p. 67). See also COWI 2010 Report, p. 35 and Annex 4, pp. 2 and 5; response to Panel question No. 123,
para. 87.
560 The European Union notes that the market price for a seal in Sweden would be in the order of
150 euros. (European Union's response to Panel question No. 123, para. 87).
561 European Union's response to Panel question No. 123, para. 87.
562 See for instance Comments from EU Member States on Proposal for a Regulation of the European
Parliament and of the Council concerning trade in seal products, (Exhibit JE-10), p. 16; European Commission's
Impact Assessment on the ban of products derived from seal species (23 July 2008), (Commission Impact
Assessment), (Exhibit JE-16), pp. 69 and 74.
563 The European Union notes that the regulation of seal hunting, including the animal welfare aspects of
the hunt falls in principle within the competence of EU member States.
564 See COWI 2008 Report, pp. 78-87.
565 See COWI 2008 Report, pp. 35-44.
WT/DS400/R • WT/DS401/R

exception encourages more responsible behaviour on the part of the hunter with respect to the
welfare of seals.
7.339. Finally, we do not consider that the limited scope of MRM hunts and the small volume of
potential trade concerned by this exception as such are relevant factors in our assessment of
whether the distinction in question is rational ly connected to the objective of the measure. 566
We find support for this view in the Appellate Body's consideration in Brazil – Retreaded Tyres: the
fact that only a small amount of products were imported under the MERCOSUR exception did not
affect the finding that the exception was rationally disconnected from the objective of the measure
at issue.567
7.340. For the foregoing reasons, we find that th e MRM distinction is not rationally connected to
the objective of addressing the EU public mora l concerns on seal welfare. According to the
European Union, however, the purpose of the hunt, which distinguishes MRM hunts from
commercial hunts, combined with its small scale and occasional occurrences, justifies any risk of
suffering inflicted upon seals as a result of such hunts. We next examine whether the
European Union's explanation justifies the MRM distinction.
Whether the cause or rationale put forward by the European Union for the
distinction between commercial and MRM hunts is justifiable
7.341. In addressing the argument by the Europe an Union, we first examine the purpose of MRM
hunts, specifically controlling nuisance seals and seal culling, compared to that of commercial
hunts. We then address the question of whether any distinction found between the purpose of the
MRM hunts and the purpose of commercial hunts is justified despite the lack of a rational
connection to the objective of the EU Seal Regime as a whole.
7.342. We note that the complainants do not challenge the objective of sustainable marine
resource management as such.
568 In fact, the complainants contend that their seal hunts are fully
consistent with sustainable marine resource management principles and take place within the
limits of their respective TAC.569 Moreover, the European Union has confirmed that the exception is
not aimed at promoting a better management of marine resources as it has other instruments it
uses for that purpose. The complainants argue however that the distinction between MRM and
commercial hunts based on their purpose is illusory because MRM hunts also have a commercial
purpose.
570 Canada notes that MRM hunts are motivated primarily if not exclusively by commercial
gain, for instance to support a thriving fishery or to prevent the destruction of fishing gear, all of

566 European Union's second written submission, para. 288; response to Panel question No. 122.
567 Appellate Body Report, Brazil – Retreaded Tyres, paras. 229 and 233.
568 See Canada's first written submission, para. 465 and Norway's first written submission,
paras. 723-724. Sustainable marine resource management seeks to ensure, among others, that the human
exploitation of natural resources does not result in the long-term decline of the resources. As submitted by
Norway, such principles have been recognized consistently by the international community. (See for instance
the definition of the term "sustainable use" contained in Article 2 of the United Nations Convention on
Biological Diversity (1992), (Exhibit NOR-66)).
569 COWI notes that Norway's seal hunt would probably meet the first two requirements of the MRM
exception because it is conducted as part of a marine resource management plan that uses scientific population
models of marine resources and applies the ecosystem-based approach, and because the hunt does not exceed
the TAC established under the management plan. (See COWI 2010 Report, pp. 69-79 and Annex 4, pp. 3-4).
Furthermore, Norway argues that the national quotas established for seal hunting are typically identical to
those recommended by the International Council for the Exploration of the Seas (ICES), which provides
scientific advice on the marine eco-system to all countries bordering the North Atlantic Ocean and the Baltic
Sea. (Norway's first written submission, para. 639, second written submission, para. 245). Canada comments
that its seal products are unlikely to meet this requirement under the MRM exception as its national
management plan is not based on an "ecosystem-based approach". (Canada's first written submission,
para. 344 (citing COWI 2010, p. 64 and Annex 4, p. 1)).
570 Canada's second written submission, paras. 262-263. Norway argues that fishermen derive a net
economic benefit in the form of an improved fishing activity. Further, Norway argues that evidence on the
legislative history of the measure indicates that the fishermen killing seals for MRM purposes are entitled to
earn income compensating for the cost of their time.
WT/DS400/R • WT/DS401/R

which are used in a commercial venture. Canada further argues that the killing of seals during
resource management culls is also a means to generate income.571
7.343. As mentioned previously, the commercial seal hunt is characterized inter alia by the
competitive pressure on hunters to kill as many seals as possible in a limited period of time. In the
case of MRM hunts, the motivation of the hunter is not primarily linked to the exploitation of seals
as a natural resource; rather, it is aimed at mitigating the damage caused by seals and is
incidental to the conduct of another fishing activity. To that extent, we agree with the
complainants that there is a commercial dimension to seal hunts conducted for the purpose of
managing marine resources. The evidence before the Panel further shows that the costs associated
with damage caused by seals can be significant in some cases.
572 Therefore, while the hunter
cannot place seal products on the EU market for profit under the MRM exception, there is
nevertheless an economic incentive for fishermen or seal hunters to conduct an MRM hunt.
Further, while the MRM exception aims to eliminate profit at the hunt level, it still allows profit-
making at the downstream level.
7.344. While we recognize that MRM hunts take pl ace on an occasional basis, and on a much
smaller scale than commercial hunts, and that the primary means to generate income for those
conducting MRM hunts is not seal hunting itself, in light of the considerations above, we are not
convinced that the purpose of MRM hunts and the purpose of commercial hunts are of a different
character or nature. Furthermore, the difference that might be found between the commercial
aspects of an MRM and a commercial hunt is, in our view, not sufficient to justify the lack of a
rational connection between the distinction in question and the objective of addressing the
EU public moral concerns on seal welfare.
7.345. Finally, the European Union argues that th e placing on the EU market of seal products
derived from MRM hunts conforms with the "EU's standard of morality" because the potential
suffering of seals is outweighed by the benefits accruing to other animals. However, as noted
above, the evidence adduced by the European Unio n on the EU public's moral concerns regarding
seal welfare does not clearly establish that the concerns of EU citizens vary according to the type
of hunt.
573
7.346. In conclusion, we do not find that the rationale put forward by the European Union based
on the purpose of MRM hunts, combined with their small scale and occasional occurrences, justifies
the MRM distinction in the absence of a rational co nnection to the objective of the EU Seal Regime
concerning seal welfare.
7.347. Therefore, we conclude that the European Union has failed to establish that a detrimental
impact caused by the MRM exception on Canadian seal products vis-à-vis the like EU domestic
products stems exclusively from a legitimate regulatory distinction. Nevertheless, for
completeness, we turn to consider the design and application of the regulatory distinction between
MRM and commercial hunts under the EU Seal Regime.

571 See Comments from EU Member States on Proposal for a Regulation of the European Parliament and
of the Council concerning trade in seal products, (Exhibit JE-10), p. 16 (stating that "[t]he seals are not hunted
only as pests but they are used as a natural resource for livelihood and also as a means to generate income.").
572 See Swedish Management Plan for Grey Seals, (Exhibit CDA-54), pp. 37-39; and Finnish
Management Plan for Seals in the Baltic Sea, (Exhibit CDA-51), p. 3. The Finnish Management Plan for Seals in
the Baltic Sea, for instance, states that:
On the basis of data on damage in the period 1997-1999, damage to professional fishing by seals in
Finland was estimated to be roughly 1.68 million euros. Since then, the grey seal population has more than
doubled. In the period 2000-2001, professional fishermen were compensated for 3.2 million euros for the
damage they had sustained, although the claims sent in suggest that the overall damage amounted to 7.47
million euros. (Exhibit CDA-51, p. 40).
573 In this regard, we agree with Canada's comment that:
[t]he public opinion polls produced by the European Union … do no t specifically gauge whether the
subjects of the poll view the nature of seal hunting as a matter of public morality. They also fail to solicit
popular views about the acceptability of permitting seal products from … resource management hunts,
regardless of whether the seals from which those products were obtained were killed humanely. (Canada's
response to Panel question No. 31).
WT/DS400/R • WT/DS401/R

Whether the distinction between commercia l and MRM hunts, as reflected in the
MRM exception of the EU Seal Regime, is designed and applied in an even-handed
manner
7.348. We recall the specific requirements of the MRM exception as set out in Article 5(1) of the
Implementing Regulation: (a) seal hunts conducted under a national or regional natural resources
management plan which uses scientific population models of marine resources and applies the
ecosystem-based approach; (b) seal hunts which do not exceed the total allowable catch quota
established in accordance with the plan referred to in point (a); and (c) seal hunt by-products of
which are placed on the market in a non-systematic way on a non-profit basis.
574
7.349. We note that currently only Sweden has entities registered as recognized bodies entitled to
deliver attesting documents permitting the placing on the market of seal products under the MRM
exception.575
7.350. According to Canada, the legislative histor y of the EU Seal Regime is proof that the MRM
exception was designed to "fit the reality" of the seal hunt in EU member States. 576 Canada refers
to debates in the Committee on Agriculture and Rural Development of the European Parliament577,
as well as comments by Sweden and Finland on th e need to exempt from the ban seal products
deriving from small-scale hunts conducted fo r marine resource management purposes. 578 Canada
argues that "the requirements that became the [MRM] category and its purpose as described by
the EU in this dispute incorporate the exact elem ents set out by Sweden, i.e. allowing market
access for seal products originating from states with 'small scale' 'statutory controlled hunting' with
the 'purpose to reduce damages from fisheries', and which is 'done in accordance with a
management plan'."
579
7.351. In this regard, the Panel notes the conclusions of COWI (2010) that seal products from
Sweden, Finland, and possibly the United Kingdom would likely qualify under the MRM exception,
while seal products from Canada and Norway would not.580 In particular, the Report notes that seal
hunts in Finland and Sweden do not take place on a "commercial basis" and seal products deriving
from these hunts are not placed on the market "in a repetitive way".
581 In addition, most
by-products resulting from the hunts are sold "on a private basis" in the local community. 582 Thus,
the non-systematic and non-profit requirements of the MRM exception effectively rule out the
eligibility of products from any type of sustainable marine management hunt other than the
hunting of individual nuisance seals.
583 The conclusions of COWI seem to be corroborated by

574 See section 7.2.1.
575 The European Union notes that at the time of the dispute, Finland had not submitted any request to
have entities enlisted as recognized bodies under Article 6 of the Implementing Regulation.
576 Canada's first written submission, para. 341 and Section III. C.3.a; response to Panel question
No. 123 (citing Comments from EU Member States on Proposal for a Regulation of the European Parliament
and of the Council concerning trade in seal products, (Exhibit JE-10), p. 20 and Parliament Report,
(Exhibit JE-4), pp. 70-71 and 73).
577 Opinion of the European Parliament's Committee on Agriculture and Rural Development in Parliament
Report, (Exhibit JE-4), pp. 70-71 and 73.
578 Comments from EU Member States on Proposal for a Regulation of the European Parliament and of
the Council concerning trade in seal products, (Exhibit JE-10), pp. 16 and 19.
579 Canada's comments on the European Union's response to Panel question No. 123 (citing Comments
from EU Member States on Proposal for a Regulation of the European Parliament and of the Council concerning
trade in seal products, (Exhibit JE-10), p. 18).
580 COWI 2010 Report, pp. 67-68. See also European Union's response to Panel question No. 8;
Canada's comments on the European Union's response to Panel question No. 123, para. 59. Norway highlights
in its submissions the similarities between the Norwegian and Swedish seal hunts. The Norwegian hunt is
statutorily controlled, under the direction of a government agency; quotas are set on an annual basis; few
hunters take part in the hunt; permission for participation must be obtained; and the Norwegian authorities
monitor the seal hunt closely to ensure conformity with sustainable resource management principles. In
addition, the Norwegian hunt is better regulated from the perspective of animal welfare. On this basis, Norway
concludes that "[t]he main difference between Sweden and Norway's seal hunt is, therefore, the scale of the
Norwegian hunt, which as explained above, does not matter from the perspective of sustainable resource
management, so long as the hunt is conducted in accordance with an SRM plan and a TAC established under
that plan." (Norway's comments on the European Union's response to Panel question No. 123,
paras. 116 -117).
581 COWI 2010 Report, Annex 4, pp. 2-6.
582 COWI 2010 Report, Annex 4, pp. 2-6.
583 Canada's comments on the European Union's response to Panel question No. 123.
WT/DS400/R • WT/DS401/R

the legislative history of the EU Seal Regime, which suggests that the MRM exception was
designed with the situation of EU member States in mind.584
7.352. Therefore, we conclude based on the cons iderations above that the MRM exception is not
designed in an even-handed manner.
7.353. For the above reasons, we find that the MRM 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 the detrimental impact caused by the MRM
exception under the EU Seal Regime on Canadian imports of seal products stems exclusively from
a legitimate regulatory distinction within the meaning of Article 2.1 of the TBT Agreement.
7.3.3 Article 2.2
7.354. Article 2.2 of the TBT Agreement provides:
Members shall ensure that technical regulations are not prepared, adopted or applied
with a view to or with the effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulation s shall not be more trade-restrictive than
necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment
would create. Such legitimate objectives are, inter alia : national security
requirements; the prevention of deceptive pr actices; 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 technology or intended end-uses of products.
7.355. Article 2.2 can be parsed into several different elements: "legitimate objective";
"fulfilment"; "not … more trade-restrictive than necessary"; and "taking account of the risks non-
fulfilment would create".
585 Based on these elements, the Appellate Body has described how a
panel should assess a claim under Article 2.2 as follows:
[A] panel must assess what a Member seeks to achieve by means of a technical
regulation. … Subsequently, the analysis must turn to the question of whether a
particular objective is legitimate …
In sum, … an assessment of whether a technical regulation is "more trade-restrictive
than necessary" within the meaning of Arti cle 2.2 of the TBT Agreement involves an
evaluation of a number of factors. A panel should begin by considering factors that
include: (i) the degree of contribution made by the measure to the legitimate
objective at issue; (ii) the trade-restrictiveness of the measure; and (iii) the nature of
the risks at issue and the gravity of consequences that would arise from non-fulfilment
of the objective(s) pursued by the Member through the measure. In most cases, a
comparison of the challenged measure and possible alternative measures should be
undertaken …
586
7.356. The Appellate Body stated that all these factors provide the basis for the determination of
what is to be considered "necessary" in the sense of Article 2.2 of the TBT Agreement in a

584 Comments from EU Member States on Proposal for a Regulation of the European Parliament and of
the Council concerning trade in seal products, (Exhibit JE-10), pp. 16-19. For instance, Sweden indicated that
its preference would be to introduce an exemption for seal products originating from states with "small scale,
statutory controlled hunting with the main purpose to reduce damages from fisheries and which is done in
accordance with a management plan". (Ibid. p. 18). Finland noted that about 500 seals were hunted yearly in
its territory; seals in Finland are not only hunted as pests but are also used as a natural resource for livelihood
and as a source of income. According to Finland, prohibiting the possibility for income at the local level would
lead to a waste of resources as the hunting would continue without the possibility to make proper use of the
seal. (Ibid. p. 16; see also European Parliament Debates, (Exhibit JE-12), pp. 65 and 72).
585 Appellate Body Report, US – Tuna II (Mexico), para. 312.
586 Appellate Body Report, US – Tuna II (Mexico), paras. 314-322. (footnotes omitted) See also
Appellate Body Report, US – COOL, para. 374.
WT/DS400/R • WT/DS401/R

particular case. 587 With this legal framework in mind, we begin our examination of the
complainants' claim under Article 2.2 with an inquiry into the objective of the EU Seal Regime.
7.3.3.1 Identification of the objective(s) pursued through the EU Seal Regime
7.3.3.1.1 Main arguments of the parties
7.3.3.1.1.1 Complainants
7.357. The complainants claim that the EU Seal Regime pursues the following six objectives; (i)
the protection of animal welfare, including public concerns regarding animal welfare in respect of
seals; (ii) the protection of the economic and social interests of Inuit and other indigenous
communities engaged in sealing (the IC interest s); (iii) the encouragement of the sustainable
management of marine resources (the MRM interests); (iv) the prevention of consumer confusion;
(v) allowing EU consumers to choose to purchase seal products for their personal use from outside
the European Union (the Travellers interests); and (iv) harmonizing the EU internal market with
respect to member States' regulations on seal products.
588
7.358. Furthermore, both complainants claim that the European Union has failed to show that
addressing public moral concerns on seal welfare is the objective of the EU Seal Regime.589
7.359. Canada argues that the alleged public moral objective is not supported by the text or the
design of the measure. 590 It points out that the EU Seal Regime does not refer to public moral
concerns and contends that the EU public concerns regarding animal welfare of seals mentioned in
recital (5) of the Basic Regulation are not public moral concerns regarding seal welfare because
they do not arise from perceptions as to the righ tness or wrongness of specific conduct. Canada
argues that concerns regarding seal welfare are qualitatively different from moral concerns on seal
welfare.591 Moreover, Canada maintains that, although the treatment of animals may, for some, be
a matter of ethics, this does not amount to a shared view that the public's concern about seal
welfare stems from an ethical perspective.
592 According to Canada, the variety of reasons why
members of society oppose a particular activity cannot form the basis of an established
community-wide standard of right and wrong conduct.593
7.360. Relying on US – Gambling , Canada submits that for a measure to fall within the scope of
measures "necessary to protect public morals", it must be designed to protect the public moral in
question by having a "sufficient nexus" with the interest (public moral) to be protected. 594 In the
case of the EU Seal Regime this nexus or rational connection does not exist. This is because, for
Canada, the three categories of conditions in the operative parts of the measure are not rationally
connected to either animal welfare or protecting EU citizens from the moral harm that would arise
from the presence on the EU market of products derived from seals harvested inhumanely. This is
due, according to Canada, to the combination of the absence of requirements relating to animal
welfare and the market access granted to seal pr oducts derived from seals killed inhumanely as
permitted under the three conditions set out in the measure.
7.361. Canada asserts, furthermore, that the idea that the EU Seal Regime addresses public
moral concerns rests on a false premise that the commercial seal hunt is inherently inhumane.
595
Any public concerns, whether moral in nature or reflecting some other value, are based on

587 See Appellate Body Report, US – Tuna II (Mexico), para. 318.
588 Canada's first written submission, paras. 449-450, 452-452bis; second written submission,
paras. 268-269; Norway's first written submission, paras. 70-75; second written submission, paras. 167-171.
589 Canada's second written submission, paras. 137-165; Norway's opening statement at the first
meeting of the Panel, paras. 76-99. Certain arguments of Canada on the identification of the measure's
objectives are contained in its arguments on Article XX(a) of the GATT 1994. The Panel refers to them in this
section to the extent that such arguments are also relevant to Canada's arguments under Article 2.2 of the
TBT Agreement.
590 Canada's response to Panel question No. 31; second written submission, paras. 272-274, 290-295.
591 Canada's response to Panel question No. 18; second written submission, paras. 13-45, 273.
592 Canada's second written submission, para. 158.
593 Canada's second written submission, para. 158.
594 Canada's second written submission, paras. 290-295 (citing Panel Report, US – Gambling,
595 Canada's second written submission, para. 159.
WT/DS400/R • WT/DS401/R

misinformation about the seal hunt in Canada; indeed, Canada argues that it has shown that the
Canadian seal hunt is not inherently inhumane.596
7.362. Canada submits further that the European Union has also failed to establish that there is a
single coherent and consistent objective of public morality or even several objectives of public
morality that are coherent and consistent. 597 For Canada, accepting an ill-defined public morality
objective effectively allows a Member to adjust ex post facto the content of the public morality
objective to justify any measure.598
7.363. Although Norway does not dispute that, as a general principle, seal welfare could be a
moral issue 599, it argues that the European Union has shown "neither the existence of public
morals whose protection is necessary through the various elements of [the] EU Seal Regime nor
the specific normative content of any public morals that purportedly necessitate protection".
600
The European Union has offered (a) the measure at issue; (b) surveys of the EU public opinion;
and (c) scientific evidence601 as evidence purporting to show the objective of addressing the public
moral concerns on seal welfare. 602 However, according to Norway, the evidence does not support
the European Union's assertion. Norway maintains, instead, that the legislative history shows that
the particular choices made by the EU legislator were motivated by political expediency and not by
public morals603; and the measure itself lays bare the absence of a standard of right and wrong
conduct relating to the killing of seals and the sale in the EU market of products containing seal.604
7.364. Norway submits further that the public surveys submitted by the European Union do not
support the existence of the "public morals" invoked by the European Union. 605 Instead, the
surveys: (a) highlight an extremely low level of knowledge about seal hunting; (b) did not use
techniques that would provide information on the moral views of the respondents; and (c) do not
even elicit information on the different public morals that the European Union invokes.606
7.365. Norway also claims that the scientific evidence invoked by the European Union as "grounds
for the public moral concerns" 607, including the evidence that was before the European Union
during the legislative process, does not support the existence of the invoked public morals
regarding animal welfare. 608 To the contrary, the scientific evidence shows that the hunts the
products of which are granted market access under the EU Seal Regime pose the greatest animal
welfare problems.609

596 Canada's opening statement at the first substantive meeting of the Panel, para. 12-35; second
written submission, paras. 62-82, 159.
597 Canada's second written submission, paras. 268-269; 275-289.
598 Canada's second written submission, para. 275.
599 See Norway's opening statement at the first substantive meeting of the Panel, para. 87; response to
Panel question No. 9, para. 72.
600 Norway's response to Panel question No. 15, para. 109. (emphasis original) See also Norway's
second written submission, paras. 172-208.
601 Norway’s opening statement at the first substantive meeting of the Panel, para. 81.
602 Norway's second written submission, paras. 184-206.
603 Norway's first written submission, para. 616; second written submission, para. 204 (referring to
European Parliament Debates, (Exhibit JE-12), p. 72; Comments from EU Member States on Proposal for a
Regulation of the European Parliament and of the Council concerning trade in seal products, (Exhibit JE-10),
pp. 16-18; European Commission Proposal for a Regulation of the European Parliament and of the Council
Concerning Trade in Seal Products (23 July 2008), (Commission Proposal), (Exhibit JE-9), Explanatory
Memorandum ("Grounds for and objectives of the proposal"), p. 5). See also Norway’s first written submission,
para. 616.
604 Norway’s opening statement at the first substantive meeting of the Panel, paras. 78-94; response to
Panel question Nos. 14, 18, and 52; second written submission, para. 204.
605 Norway's second written submission, paras. 188-200.
606 Norway’s opening statement at the first substantive meeting of the Panel, paras. 97-98; second
written submission, paras. 188-200.
607 European Union’s first written submission, Section 2.4.
608 Norway's second written submission, paras. 201-203.
609 See Norway’s first written submission, paras. 679-684; opening statement at the first substantive
meeting of the Panel, paras. 117-121; response to Panel question No. 14, paras. 101-102; response to Panel
question No. 73, paras. 402-410. By contrast, COWI noted that "[s]eal hunting is comprehensively regulated in
Norway and [Norway] has the most developed management system [for seal hunting]". (COWI 2008 Report,
p. 133. See also Ibid. pp. 63 and 70).
WT/DS400/R • WT/DS401/R

7.366. According to Norway, the European Union attempts to place a moral gloss over the
objectives it pursues (which, according to Norway, include animal welfare, indigenous
communities, and sustainable resource management). In an attempt to present multifarious and
competing objectives as a single, coherent objective, the European Union describes them as traits
of an umbrella "public morals" objective.
610 Yet, the European Union has not succeeded in
identifying any coherent and consistent standard of right and wrong conduct held within the
European Union.
611 Thus, for Norway, in order to find that EU public morals extend to concerns
about the welfare of seals, the European Union wo uld have to convince the Panel of the existence
and normative content of such public morals.612
7.3.3.1.1.2 Respondent
7.367. The European Union submits 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".
613 Those concerns arise from
the fact that seal products may have been obtained from animals killed in a way that causes them
excessive pain, distress, fear, or other forms of suffering. Further, the European Union asserts that
"contributing to the welfare of seals by reducing the number of seals killed in an inhumane way"
can be regarded as being simultaneously a le gitimate objective on its own and one of the
instruments to achieve the first, broader and over arching, objective of addressing public moral
concerns on seal welfare.
614
7.368. Further, the European Union contests that it pursues the objectives identified by the
complainants. Contrary to the complainants' arguments, the EU Seal Regime does not pursue
consumer choice and the prevention of consumer confusion. 615 The European Union asserts that
the EU Seal Regime seeks to uphold a rule of public morality, equally applicable with regard to all
members of the EU public, irrespective of their personal beliefs. The complainants have thus
misunderstood the objective of the Travellers exception, which is not to "promote the personal
choice" of the EU consumers, but to avoid ineq uitable results in the operation of the measure. 616
Further, the IC and MRM exceptions under the measure do not pursue independent objectives from
those sought by the general ban; the concerns rela ting to those exceptions are articulations of the
same "standard of morality". 617 T h e E U S e a l R e g i m e a l l o w s t h e p l a c i n g o n t h e m a r k e t o f s e a l
products under the IC and MRM exceptions becaus e products qualifying for those exceptions do
not raise the same moral concerns as products from commercial seal hunts.618
7.369. The European Union argues that in assessing the moral implications of seal hunting,
therefore, it is essential to take into account, together with the welfare of the seals, the purpose of
each type of hunt. 619 Specifically, some hunts are conducted primarily for commercial purposes,
such as obtaining skins for manufacturing inessential clothing items. 620 The EU public regards seal
products from commercial hunts as morally objectionable and is repelled by their availability in the
EU market.621 In contrast, in the cases of other seal hunts conducted for non-commercial
purposes, such as the subsistence of indigenous communities or the sustainable management of

610 Norway’s opening statement at the first substantive meeting of the Panel, paras. 69, 76-99; second
written submission, para. 170.
611 Norway’s opening statement at the first substantive meeting of the Panel, paras. 76-99; Norway’s
response to Panel question Nos. 9, 15, 17, 18, and 48.
612 Norway's response to Panel question No. 109. Norway specifically contends that the European Union
has failed to prove that its "umbrella moral norm" allows commerce in six distinct circumstances irrespective of
animal welfare, namely where products are: (i) derived from IC hunts; (ii) derived from MRM hunts; (iii)
imported for personal use by travellers; (iv) sold at auction in the European Union for re-export; (v) used in EU
manufacturing for export under inward processing rules; or (vi) where they transit the European Union. See
Norway's response to Panel question No. 18; second written submission, para. 172 and footnote 232; and
opening statement at the second substantive meeting of the Panel, para. 54.
613 European Union's first written submission, para. 33; response to Panel question No. 10.
614 European Union's response to Panel question No. 10.
615 European Union's first written submission, para. 43 (referring to Norway's first written submission,
para. 600).
616 European Union's first written submission, para. 42.
617 European Union's response to Panel question No. 10; opening statement at the second meeting of
the Panel, paras. 43-51.
618 European Union's first written submission, para. 43.
619 European Union's first written submission, para. 38.
620 European Union's first written submission, para. 39.
621 European Union's first written submission, para. 36.
WT/DS400/R • WT/DS401/R

marine resources, it may be justified, or even required, from a moral point of view to tolerate a
higher level of risk to the welfare of seals.622
7.370. To demonstrate further the existence of mo ral concerns on the welfare of seals among the
EU public, the European Union points to a number of public opinion surveys. The European Union
alleges that these survey results show the public's general feeling against seal hunting, particularly
commercial hunting, and support for the ban.623
7.371. As for the objective of harmonizing the EU internal market, described by the
European Union as the immediate objective of the EU Seal Regime, the European Union asserts
that the elements challenged by the complainants are not necessary to achieve that objective but
rather seek to address the moral concerns of the EU public with respect to the welfare of seals.624
7.3.3.1.2 Analysis by the Panel
7.372. As explained above, to assess a measure's consistency with the obligations under
Article 2.2 of the TBT Agreement, the Panel mu st first identify the objective pursued by a
regulating Member through the measure at issue.
7.373. The parties in this dispute disagree on what objectives the European Union aims to fulfil
through the EU Seal Regime.
7.374. The European Union claims that the EU Seal Regime pursues two closely related
objectives625:
 first, addressing the moral concerns of the EU population with regard to the welfare of
seals ("addressing the public moral concerns on seal welfare"); and

 second, contributing to the welfare of seals by reducing the number of seals killed in
an inhumane way.

7.375. Regarding the first objective, the European Union points to two aspects of the public's
moral concerns: first, "the incidence of inhumane killing of seals"; and, second, EU citizens'
"individual and collective participation as consumers in, and exposure to, the economic activity
which sustains the market for commercially-hunted seal products".
626 Further, according to the
European Union, the second objective can also be regarded as one of the instruments to achieve
the first, broader and overarching, objective of addressing the public moral concerns on seal
welfare.
7.376. The complainants assert that the European Union failed to identify any coherent and
consistent standard of right and wrong conduct held within the European Union with respect to
seal welfare concerns. Rather, the European Union pursues a multiplicity of objectives through the
measure such as protection of seal welfare, including the EU public's concerns on seal welfare;
protection of the IC interests; and promotion of marine resource management.

622 European Union's first written submission, para. 39.
623 European Union's first written submission, paras. 190-194 (referring to public opinion surveys of
EU member States, (Exhibits EU-48-59). The European Union submits that the EU public moral concerns with
regard to the killing of seals are deep and longstanding. Those concerns emerged in the 1950s, became
widespread among the public by the 1960s, which in turn led to the introduction of various import restrictions
by EU member States during the 1970s and 1980s. The European Union states that this culminated with the
adoption of the 1983 Seal Pups Directive banning products made of whitecoat harp and blueback hooded seal
pups. (Seal Pups Directive, (Exhibit CDA-12)).
624 See European Union's response to Panel questions No. 13 and 113, para. 53. The complainants have
also addressed the objective of internal market harmonization. (See Canada's response to Panel question
No. 13 ("Canada is of the view that the harmonization objective is qualitatively different from the other
objectives, and should not be considered for the purposes of Article 2.2 of the TBT Agreement."); Norway's
response to Panel question No. 13 ("Norway agrees that that the "harmonization of the EU internal market" is
distinct from the policy objectives of the type covered by Article 2.2 of the TBT Agreement, and that the Panel
should not consider this as a policy objective within the meaning of that provision.").
625 European Union's response to Panel question No. 9.
626 European Union's response to Panel question No. 9.
WT/DS400/R • WT/DS401/R

7.377. We consider that the disagreements between the parties on the objective of the EU Seal
Regime come down, in essence, to two issues. First, while not disputing that the EU Seal Regime is
aimed at addressing the public concerns on seal welfare, the parties disagree on whether the
public concerns at issue are moral concerns for the EU public. Second, the parties also contest
whether other interests addressed through the ex ceptions in the measure (i.e. IC, MRM, and
Travellers exceptions) constitute objectives of the EU Seal Regime that are separate and
independent from the objective of addressing seal welfare concerns.
7.378. In these circumstances, and based on guid ance provided by the Appellate Body, we must
assess the objectives of the EU Seal Regime on the basis of available evidence such as the texts of
statutes, legislative history, and other evidence regarding the structure and operation of the
measure at issue.
627 We are also mindful that a panel is not bound by the objectives asserted by
the regulating Member, and "may also find guid ance" in contrary evidence proffered by the
complainant in determining the objective pursued by the regulating Member.628
7.379. Before moving to examine these aspects, however, we find it useful to recall the meaning
and scope of "public morals" as discussed in previous disputes.
7.380. In US – Gambling, the panel considered the term "public morals" as used in Article XIV of
the GATS, which provides, "… measures: (a) necessary to protect public morals or to maintain
public order". The panel observed that the term "public morals" denotes "standards of right and
wrong conduct maintained by or on behalf of a community or a nation" and that the content of the
concept of public morals "can vary in time and space, depending upon a range of factors, including
prevailing social, cultural, ethical and religious values".
629 For this reason, it considered that:
Members should be given some scope to define and apply for themselves the concepts
of "public morals" and "public order" in thei r respective territories, according to their
own systems and scales of values.630
7.381. The panel in China – Audiovisual Products agreed with the interpretation of the term
"public morals" developed by the panel in US – Gambling for the purposes of its analysis under
Article XX(a) of the GATT 1994. 631 In a similar vein to Article XIV of the GATS, Article XX of the
GATT also refers to "measures … (a) necessary to protect public morals". The assessment of the
scope of "public morals" in the context of the general exception provisions of the GATT 1994 and
the GATS referring to public morals therefore suggests that WTO Members are afforded a certain
degree of discretion in defining the scope of "public morals" with respect to various values
prevailing in their societies at a given time.
7.382. Although previous interpretations of the notion of "public morals" were developed in the
context of examining general exceptions provisions under the GATT 1994 and the GATS, we
consider that they are equally applicable in identifying a regulating Member's alleged moral
objective in the context of Article 2.2 of the TBT Agreement. We observe in this regard the
Appellate Body's statement in US – Clove Cigarettes that the second recital in the preamble of the
TBT Agreement indicates that "the TBT Agreemen t expands on pre-existing GATT disciplines and

627 Appellate Body Report, US – Tuna II (Mexico), para. 314. See also Appellate Body Reports, EC –
Sardines, paras. 276-282; US – COOL, para. 371; Panel Reports, US – Tuna II (Mexico), para. 7.405 (citing
Appellate Body Report, US – Gambling, para. 304); and US – COOL, para 7.612 (citing an observation by the
Appellate Body in Japan – Alcoholic Beverages that "Members of the WTO are free to pursue their own
domestic goals through internal taxation or regulation so long as they do not do so in a way that violates … any
of the other commitments they have made in the WTO Agreement").
628 Appellate Body Report, US – Gambling, para. 304.
629 Panel Report, US – Gambling, paras. 6.465 and 6.461.
630 Panel Report, US – Gambling, para. 6.461. In US – Gambling, for example, the panel assessed
whether the gambling problem addressed by the measure falls within the scope of the "public morals" within
the meaning of Article XIV(a) of the GATS. In doing so, the panel considered inter alia other members' trade
measures with similar objectives as shown in trade policy review reports and secondary interpretative
materials such as decisions by other jurisdictions on similar issue (e.g. the ECJ). Based on such resources, the
panel found that gambling is a matter that could fall within the scope of public morals. Panel Report, US –
Gambling, paras. 6.470-6.474.
631 Panel Report, China – Audiovisual Products, para. 7.759. The public morals at issue in that dispute
concerned the protection of the public from potential negative impacts caused by cultural goods (e.g. reading
materials and audiovisual products).
WT/DS400/R • WT/DS401/R

emphasizes that the two Agreements should be interpreted in a coherent and consistent
manner".632
7.383. Accordingly, the question of whether a measure aims to address public morals relating to a
particular concern in the society of a regulating Member requires, in our view, an assessment of
two issues: first, whether the concern in question indeed exists in that society; and, second,
whether such concern falls within the scope of "public morals" as "defined and applied" by a
regulating Member "in its territory, according to its own systems and scales of values".
7.384. In the factual circumstances of the presen t dispute, and bearing in mind the guidance of
the Appellate Body referred to above as to how to assess the objective of a measure, we must
therefore examine whether the evidence as a whol e shows (a) the existence of the EU public's
concerns on seal welfare and/or any other concerns or issues that the European Union seeks to
address; and, (b) the connection between such co ncerns, if proven to exist, and the "public
morals" (i.e. standards of right or wrong) as defined and applied within the European Union.
7.385. We begin our assessment with the text of the EU Seal Regime.
7.386. At the outset, we note that the EU Seal Regime does not have a specific section setting
forth the objective of the EU Seal Regime. The pr eamble of the Basic Regulation, comprising 21
recitals, describes various concerns and observations on seal hunting and seal products. For
example, the preamble refers to inter alia the following:
 legislative initiatives calling for a ban on trade in seal products and cruel seal hunting
methods (recital 1);
 existing consumer confusion over products derived from seals and other products
(recitals 3, 7);
 concerns by the public and governments re garding the pain, distress, fear, and other
forms of suffering which the killing and skinni ng of seals cause to seals (recitals 4, 5,
10, 11);
 several EU member States' adoption or intention to adopt legislation regulating trade in
seal products and differences between national provisions governing trade in seal
products (recitals 5, 6);
 different trade regulations on seal products within the EU internal market and the need
to harmonize such regulations (recitals 6, 7, 8, 10);
 obligation to "pay full regard to" the animal welfare requirements when formulating an
EU internal market policy (recital 9);
 public concerns about the possible presence on the market of products obtained from
animals killed and skinned in a way that causes pain, distress, fear and other forms of
suffering (recitals 5, 10);
 design of the current measure in harmonizing the EU internal market and addressing
animal welfare concerns (recitals 10, 12, 13);
 difficulty in consistent verification and control of hunters' compliance with animal welfare
requirements in seal hunting (recital 11);
 fundamental economic and social interests of Inuit communities engaged in seal hunting
(recital 14); and
 three conditions (IC, MRM, and personal use) according to which the placing and/or
import of seal products on the EU market would be allowed (recital 17).

632 Appellate Body Report, US – Clove Cigarettes, para. 91. See also Ibid. paras. 90, 96, and 101.
WT/DS400/R • WT/DS401/R

7.387. Based on our review of the preamble, the 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 condit ions for IC, MRM, and Travellers exceptions
(recitals 16 and 17).
7.388. The operative part of the Basic Regulation, discussed in section 7.2.1 above, reflects these
main considerations by providing for the IC, MRM, and Travellers exceptions and prohibiting seal
products derived from any other seal hunts. Specific rules for implementing the exceptions and
other obligations under the Basic Regulations are contained in the Implementing Regulation.
633
7.389. Overall, we can discern from the text of the EU Seal Regime that, in designing the Regime,
the European Union sought to address the public concerns on seal welfare. In doing so, the
European Union also took into account certain other interests (i.e. IC, MRM, and Travellers
interests). Although we have also observed references to the need for harmonizing the EU internal
market, we recall the acknowledgment of both the complainants and the respondent that, for the
purpose of this dispute, it is not necessary for the Panel to address this particular consideration.
634
7.390. Next, we proceed to examine the legislat ive history of the EU Seal Regime to assess
whether it sheds further light on the measure's objective.
7.391. The initiative to introduce a measure governing trade in seal products in the
European Union originates in the 2006 "Declaration of the European Parliament on banning seal
products in the European Union" (Parliament Declaration).
635 In its preamble, the Parliament
Declaration references inter alia an observation that a certain proportion of seals hunted may have
been skinned while still conscious. 636 Although the Parliament Declaration does not explicitly
elaborate on the specific reasons for the initiative for a ban on seal products, a list of points
contained in the preamble suggest a connection between the Declaration and seal welfare. 637 It
also states that "this regulation should not have an impact on traditional Inuit seal hunting" 638; no
reference is made, however, to MRM hunts or Travellers' interests.
7.392. Subsequent to the Parliament Declaration, the Parliamentary Assembly of the Council of
Europe made certain observations on seal hunting:
5. The Assembly welcomes the Declaration of 26 September 2006 by the European
Parliament on banning seal products in the European Union ...
…
8. The Assembly is aware that the international controversy surrounding seal
hunting is first and foremost a political debate, bringing different and sometimes

633 We note that while providing practical details necessary for the enforcement of the Basic Regulation,
the Implementing Regulation does not in itself assist us in identifying the objective of the measure.
634 See para. 7.371 above.
635 Parliament Declaration, (Exhibit JE-19). We note that issues relating to sealing and seal products
have been subject to discussions and debates within the European Union preceding the adoption of the EU Seal
Regime. For instance, we take note of the adoption in 1983 of a ban on the importation of products derived
from certain seal pups. (Seal Pups Directive, (Exhibit CDA-12)). The Council's Parliamentary Assembly also
refers to its Recommendation 825 (1978) on the protection of wildlife and on seal hunting. (Council of Europe,
Parliamentary Assembly, recommendation 1776 (2006) of 17 November 2006 on seal hunting, (Council of
Europe Recommendation), (Exhibit EU-117), para. 1). In addition, the European Union refers to the adoption of
several restrictions of seal products by various current EU member States dating back to 1970. (See
European Union's first written submission, para. 615 (referring to certificates issued by Greenlandic authorities
prior to obtaining recognized body status, (Exhibit EU-162)).
636 Parliament Declaration, (Exhibit JE-19), point D.
637 For instance, the reference to the skinning of conscious seals occurs after recitals noting the large
number of harp seal pups "slaughtered" in the North West Atlantic (point A) and impacts on seal population
from such a large scale of killing (point B). Moreover, the EU Parliament observes that the 1983 Directive
banning seal pup products did not extend to products of older seals being targeted by sealers (point E).
638 Parliament Declaration, (Exhibit JE-19), point H(2).
WT/DS400/R • WT/DS401/R

conflicting values, objectives and attitudes into play, and that public opinion is
particularly sensitive to this matter.
9. The Assembly notes that during the last decade, the cruelty of seal hunting has
been documented by videos from several authoritative television channels as well as
by the personal observations of many members of national and European parliaments,
scientists, celebrities and representatives of non-governmental organizations (NGOs).
Such cruelty has generated a public morality debate in Europe ...
639
7.393. We note in particular that the observations quoted above refer to the existence of inter alia
concerns on seal welfare and a "public morality debate" regarding seal hunting in Europe.
7.394. In 2008, the European Commission submitted a proposal for a regulation concerning trade
in seal products (Commission Proposal). 640 This 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 …".
641 The Impact Assessment accompanying the Commission Proposal 642
also describes the main overarching objectives of the initiative as "[p]rotect seals from acts that
cause them avoidable pain, distress, fear and other forms of suffering during the killing and
skinning process", and to "[a]ddress the concerns of the general public with regard to the killing
and skinning of seals".
643 Thus, these documents, which inform us of the legislative process
leading to the adoption of the current measure, make explicit references to the public concerns on
seal welfare.
7.395. Further, we observe that the Commission Proposal describes public concerns as relating to
"ethical" considerations. For example, the following expressions are used in the 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".
644 More particularly, the Commission's 2008 proposal states:
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.
645

639 Council of Europe Recommendation, (Exhibit EU-117).
640 Commission Proposal, (Exhibit JE-9). The Commission Proposal was presented to the European
Parliament and Council in 2008 following the Commission's undertaking to assess the animal welfare aspects of
seal hunting and provide possible legislative proposals in response to the Parliament Declaration. (See
Commission Impact Assessment, (Exhibit JE-16), p. 8).
641 Commission Proposal, (Exhibit JE-9), pp. 2-3 ("grounds for and objectives of the proposal"). See also
Ibid. p. 8 (stating that the Proposal "focuses on animal welfare considerations while [other existing Community
legislation] addresses conservations issues") and p. 11 (referring to "the animal welfare concerns expressed by
the public" in respect of suitable measures to address the issue).
Norway also acknowledges based on its own assessment of the Commission Proposal and Commission
Impact Assessment that "protecting animal welfare and addressing public concerns relating to animal welfare"
are described as "overarching objectives". (Norway's first written submission, paras. 612-617 (referring to
Commission Impact Assessment, (Exhibit JE-16), p. 7). It nevertheless also points to the protection of
IC interests as well as internal market harmonization as the objectives emerging from the European
Commission documents.
642 Commission Impact Assessment, (Exhibit JE-16). The Impact Assessment provides a more detailed
description of the assessment process, including the subjects reviewed and legislative options canvassed by
the EU Commission in the preparation of its Proposal.
643 Commission Impact Assessment, (Exhibit JE-16), p. 23. The document also establishes the specific
objectives based on the main overarching objectives, namely (i) to "[e]nsure consistency and legal clarity in
terms of the requirements for placing seal products on the EU market" and (ii) to "[p]romote and reward good
sealing practices".
644 Commission Proposal, Explanatory memorandum, (Exhibit JE-9), pp. 2-3.
645 Commission Proposal, Explanatory memorandum, (Exhibit JE-9), p. 2.
WT/DS400/R • WT/DS401/R

…
The Treaty establishing the European Communi ty does not provide for a specific legal
basis allowing the Community to legislate in the field of ethics as such . However,
where the Treaty empowers the Community to legislate in certain areas and that the
specific conditions of those legal bases are met, the mere circumstance that the
Community legislature relies on ethical considerations does not prevent it from
adopting legislative measures.646 (emphasis added)
7.396. In our view, therefore, the references above to "ethical considerations" in the Commission
Proposal, combined with the reference to a "pub lic morality debate" in the Council of Europe
Recommendation, provide evidence that the public concerns about seal welfare constitute a moral
issue for EU citizens.
647
7.397. The evidence also includes documents demonstrating various EU member States' views on
the Commission Proposal as well as the measure in its current form. 648 Based on our examination
of these documents, we observe that certain EU member States expressed doubts as to various
features of the proposed measure and that the "difficulties of balancing different views" 649 had to
be overcome in the legislative process. 650 However, a majority of comments and statements
documented in these exhibits show an overall su pport for the measure in light of the wishes of
EU citizens to ban seal products from the EU market based on their concerns on seal welfare.651
7.398. As with the text of the EU Seal Re gime, the legislative history of the measure
demonstrates the existence of the EU public's co ncerns about seal welfare. We observe in this

646 Commission Proposal, Explanatory memorandum, (Exhibit JE-9), p. 3.
647 We recall in this regard the view of the panel in US – Gambling that public morals can "depend[] on a
range of factors, including prevailing social, cultural, ethical and religious values". (Panel Report, US –
Gambling, para. 6.461) (emphasis added)
648 See, e.g. Comments from EU Member States on Proposal for a Regulation of the European
Parliament and of the Council concerning trade in seal products, (Exhibit JE-10); Council of the
European Union, Member States' Comments on the Proposal for a Regulation Concerning Trade in Seal
Products (20 July 2009), (Exhibit JE-11); and European Parliament Debates, (Exhibit JE-12).
649 European Parliament Debates, (Exhibit JE-12), p. 64. The Parliamentary debates contain repeated
references to the "compromise" reflected in the text of the draft legislative proposal. (See Parliament Report,
(Exhibit JE-4)).
650 See Comments from EU Member States on Proposal for a Regulation of the European Parliament and
of the Council concerning trade in seal products, (Exhibit JE-10), p. 16 (view of Finland that certain welfare
requirements in the Commission Proposal were "not necessary" for the specific manner of seal hunting in
Finland) and p. 18 (preference of Sweden "to introduce a second exemption possibility for seal products
originating from states with small scale, statutory controlled hunting with the main purpose to reduce damages
from fisheries and which is done in accordance with a management plan"). See also Council of the
European Union, Member States' Comments on the Proposal for a Regulation Concerning Trade in Seal
Products (20 July 2009), (Exhibit JE-11), p. 1 (opinion of Denmark that "trade in seal products as a whole is a
legitimate activity, which should not be unnecessarily hampered and stigmatised").
We also observe certain opposing views during the Parliamentary debates. (See European Parliament
Debates, (Exhibit JE-12), p. 64 ("we are solving nothing at all in terms of seal hunting. We are simply
relocating the problem ... you are not banning seal hunting. You are potentially relocating the problem to China
or to other countries, which will be able to accept these products"); p. 68 ("This proposal destroys people's
lives and their communities in remote regions. It destroys business opportunities on both sides of the Atlantic
and seriously harms good relations … "; and p. 69 (" … on behalf of Greenland, which is part of the Kingdom of
Denmark. There are a few tiny, remote settlements in the far north with a population of just 10-20 people who
live from hunting seals. If we take away their livelihood, they will have no chance of economic survival")).
651 Specifically, the Parliamentary debates indicate that European citizens have consistently expressed
concerns on seal welfare and their wish to have seal products banned from the market through numerous
letters and e-mails. (See, e.g. European Parliament Debates, (Exhibit JE-12), pp. 61-62 ("we will have
respected the wishes of many citizens in many of our countries across the EU who tell us that they do not like
what they see of the commercial seal hunt and that they wish to have no association with the trade that results
from that hunt. We have respected that wish: we have dealt solely with what we can deal with within the
confines of Europe's internal market: the circulation of goods in the market that arise from the commercial
hunt … our consumers should be assure d that nothing from the commercial hunt will be sold on Europe's
market"); pp. 62-63 ("seal hunting and the way it is carried out has resulted in the expression of serious
reaction and concern by the public …"); p. 65 ("The public have demonstrated in numerous polls across
European countries that they want an end to the trade…"); p. 67 ("We are meeting the wishes of the many
citizens who have asked us in countless letters and e-mails to take action in this area"); p. 67 ("many
EU citizens do not, and they support a total ban on the import of seal fur skins …")).
WT/DS400/R • WT/DS401/R

regard that the EU public's concerns on seal we lfare found in the evidence are related to seal
hunting in general, and not to any particular type of hunting. 652 The public survey results
submitted by the European Union are also info rmative, although to a limited extent, in
demonstrating the EU public concerns.653
7.399. Furthermore, on the basis of a plain readin g of the text of the Basic Regulation, and in the
light of the evidence mentioned above, we co nclude 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 purposes, and seal products
brought into the European Union for personal us e. As mentioned above, however, the parties
contest whether these interests should be considered as separate objectives of the EU Seal Regime
independent from the objective of addressing seal welfare concerns.
7.400. The Appellate Body in US – Clove Cigarettes observed that "measures, such as technical
regulations, may have more than one objective".
654 Thus, it may not be uncommon for a measure
to have "a multiplicity of objectives". 655 Hence there is no reason in principle why the measure at
issue could not have several objectives.656
7.401. However, based on its text and legislative history as well as its structure and design, we
are not convinced that the "aim", "target", or "goal" of the EU Seal Regime was to protect the
interests of IC, MRM, and Travellers. 657 Based on the text of the EU Seal Regime, we found that
the Regime consists of a ban, albeit formulated in positive terms, and exceptions. Next, the
structure and design of the measure – a ban with exceptions – establish that it operates as a
prohibition against seal products, unless they meet specific conditions prescribed in the measure.
The legislative history described above further show s, in our view, that the principal objective of
adopting a regulation on trade in seal products was to address public concerns on seal welfare.
Specifically, we noticed references in certain evidence relating to the measure's legislative history

652 See, for instance, COWI 2008 Report, pp. 124-127. A public consultation conducted regarding their
view on regulation of seal hunting, which COWI cautions should be reviewed with the limited
representativeness of respondents, shows that "62.1% [of the respondents] state that seals should not be
hunted for any reason", whereas "17.6% state that hunting is most acceptable when the hunter belongs to a
traditional seal hunting culture/community or depend on seal hunt for his main income."
653 See Public survey results, (Exhibits EU-48-59). The public survey results submitted by the
European Union exhibit the existence of a certain level of public awareness and concern on seal welfare in the
European Union and other countries. However, their probative value is limited as the surveys, considered
alone, are insufficient to establish the existence of the EU public moral concerns on seal welfare as argued by
the European Union.
Notably, some of these surveys were conducted with respect to citizens of countries other than those
belonging to the European Union. Therefore, such surveys do not provide sufficient factual guidance in the
assessment of public morals in the European Union.
We do note that the European Union has also presented evidence of surveys carried out in various
countries which are member States of the European Union. (See Public survey results from Germany, the
Netherlands, Portugal, Slovenia, Belgium, France, Austria, Sweden, and the Czech Republic,
(Exhibits EU-50-57)). As argued by Canada, however, we observe that the public surveys (with the exception
of the survey in Sweden) do not solicit views on whether it is acceptable to exempt seal products obtained
from Inuit hunts and resource management-related culls from a prohibition on the sale of seal products. (See
Canada's second written submission, para 93. See also Norway's second written submission, paras. 188 and
200). We further note that the survey companies' responses cited by the European Union do not rebut this
specific claim put forth by both complainants. (See Exhibit EU-131 A, B, and C; European Union's opening
statement at the second meeting of the Panel, para. 51).
654 Appellate Body Report, US – Clove Cigarettes, paras. 113 and 115.
655 Appellate Body Report, US – Clove Cigarettes, paras. 113 and 115.
656 Colombia has submitted that, although Members may try to address more than one policy concern in
a technical regulation, "it seems rather difficult to accept that it would be legitimate to enact a measure with
one main objective and then impose exceptions to that measure that … undermine the principal policy
objective". (Colombia's third-party submission, paras. 5-7, 32; third-party statement, paras. 6 and 15).
Colombia thus maintains that the important legal issue in the alleged breach of provisions of the
TBT Agreement is "the relationship that exists between [different policy objectives]" of a technical regulation.
(Colombia's third-party submission, para. 23).
657 The Appellate Body describes the word "objective" as a "thing aimed at or sought; a target, a goal,
an aim" (Appellate Body Report, US – Tuna II (Mexico), para. 313, (citing Shorter Oxford English Dictionary,
6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 2, p. 1970)).
WT/DS400/R • WT/DS401/R

that the interests of Inuit and indigenous co mmunities engaged in seal hunting should be
protected from possible trade regulations on seal products.658
7.402. For us, the interests that were accommodated in the measure through the exceptions must
be distinguished from the main objective of the measure as a whole. Further, unlike the issue of
seal welfare, we do not find in the evidence su bmitted that the interests covered by the IC, MRM,
and Travellers exceptions are grounded in the concerns of EU citizens. Rather, the evidence
suggests that they appear to have been included in the course of the legislative process. For all
these reasons, we do not consider that the intere sts incorporated in the IC, MRM, and Travellers
exceptions form independent policy objectives of the EU Seal Regime as a whole.659
7.403. In paragraph 7.383 above, we explained th at to determine the objective of the EU Seal
Regime, we must examine whether the evidence as a whole shows (a) the existence of the
EU public's concerns on seal welfare and/or any other concerns or issues that the European Union
seeks to address; and, (b) the connection between such concerns, if proven to exist, and the
"public morals" (i.e. standards of right or wrong) as defined and applied within the
European Union.
7.404. As regards the first question, we have concluded that the text and legislative history of the
measure established the existence of the EU pub lic's concerns on seal welfare. We therefore
proceed to examine the second question, namely, whether the concerns at issue fall within the
scope of "public morals" in the European Union. In this connection, given our determination that
IC and MRM interests do not constitute objectives of the EU Seal Regime, we find it 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.
660 Thus, our task is
confined to assessing whether the public concerns on seal welfare are anchored in the morality of
European societies.
7.405. We found that the legislative history of the measure suggests a link between the public
concerns on seal welfare and an ethical or moral consideration. 661 With that in mind, we now turn
to other evidence before us. The European Union re fers to various other sources, which in its view
establish that the public concerns on seal welfare are indeed a moral issue within the
European Union as a community. 662 Specifically, the European Union refers to the various actions

658 For example, the 1983 ban on products of certain seal pups refers to "non-traditional hunting" and
notes in its preamble that "the exploitation of seals … and in certain areas of the world forms an important part
of the traditional way of life and economy; whereas hunting, as traditionally practised by the Inuit people,
leaves seal pups unharmed and it is therefore appropriate to see that the interests of the Inuit people are not
affected". (Seal Pups Directive, (Exhibit CDA-12)). 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 proposed regulation, subsequent comments on
the regulation, and the parliament's proposal also indicate references to exempting imports of occasional
nature and for personal use. (See Commission Proposal, (Exhibit JE-9), p. 5; Parliament Report, (Exhibit JE-4),
p. 10 (Justification for Amendment 8).
An exception for "communities dependent on artisanal fishing and which contribute to their subsistence
or to the regulated and controlled management of seal populations with a view to mitigating the damage
occasioned to fish stocks" appears for the first time in the Committee on Agriculture and Rural Development's
proposed amendments to the Commission's proposed regulation. (Parliament Report, (Exhibit JE-4), p. 66,
Amendment 18). We observe that this suggestion was not included in the parliament's proposal.
659 We note that, in Brazil – Retreaded Tyres, while the measure concerned was a prohibition on the
importation of retreaded tyres, certain imports were exceptionally allowed (e.g. imports from MERCOSUR
partners or subject to domestic court ruling). Such derogations from the general ban in that dispute did not
form part of the measure itself; rather they were made effective through the application of the measure. Under
the circumstances of that dispute, Brazil identified the protection of environment as the objective of the
measure (namely an import ban) under Article XX(b) of the GATT 1994, but never raised, for instance, the
reasons behind such derogations as the "policy objective" of the measure per se. Moreover, the panel in that
dispute addressed the situations involving the derogation from the ban under the chapeau of Article XX of the
GATT 1994 (i.e. arbitrary or unjustifiable discrimination among imported products).
660 The European Union submits that "the rule of morality" invoked by it requires balancing in each case
the welfare of the animals concerned and other interests. (European Union's opening statement at the second
meeting of the Panel, para. 44; response to Panel question No. 104).
661 See para. 7.396 above.
662 The European Union argues that the way in which humans treat animals is a matter of public morals,
and humans are not free to treat and use animals as they wish, but ought instead to conform to certain moral
standards of right and wrong. (European Union's first written submission, para. 61). The European Union
WT/DS400/R • WT/DS401/R

taken by the European Union as well as EU member States concerning animal protection in
general; various pieces of legislation and Conventions on animal welfare within the
European Union and in other countries, including Norway and Canada; and various international
instruments. We examine these materials in turn.
7.406. "The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing
the European Community (the Treaty of Lisbon)" stipulates that "the Member States shall, since
animals are sentient beings, pay full regard to the welfare requirements of animals".
663 The
European Union asserts that, consistent with the mandate in the Treaty of Lisbon, the
European Union adopted a comprehensive body of legislation on the welfare of farm animals within
the framework of its Common Agricultural Policy. 664 Further, the European Union submits that
although the protection of the welfare of wild anim als and pets falls, in principle, within the scope
of the competence of the EU member States, the EU legislators have in certain cases deemed it
necessary to take protective action also with regard to such animals, including the measure in
question in this dispute.
665 The European Union also points out that EU legislation on animal
welfare is based to a large extent on a series of Conventions 666 elaborated since the 1960s at the
Council of Europe, which were the first international instruments laying down comprehensive
ethical rules for the use of animals.
7.407. The European Union also refers to EU member States' animal protection laws based on
public morals considerations, as well as evidence of the moral objectives of measures taken with
respect to seal welfare. For example, the European Union highlights laws in Austria (Federal Act
which in §1 expressly aims at "the protection of the life and well-being of animals based on man's
special responsibility for the animal as a fellow creature") and the United Kingdom (Animal Welfare

claims that the first law on animal welfare was enacted in 1822 in the United Kingdom. (European Union's first
written submission, para. 62 and Peter Sandøe and Stine B. Christiansen, Ethics of Animal Use (2008),
(Exhibit EU-1); Austria's Federal Act on the Protection of Animals, (Exhibit EU-2); United Kingdom's Animal
Welfare Act (2006), (Exhibit EU-3)).
663 Article 13 of the Treaty on the Functioning of the European Union provides: "In formulating and
implementing the Union's agriculture, fisheries, transport, internal market, research and technological
development and space policies, the Union and the Member States shall, since animals are sentient beings, pay
full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions
and customs of the Member States relating in particular to religious rites, cultural traditions and regional
heritage." (European Union's first written submission, para. 63, footnote 28)
The European Union explains that Article 13 of the Treaty on the Functioning of the European Union
replaces and reproduces, with some slight changes, the content of the Protocol on Animal Welfare annexed to
the Treaty Establishing the European Community by the Treaty of Amsterdam, which entered into force on
1 January 1999.
664 See the legislative references provided in the Parliament Report, (Exhibit JE-4). For instance,
regarding the protection of animals at the time of slaughter and killing, the exhibit references the following
EU regulations: Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of
slaughter or killing; Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals
at the time of killing; European Convention for the protection of animals for slaughter (Official Journal L 137,
02/06/1988 p. 0027-0038); and 88/306/EEC (Council Decision of 16 May 1988 on the conclusion of the
European Convention for the Protection of Animals for Slaughter Official Journal L 137).
The European Union refers in particular to its amended regulation on the protection of animals at the
time of killing, which asserts the status of animal welfare as "a Community value" and that "protection of
animals at the time of slaughter or killing is a matter of public concern". (See European Union's first written
submission, para. 64 (referring to Council Regulation (EC) No 1099/2009 of 24 September 2009 on the
protection of animals at the time of killing, Official Journal of the European Union, L303/1, 18 November 2009,
(Exhibit CDA-31))).
665 Such cases also include the 1983 Seal Pups Directive, (Exhibit CDA-12); Council Regulation (EEC)
No 3254/91, of 4 November 1991, prohibiting the use of leghold traps, Official Journal of the European Union,
L Series, No. 308 (9 November 1991) (Exhibit EU-5); and Regulation (EC) No 1523/2007 of the European
Parliament and the Council, of 11 December 2007, banning the placing on the market and the import to, or
export from, the Community of cat and dog fur, and products containing such fur, Official Journal of the
European Union, L Series, No. 343 (27 December 2007), (Exhibit EU-6).
666 European Union's first written submission, para. 66, footnote 36. The Council of Europe has drawn up
five conventions for the protection of animals: (a) European Convention for the protection of animals during
transport, Paris, 13 December 1968, E.T.S. No 65; (b) European Convention for the protection of animals kept
for farming purposes, Strasbourg, 10 March, 1976, E.T.S. No 87; (c) European Convention for the protection of
animals for slaughter, Strasbourg, 10 May 1979, E.T.S. No 102; (d) European Convention for the protection of
vertebrate animals used for experimental and other scientific purposes, Strasbourg, 18 March, 1986, E.T.S.
No 123; and (e) European Convention for the protection of pet animals, Strasbourg, 13 November 1986, E.T.S.
No 125. http://conventions.coe.int
WT/DS400/R • WT/DS401/R

Act of 2006 with provisions for the prevention of harm to and promotion of welfare of animals);
and, references a moral aspect of the public concerns on seal welfare found in Belgian and Dutch
material, such as "au nom de la morale publique"; "outrage"; and "an offense to public order and
decency in this country".
667
7.408. Further, the European Union refers to recommendations of the Office International des
Epizooties (OIE) (Guiding Principles for Animal Welfare) 668, certain other WTO Members' measures
on seal products based on moral grounds (e.g. Chinese Taipei 669; Russia670; and Switzerland 671),
as well as the "philosophy of animal welfarism" and its connection to "a long-established tradition
of moral thought".672
7.409. The evidence presented by the European Un ion, taken as a whole, illustrates in our view
"standards of right and wrong conduct maintained by or on behalf of [the European Union]"
concerning seal welfare. In reaching this conc lusion, we observe that ascertaining the precise
content and scope of morality in a given society may not be an easy task. 673 As the panel in US –
Gambling stated, we are mindful that Members should be given some scope to define and apply for
themselves the concepts of "public morals" in their respective territories, according to their own
systems and scales of values. Although not all evidence presented to us makes an explicit link
between seal or animal welfare and the morals of the EU public, we are nevertheless persuaded
that the evidence as a whole sufficiently demonstrates that animal welfare is an issue of ethical or
moral nature in the European Union. International doctrines and measures of a similar nature in
other WTO Members, while not necessarily relevant to identifying the European Union's chosen
objective, illustrate that animal welfare is a matter of ethical responsibility for human beings in
general.
674

667 European Union's first written submission, para. 62 (referring to the comments of one of the
sponsors of the proposal leading to the Belgian ban on seal products and an explanatory memorandum
accompanying the Dutch ban). See Loi relative a l'interdiction de fabriquer et de commercialiser des produits
dérivés de phoques, 16 March 2007, (Exhibit EU-110); Chambre des députés de Belgique, minutes of the
session of 25 January 2007, (Exhibit EU-111); Bulletin of Acts, Orders and Decrees of the Kingdom of the
Netherlands, (Exhibit EU-112).
668 European Union's first written submission, para. 71; second written submission, para. 152-153;
response to Panel question No. 46. One such "guiding principle" cited by the European Union is that "the use of
animals carries with it an ethical responsibility to ensure the welfare of such animals to the greatest extent
practicable". OIE's Terrestrial Animal Code, Chapter 7.1, (Exhibit EU-116) (emphasis original)
669 The European Union has submitted the proposal leading to the ban in Chinese Taipei, which states
that "the hunting process has proven to be extremely brutal and inhumane" and alludes to the contribution of
consumers to the slaughter of "innocent seals" (European Union's second written submission, paras. 161-164
(referring to Chinese Taipei Parliament, YZ-No 1749, Committee proposal of bill No. 13359, (Exhibit EU-126)).
670 The European Union cites statements of Russian officials reported in the press and Russia's response
to the Panel's question that the purpose of its hunting ban is for population concerns "and to protect wild
animals and baby animals from hard treatment". (See European Union's second written submission, para. 165
(citing the Russian Federation's third-party response to Panel question No. 16)).
671 The European Union cites portions of the Swiss legislative proposal characterizing the seal hunt as
"extremely cruel". (European Union's second written submission, paras. 169-170).
672 The European Union refers to the philosophy of "animal welfarism" and its connection to "a long-
established tradition of moral thought", which is discussed in an amicus curiae submission filed by Howse et al.
(European Union's second written submission, para. 140; response to Panel question No. 10).
673 We take note of the following statements by third parties on this question.
Iceland states that the public morals exception "is bound to be based on more subjective and less
tangible arguments", but public morals should not be equated with "broad political and public support for a
measure" and that there must be "actual public moral concerns" to justify a trade restriction". (Iceland's third-
party submission, paras. 14 and 16-17).
Japan states that "while Members have the right to determine whether a specific objective forms part of
'public morals' on the basis of their own prevailing social, cultural, ethical and religious values, … Members are
not free to label any policy objective as forming part of public morality." (Japan's third-party submission,
para. 11).
674 For example, we observe references to a link between animal welfare and ethical considerations in
the complainants' government documents relating to seal hunting. (See Norway's Fisheries Directorate,
Proposal to amend the rules on seal hunting (2010), (Exhibit EU-45), p. 1 (explaining regulatory initiatives in
Norway for "measures that would be compatible with today's animal welfare requirements and ethical
standards")).
See also Norway's Ministry of Agriculture and Food, Parliamentary Report No. 12 Regarding animal
husbandry and animal welfare, (Exhibit EU-114)). This report was the product of an initiative by the Norwegian
Ministry of Agriculture published in 2002 as a white paper and "constitutes a broad review and evaluation of all
WT/DS400/R • WT/DS401/R

7.410. In sum, based on our examination of th e text and legislative history of the EU Seal
Regime, as well as other evidence pertaining to its design, structure, and operation, we conclude
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". Specifically, these concerns have two aspects as claimed by the
European Union: (a) "the incidence of inhumane killing of seals"; and, (b) 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.
675 Further, in light of
the evidence before us, we note that the EU public concerns on seal welfare appear to be related
to seal hunts in general, not any particular type of seal hunts. 676 Therefore, the second aspect of
the objective of the EU Seal Regime pertains to seal products derived from inhumane hunts rather
than "commercially-hunted seal products" as submitted by the European Union.
7.411. In this connection, we note that contributing to the welfare of seals by reducing the
number of seals killed in an inhumane way, which the European Union claims can constitute the
second objective of the measure, is closely linked to the first aspect of the public moral concerns,
namely the moral concerns on "the incidence of inhumane killing of seals". We will therefore
consider this as one aspect of the moral concerns in question, rather than as a separate, second
objective of the measure.

animal care in Norway from an ethical and animal welfare perspective. It also includes proposals for long-term
goals and actions, hereunder an ethical platform". (Norway's Ministry of Agriculture and Food, "Norwegian
Action Plan on Animal Welfare", (Exhibit EU-115), p. 1 (emphasis added) Notably, the white paper identifies a
"widespread moral view in Norway today [that] takes elements from utilitarianism and rights philosophy", and
specifically links such moral considerations to the treatment and slaughter of animals. (Norway's Ministry of
Agriculture and Food, Parliamentary Report No. 12 Regarding animal husbandry and animal welfare,
(Exhibit EU-114), p. 12. See also DFO Integrated Seals Management Plan 2011-2015, (Exhibit EU-42), p. 17
(describing "public attitudes toward the seal hunt" based on the results of a national survey)).
We also take note of the United States' comment that "while the focus must be on the responding
Member’s system and scale of values, what Members other than the responding Member consider to be public
morals can offer confirmation of a panel’s determination as to what constitutes a public moral within the
system of the responding Member." (United States' third-party submission, para. 4).
675 For ease of reference, we will use in these Reports the phrase "addressing public moral concerns on
seal welfare" as shorthand for the specific objective as identified and described in paras. 7.324-7.325 including
the two specific aspects of addressing such public moral concerns.
676 We observe the European Union's reference to Canada's Royal Commission Report on sealing
(Exhibit EU-48) to support its position that some of the opinion polls confirm that "the public do value very
differently the various types of seal hunt." (European Union's response to Panel question No. 31). The Report
shows that in two of five polls reviewed in the Report, the public showed a greater level of acceptance for
killing animals if it is carried out for a person's survival or livelihood than if it is carried out for making a profit.
(Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 11, "Public Opinion on
Sealing", (Exhibit EU-48), p. 160). The Report, however, points out two uncertainties about this result: first,
the question in the polls refers to "animals" and not "seals"; and, second, the term "livelihood" is not clearly
defined and would mean something equivalent to subsistence (i.e. food or clothing) for some people and
providing a cash income to others. It also mentions the much lower percentage of people willing to accept seal
hunting by Inuit and other local communities to provide cash, and particularly to provide cash to enable them
to undertake the hunting and fishing essential for their survival, than people willing to accept seal hunting by
Inuit and other local communities to personally use the hunted seals. This suggests, according to the Report,
that the public has very little understanding of the socio-economic realities by which these communities
survive.
We consider that the results of the public opinion polls referenced in Canada's Royal Commission Report
have limited probative value because the reliability of the results of these surveys, including the formulation of
the questions asked and the target audience, has not been clearly demonstrated to us.
Further, we have taken note of an observation regarding the public perception of seal hunting in the
COWI 2008 Report that the survey respondents showed some ambivalence on the issue of concerns over
animal welfare versus concerns over the well-being of local communities (58% stating that animal welfare is
equally important as well-being of local communities) and that the results of this question in relation to the
question on the acceptability of different uses of seal products showed the complexity of the issue. We also
note that 62% of the survey respondents in the COWI 2008 Report 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
hunting culture/community or depends on the seal hunt for his main income. (COWI 2008 Report, p. 126).
Overall, the results shown in two polls referenced in the Royal Commission Report, in our view, are not
sufficient to establish a variance in the EU public's concerns on seal welfare depending on the type of hunts.
WT/DS400/R • WT/DS401/R

7.3.3.2 Legitimacy of the identified objective
7.3.3.2.1 Main arguments of the parties
7.412. Canada argues that the European Union's defined objective is not legitimate because it is
based on an arbitrary and unjustifiable distinction between "commercial" and "non-commercial"
hunts. It argues further that the EU Seal Regime , under the IC and the MRM categories, contains
trade-restrictive requirements with no rational connection to the objectives of animal welfare and
public concerns regarding animal welfare, which in fact undermine those objectives.
677
7.413. Norway would accept that addressing a pub lic moral relating to seal welfare (without the
other peculiar contours of the "umbrella" public moral alleged by the European Union) is
"legitimate". Norway argues, however, that a distinction based on the alleged "commercial" and
"non-commercial" seal hunts is not legitimate. The objective of the IC exception is not legitimate
either because it discriminates in favour of particular communities.
678
7.414. The European Union claims that its stated objective of addressing the EU public moral
concerns on seal welfare is legitimate because the public authorities must define and enforce
certain moral standards to which humans must conform in treating and using animals.679
7.3.3.2.2 Analysis by the Panel
7.415. We now examine the question of whether the identified objective of the EU Seal Regime,
i.e. "addressing EU public moral concerns on seal welfare", is legitimate within the meaning of
Article 2.2 of the TBT Agreement. This policy object ive is not included in the non-exhaustive list of
exemplary legitimate objectives in Article 2.2. Therefore, its legitimacy must be assessed based on
several reference points.
7.416. The Appellate Body considered that the following would be relevant factors in assessing the
legitimacy of a non-listed objective: (a) objectives provided in Article 2.2 of the TBT Agreement;
(b) objectives listed in the sixth and seventh recitals of the preamble of the TBT Agreement; and
(c) objectives recognized in other provisions of the covered agreements.
680
7.417. Article 2.2 of the TBT Agreement lays out the following objectives as examples of
legitimate objectives: "national security requirements"; "the prevention of deceptive practices";
"protection of human health or safety, animal or plant life or health, or the environment". Further,
the fifth and sixth recitals of the preamble re cognize the following objectives: "to ensure the
quality of its exports"; "for the protection of human, animal or plant life or health, of the
environment"; "for the prevention of deceptive prac tices"; and "for the protection of its essential
security interest". "Public morals" as such is thus not included in the lists provided in Article 2.2
and the fifth and sixth recitals of the preamble of the TBT Agreement.
7.418. With respect to policy objectives in othe r covered agreements, the objective of protecting
public morals is recognized in both Article XX of the GATT 1994 and Article XIV of the GATS. The
explicit inclusion of "public morals" as one of the general exceptions for a GATT- or GATS-
inconsistent measure demonstrates that WTO Members considered this objective to be particularly
significant. In light of this, and considered toge ther with the objective of the TBT Agreement to
further the objectives of the GATT 1994 as referenc ed in recital (2) of its preamble, we conclude
that "public morals" falls within the scope of "legitimate" objectives under Article 2.2.
7.419. Proceeding on that basis, a subsequent question is whether addressing public moral
concerns on a specific type of issue, seal welfare in this dispute, is a legitimate objective under
Article 2.2 of the TBT Agreement. As discussed abov e, the concept of public morals is a relative
term which needs to be defined based on the standard of right and wrong in a given society. Given
that the European Union has established that the concerns of the EU public on animal welfare
involve standards of right and wrong within the European Union as a community, we consider that

677 Canada's second written submission, paras. 296-303.
678 Norway's response to Panel question No. 109; opening statement at the first meeting of the Panel,
paras. 100-111.
679 European Union's first written submission, paras. 61 and 354.
680 Appellate Body Reports, US – Tuna II (Mexico), para. 313; US – COOL, para. 370.
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addressing the public moral concerns on seal welfar e, identified as the objective of the measure at
issue, is "legitimate" under Article 2.2 of the TBT Agreement.
7.420. In support of its position that the stated objective is legitimate, the European Union also
refers to various measures on animal welfare and seal products adopted by other WTO Members
as well as international instruments on animal welfare. 681 We need not determine whether these
examples as such exhibit the exis tence of a global social norm ("a universal value" according to
the European Union) on animal welfare in general or seal welfare in particular. Nevertheless, these
various actions concerning animal welfare at the international as well as national levels suggest in
our view that animal welfare is a globally recognized issue. This further supports our conclusion
above that the objective of addressing the public moral concerns on seal welfare falls within the
scope of legitimate objectives within the meaning of Article 2.2 of the TBT Agreement.
7.421. Finally, we observe that the complainants do not dispute that "addressing the public moral
concerns on seal welfare" per se is legitimate within the meaning of Article 2.2 of the
TBT Agreement. Both complainants dispute a specific aspect of the EU Seal Regime – a distinction
between allegedly "commercial" and "non-commercial" seal hunts – which they claim renders the
objective illegitimate. In our view, the complainants' position with respect to this particular
distinction is not relevant to addressing the question of whether the identified objective is
legitimate within the meaning of Article 2.2 of the TBT Agreement. We discussed the questions
raised by the complainants regarding the distinction between "commercial" and "non-commercial"
seal hunts in the context of our examination of Canada's claim under Article 2.1 of the
TBT Agreement.
682
7.3.3.3 Whether the EU Seal Regime is more trade restrictive than necessary to fulfil a
legitimate objective, taking account of the risks non-fulfilment would create
7.422. As noted above, an examination of the obligations under Article 2.2 requires a relational
analysis of all of the following elements: (a) tr ade-restrictiveness of the EU Seal Regime; (b)
degree of the measure's contribution to the identifi ed objective; and (c) availability of alternative
measures. We have identified the objective of the EU Seal Regime as addressing EU public moral
concerns on seal welfare. In this section, we examine, based on the elements highlighted above,
whether the EU Seal Regime is more trade restri ctive than necessary to fulfil the identified
objective, taking account of the risks non-fulfilment would create.
7.3.3.3.1 Whether the EU Seal Regime is trade restrictive
7.3.3.3.1.1 Main arguments of the parties
7.423. The complainants submit that the EU Seal Regime is trade restrictive because it imposes
limiting conditions or restrictions on imports into the European Union and placing on the EU market
of seal products.683 If a given seal product does not satisfy the cumulative conditions of one of the
sets of requirements, the seal product is prohib ited on the EU market. The EU Seal Regime is
therefore, by nature, trade restrictive because it lays down regulatory conditions limiting the
importation and sale of seal products. Further, in practice, the mere expectation of the adoption of
the EU Seal Regime hampered trade.684

681 European Union's first written submission, paras. 67-76.
682 See section 7.3.2.3 above.
683 Canada's first written submission, paras. 472-476; Norway's first written submission,
paras. 662-672.
684 Norway's first written submission, paras. 673-674 (referring to a COWI briefing note of 2009):
At the same time [as the financial crisis,] the current legislation has been in the pipeline and has
created uncertainty about the EU market. Hence, trade numbers are down substantially since
2007 and so is the market price of raw skin (less than half) … Some European markets [for seal
oil], Sweden, Denmark, Finland and Germany were emerging but halted in recent years due to
the Regulation. (COWI, Traceability systems for trade in seal products – Briefing note for
workshop participants, 20 October 2009, pp. 16 and 19 in COWI 2010 Report, Annex 5)

Norway also refers to another COWI warning (before the Commission tabled its original proposal) that
"[s]ince seal hunting mostly takes place outside the Community territory, any restrictions to market access in
the Community will have trade impacts". (COWI 2008 Report, p. 102.)
WT/DS400/R • WT/DS401/R

7.424. The European Union does not dispute that the EU Seal Regime restricts trade to the extent
that it imposes a prohibition on the placing on th e EU market of all seal products. The ban aspect
of the measure aims at being very trade-restrictive, consistently with the high level of fulfilment
sought by the EU Seal Regime of its policy objective.
685 The European Union contends however
that unlike the ban, the three exceptions to that prohibition are not trade-restrictive. 686 To the
contrary, they allow trade which would otherwise be prohibited by the ban.
7.3.3.3.1.2 Analysis by the Panel
7.425. "Trade-restrictive" aspects of the measure mean the aspects of the measure that "hav[e] a
limiting effect on trade" 687, or that constitute "limiting condition[s]" on trade. 688 The Appellate
Body in US – Tuna II (Mexico) referred to this meaning as similar to that in the context of
Article XI of the GATT 1994, under which the Appella te Body noted that the term "prohibition" is
defined as "a legal ban on the trade or importation of a specified commodity".689
7.426. Given the broad scope of "trade restriction", we believe 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. The European Union itself acknowledges that the measure "aims at being
very trade-restrictive".
690
7.427. In this connection, we disagree with the European Union's position that the exceptions
under the Regime do not need to be "justified" under Article 2.2 because it is not trade restrictive.
As explained in the context of assessing the measure's qualification as a technical regulation, both
the ban and exceptions under the EU Seal Regime de fine the scope of products that are prohibited
and allowed on the EU market. The proper assess m e n t o f t h e E U S e a l R e g i m e ' s o p e r a t i o n a s a
technical regulation, including its trade-restrictiveness, is thus based on an examination of the
Regime as a whole.
7.428. We next turn to examine the extent to which the measure fulfils the objective of
addressing the EU public moral concerns on seal welfare.
7.3.3.3.2 Degree of the EU Seal Regime's fulfilment of the identified objective
7.3.3.3.2.1 Main arguments of the parties
Complainants
7.429. Canada argues that the absence of animal welfare requirements in the conditions of the
IC or MRM categories demonstrates that the level of fulfilment was not a high level of fulfilment
approaching complete fulfilment of the objective.
691 Rather the design, structure, and operation of
the measure indicate that a low level of fulfilment of the animal welfare and alleged public moral
concern regarding animal welfare is acceptable to the EU public. Consequently, the level of
fulfilment sought, as articulated through the design, structure and expected operation of the
measure is also low.

685 European Union's first written submission, paras. 357-358.
686 European Union's first written submission, paras. 357-358; second written submission,
paras. 269-270. The European Union submits that the three exceptions could only be regarded as being trade
restrictive if they discriminated in favour of domestic seal products or between different sources of imports.
However, all and each of the three exceptions are consistent with Article 2.1 of the TBT Agreement.
Particularly, the Travellers exception benefits exclusively imports of all origins.
According to the European Union, as the exceptions are not trade-restrictive, they do not require
justification under Article 2.2. The exceptions could be relevant for the analysis under Article 2.2 only to the
extent that they detracted from the contribution made by the ban to the objectives of the EU Seal Regime.
687 Appellate Body Reports, US – Tuna II (Mexico), para. 319; US – COOL, para. 375.
688 Appellate Body Report, China – Raw Materials, para. 319; Panel Report, Colombia – Ports of Entry,
paras. 7.232-7.241.
689 Appellate Body Report, US – Tuna II (Mexico), para. 319 (citing Appellate Body Report, China – Raw
Materials, para. 319).
690 European Union's first written submission , paras. 357 and 586.
691 Canada's second written submission, paras. 310-316.
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7.430. Norway submits that the EU Seal Regime does not contribute to the welfare of seals,
whether it is considered as a distinct objective or as a component of the alleged "public morals". 692
First, the EU Seal Regime does not condition market access on compliance with animal welfare
requirements.
693 Second, the measure does not "contribut[e] to the welfare of seals by reducing
the number of seals killed in an inhumane way" 694 b e c a u s e , o n c e t h e E U S e a l R e g i m e i s f u l l y
implemented, eligible seal products from Greenland will match or exceed the total size of the
EU market prior to the ban.
695 Thus, rather than reducing the overall quantity of seal products
available within the European Union, the EU Seal Regime simply reduces the list of countries from
which such products may be sourced.
7.431. Third, according to Norway, the EU Seal Regime does not "shield … the EU public from
being confronted"696 with seal products, including seal prod ucts derived from "an immoral act (the
killing of seals in an inhumane way)". 697 Consumers are not even informed of the fact that the
products in question contain seal, let alone of whether the seals were caught humanely. 698 Fourth,
the EU Seal Regime does not prohibit the "commercial exploitation" of seal products "within the
EU territory"699: seal products may be placed on the EU market or imported regardless of
compliance with animal welfare requirements; seal products eligible for market access under the
IC or MRM requirements may be hunted for commerc ial purposes; and, the EU Seal Regime does
not restrict transit across the European Union, processing for export in the European Union under
an inward processing procedure, production for export, or sale at auction houses for export, for
any seal product irrespective of the type of hunt . In other words, EU citizens are allowed to
participate in, and earn money from, the commercial exploitation of seal resources.
7.432. Fifth, with regard to the alleged moral dimension of the objective pursued, the measure
does not contribute to the preservation or safeguard ("protection") of morals, which Article XX(a)
of the GATT 1994 (being relevant context where "public morals" are invoked as an objective for
purposes of Article 2.2 of the TBT Agreement ) shows is the relevant public morals objective.
700
The relevant public moral – if it exists – will not be threatened by making seal products available
on shop shelves. Hence, a ban is not needed to "protect" that moral – it would remain anyway. If a
public moral will not be threatened by trade, a trade ban cannot be justified simply by the need to
avoid certain negative "feelings" on the part of consumers. In that regard, Norway recalls that
these "feelings" on the part of EU consumers could already be engendered under the EU Seal
Regime for consumers who feel strongly about se al welfare irrespective of the type of hunt,
because seal products can be sold on the EU market.
701

692 Norway's second written submission, paras. 231-238.
693 Norway’s responses to Panel questions Nos. 14, 69, and 72.
694 European Union’s response to Panel question No. 10 (describing the alleged objectives of the
measure).
695 Norway’s response to Panel question No. 41. As explained in that response, based on Eurostat data
analysed by COWI, the total size of the EU market in 2006 was approximately 110,000 skins. (COWI 2008
Report, p. 106, Table 5.2.3, total of the figures under "Import to EU-27" (including intra-community trade)). In
2006, for example, 109,201 seal skins were traded in Greenland. (Management and Utilization of Seals in
Greenland, (Exhibit JE-26), p. 27, Table 3). Export figures for 2004 are even higher, with 115,723 skins sold,
of which 71% were sold in the European Union, even in the presence of competition from supplies from
non-Greenlandic sources. (Ibid. p. 28, Table 4)
See also Norway's first written submission, para. 690 (citing P. Fitzgerald, "'Morality' May Not Be
Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law", Journal of
International Wildlife Law and Policy (2011), Vol. 14, pp. 85-136, (Exhibit NOR-86), p. 128).
696 European Union’s response to Panel question No. 10.
697 European Union’s response to Panel question No. 10.
698 Norway’s first written submission, paras. 705-716; Norway’s opening statement at the first meeting
of the Panel, paras. 88, 135.
699 European Union's response to Panel question No. 10, para. 42.
700 Norway refers to Oxford English Dictionary, OED Online, Oxford University Press, accessed
27 March 2013, http://www.oed.com/view/Entry/153127?redirectedFrom=protect&, protect.
701 Norway notes that, under the EU Seal Regime, many consumers may not experience such "feelings"
simply on the basis that they do not know whether a product they are consuming contains seal, since no
labelling is required under the EU Seal Regime.
WT/DS400/R • WT/DS401/R

Respondent
7.433. The European Union submits that through the ban, the EU Seal Regime makes a very
substantial contribution to its policy objective in two ways.702
7.434. First, the ban provides a direct response to the moral concerns of the EU population by
prohibiting, as a general rule, the marketing within the EU territory of the products which the
EU population regards as morally abhorrent.
7.435. Second, by limiting the global demand for seal products, the ban reduces the number of
seals which are killed every year in a manner that may cause them excessive suffering, thereby
contributing to the welfare of seals. There are cl ear indications that the EU Seal Regime, and the
bans of the EU member States which preceded it , have had a significant impact on the global
demand for products resulting from commercial hunts and, consequently, on the number of seals
killed inhumanely every year. The volume of catches declined considerably in both Canada and
Norway after 2006, coinciding with the introduction of the first EU member States' bans.703 Exports
from Canada declined even more drastically after 2006. 704 While they have recovered slightly in
the last two years, they remain far below the levels reached during the last decade.705
7.436. Further, as regards the exceptions under the measure, the European Union asserts that
they are not trade restrictive and thus do not have to be justified under Article 2.2. Instead, it is
the restrictive effects of the ban which need to be justified under that provision. By focusing
exclusively on the conditions attached to the exce ptions, the complaining parties seek to draw the
Panel's attention away from the obvious fact that the ban does make a major contribution to the
achievement of the objective pursued by the EU Seal Regime.
7.437. In any event, the exceptions do not undermine the objective of the EU Seal Regime
because they are based on moral grounds; the products falling within the scope of the IC and the
MRM exceptions do not raise the same moral concerns as other types of seal products because the
suffering inflicted upon seals is outweighed by the benefits to humans (or other animals). Hence
the marketing of products complying with those exceptions is allowed. Thus, the fact that the ban
is subject to exceptions does not prevent it from making a substantial contribution to its public
moral objective in the first of the two ways describ ed above. While the contribution of the EU Seal
Regime to the welfare of seals could have been even greater in the absence of any exceptions, this
does not mean that the ban aspect of the measure makes no contribution at all to the welfare of
seals.
7.438. Further, both the Travellers exception and the MRM exception have been very narrowly
defined and apply to a very small volume of trade: as recognized by the complainants, the trade
impact of the Travellers exception is "minuscule"
706; and, the scope of the MRM exception is very
limited and thus the trade potentially concerned very small.707
7.439. Although the IC exception has, potentiall y, a broader scope of application than the other
two exceptions, the complainants' allegations that, as a result of the IC exception, exports from
Greenland will replace exports from Canada and Norway (hence the global demand for seal
products and thus the number of seals killed inhumanely will remain unaffected), are speculative
and implausible.
708 The IC exception does not seek to promote exports from Greenland, but

702 European Union's first written submission, paras. 359-366; second written submission,
paras. 277-300. See also European Union's first written submission, paras. 360-365 (referring to Canada's first
written submission, paras. 480-496, and Norway's first written submission, paras. 677-704).
703 DFO Commercial Seal Harvest Overview 2011, (Exhibit JE-27), tables 2, 8, 9, and 10. See also
amicus curiae submission by Anima et al., pp. 61-62 (Exhibit EU-81); complainants' responses to the Panel
question Nos. 96 and 99.
704 DFO Commercial Seal Harvest Overview 2011, (Exhibit JE-27), tables 3-7 and 12-15.
705 The European Union submits that the Canadian Government has recognized that the EU Seal Regime
has had "significant negative impacts on Canada's sealing industry". (Canada's first written submission,
paras. 80-81).
706 Canada's first written submission, para. 286.
707 Currently the MRM exception is available only with regard to seals hunted in Sweden. In 2011 only
86 seals were hunted in Sweden. (European Union's response to the Panel's question No. 96).
708 See Canada's first written submission, paras. 487-488; Norway's first written submission, para. 683.
The European Union argues that such allegation relies on little else than an unsupported assertion by an
WT/DS400/R • WT/DS401/R

instead to mitigate the necessarily adverse impact of the EU Seal Regime on the Inuit and other
indigenous populations to the extent compatible with the animal welfare objectives of the EU Seal
Regime.
709 The complainants also assume that any products obtained from seals hunted by any
member of an indigenous community will necessarily qualify for the IC exception, which is not the
case because there are specific conditions to be met.710
7.440. Finally, even if the Panel were to conclude that the EU Seal Regime makes no contribution
to its public moral objective in the first of the ways described above, it is beyond question that the
EU Seal Regime would still make a material contribution to its public moral objective in the second
way.
7.3.3.3.2.2 Analysis by the Panel
7.441. The Appellate Body stated that the questi on of whether a technical regulation "fulfils a
legitimate objective" in Article 2.2 is concerned with the degree of contribution that the technical
regulation makes toward the achievement of the le gitimate objective. The "degree of contribution
of the measure" to the fulfilment of the legiti mate objective is in turn revealed through the
measure itself
711 and "may be discerned from the design, structure, and operation of thetechnical
regulation, as well as from evidence relating to the application of the measure". 712 The relevant
question is thus the degree of actual contribution that the technical regulation, as written and
applied, makes to the fulfilment of a legitimate objective(s).713
7.442. We must therefore assess the degree of the EU Seal Regime’s actual contribution to the
fulfilment of its stated objective. In this regard, we recall that the EU Seal Regime as a whole,
consisting of both the prohibitive and permissive aspects, was found to constitute a technical
regulation within the meaning of the TBT Agreement.
714 I t i s t h u s t h e E U S e a l R e g i m e i n i t s
entirety that must be assessed for its contribution to the objective, and not just a particular
element of it.
7.443. The objective of the EU Seal Regime is to address the public moral concerns on seal
welfare in respect of two aspects: first, the EU public's participation as consumers in and exposure
to products derived from seals killed inhumanely; and, second, the overall number of seals killed

individual member of European Parliament (who was the rapporteur for the IMCO Committee during
Parliamentary deliberations). As explained above, her views were overwhelmingly rejected by the IMCO
Committee and, eventually, by the European Parliament.
709 The European Union argues that the complainants also overlook that a large part of the seals hunted
in Greenland (in some years more than 50%) is used for subsistence purposes and not traded. (See
Management and Utilization of Seals in Greenland, (Exhibit JE-26), p. 27).
710 The European Union argues that the complainants base this assumption on an opinion casually
expressed in the COWI 2010 Report. (See COWI 2010 Report, Annex 5, p. 17). According to the
European Union, COWI had neither the authority, nor the qualifications nor the mandate to engage in the legal
interpretation of the Basic Regulation. The European Union further submits that the Implementing Regulation,
which specifies the conditions for qualifying for the IC exception, had not even been adopted at the time when
the COWI Report was issued.
We however note that the purpose of the COWI Report was to assist the European Commission in
preparing the specific regulations implementing the rules set out in the Basic Regulation. The COWI 2010
Report states in its Executive Summary:
"COWI A/S has been contracted by the European Commission, DG Environment, to undertake a Study
on implementing measures for trade in seal products, which provides input to the Commission's process of
developing implementing measures for [the Basic] Regulation. Therefore the results of this present study are
providing input to the development of a suitable traceability scheme that can ensure that the conditions
stipulated in the Regulations are met while defining the implementing rules. The overall purpose of the study is
to provide the Commission with additional information in order to draft implementing measures in terms of
traceability schemes in accordance with the Regulation on trade in seal products." (COWI 2010 Report, p.iii).
711 Appellate Body Report, US – Tuna II (Mexico), para. 317.
712 Appellate Body Reports, US – Tuna II (Mexico), para. 317; US – COOL, para. 373. See also
Appellate Body Reports, Brazil – Retreaded Tyres, para. 151 (indicating that contribution to the objective of a
measure "could consist of quantitative projections in the future, or qualitative reasoning based on a set of
hypotheses that are tested and supported by sufficient evidence"); EC – Asbestos, para. 167.
713 Appellate Body Report, US – Tuna II (Mexico), paras. 317-318. The Appellate Body recalled that as
in other situations, such as, for instance, when determining the contribution of a measure to the achievement
of a particular objective in the context of Article XX of the GATT 1994, a panel must assess the contribution to
the legitimate objective actually achieved by the measure at issue.
714 See section 7.3.1 above.
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inhumanely. We assess the degree of the measure's actual contribution to these two aspects in
turn. We then make an overall assessment of th e measure's contribution to the objective as a
whole.
7.444. Regarding the first aspect of the objective, the European Union argues that the measure
makes a contribution to its objective in the following manner: the ban ensures that "the
EU population does not render itself accomplice to the inhumane killing of seals in the commercial
hunts and is not confronted with the products resulting from such immoral killing".
715
7.445. Based on the evidence before us, we found that the EU public concerns on seal welfare
pertained to seal hunting in general; available evidence did not establish that the EU public
concerns were linked exclusively to commercial seal hunts or that the EU public found poor animal
welfare outcomes in IC and MRM hunts morally justifiable as suggested by the European Union.
Therefore, the degree of the measure’s actual ac hievement of the first aspect of the objective
must be gauged against whether the measure ensures that the EU citizens do not participate as
consumers in products derived from seals killed inhumanely regardless of the type of the hunt.
7.446. As noted above, virtually all of the seal products derived from the hunts in Canada and
Norway are denied access to the EU market.
716 To the extent that seals derived from such hunts
include seals killed inhumanely, the ban prevents the EU public from purchasing products derived
from seals killed inhumanely in Canadian and Norwegian hunts.
7.447. As examined above, however, the animal welfare risks arising from seal hunts in general
also exist in IC and MRM hunts, and thus seals may also be killed inhumanely in such hunts. Given
that products are allowed on the market under the IC and MRM exceptions regardless of whether
they derive from seals killed humanely, these exce ptions, based on their design, are incapable of
contributing to preventing consumers in the European Union from purchasing or being exposed to
products that may have been made of seals killed inhumanely in IC or MRM hunts.
717 Moreover, we
observe that the products allowed under the IC and MRM exceptions are not subject to any
mechanism or labelling scheme through which consumers can be informed of the presence of seal
products on the EU market in general and of whether a specific product contains seal. This
suggests that EU consumers are exposed to, and may be purchasing, seal products without
knowing that such products may be derived from seals killed inhumanely.
7.448. Overall, based on its design and expect ed operation, we find that the ban under the
EU Seal Regime is capable of making a contribu tion to preventing the EU public from being
exposed on the EU market to products that may have been derived from seals killed inhumanely in
Canadian or Norwegian hunts. However, the IC and MRM exceptions under the Regime diminish
the degree of the actual contribution made by the ban, as consumers are exposed to seal products
that are allowed on the EU market under thes e IC and MRM exceptions, which may have been
derived from seals killed inhumanely in IC or MRM hunts.
7.449. As regards the second aspect of the objective (i.e. the number of seals killed inhumanely),
the European Union argues that the ban makes material, but partial, contribution to addressing
the animal welfare aspect of the concerns by redu cing global demand for seal products resulting
from commercial hunts, with the consequence that less seals are killed in an inhumane way.
7.450. First, we look at the design, structure, and expected operation of the measure. A direct
impact of the "ban" under the measure is a reduct ion of the demand for seal products within the
European Union. COWI assessed that "the current legislation has been in the pipeline and has
created uncertainty about the EU market. Hence, trade numbers are down substantially since 2007
and so is the market price of raw skin (less than half). … Some European markets [for seal oil],
Sweden, Denmark, Finland and Germany were emerging but halted in recent years due to the

715 European Union's response to Panel question No. 9, para. 36.
716 See section 7.3.2.2 above.
717 We note that entities from Greenland and Sweden have been approved by the Commission to be
recognized bodies under Article 6 of the Implementing Regulation that may issue attesting documents for seal
products to be placed on the EU market pursuant to the IC and MRM exceptions. (See European Union's
response to Panel question Nos. 156 and 158; Commission decisions of 18 December 2012recognising the
Swedish County Administrative Boards, (Exhibit EU-159), and of 25 April 2013 recognizing the Greenland
Department of Fisheries, Hunting and Agriculture (APNN), (Exhibit EU-149)).
WT/DS400/R • WT/DS401/R

Regulation."718 The ban also appears to have had a negative influence on the seal products market
in general. For example, according to Norway, "the mere expectation of the adoption of the
EU Seal Regime hampered trade."
719
7.451. We noted however in the context of our analysis of the measure's contribution to the first
aspect of the objective that the IC and MRM exceptions have a certain negative impact on the
degree of the actual contribution made by the ban. As noted earlier, seal products qualifying under
the IC and MRM exceptions are allowed on the EU market regardless of the animal welfare
outcomes in such hunts. To that extent, the exceptions would also reduce the degree of
contribution made by the ban to 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.
7.452. At the same time, there is evidence indicating that Inuit communities have been adversely
impacted by the EU Seal Regime as a whole, in particular the ban under the Regime. There is also
evidence showing that while 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. The interplay between the ban and the IC exception may thus limit, to a certain extent,
any negative impact of the IC exception on th e degree of the contribution of the ban to the
objective.
7.453. Furthermore, as described in section 7.2.2 above, the EU Seal Regime allows certain
commercial activities relating to the production of seal products derived from commercial hunts.
Specifically, the European Union confirmed that the transit and the "inward processing" of seal
products derived from commercial seal hunts can take place under the measure.
720 Data provided
by the parties confirm the continued trade of seal products after the EU Seal Regime entered into
force. This has been explained by the parties as attributable to transhipment, resale, and/or
processing activities and representing goods not released for free circulation in the EU customs
territory.
721
7.454. COWI further gives an indication of the economic significance of these activities,
estimating that approximately 5 per cent of the gl obal seal fur trade is actually consumed in the
European Union, "while a much larger part is passing through the EU either in transit, through
auction houses, or for tanning purposes".
722 A document produced by the European Parliamentary
Assembly also states, "Europe is the main importer of raw products and exporter of manufactured
goods".723 The European Union also clarified that it does not claim that allowing the transit and
inward processing of seal products makes a positive contribution to the public morals objective
pursued by the EU Seal Regime.
724 In our view, these activities thus facilitate the processing of
seals obtained in commercial hunts into final seal products, which in turn may be sold to other

718 We recall that the first step in the legislative history of the current EU Seal Regime was the
EU Parliamentary Declaration on banning seal products in 2006. (See Parliament Declaration, (Exhibit JE-19)).
See also COWI 2010 Report, Annex 5, pp. 16 and 19 (Traceability systems for trade in seal products –
Briefing note for workshop participants, 20 October 2009). COWI had warned the European Union before the
Commission tabled its original proposal that "[s]ince seal hunting mostly takes place outside the Community
territory, any restrictions to market access in the Community will have trade impacts". (COWI 2008 Report,
p. 102).
719 Norway's first written submission, paras. 673-674 (referring to COWI 2010 Report, Annex 5, Briefing
note of 2009).
720 The European Union defines inward processing as the processing under customs control of imported
inputs into products intended for export. (European Union's response to Panel question No. 131).
721 See parties' responses to Panel question No. 98. During 2011, the value of seal products entering the
European Union under the inward processing regime amounted to €812,000, of which €713,000 originated in
Canada and €99,000 originated in Norway. (European Union's response to Panel question No. 177).
Furthermore, data provided by the European Union confirm that tanned or dressed seal skins have been
exported from the European Union following the adoption of the EU Seal Regime (possibly as a result of inward
processing), though we note that these activities have occurred at reduced levels from previous years. (See
Eurostat, exports of seal products from the European Union (2001-2011), (Exhibit EU-87)).
722 COWI 2010 Report, p. 42. See also Ibid. p. 37 (noting that seal hides and skins were "mainly
imported to the EU for tanning or further processing" and then exported, such that "[o]nly limited quantities
end up on the EU market").
723 Council of Europe Recommendation, (Exhibit EU-117), para. 3 (emphasis added)
724 European Union's response to Panel question No. 131.
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markets in the world. 725 Data from Canada's DFO, for example, show that a large value of seal
products has been exported to markets outside the European Union 726, primarily consisting of seal
oils rather than skins.727
7.455. Therefore, while the measure prohibits certain seal products on the EU market based on
their link to the potential incidence of inhumane killing of seals, the measure allows commercial
activities within the European Union, which is directly connected to the processing of the same
products. This incoherency in the measure, in our view, further reduces the contribution of the
measure to the reduction of the global demand for seal products derived from inhumane killing.
We also consider that this implicit exception under the measure exposes EU citizens to other types
of commercial activities directly related to the production and supply of seal products that may
have been derived from seals killed inhumanely.
728 By allowing such activities, in our view, the
EU Seal Regime undermines its intended objective of addressing the EU public concerns on seal
welfare.
7.456. Turning to the actual operation of the me asure, particularly in terms of trade statistics
concerning seal products, we make a general obse rvation that data provided by the parties are
incomplete in terms of product types and import/export countries. 729 As such, we are not in a
position to draw any concrete conclusions based on the data before us. Nevertheless, the data
show a general trend that seal product imports 730 from the complainants into the EU market have
decreased significantly over the last few years as illustrated by the table below.731

725 The European Union points out that the exclusion of transit and inward processing from the ban
benefits mainly the complainants' sealing industry and was indeed requested by that industry, with the support
of the Canadian authorities. (European Union's response to Panel question No. 131).
There is some evidence indicating that seal products derived from seals hunted in Canada and Norway,
including those produced through the inward processing allowed within the European Union, have been
diverted to other markets than the European Union since the introduction of the EU Seal Regime. (See, e.g.
DFO Commercial Seal Harvest Overview 2011, (Exhibit JE-27), Table 14 (showing destination of seal products
outside the European Union); Eurostat, exports of seal products from the European Union (2001-2011),
(Exhibit EU-87) (showing exports of seal products from the European Union to other destinations)).
726 However, we note that these values do not exceed peak exports to the respective markets in
previous years and further display sharp fluctuations between years.
727 DFO Commercial Seal Harvest Overview 2011, (Exhibit JE-27), Table 15.
728 Canada comments that allowing transit and inward processing, insofar as it exposes EU citizens to
the presence of morally tainted products based on the EU's own logic, has a detrimental moral impact on the
EU public. (Canada's comments on the European Union's response to Panel question No. 131).
729 The Panel notes that discrete data are unavailable for many of the seal products listed in the
European Commission's Technical Guidance Note (Exhibit JE-3), as such products are subsumed under sub-
headings of the Combined Nomenclature. (European Union's response to Panel question No. 97, para. 275;
European Union's response to Panel question No. 166, para. 262). Specifically, data from the European Union
do not include imports of raw seal skins (because they are mixed under a heading with other animal skins),
which the European Union notes comprised the majority of Canada's exports to the European Union prior to the
ban. (European Union's response to Panel question No. 97, para. 276). However, prior to 2007, there were
tariff lines exclusively for raw seal skins and the European Union has provided data for these in
Exhibit EU-143B (separate table provided in Annex). Conversely, data from Canada's DFO do not include
exports of tanned skins because exportation of tanned and dressed seal skin products, whole seal skins or
cuttings thereof, and seal skin apparel, are combined with such products derived from other animals. Thus,
there are no discrete data for these seal products. (European Union's response to Panel question No. 98,
para. 282 (citing Canada's first written submission, para. 78 and confirmed in Canada's response to Panel
question No. 96, para. 353)).
The product classifications used by Norway to compile statistical trade data do not generally distinguish
between products that may or may not contain seal. Accordingly, there are no available data on the major seal
product exports from Norway. (See Norway's response to Panel question No. 96).
730 Seal skins have historically constituted the majority of seal products traded.
731 See Canada's and Norway's responses to Panel question No. 99 (acknowledging the decline in trade
with the European Union). See also Canada's response to Panel question No. 96.
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EU imports of tanned/dressed seal skins from Canada and Norway732
Volume (# of units) and value ('000 euro)
 Canada Norway
2002 20,016 €689 23,753 €1,627
2003 11,594 €455 10,996 €400
2004 6,169 €347 8,156 €319
2005 5,964 €396 9,046 €300
2006 6,609 €415 3,226 €175
2007 551 €44 5,437 €448
2008 25,892 €464 2,811 €213
2009 549 €48 3,225 €234
2010 10 €1 81 €26
2011 5 €1 36 €2

7.457. In respect of the actual number of seal s hunted in the main sealing countries, available
data show some reduction in recent years although the data also indicate some fluctuations in the
number of seals hunted in 2009 and 2010, for instance in Norway and Namibia.
733
Number of seals hunted
 2004 2005 2006 2007 2008 2009 2010 2011 2012
Canada734 365,971 329,829 354,400 224,745 217,850 76,668 69,101 40,393 -
Norway735 14,800 18,000 17,000 14,000 1,263 8,035 4,652 10,334 5,593
Greenland736 157,697 191,605 188,939 160,493 156,874 142,384 - - -
Namibia737 59,500 65,000 83,047 34,728 47,603 41,145 67,799 - -
Russia738 - 22,474 7,107 5,476 - - - - -
EU739 523 594 100 - - - - - 842

7.458. Further, the entry into force of the EU Seal Regime may not be the only factor explaining a
reduction in the number of seals hunted; other factors may also have come into play, including
weather conditions that may have contributed to reducing the duration of the hunting season and

732 Data from Exhibits EU-88 and EU-143B for tanned/dressed fur skins, not assembled (Tariff line
43021949). Tables state "where available" for units (but not for data on value and tonnage), thus indicating
possible uncertainty or incompleteness of these data.
733 Canada has also stated that 90,000 seals were harvested during the 2013 season. (Canada's
comments on the European Union's response to Panel question No. 119, footnote 41).
734 DFO Commercial Seal Harvest Overview 2011, (Exhibit JE-27), Table 8 (data for harp seals).
735 EFSA Scientific Opinion; COWI 2008 Report; Statistics Norway, (Exhibit NOR-158); and Joint
Norwegian/Russian Fisheries Commission, Report of the Working Group on Seals to the 42th Session –
Appendix 8, (Exhibit NOR-16) (data for harp and hooded seals, though from 2007 only a very small fraction of
total seals caught were hooded seals, the large majority being harp seals).
736 Management and Utilization of Seals in Greenland, (Exhibit JE-26), Table 3 (data for harp, ringed,
and hooded seals).
737 EFSA Scientific Opinion; COWI 2008 Report; and Statistics from Namibian Ministry of Fisheries and
Marine Resources, (Exhibit NOR-159) (data for Cape fur seals).
738 EFSA Scientific Opinion and COWI 2008 Report (data for harp seals).
739 EFSA Scientific Opinion and COWI 2008 Report (data for grey seals).
WT/DS400/R • WT/DS401/R

the adoption of legislation on trade in seal products in other countries. 740 Thus, based on the data
before us, 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.
7.459. In sum, based on its design, structure, and expected operation, we find that the ban under
the measure makes a contribution to reducing the demand for seal products within the
European Union and, to a certain extent, to reducing a global demand. Further, based on the data
showing the application of the ban, we also observed a downward trend in seal products trade,
which also suggests that the measure may have contributed to reducing the demand within the
European Union. The degree of contribution made by the ban, however, appears to be diminished
by the products imported under the IC and MR M exceptions. We also found that allowing
commercial activities relating to the processing of the seal products that are otherwise prohibited
under the ban further undermines the objective of the measure.
7.460. In conclusion, we find that the EU Seal Regime is capable of making and does make some
contribution to its stated objective of addressing the public moral concerns. The Regime, through
its prohibitive aspect, prevents to some extent EU citizens from being exposed to and participating
as consumers in commercial activities related to the products derived from seals that may have
been killed inhumanely. It also appears to be ne gatively affecting the demand for seal products
within the European Union and globally. At the same time, we observe that the IC and MRM
exceptions under the measure have the effect of diminishing the degree of the measure's actual
contribution to both aspects of its objective. Furt her, we find that the capability of the EU Seal
Regime to achieve its objective of addressing the EU public moral concerns is further negatively
affected because other commercial activities such as the inward processing of seal products are
allowed without regard to the welfare of seals from which the products are derived. We also note
that the Travellers exception, albeit limited in its scope, does not contribute to achieving the
objective of addressing the EU public moral concerns on seal welfare.
7.461. We continue our examination by assessing whether any less trade-restrictive alternative
measures exist that can make an equivalent or greater contribution to the objective of the EU Seal
Regime, taking into account the risks non-fulfilment of the objective would create.
7.3.3.3.3 Risks non-fulfilment of the objective would create
7.462. The European Union submits that the "risk of non-fulfilment of the objective of protecting
public morals is that the EU public would experi ence the same moral feelings that prompted the
adoption of the EU Seal Regime".
741 Specifically, the European Union frames the risks created by
non-fulfilment of the objective in terms of the two separate ways that the EU Seal Regime is
intended to address public moral concerns on seal welfare (i.e. moral concerns about the
inhumane killing of seals as such and EU consumers' contribution to inhumane killing along with
exposure to morally tainted products). Thus, non-fulfilment of the objective would create risks of
poor seal welfare as well as the community's participation in morally offensive seal hunts and
exposure to the by-products of such hunts.
742
7.463. Canada submits that the risk is that seals would be killed in a way that causes avoidable
pain and suffering.743 With regard to the alleged public moral concerns about the inhumane killing
of seals, the risk is that EU citizens would be morally offended or upset about the inhumane killing
of seals continuing and the products from those hunts being placed on the EU market. Norway
argues that the prevention of certain "moral feelings" is "a remarkably undefined basis on which to
base a measure that is both restrictive and discriminatory", and does not suggest that the
measure is necessary to "protect" public morals themselves.744 Rather, the measure appears to be

740 There is some indication, however, that market demand and price levels can be a factor in the scale
of participation in some hunts. (See, e.g. DFO Empirical Base for Canada’s Seal and Seal Products Industry,
(Exhibit CDA-17), p. 2 ("Participation [in the hunt] varies from year to year, and depends upon ice conditions,
price of pelts, etc.") (emphasis added)) Canada has similarly argued that the market opportunities potentially
afforded by the IC exception will give Greenlandic hunters "a strong incentive to increase the scale of their
hunt in order to place more products on the EU market". (Canada's comments on the European Union's
response to Panel question No. 119, para. 36).
741 European Union's response to Panel question No. 44, para. 152.
742 European Union's response to Panel question No. 44.
743 Canada's second written submission, para. 329.
744 Norway's second written submission, paras. 270-274.
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necessary to protect EU consumers from certain negative "feelings" that they might not like when
shopping.
7.464. The Appellate Body clarified that the "risks non-fulfilment would create" component of
Article 2.2 requires an ascertainment of "the natu re of the risks at issue and the gravity of the
consequences that would arise from non-fulfilment of the legitimate objective".745
7.465. Given that the objective of the EU Seal Re gime is to address the EU public moral concerns
with respect to seal welfare per se as well as EU public's wish to not purchase or be exposed to the
products derived from seals killed inhumanely, the risks of non-fulfillment of such objective can be
linked to these two specific aspects. Failing to achieve these two aspects of the measure's
objective will thus expose the EU public to their existing moral concerns on seal welfare and to the
products derived from seals that may have been killed inhumanely.
7.466. As we examined in the previous section, however, we found that the degree of the EU Seal
Regime's actual contribution to its identified objective is diminished by the scope of the exceptions
under the measure and the allowance of certain commercial activities within the European Union.
Accordingly, we do 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.
746 We will bear this in
mind in taking into account the risks non-fulfilment would create in our subsequent analysis of the
reasonable availability of a less trade-restrictive alternative measure.
7.3.3.3.4 Whether a less trade-restrictive al ternative measure is reasonably available,
taking account of the risks non-fulfilment would create
7.467. The Appellate Body has interpreted the second sentence of Article 2.2 of the
TBT Agreement to suggest that the existence of "an unnecessary obstacle to international trade"
may be established through a comparative analysis with possible alternative measures as "a
conceptual tool for the purpose of ascertaining whether a challenged measure is more trade
restrictive than necessary".
747 Following guidance by the Appellate Body on the framework of
relevant considerations for this comparison 748 we begin our analysis by identifying the alternative
measure advanced by the complainants and its trade-restrictiveness. We next assess the degree of
contribution by the alternative measure to the rele vant objective. Finally, we examine whether the
alternative measure is reasonably available taking account of the risks non-fulfilment would create.
7.3.3.3.4.1 Identification of an alternative measure(s)
7.468. Both Canada and Norway propose an alternative measure whereby market access for seal
products would be conditioned on compliance with animal welfare standards combined with
certification and labelling requirements. 749 This proposed alternative consists of three related
components: (1) the establishment of animal welfare requirements in the hunting of seals; (2)
certification of conformity with the animal welfare requirements; and (3) labelling seal products to
show the certified compliance with the animal welfare requirements.750
7.469. The European Union notes that the alternatives advanced by each complainant "appear to
be the same" and therefore addresses them together.751

745 Appellate Body Reports, US – Tuna II (Mexico), para. 321; and US – COOL, para. 377.
746 The European Union emphasizes a high level of protection it aims to achieve against the risk that
seals will experience excessive suffering when they are killed. (European Union's first written submission,
para. 39). The complainants however refer to the low level of contribution of the EU Seal Regime to its
objective (i.e. it tolerates a high risk of non-fulfilment).
747 Appellate Body Report, US – Tuna II (Mexico), para. 320.
748 Appellate Body Report, US – Tuna II (Mexico), para. 322.
749 Canada's first written submission, para. 556; Norway's first written submission, para. 779.
750 Canada's first written submission, paras. 557-560; Norway's first written submission, para. 793.
751 European Union's first written submission, para. 370. See also European Union's second written
submission, para. 301.
WT/DS400/R • WT/DS401/R

7.3.3.3.4.2 Trade-restrictiveness of the alternative measure
7.470. Canada describes this alternative as less trade restrictive because the current EU Seal
Regime excludes all non-Inuit commercial seal products from the EU market, whereas the
alternative regime would allow such non-Inuit commercial seal products provided they meet the
animal welfare requirements. 752 Norway submits that the alternative is less trade restrictive
because imports would be permitted provided they comply with animal welfare requirements.753
7.471. The European Union argues that seal pr oducts qualifying under the EU Seal Regime,
namely those from IC hunts, might not have market access under a regime imposing animal
welfare requirements.754
7.472. We found above that the EU Seal Regime limits trade in seal products, including those
imported from the complainants, and thus is trade restrictive. 755 The European Union also
acknowledges that the EU Seal Regime was enacted precisely for its trade-restrictive effect. 756
In comparison, the alternative measure could possibly permit seal products from the complainants
that are prohibited under the EU Seal Regime.
757 In view of the potentially large quantities of seal
products derived from non-IC or MRM hunts, we consider that their potential allowance under the
proposed alternative measure makes such proposed measure less trade restrictive.758
7.3.3.3.4.3 Degree of contribu tion of the alternative measure to the objective of the
EU Seal Regime
Main arguments of the parties
Complainants
7.473. Both Canada and Norway contend that the EU Seal Regime fails to address animal welfare
concerns in that it allows placement on the market of products without regard for the welfare of
the seals from which the products are derived. By contrast, the proposed alternative measure
would contain explicit animal welfare requirem ents upon which placement on the market is
conditioned and, in combination with certification requirements, would directly contribute to
fulfilment of the objective of animal welfare.
759
7.474. Canada and Norway further argue that an alternative measure directly addressing animal
welfare would thereby address any public moral concerns relating to animal welfare. 760 The
alternative measure would apply to all seal products consistently, prohibiting products from seals
killed in an inhumane manner while granting access to products derived from seals harvested in a
manner that respected the animal welfare criteria . This alternative would thus address animal

752 Canada's first written submission, para. 638. See also Canada's second written submission,
para. 326. Canada argues that given that such products comprise the "vast majority of seal products", their
potential allowance under the proposed regime makes this a less trade-restrictive alternative measure.
753 See Norway's responses to Panel questions following the second substantive meeting, Annex I, first
row.
754 European Union's comments on Canada's response to Panel question No. 115; European Union's
opening statement at the second meeting of the Panel, para. 64.
755 The Appellate Body has recognized that an import ban is "by design as trade-restrictive as can be".
(Appellate Body Report, Brazil – Retreaded Tyres, para. 150).
756 European Union's first written submission, paras. 36-37, 357, and 586.
757 See section 7.2.1 above.
758 We reach this conclusion notwithstanding variation in the precise amounts and proportions of
humanely killed seals in commercial hunts. Nor is our conclusion altered by the possibility that some products
from IC hunts qualifying under the EU Seal Regime might fail to satisfy animal welfare requirements, as market
access would still potentially be open to products from humanely killed seals in IC hunts.
759 Canada's first written submission, paras. 564-569; second written submission, paras. 319-322, 338;
Norway's first written submission, paras. 886-894; opening statement at the first meeting of the Panel,
paras. 134 and 141.
760 Canada's second written submission, para. 318, 330 (referring to European Union's response to
Panel question No. 9); opening statement at the second meeting of the Panel, para. 82; Norway's second
written submission, para. 308 (referring to European Union's response to Panel question No. 44).
WT/DS400/R • WT/DS401/R

welfare and public moral concerns, as well as the alleged public moral concerns arising from
consumers' participation in the economic activity that sustains the market.761
7.475. The complainants further submit that the alternative measure would continue to allow
market access to products from Inuit or indigenous hunts that were certified to meet animal
welfare requirements.762
Respondent
7.476. The European Union submits that as it is not feasible to apply and enforce effectively and
consistently a humane killing method 763, the proposed alternative measure would allow products
on the EU market that were obtained from seals killed in a manner that causes them excessive
suffering.
764 Allowing products from humanely killed seals would not meet the concerns that led to
the adoption of the EU Seal Regime. Such concerns would persist because, "in order to kill the
requisite number of certified seals in a humane way, it would be necessary to kill many other seals
in an inhumane way", which in turn "could have the perverse effect of increasing the number of
seals killed in an inhumane way".
765
7.477. With respect to the application of animal welfare requirements to Inuit or other indigenous
communities, the European Union argues that the nature of Inuit seal hunting poses particular
challenges to applying and monitoring animal welfare.
766

761 Canada's second written submission, paras. 323-325; opening statement at the first meeting of the
Panel, paras. 94-96; opening statement at the second meeting of the Panel, para. 83; Norway's second written
submission, paras. 276, 305-312.
762 Canada's first written submission, para. 563; second written submission, para. 328; opening
statement at the second meeting of the Panel, para. 85; Norway's first written submission, para. 905; second
written submission, para. 312. As to the capacity of Inuit or other indigenous communities to comply with such
requirements, the complainants contend that there is no "inherent" reason why animal welfare requirements
could not be applied to Inuit or other indigenous communities. (Canada's response to Panel question No. 115,
In this connection, Canada points out that there are animal welfare requirements applicable to Inuit
engaged in sealing in Canada and specifically proposes that Greenlandic seal products could be segregated so
that products satisfying animal welfare requirements could be commercially exported while other products
(such as those derived from netting) could be diverted to local consumption. (See Canada's second written
submission, para. 328; Canada's response to Panel question No. 114; Canada's response to Panel question
No. 115, para. 72).
The complainants also submit that the proposed alternative measure would also fulfil what they claim to
be other objectives of the EU Seal Regime. Specifically, Canada and Norway assert that the labelling
requirement would meet the objective of preventing consumer confusion, whereas the EU Seal Regime allows
unlabelled seal products on the market without any indication of their animal welfare compatibility. (Canada's
first written submission, paras. 570-574; opening statement at the second meeting of the Panel, para. 84;
Norway's first written submission, paras. 895-903; opening statement at the first meeting of the Panel,
para. 135). Similarly, Canada and Norway contend that the objective of promoting consumer choice and
personal use would be better served by the alternative measure as consumers would be given wider access to
seal products on the EU market along with the relevant information as to animal welfare. (Canada's first
written submission, paras. 575-577; opening statement at the second meeting of the Panel, para. 84;
As to the sustainable management of marine resources, Canada and Norway claim that the EU Seal
Regime contains requirements (e.g. exclusivity of purpose) that undermine this objective, whereas the
alternative measure could encourage rather than create disincentives for the sustainable management of
marine resources for large hunts conducted for multiple purposes. (Canada's first written submission,
paras. 578-581; Norway's first written submission, paras. 912-917; opening statement at the first meeting of
the Panel, para. 136).
763 See European Union's first written submission, Section 2.4.
764 European Union's first written submission, para. 375. See also European Union's response to Panel
question No. 148 (arguing that "the contribution of any given certification system to the intended policy
objective is, to a large extent, a function of the underlying substantive requirements and cannot be measured
without taking into account the specific content of such requirements").
765 European Union's second written submission, para. 310.
766 The European Union further submits that Canada's suggestion of segregating products "would fail to
make an equivalent contribution to the objective pursued by the IC exception" given the dynamics of the
Greenlandic hunt and domestic market. (European Union's comments on Canada's response to Panel question
No. 115. See also European Union's opening statement at the second meeting of the Panel, para. 64). The
European Union also comments upon various areas of Canadian seal hunting regulations that exempt the Inuit
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Analysis by the Panel
7.478. As an initial matter, we recall that the de gree of the actual contribution of the EU Seal
Regime to the fulfilment of its objective is asce rtained "from the design, structure, and operation
of the [EU Seal Regime], as well as from evidence relating to its application". 767 Based on such
analysis, we found that the EU Seal Regime is capable of making and does actually make a
contribution to the achievement of its stated ob jective of addressing the public moral concerns.
The Regime, through its prohibitive aspect, prevents to a certain extent the EU public from being
exposed to and participating as consumers in commer cial activities related to the products derived
from seals that may have been kill ed inhumanely. It also appears to have the effect of negatively
impacting the global demand for seal products.
7.479. The question with respect to the alternative measure is whether it would make an
equivalent or greater contribution to that actually achieved by the EU Seal Regime in the two
respects described above.768
7.480. We first address the contribution of the alternative measure to preventing or reducing
exposure of the EU public to products raising moral concerns. To the extent that the alternative
measure could effectively 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 the animal welfare concerns of the EU public. However,
given the risks to animal welfare that we have found to exist in all seal hunts, the degree of
contribution of the alternative measure would in part depend on the feasibility of meeting
adequately defined animal welfare requirements.
769 As acknowledged by the complainants 770, and
consistent with the findings of EFSA 771, an indefinite portion of hunted seals may experience pain,
distress, or other forms of suffering. Thus, 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. Moreover, the capacity of an al ternative measure to effectively (i.e. accurately)
differentiate products from humanely and inhumanely killed seals will depend on the practical
feasibility of the certification system proposed by the complainants as part of the alternative
measure.
7.481. In sum, the degree of contribution achi eved by the alternative measure to preventing
participation of the EU public as consumers in the inhumane killing of seals depends on the
reasonable availability of satisfying adequate animal welfare standards in seal hunts as well as the
capability of accurately distinguishing the resulting products for placement on the EU market.
7.482. We next address the reduction of global demand for seal products and number of seals
killed. We have found that the EU Seal Regime is capable of contributing to some extent to the
decline of the market for seal products. This, in turn, contributes to reduced prices and consumer
demand for some seal products (particularly seal skins) that has coincided with some reduction in
the number of seals killed in major sealing countries. As mentioned in relation to trade-
restrictiveness, the alternative measure would potentially afford market access to seal products
from commercial hunts that are currently prohibited under the EU Seal Regime. Although the scale
of market access that could be obtained under the alternative measure cannot be precisely
determined in the abstract, the alternative measure would potentially reopen an outlet for the

in Canada from animal welfare hunting requirements. (See European Union's comments on Canada's response
to Panel question No. 114).
767 See Appellate Body Reports, US – Tuna II (Mexico), para. 317; US – COOL, para. 373.
768 In this connection, we note the complainants' arguments that there is no requirement for the
alternative measure to achieve the level of protection selected by the EU legislators if the measure at issue
does not fully achieve the objective at that level. (Canada's opening statement at the second meeting of the
Panel, para. 90; Norway's second written submission, paras. 274-275, 280-281; opening statement at the first
meeting of the Panel, para. 132; response to Panel question No. 147).
769 See, e.g. Commission Proposal, Explanatory memorandum, (Exhibit JE-9), p. 12 ("Labelling alone of
seal products is not an alternative to a ban on trade in those products as labelling would only be relevant to
assuage the ethical animal welfare concerns of citizens and consumers as and when the killing and skinning
methods in force in the sealing countries would accord with the criteria provided for in this Regulation.").
770 See Canada's and Norway's responses to Panel question No. 69.
771 EFSA Scientific Opinion, p. 88 ("there is no perfect killing method that will work at all times, and
under all circumstances").
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marketing of goods derived from commercial seal hunts on the EU market. 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.
772
7.483. At the same time, the alternative measure could potentially introduce an economic
incentive for sealing countries to adopt and enforce the animal welfare standards established by
the measure. Thus, although the alternative measure may generate economic incentives to subject
a greater number of seals to the welfare risks of seal hunting, this may be counterbalanced in
some measure by the encouragement of improv ed practices in the hunt. For example, the
European Commission considered that its Proposal to allow trade in seal products based on
compliance with animal welfare requirements would give "incentives to countries concerned to
review and improve, where need be, their legislat ion and practice concerning the methods to be
complied with when killing and skinning seals".
773
7.484. On balance, we consider that the alternative measure may have the capacity of restoring
the potential market in the European Union for seal products with the consequence of subjecting a
greater number of seals to the risks of poor animal welfare. Although this in itself may be contrary
to the European Union's stated objective of reducing global demand for seal products and
consequently reducing the number of seals killed inhumanely, the imposition of animal welfare
requirements may also promote humane killing practices in seal hunts that could reduce the
number of inhumanely killed seals to some extent. The impacts of the alternative measure in this
regard are however 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.
7.485. In light of the inextricable link between the contribution of the alternative measure to the
objective and the feasibility of its implementati on, we next address the parties' contentions
regarding the reasonable availability of the various components of the alternative measure.
7.3.3.3.4.4 Reasonable availability of the alternative measure
Main arguments of the parties
Complainants
7.486. Canada and Norway state that the alternative proposed measure is reasonably available to
the European Union for the following four reasons. First, it is feasible to prescribe animal welfare
criteria applicable to the hunting of seals based on existing scientific evidence that would ensure
the minimization of suffering. 774 Second, once established, animal welfare criteria can be
effectively monitored and enforced in the context of seal hunting.775 Third, a system of certification

772 We note that the European Parliament responded to the Commission Proposal by concluding that the
risks to animal welfare posed by seal hunting were too high for humane killing requirements to be imposed.
Parliament Report, (Exhibit JE-4), Justification for Amendment 28, p. 21:
Commercial seal hunts are inherently inhumane because humane killing methods cannot be
effectively and consistently applied in the field environments in which they operate. Moreover,
seal hunts occur in remote locations, and are conducted by thousands of individuals over large,
inaccessible areas, making effective monitoring of seal hunting impossible. As such only a
comprehensive ban without the derogation drafted by the Commission would meet citizens'
demands to see an end to the trade in seal products.

773 Commission Proposal, Explanatory memorandum, (Exhibit JE-9), p. 5. See also Commission Impact
Assessment, (Exhibit JE-16), p. 26 (noting that a prohibition subject to animal welfare exceptions "will hurt the
economy where it is supposed to hurt – but at the same time benefit 'best practice' seal hunting and therefore
provides an incentive to improve the welfare of hunted seal species".).
774 Canada's first written submission, paras. 582-623; Norway's first written submission,
paras. 802-832; second written submission, para. 287. See also Norway's response to Panel question No. 147.
775 Canada's first written submission, paras. 624-653; Norway's first written submission,
paras. 833-851; opening statement at the first meeting of the Panel, paras. 142-144, 147-199. See also
Norway's response to Panel question No. 147.
WT/DS400/R • WT/DS401/R

of conformity with animal welfare requirements is feasible and reasonably available. 776 Fourth,
animal welfare labelling of seal products is reasonably available contrary to the preamble recital of
the EU Seal Regime that a labelling scheme would not be cost effective.
777
7.487. Further, both Canada and Norway reference the European Union's policy in related product
areas as evidence of the feasibility of prescribing animal welfare requirements and monitoring
killing for animal welfare compliance. 778 With respect to the certification of animal welfare
compliance, Canada and Norway specifically contend that certification would not need to be on a
seal-by-seal basis to achieve a level of contribution to seal welfare that is equal to or greater than
that of the EU Seal Regime. In this respect, the complainants suggest options drawing upon other
certification schemes that include regional/geographic certification and hunter licensing.
779
Respondent
7.488. The European Union responds that the complainants' proposed alternative is similar to the
same measure which had been proposed by th e European Commission during the legislative
process.780 However, this measure was deliberately rejected by EU legislators because "although it
could be possible, in theory, to prescribe a humane method for killing seals, in practice the unique
conditions in which seal hunting takes place would render it impossible to apply and enforce such
method in an effective and consistent manner."
781 In particular, the European Union disputes
various distinct components of the proposed alternative.
7.489. First, as to th e possibility of pr escribing humane killing methods, the European Union
argues that the animal welfare requirements in question must be capable of being "applied and
enforced effectively and consistently, so as to achieve the level of protection selected by the
EU legislators".782 The European Union submits that while many veterinary experts agree that a
humane killing method for seals could, in theory, be defined, there is disagreement as to the
requirements of such a method as well as to what would constitute an acceptable level or means
of effective practice in carrying out such requirements.
783
7.490. Second, the European Union addresses what it considers to be "the crucial issue" of
whether it is possible to effectively and consistently apply and enforce a humane killing method.784
On this point, the European Union emphasizes that a genuinely humane method cannot be applied
on a consistent basis with adequate monitoring and enforcement as a result of inherent
obstacles.
785
7.491. Third, the European Union argues that it s measures applied with regard to other animals
are not indicative of available alternative measures for seals due to "the major differences between
the situations concerned".786

776 Canada's first written submission, paras. 654-676; Norway's first written submission,
paras. 852-868. See also Canada's and Norway's responses to Panel question Nos. 147; parties' responses to
Panel question No. 94; Norway's second written submission, paras. 302-304.
777 Canada's first written submission, paras. 677-685; Norway's first written submission,
paras. 869-877.
778 Norway's first written submission, paras. 878-883. See also Norway's second written submission,
paras. 278, 290-294; opening statement at the first meeting of the Panel, para. 145: Canada's first written
submission, paras. 611-623, 642-653; Canada's second written submission, paras. 339-344.
779 See complainants' responses to Panel question No. 147; Canada's opening statement at the second
780 European Union's first written submission, paras. 372; second written submission, para. 304.
781 European Union's first written submission, para. 373. See also European Union's second written
submission, paras. 304-307 (explaining the concern of EU legislators with excessive unavoidable suffering in
seal hunts as opposed to the Commission's proposal focusing on avoidable suffering).
782 European Union's first written submission, para. 377.
783 European Union's first written submission, paras. 377-387; response to Panel question No. 63.
784 European Union's first written submission, para. 388. See also European Union's opening statement
at the first meeting of the Panel, para. 11.
785 European Union's first written submission, paras. 389-403; second written submission,
paras. 312-313.
786 European Union's first written submission, para. 406. See also European Union's first written
submission, paras. 407-413; response to Panel question No. 64; second written submission, paras. 86-91.
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7.492. Finally, the European Union disputes that the certification and labelling component of the
alternative measure would be viable 787 and submits that the availability of certification cannot be
considered independently of the underlying welfare requirements. 788 In particular, the
European Union argues that certification would have to be made on a seal-by-seal basis in view of
the impossibility of applying animal welfare requirements consistently in seal hunts 789, and the
various examples of certification and labelling systems cited by the complainants "lack pertinence"
as "the animals concerned are different, the environment is different, the killing methods are
different and, consequently, the risks to animal welfare are also very different".
790
Analysis by the Panel
7.493. As the Appellate Body has stated, "[a]n 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 taking it, or where the measure imposes an undue burden on
that Member, such as prohibitive costs or substantial technical difficulties." 791 In this dispute, the
question of reasonable availability presents a key factual disagreement between the parties as to
the feasibility of measures that can be taken under the conditions in which seal hunting occurs to
fulfil the relevant policy objective. Specifically, we address the parties' contentions regarding:
(1) the prescription of animal welfare criteria; (2 ) the application, monitoring, and enforcement of
animal welfare criteria; and (3) certification and labelling of compliance with animal welfare
criteria.
7.494. With respect to the prescription of animal welfare criteria, we note that there is some
discrepancy between experts and other sources as to what would constitute adequate welfare
standards and criteria. There is general recognition of the principle of minimizing animal pain and
suffering prior to killing. However, this princi ple is understood and interpreted differently among
expert conclusions, in particular regarding the spec ific elements of a three-step killing method as
adapted to the conditions of seal hunts.
792 More significantly, the principle of minimizing animal
pain and suffering gives rise to uncertainty regarding what should be considered an acceptable
level of such suffering. Some sources have provided recommendations of humane killing to
accommodate the practical demands of seal hunting
793, thus tolerating risks to welfare that are
rejected by others.794 One notable example in this regard pertains to delays in the killing process,
and there has been explicit acknowledgement by so me experts of subjectivity and divergence in
what is to be considered an acceptable lapse of time between killing steps.795

787 European Union's second written submission, paras. 309, 317-321.
788 European Union's comments on complainants' responses to Panel question No. 147.
789 European Union's response to Panel question No. 64; second written submission, para. 320;
comments on complainants' responses to Panel question No. 147(a).
790 European Union's second written submission, para. 319. See also European Union's comments on
complainants' responses to Panel question No. 147(b).
791 Appellate Body Report, Brazil – Retreaded Tyres, para. 156 (citing Appellate Body Report, US –
Gambling, para. 308).
792 See, above regarding, for example: disputes as to whether certain stunning techniques can be
regarded as achieving death on their own (stun/kill) and the implications of this for later steps; the dispute
among experts as to the preferability for checking consciousness with blink tests, skull palpation, or second-
stunning; and the suggestion by some that an adequate killing method would contain a fourth step of re-
checking.
793 See, e.g. EFSA Scientific Opinion, p. 10 ("Terms of Reference as provided by the Commission");
IVWG Report (2005) (statement that recommendations should be made in accordance with what can be
realistically achieved in the circumstances of the hunt); NAMMCO Report (2009), pp. 5-6.
794 See, e.g. Butterworth (2007) and Richardson (2007).
795 See Daoust (2002) and Daoust (2012). This is particularly reflected in the dispute between carrying
out the steps "immediately" (e.g. Burdon (2001)) and "as soon as possible" (e.g. EFSA Scientific Opinion and
IVWG Report (2005)).
The contentions of Canada and Norway with regard to certain conclusions of Daoust (2012) are
illustrative of different levels of tolerance for the risks to animal welfare in characterizing the humaneness of
the seal hunt. For instance, the study's most comprehensive observation of the shooting of 278 seals at the
2009 Front yielded the result that fourteen (5.0%) of the seals "were considered to have a poor welfare
outcome; these animals were not killed immediately with the first shot and were not shot again before being
retrieved, in at least 12 of these cases with a gaff from the vessel". (Daoust (2012), p. 450). Canada
favourably cites this finding along with the authors' comment that "[t]his proportion of seals considered to
have had a poor welfare outcome is comparable to, or lower than, that in other types of hunt." (Daoust (2012),
p. 453; Canada's first written submission, para. 601). Conversely, the European Union highlights the particular
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7.495. In our view, these differences in animal welfare requirements and standards stem in part
from differing assessments and tolerance of the risks involved in the application and monitoring of
killing methods. However, those risks would persist irrespective of the specific standard of animal
welfare prescribed in market access requiremen ts of the alternative measure. We therefore
address the reasonable availability of the alternative measure in light of the risks incidental to seal
hunting as identified above.
796
7.496. Based on the differing views on what would 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. In the
case of more stringent requirements for humane killing reflecting a high level of animal welfare
797,
such requirements may not be practical for hunters to consistently satisfy in light of the conditions
in which seal hunting takes pace. 798 Further, although adopting more stringent requirements for
humane killing would in principle answer to animal welfare concerns, in order to genuinely assuage
such concerns there would need to be a mechanism to verify that the requirements were actually
satisfied for seals used to generate products. A ssuming that more exacting welfare requirements
were imposed that were capable of being verified in the course of a seal hunt, this would imply
accurate differentiation between seals killed in accordance with the strict requirements and those
falling short of the higher welfare standard. Assess ed against the backdrop of the welfare risks of
seal hunting, this 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.
799 At the same time, to the
extent that the animal welfare requirements and ve rification of humane killing would be made less
stringent to accommodate practical challenges of seal hunting, such an alternative measure may
thus directly compromise the welfare of seals. This in turn would diminish the degree of
contribution to fulfilment of the objective of addressing public moral concerns.
7.497. Finally, as regards the certification and labelling of compliance with animal welfare criteria,
we note that this component of the alternative measure necessarily corresponds to application of
the animal welfare standards to be certified. We have found that the conditions and challenges of
seal hunting pose the risk that some portion of hunted seals will experience poor animal welfare
outcomes. Consequently, a certification system limiting market access to products from humanely
killed seals would need to be capable of distinguis hing between seals killed in accordance with the
relevant standard of animal welfare, and those killed inhumanely. A certification system that did
not make this distinction would undermine its own capability of assuring that animal welfare (and

welfare concern implicated by the documented delay in this study, and argues that favourable citation to these
results indicates that the authors of Daoust (2012) and the Canadian government regard outcomes as humane
that other authorities would consider inhumane. (European Union's first written submission, paras. 389-396;
second written submission, paras. 50-53).
796 We note that the parties have developed their arguments as to humane killing in recognition of its
importance to the question of the necessity of the EU Seal Regime and the availability of an alternative
measure. (See European Union's first written submission, para. 388 and opening statement at the first meeting
of the Panel, para. 11 (citing as "the crucial issue" whether it is possible to effectively and consistently apply
and enforce a humane killing method); Canada's second written submission, para. 335 ("defence of the
EU Seal Regime depends on acceptance of the notion that there are inherent obstacles to the humane killing of
seals"); Norway's second written submission, para. 277 (considering that the European Union "concedes that 'it
might be possible to design a genuinely humane method for killing seals'; however, it explains, it is impossible
to apply such a standard consistently in 'commercial' seal hunts")).
797 More stringent requirements reflecting a higher standard of animal welfare could include, for
example: that each seal have all steps of the killing process performed in immediate succession without any
delay; that no seal be hooked or gaffed for retrieval without having first been checked for consciousness;
and/or that each seal be irreversibly stunned in the first application of a stunning method.
798 The IVWG, for instance, which was specially convened to make recommendations for improving
humane practice in the Canadian harp seal hunt, recognized that recommendations needed to be "realistic in
the context of the hunt, so that sealers will accept and implement them". (IVWG Report (2005), p. 7). At the
time of the most recent amendments to Canada's Marine Mammal Regulations, the director general for the
DFO's resource management branch gave indications that more stringent requirements risked non-compliance
by sealers to explain why only "very minimal changes" were being made to hunting regulations. (Transcript of
statements to the radio station CBH-FM (28 December 2008), (Exhibit EU-105), p. 3 ("If you actually go out in
any, you know, in any industry, and you make a large-scale change in regulations, the, there is probably a
probability that a lot of the regs [sic] would not be abided by.")).
799 See European Union's second written submission, para. 310 (citing amicus curiae submission by
Anima et al., (Exhibit EU-81)).
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by extension public moral concerns) were being addressed. 800 Conversely, an alternative scheme
designed to certify that a given seal product was in fact derived from a humanely killed seal may
impose large costs and/or logistical demands on those participating in the hunt and subsequent
marketing of products.
801
7.498. In this regard, we also find it instructive to consider the Commission Proposal, which the
parties have concurred is similar to the proposed alternative measure. The Commission Proposal
would have required inter alia that "an appropriate scheme is in place whereby seal products … are
certified as coming from seals to which" animal welfare requirements have been effectively applied
and enforced.
802 This scheme is framed so as to certify only that products "are obtained from seals
killed and skinned i n a c o u n t r y w h e r e , o r b y p e r s o n s t o w h o m," the stipulated animal welfare
requirements would apply. 803 The complainants have argued that a certification system need not
be on a seal-by-seal basis, but rather could be achieved through country certification or hunter
licensing.804 However, country or hunter-based schemes would potentially fail to convey accurate
information in respect of the seal from which the product was derived 805, thus diminishing the
capability of the alternative measure of addressing EU public moral concerns on seal welfare. 806 A

800 We recall the arguments of Canada and Norway that the exceptions of the EU Seal Regime
undermine the objective of animal welfare by allowing market access irrespective of the humaneness with
which seals were killed. Inasmuch as inhumanely killed seals were not identified as such under the alternative
measure, however, some products would similarly have market access despite being in conflict with the
objective of protecting animal welfare.
801 In this connection, we have also identified certain challenges to effective monitoring and enforcement
of animal welfare standards in the context of seal hunting, which can occur over large territories with many
participants. We consider that such difficulties of monitoring and enforcement compound the difficulties of
aligning criteria for humane killing with the risks of seal hunting in a manner that does not unduly compromise
animal welfare. (See paras. 7.219-7.221 above).
Moreover, even if the hunt itself has been accurately monitored for animal welfare, the maintenance of
such accuracy would further require some form of traceability of the products to the market. COWI addressed
the possibility of a "full chain of custody traceability system" as the most strict (and most effective) option but
concluded that it could be costly and inefficient depending on the flexibility of the system. (See COWI 2010
Report, pp. 74-76 regarding Option 3). Although this evaluation was made in respect of the requirements of
the Basic Regulation, we consider that it is indicative of the additional burdens of accurate transmission of
information regarding regulatory compliance under the alternative measure. Indeed, Canada has also made
indications that, after certifying and labelling conforming products from given hunts, there would be
subsequent difficulties after the skins are sold and undergo secondary processing to preserve the identifying
label. (See Canada's response to Panel question No. 85, para. 329 (regarding identification of seals harvested
by Inuit hunters)).
802 Commission Proposal, (Exhibit JE-9), Article 4(1)(c).
803 Commission Proposal, (Exhibit JE-9), Article 4(1)(a). (emphasis added) The applicable animal welfare
criteria are found in Annex II of the Proposal.
804 See Canada's and Norway's responses to Panel question No. 147. More specifically, it has been
suggested that certification could take place at various levels, including the certification of countries, particular
hunts, or vessels.
805 COWI advised that "identification requirements" comprise the first "key aspect" of being able to track
conforming products to the market, and that different criteria (such as the IC and MRM requirements) would
entail different "identification requirements" suited to the criteria in question. (See COWI 2010 Report, p. 80).
Similarly, we consider that any animal welfare critera would demand "identification requirements" suited to the
fact that the humaneness of killing will differ among individual seals within the same hunt (which is not the
case for assessing compliance with IC or MRM requirements).
806 The complainants have pointed to various possible certification schemes as evidence for the
feasibility of certification in their proposed alternative measure. However, these schemes are of limited
assistance in determining the feasibility of a certification system for the alternative measure in that they: are
country or hunter-based certification (e.g. the Agreement on International Humane Trapping Standards
(Exhibit CDA-28), the EU's leghold trap certification scheme (Exhibits JE-8, NOR-80, NOR-105 and NOR-111)
or Australia's kangaroo hunter licensing scheme); unrelated to animal welfare (e.g. the Friend of the Sea
scheme for wild catch fisheries (Exhibits NOR-102, NOR-103 and NOR-104) and the Marine Stewardship
Council fisheries scheme (Exhibits NOR-97, NOR-98, NOR-99, NOR-100 and NOR-101); or applied to situations
and under circumstances that are significantly different from those of the seal hunt setting onto which they
would have to be transposed (e.g. the EU Slaughter Regulation (Exhibit CDA-31) and the Agreement on the
International Dolphin Conservation Programme (Exhibits NOR-95 and NOR-96) (concerning dolphins, which,
unlike seals, are not the primary target of hunters pursued on a potentially large scale)).
Norway has argued that these schemes are intended to "illustrate the practical feasibility (i.e.,
reasonable availability) of implementing one or more of the aspects or components of Norway’s proposed
alternative measures. Needless to say, each scheme would have to be adapted to meet the needs of measure
aimed at the welfare of seals." (Norway's response to Panel question No. 147, para. 245) (emphasis original)
However, based on the fundamental differences in the requirements and/or subject matter of these schemes, it
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more rigorous certification scheme, on the other hand, could require exclusion of all seals killed in
a way that did not meet the specified welfare re quirements, which could lead to more overall
hunting to obtain the desired amount of humanely killed seals.
7.499. Thus, certification schemes of greater specificity and rigor may be considered less
reasonably available to the extent that they would require greater expenditure and practical
challenges of implementation. At the same time, schemes that are not designed to account for the
actual welfare outcomes of the seals from which products are derived may be considered
comparatively more reasonably available.
7.3.3.3.4.5 Overall assessment of the reasonab le availability of an alternative measure,
taking account of risks of non-fulfilment would create
7.500. Both Canada and Norway assert the suitab ility of the alternative measure in light of the
risks non-fulfilment of the European Union's objectives would create, primarily due to the alleged
failure of the EU Seal Regime to fulfil its objectives and the lower risks and consequences that
would arise under the alternative measure.
807 Thus, in line with their arguments regarding the
contribution to the measure's objective, Canada and Norway submit that the risks non-fulfilment of
the objective of the measure would create are accepted under the EU Seal Regime (which allows
products from inhumane hunts) and avoided by the alternative measure (which would only allow
products meeting specified animal welfare criteria).
808
7.501. The European Union submits that the "risk of non-fulfilment of the objective of protecting
public morals is that the EU public would experi ence the same moral feelings that prompted the
adoption of the EU Seal Regime".809
7.502. As described above, the alternative measure as proposed by the complainants appears to
span a range of possible regimes of varying stringency and leniency with respect to animal welfare
requirements and accuracy of certification. On the one hand, more stringent and accurate regimes
would appear to pose precisely the "prohibitive costs or substantial technical difficulties" that can
prevent an alternative measure from being considered to be reasonably available. 810 On the other
hand, more lenient regimes would call into question the degree to which the alternative measure
can contribute to the welfare of seals. Moreover, an alternative measure within this range may
give rise to an increase in the number of seals hunted with the accompanying risks to seal welfare
through restored market opportunities within the European Union. This may undermine the
objective of the EU Seal Regime of reducing th e overall number of seals killed inhumanely. We
recall in this regard the Appellate Body's guidance that a responding Member cannot be reasonably
expected to employ an alternative measure that in volves a continuation of the very risk that the
challenged measure seeks to halt.
811
7.503. Further, the complainants' position rests on the premise that the alternative measure could
calibrate the conditions of market access to the circumstances and risks existing in seal hunts. The
complainants have not specified the substance of the exact regime (including the standard of
animal welfare and method of certification) that would comprise their suggested alternative
measure.
812 Rather, they emphasize that the alternative measure focuses directly on animal

has not been clearly explained how such adaptation would take shape for seal hunts in a manner that would
provide trustworthy assurance that animal welfare had been respected.
807 Canada's first written submission, paras. 691-695; Norway's first written submission,
paras. 909-911.
808 Canada's second written submission, paras. 329-333; Norway's second written submission,
paras. 269-270. We note that Canada considers its view of the risks non-fulfilment would create to be similar
to that of the European Union, with the difference that the risk is that seals would be killed in a way that
causes avoidable (rather than excessive) pain and suffering. Canada's second written submission, para. 329.
809 European Union's response to Panel question No. 44, para. 152.
810 Appellate Body Report, Brazil – Retreaded Tyres, para. 156, citing Appellate Body Report, US –
Gambling, para. 308.
811 Appellate Body Report, EC – Asbestos, para. 174
812 See, e.g. Norway's second written submission, para. 283 ("It is not Norway’s task to show precisely
what standards should be adopted by the European Union in order to address animal welfare through a
technical regulation conditioning access to the regulator’s market."); Canada's comments on the
European Union's response to Panel question No. 148, para. 111 (stating that the possible animal welfare
requirements of its alternative measure "include the recommendations from EFSA, the recommendations of the
IVWG, and standards applicable in hunts of other wild animals, such as deer and kangaroos").
WT/DS400/R • WT/DS401/R

welfare to allow products from commercial hunts that Canada and Norway contend achieve high
levels of humane killing. 813 The complainants do not deny, however, and the evidence before us
confirms, that inhumane killing and poor animal welfare outcomes do occur in seal hunts. 814 To
that extent, the alternative measure would not be able to address the EU public's moral concerns
with respect to their wish to not participate as consumers in products derived from seal hunts in
general, and the reopening of the EU market could stimulate global demand so as to incentivize
the killing of more seals. Although 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.
7.504. In view of the evidence of the risks and challenges of seal hunting, and as a result of our
assessment above of the proposed alternative with respect to its level of contribution to the
relevant objective, we conclude that although the proposed alternative measure can be considered
less restrictive of trade, the alternative measure is not reasonably available, taking account of the
risks non-fulfilment would create.
815
7.3.3.3.5 Conclusion
7.505. In light of the above, we conclude that the EU Seal Regime is not more trade restrictive
than necessary within the meaning of Article 2.2 of the TBT Agreement. The EU Seal Regime was
found to be capable of making and does make co ntributions to the objective of addressing the
EU public concerns on seal welfare. We further found that the alternative measure proposed by the
complainants, which may be considered as less trade restrictive than the EU Seal Regime, is not
reasonably available to the European Union, taking into account the risks that non-fulfilment of the
European Union's objective would create.
7.3.4 Article 5
7.3.4.1 Conformity assessmen t procedure(s) (CAP): whether the EU Seal Regime is a
CAP within the meaning of Annex 1
7.506. Annex 1.3 defines "conformity assessment procedures":
Any procedure used, directly or indirectly, to determine that relevant requirements in
technical regulations or standards are fulfilled.
7.507. The explanatory note to the provision provides:
Conformity assessment procedures include, inter alia, procedures for sampling,
testing, and inspection; evaluation, verification and assurance of conformity;
registration, accreditation and approval as well as their combinations.
7.508. Canada argues that, given that the Basic Regulation constitutes a technical regulation, the
process of evaluating whether seal products satisfy the conditions specified in the Regulation,
particularly Articles 3, 5, and 6 of the Impl ementing Regulation, amounts to a conformity

813 See Canada's and Norway's responses to Panel question No. 145.
814 See EFSA Scientific Opinion, p. 3 ("[M]any seals can be, and are, killed rapidly and effectively
without causing avoidable pain, distress, fear and other forms of suffering, using a variety of methods that aim
to destroy sensory brain functions. However, there is strong evidence that, in practice, effective killing does not
always occur ...").
815 This conclusion is not changed by our consideration of measures applied to other product areas. We
are mindful that examining enforcement measures applicable to the same behaviour relating to like products
"may provide useful input in the course of determining whether an alternative measure which could 'reasonably
be expected' to be utilized, is available or not". (Appellate Body Report, Korea – Various Measures on Beef,
para. 170). However, we have described above the characteristics of seal hunting with respect to the physical
environment, seal species, as well as the risks and challenges of seal hunting. We have noted that the
evidence does not establish that effective stunning rates in seal hunts are comparable to those in commercial
abattoirs, and in any case that the two situations differ significantly in areas of great relevance to the
application of humane killing methods. Therefore, we do not consider that the situations to which other
measures are applied are sufficiently similar to the circumstances of the seal hunt to assist in determining the
availability of alternative measures.
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assessment procedure.816 Norway has not addressed the question of whether the EU Seal Regime
is a conformity assessment procedure within the meaning of Annex 1.
7.509. The European Union argues that, because the EU Seal Regime is not a technical regulation
within the meaning of Annex 1, the procedural provisions under the Implementing Regulation
concerning the operation of the exceptions do not concern compliance with technical regulations
and hence do not constitute "conformity assessment procedures" within the meaning of
Annex 1.3.
817
7.510. The Panel found that the EU Seal Regime as a whole is a technical regulation laying down
product characteristics. In addition, Articles 3, 5, and 6 of the Implementing Regulation establish
the procedure for determining whether the specific requirements under the EU Seal Regime are
fulfilled. Accordingly, we find that these provis ions under the EU Seal Regime constitute a CAP
within the meaning of the TBT Agreement.
7.3.4.2 Article 5.1.2: whether the CAP creates an unnecessary obstacle to international
trade
7.511. Article 5.1.2 states:
Article 5
Procedures for Assessment of Conformity by Central Government Bodies
5.1 Members shall ensure that, in cases where a positive assurance of conformity
with technical regulations or standards is required, their central government bodies
apply the following provisions to products originating in the territories of other
Members:
…
5.1.2 conformity assessment procedures are not prepared, adopted or applied with a
view to or with the effect of creating unnecessary obstacles to international trade. This
means, inter alia, that conformity assessment procedures shall not be more strict or
be applied more strictly than is necessary to give the importing Member adequate
confidence that products conform with the applicable technical regulations or
standards, taking into account of the risks non-conformity would create.
7.512. The text and structure of Article 5.1.2 indicate that the provision consists of general
obligations, set out in the first sentence, and an example of the general obligations, set out in the
second sentence.
818
7.513. More specifically, the general obligations under the first sentence are not to prepare,
adopt, or apply conformity assessment procedures with a view to or with the effect of creating
unnecessary obstacles to international trade. The second sentence explains the meaning of the
general obligations by prescribing a situation where a certain CAP may be found in violation of the
obligation under the first sentence.
819 Therefore, a violation of the obligations set out in the first
sentence could be established by demonstrating, for instance, that a given CAP has the effect of
creating unnecessary obstacles to international tr ade or by showing a breach of the specific
requirement in the second sentence.

816 Canada's first written submission, paras. 705-708, and 716.
817 European Union's first written submission, para. 419.
818 In addition, the chapeau of Article 5.1 establishes the scope of the obligation as applying to
situations where "positive assurance of conformity with technical regulations or standards is required". In such
cases, Members must ensure that their central government bodies apply the provisions of the sub-
paragraphs of Article 5.1. (See Canada's first written submission, para. 710; Norway's first written submission,
819 The term "inter alia" in the second sentence signifies that it is only one example of the requirements
stemming from the general obligation set out in the first sentence.
WT/DS400/R • WT/DS401/R

7.514. Both Canada and Norway have developed arguments for their claim under Article 5.1.2
that may be analysed under both the first and second sentences of Article 5.1.2. 820 We begin our
examination of the complainants' claim under Arti cle 5.1.2 with their contentions made based on
the first sentence. We will then evaluate the co mplainants' arguments that have relevance under
the second sentence of Article 5.1.2.
7.3.4.2.1 Whether the CAP creates an unnecessary obstacle to trade by failing to ensure
the existence of a body to perform the CAP
7.3.4.2.1.1 Main arguments of the parties
Complainants
7.515. Canada submits that the failure by the European Union to ensure that a competent body
exists to assess conformity with conditions that determine market access for qualifying seal
products amounts to a violation of Article 5.1.2. Canada argues that in the absence of such a body,
the CAP cannot function, thus preventing any trade in seal products satisfying the relevant
conditions. Under the measure, third party entities are allowed to request that they be listed as
"recognized bodies" that are authorized to verify compliance with the conditions, and to issue
documents attesting to that compliance. Unless and until such applications are submitted and
approved by the European Union, no attesting documents can be issued (i.e. no seal products can
be imported into the European Union for the purpose of placing them on the market). Conditioning
market access on the uncertain prospect that a third party entity will apply for, and be recognized
by the European Union, as a body authorized to ascertain conformity, and issue a certificate to
that effect, creates precisely the kind of uncertainty that the trade rules are meant to reduce.
821
7.516. Norway also argues that the Commission has prepared and adopted a CAP that lacks an
essential element needed to enable trade to occur. Specifically, the Commission's failure to
designate a body competent to assess and certify conformity results in an "institutional lacuna" in
the CAP that leaves traders in conforming seal products reliant on a third party successfully
seeking to become a recognized body. In this regard, Norway contends that a Member cannot
make third parties responsible for the performance of its WTO obligations.
822 Consequently, the
CAP is ineffective due to this institutional lacuna creating an effective ban on trade in conforming
products. This ban is unnecessary because the Commission could have designated a "default"
recognized body that would be competent, at all times, to assess and certify conformity.
823
7.517. Further, Norway submits that an importing Member is responsible for ensuring that a body
is available to assess conformity from the date of entry into force of a technical regulation. Thus,
in designing and adopting a CAP, an importing Member is obliged to ensure that the system
function from the date of its entry into force. If the European Union did not wish to establish a
recognized body capable of functioning from the EU Seal Regime's entry into force, it should have
given interested third parties an adequate opportunity to apply sufficiently far in advance so as to
allow recognized bodies to be established before the entry into force. If no third party had become
a recognized body by that date, the European Un ion was obliged to designate a recognized body
no later than the entry into force of the EU Seal Regime. Even if an importing Member were
entitled, at the time of adopting a CAP, to awai t successful application from a third party to serve
as a recognized body ( quod non ), such entitlement cannot endure indefinitely. In light of the
enduring obligation under Article 5.1.2, if it becomes clear that third parties are unwilling or unable
to serve as recognized bodies, an importing Member remains responsible for implementing a

820 In particular, the Panel considers that the complainants' arguments as to the failure to ensure the
existence of a body to perform the CAP relate to obligations under the first sentence of 5.1.2. Additionally,
Norway has developed specific arguments based on the elements of a necessity test under the second
sentence of Article 5.1.2, and Canada has raised arguments relevant to less trade-restrictive alternative
measures.
821 Canada's first written submission, paras. 718-721.
822 Norway refers to Appellate Body Report, Thailand – Cigarettes (Philippines), para. 117; and Panel
Report, EC – Trademarks and Geographical Indications (Australia), paras. 7.309-7.310. See also Norway's
second written submission, paras. 365-367 (citing the Appellate Body Reports in Korea – Various Measures on
Beef and US – Tuna II (Mexico) to argue that an element of third-party choice does not relieve a Member from,
or enable it to "contract out" of, its obligations under the covered agreements).
823 Norway's first written submission, paras. 944-951. See also Norway's second written submission,
paras. 333-335.
WT/DS400/R • WT/DS401/R

conformity assessment system that functions to allow trade to occur in conforming products, for
example by designating a recognized body.824
Respondent
7.518. The European Union considers that the complainants direct their claim under Article 5.1.2
against the fact that the Implementing Regulation establishes a third-party conformity assessment
mechanism. As such, it submits that the Panel is called upon to determine whether Article 5.1.2
precludes the adoption of systems whereby the conformity assessment bodies need to be
designated by the central government before issuing certificates of conformity and whereby they
must continue to meet the designation conditions for as long as they issue such certificates. While
the European Union acknowledges that the requirement to obtain a certificate under the EU Seal
Regime, like any other regime requiring certification, constitutes an obstacle, this does not amount
to the CAP having been prepared, adopted, or applie d with a view to or with the effect of creating
unnecessary obstacles to international trade.
825 Further, the European Union argues that the CAP
takes into account the particularities entailed by the certification of conformity with the IC and
MRM exceptions. In the European Union's view, the TBT Agreement not only allows but encourages
a number of features adopted in the Implementing Regulation.826
7.519. First, the European Union argues that the text of Article 5.1.2 does not impose an
obligation to designate a public (central or loca l government) body in all cases where a positive
assurance of conformity with technical regulations or standards is required. 827 Second, the
European Union contends that there is no basis in the text of Article 5.1.2 to argue that WTO
Members should not allow government and non-governmental bodies from other WTO Members to
apply to be recognized conformity assessment bodies.828
7.520. Finally, the European Union argues that ther e is no basis in the text of Article 5.1.2 to
require a WTO Member to designate a "back-up" or "default" public (central or local government)
body where it decides to put in place a system of designated (public and private) conformity
assessment bodies. The European Union refers to the Explanatory note to point 3 of Annex 1
envisioning "registration, accreditation and approval as well as their combinations", concluding
that the necessity of any system for accreditat ion/designation of certifying bodies must be
assessed based on its own merits. This interpretation is supported by subsequent practice in the
considerable diversity between the systems for accreditation/designation of conformity assessment
bodies between WTO Members. While the European Union does not exclude the possibility that the
designation of a public body may be a desirable a pproach in some cases, it calls on the Panel to
reject a reading of the TBT Agreement whereby doing so would be a generalised obligation
applicable to all conformity assessment procedures.
829

824 Norway's second written submission, paras. 355-380. Specifically, Norway argues that "even if the
European Union was not obliged to designate a recognized body when the conformity assessment procedures
were adopted in August 2010 (quod non), the failings of the system have since become manifest, compelling
the European Union to take action by designating a recognized body." (Ibid., para. 361. See also Norway's
response to Panel question No. 87, para. 426).
825 Despite its concession that certification constitutes an obstacle on some level, the European Union
argues that the specific requirement to be included on the list of recognized bodies under Article 6 of the
Implementing Regulation does not pose an obstacle, but rather facilitates international trade by providing an
accessible authoritative reference to all market operators both within and outside the territory of the
European Union. The European Union also notes that Canada and Norway do not challenge the specific
requirements that a recognized body must meet under Article 6 of the Implementing Regulation, and that the
requirements for the issuance of attesting documents are necessary to give the European Union adequate
confidence that imported seal products satisfy the relevant conditions. (European Union's first written
submission, paras. 441-452).
826 European Union's first written submission, paras. 431-437.
827 The European Union refers to Article 8 of the TBT Agreement, which in its view constitutes relevant
context for the interpretation of Article 5, to show that WTO Members may confer conformity assessment
procedures to non-governmental (i.e. private) bodies.
828 The European Union notes that Canada and Norway do not explicitly make such an argument, but
submits that such a reading can be implied in their argument that a "default" body must exist at all times for
as long as a CAP is in place. In this regard, the European Union cites Article 6 of the TBT Agreement
concerning the recognition of conformity assessment in other Members by central government bodies.
829 European Union's first written submission, paras. 447-462.
WT/DS400/R • WT/DS401/R

7.3.4.2.1.2 Analysis by the Panel
7.521. To assess the complainants' claim under the first sentence of Article 5.1.2, we must
examine the following points of contention between the parties: first, whether Article 5.1.2 permits
a CAP that requires third-party accreditation and conformity assessment without creating or
designating a default body independent of third-party approval; and, second, whether a CAP must
be capable of allowing trade in conforming products to occur from the date of entry into force of a
given measure.
7.522. Beginning with the first question, we first note that the text of Article 5.1.2 contains no
precise indication of permitted and prohibited ty pes of CAP. Thus, the text provides no direct
prescription as to the permissibility of third-part y accreditation, nor does it indicate whether such
accreditation would require creation or designation of a default and/or back-up body.
7.523. Further, the context provided in other pr ovisions of the TBT Agreement supports the view
that there is some flexibility as to permissibl e CAP regimes, particularly with respect to the
possibility of third-party accreditation. For example, the definition of a CAP in Annex 1 of the
TBT Agreement encompasses, in addition to inspec tion and verification procedures, procedures for
"registration, accreditation and approval as well as their combinations".
830 We note that this
explicit provision for accreditation does not contain any limitation as to the type of entity to be
accredited. Moreover, the use of the term "inter alia" and the stipulation "as well as their
combinations" suggest wide versatility in the types of regime that may be considered a CAP under
the TBT Agreement.
831 We also note that Article 6 of the TBT Agreement provides for Members'
recognition of conformity assessment from other Member s "provided they are satisfied that those
procedures offer an assurance of conformity … equivalent to their own procedures". 832 To this end,
it is explicitly contemplated that the system for recognizing conformity assessment from other
Members may entail "limitation of the acceptance of conformity assessment results to those
produced by designated bodies in the exporting Member".833
7.524. Therefore, based on our examination of the terms of Article 5.1.2, as well as its relevant
context provided in other provisions of the TBT Ag reement, we consider that Article 5.1.2 permits
a system of third-party accreditation as part of a CAP. Accordingly, we do not consider that the
third-party accreditation system under the EU Seal Regime (the CAP) violates Article 5.1.2. Nor do
we find from the relevant text and context of Article 5.1.2 an obligation on the part of a
responding Member to create or designate a default body pending accreditation or recognition of
third-party entities to perform a CAP.
7.525. We next turn to the second question, namely whether, under the first sentence of
Article 5.1.2, a CAP must be capable of allowing trade in conforming products to occur from the
date of its entry into force. In other words, the question is whether failure to have in place a
mechanism through which trade in regulated products can occur from the date of entry into force
of a CAP results in a violation of the obligation under Article 5.1.2.
7.526. With respect to the circumstances of the measure at issue, the Implementing Regulation
entered into force on 20 August 2010, which is the same day of the application of the Basic
Regulation.
834 This means that Article 3 of the Basic Regulation containing the IC and MRM
exceptions also applied from 20 August 2010. 835 The requirements of the CAP stipulated in the
Implementing Regulation were published in the Official Journal of the European Union on 17
August 2010, three days prior to their entry into fo rce along with Article 3 of the Basic Regulation.
A system of third-party accreditation logically requires some time in processing the applications
from their review and until ultimate approval. Given that the CAP requirements were published
three days before their application with no other mechanism available, the earliest opportunity for

830 TBT Agreement, Annex 1.3, Explanatory Note.
831 We note that the European Union has submitted evidence that other WTO Members, including
Canada and Norway, have types of CAP in place with designation/accreditation of third-party certifying bodies.
(See European Union's first written submission, para. 451; Exhibits EU-71, 72, 73). The complainants have
also acknowledged that third-party conformity assessment schemes are "not uncommon". (See Canada's and
Norway's responses to Panel question No. 87).
832 Article 6.1 of the TBT Agreement.
833 Article 6.1.2 of the TBT Agreement.
834 See European Union's response to Panel question No. 149.
835 Basic Regulation, Article 8.
WT/DS400/R • WT/DS401/R

potential applicants to initiate this process would have been just shortly before the day of entry
into force of the Implementing Regulation. Further, based on the numerous requirements in
Article 6 of the Implementing Regulation, it woul d not have been reasonable to expect that the
CAP could be completed prior to the Regime's entry into force.
836
7.527. Consequently, as of the effective date of the EU Seal Regime, it was not possible for seal
products to be examined or processed pursuant to the necessary CAP. Although third-party bodies
could apply to become a recognized body under the EU Seal Regime upon its entry into force, the
specific CAP established by the Implementing Regu lation imposed the additional time necessary to
examine and approve such a body according to specific criteria. Because of this period of review
required for each application for inclusion in the list of recognized bodies, trade in qualifying seal
products was practically not possible for some period of time following the entry into force of the
EU Seal Regime.
7.528. The particular facts and circumstances described above therefore show that the measure in
question was established such that the CAP was not capable of allowing trade in conforming
products to occur on the date of its entry into force. In light of this, we conclude that the CAP had
the effect of creating unnecessary obstacles to international trade inconsistently with the first
sentence of Article 5.1.2.
837
7.529. We next turn to whether the EU Seal Regime CAP creates an unnecessary obstacle to
international trade because it is more strict or applied more strictly than necessary within the
meaning of the second sentence.
7.3.4.2.2 Whether the CAP creates an unnecessary obstacle to trade because it is "more
strict or … applied more strictly than is necessary to give the importing Member
adequate confidence" of conformity
7.3.4.2.2.1 Main arguments of the parties
Complainants
7.530. Norway submits that the parties do not disagree that the CAP set forth in the EU Seal
Regime is, by definition, trade-restrictive. Moreover, given that applications to become a
recognized body could not be made, much less appr oved, before entry into force of the EU Seal
Regime, the CAP necessarily gave rise to a ban on trade in conforming seal products, which could
not demonstrate compliance with the relevant requirements.
838
7.531. Norway contends that the European Union's omission to establish a recognized body, which
necessarily prevented lawful trade in conforming se al products, does not contribute to giving the
European Union confidence that conforming seal products meet the relevant requirements. Rather
than ensuring that a conformity assessment system operates effectively to give confidence to the

836 This finds additional support in the time taken to review and process applications actually received,
as discussed in the subsequent section on Article 5.2.1.
837 We note in this regard the suggestion by Norway that the European Union could have provided for
advance notice and/or opportunity for interested parties to apply for recognition. (See, e.g. Norway's response
to Panel question No. 50, para. 264). Although the European Union has referenced consultations conducted
during the legislative process, the evidence in this regard does not reveal any specific engagement as to
conformity assessment. Further, we note that these consultations took place prior to the adoption of the Basic
Regulation (and thus before the requirements of the CAP were established). (See Canada's and Norway's
comments on the European Union's response to Panel question No. 149).
We are also mindful of the fact that certain entities have applied and been approved as recognized
bodies by the Commission. This subsequent approval, however, does not alter the fact that the CAP under the
EU Seal Regime was initially incapable of assessing conforming products, irrespective of third-party action or
inaction. Given the circumstances of this dispute, we are not able to make specific findings as to measures that
may have been available to the European Union to enable the assessment of conformity under the EU Seal
Regime from its entry into force.
838 Norway's second written submission, paras. 340-345. See also Norway's first written submission,
para. 949 (citing Panel Report, Brazil – Retreaded Tyres, para. 7.114) ("A ban on the importation of
conforming seal products is, of course, the most trade-restrictive obstacle to trade in these products that can
be envisaged"). We note that Norway equates "strictness" with "trade-restrictiveness". (See Norway's second
written submission, para. 340 (focusing on "the strictness (or, put another way, trade-restrictiveness) of the
measure or its application")).
WT/DS400/R • WT/DS401/R

importing Member, the European Union's omission necessarily renders the system ineffective.
Thus, the procedures have been designed in a manner that deprives the European Union of any
opportunity to verify that conforming seal products meet the relevant requirements. Further,
traders seeking access to the EU market are deprived of any opportunity to demonstrate that their
products meet the requirements.
839
7.532. Norway proposes that the European Union could have adopted a less-trade restrictive
alternative by designating a recognized body that would be competent, at all times (or at least in
the absence of third-party recognized bodies), to assess and certify conformity. According to
Norway, this body could have been designated at the level of the European Union, including the
Commission itself, or the Commission could have esta blished a series of regional bodies within the
European Union. Such a system would ensure th at the CAP would always function to enable
traders to secure approval for conforming seal products, irrespective of third party action, and
would fully achieve the European Union's objective of giving itself confidence that imported seal
products meet the relevant requirements.
840
7.533. Canada states that evaluation of the CAP would include consideration of reasonably
available, less trade-restrictive alternative measures, "such as supplier declaration of conformity,
rather than a third party conformity assessment (3PCA) procedure".
841 Canada further asserts that
where product safety is not the central concern of a technical regulation, schemes based on
supplier declaration of conformity are more common than third-party conformity assessment.842
Respondent
7.534. The European Union argues that the very requirement to obtain a certificate constitutes an
obstacle. In the case of the EU Seal Regime CAP, however, the degree of trade-restrictiveness is
not more than necessary for the relevant purpose.843
7.535. The European Union argues that the CA P serves the purpose of providing adequate
assurance that the only seal products placed on the market are those that comply with the
exceptions established under the EU Seal Regi me. In particular, the requirements of the
Implementing Regulation ensure that recognized bodies are both impartial and capable of verifying
and attesting that the requirements to benefit from an exception have been fulfilled.844
7.536. Regarding the alternative measures proposed by the complainants, the European Union
argues that Canada neither presents any concrete alternative nor shows how such an alternative
would be equally effective and less trade restrictive than the mechanism put in place by the
Implementing Regulation.
845 Specifically, Canada has failed to establish that supplier declaration of
conformity would give the European Union, "as the importing Member, adequate confidence that
products conform with the applicable regulation" taking into account the risks of non-
conformity.
846
7.537. The European Union argues that Norway failed to demonstrate why the proposed
alternative would be equally effective in determining the product's conformity with the regulation
concerned, and less trade restrictive than the CAP at issue. 847 The European Union contends that
in a context, like the one at issue, where certification can entail inspections of compliance with
requirements (such as those of the IC and MRM exce ptions) at the place of origin of the product,
the designation of a default public authority in the European Union could have a greater trade
distortive effect than the CAP under the Implementing Regulation. In particular, the issuance of
certificates of compliance by a single central government authority would probably entail a less
efficient and costlier certification mechanism for operators.
848 In this light, what Norway describes

839 Norway's second written submission, paras. 346-348.
840 Norway's second written submission, paras. 349-354.
841 Canada's response to Panel question No. 49, para. 192.
842 Canada's response to Panel question No. 87, para. 333.
843 European Union's first written submission, paras. 431-434, 445.
844 European Union's first written submission, paras. 432, 441-446.
845 European Union's first written submission, para. 438.
846 European Union's second written submission, para. 323.
847 European Union's first written submission, para. 439.
848 The European Union notes in this respect that pursuant to Article 5.2.5 of the TBT Agreement,
conformity assessment authorities are entitled to charge for "communication, transportation and other costs
WT/DS400/R • WT/DS401/R

as an "institutional lacuna" is rather a mechanism to ensure a level playing field and avoid giving
an inherent systemic advantage to trade in seals products that would originate in the
European Union or its immediate proximity.849
7.538. Lastly, the European Union comments upon the complainants' acknowledgement that no
Canadian or Norwegian entities have applied to become recognized bodies, and interprets the
reasons given to be grounded in the lack of desire of the potential beneficiaries to make use of the
system rather than in alleged deficiencies in the set-up of the system itself. On this basis, the
European Union contends that the existence of a default recognized body would not have altered
the considerations motivating the decision of Ca nadian and Norwegian entities not to submit a
request.850
7.3.4.2.2.2 Analysis by the Panel
7.539. Given the similarities in its text and structure to the second sentence of Article 2.2 of the
TBT Agreement, the Panel considers, and the part ies do not dispute, that the requirement under
the second sentence of Article 5.1.2 calls for a relational analysis similar to that applied in
Article 2.2, namely a weighing and balancing of a measure's trade-restrictiveness, degree of its
contribution to an objective, and possible less trade-restrictive alternative measures. In the
context of a claim under Article 5.1.2, however, the analysis relates to the fulfilment of only one
objective: giving positive assurance that the relevant requirements of the technical regulation are
fulfilled.
7.540. With respect to trade-restrictiveness, it is undisputed that the CAP necessarily has some
restrictive effect to the extent that it imposes additional conditions in order for the trade in seal
products to be permitted. In this case, the ob ligation to obtain attesting documentation from a
body that has applied and been approved for recognition comprises an obstacle for those wishing
to place seal products on the EU market pursua nt to the exceptions of the EU Seal Regime.
However, the question of whether the CAP amounts to an unnecessary obstacle to international
trade depends on the other factors of the analysis to be weighed and balanced.
7.541. Turning to the contribution of the CAP to the assurance of conformity, we recall that the
categories of seal products allowed on the EU market are addressed under Article 3 of the Basic
Regulation and Articles 3, 4, and 5 of the Implem enting Regulation. For seal products potentially
qualifying under these exceptions, we initially note that the CAP covers the assessment of products
from activities that are conducted in locations outside and remote from the European Union.
7.542. Any entity seeking approval to be a recognized body under the EU Seal Regime must
demonstrate that it meets the requirements set ou t in Article 6 of the Implementing Regulation.
Given the inherent nature of third-party accreditat ion, we consider that the degree of contribution
to assurance of conformity is to be judged with regard for the capability and credibility of an
authorized body in providing positive assurance of conformity with the substantive requirements of
the EU Seal Regime.
851 In this vein, the CAP expressly addresses the relevant capabilities of an
applicant body by requiring "the capacity to a scertain that the requirements of" the IC or MRM
exceptions are met; "the ability to monitor compliance with the requirements" of the IC and MRM
exceptions; and "the capacity to issue and manage attesting documents … as well as process and
archive records".
852 Further, other provisions answer to the credibility of an applicant entity by
requiring that the entity be able to avoid conflict s of interest in addition to being subject to an
independent third-party audit.853

arising from differences between the location of facilities of the applicant and the conformity assessment
body".
849 European Union's first written submission, paras. 463-468.
850 European Union's second written submission, paras. 330-332.
851 See European Union's first written submission, para. 442 (explaining that the purpose of the
application and criteria for recognition "is to ensure that the entity is and remains: capable of verifying and
attesting that the requirements to benefit from an exception have been fulfilled; and impartial"). (emphasis
original)
852 Implementing Regulation, Article 6(1)(b), (c) and (e).
853 Implementing Regulation, Article 6(1)(d) and (g).
WT/DS400/R • WT/DS401/R

7.543. In this connection, we observe that the primary function of recognized bodies under the
CAP pertains to inspection and certification of conformity with IC and MRM requirements. 854 In
v i e w o f t h e p a r t i c u l a r f u n c t i o n o f r e c o g n i z e d b o d i e s , w e c o n s i d e r t h a t t h e E U S e a l R e g i m e C A P
contributes to the assurance of conformity with th e relevant requirements of the EU Seal Regime
through its provision for the capacity and impartiality of applicant entities.
7.544. We next consider the reasonable availabili ty of less-trade restrictive alternative measures.
The comparison of a possible alternative CAP un der Article 5.1.2 should examine whether the
alternative CAP is less trade restrictive than the CAP in question and would provide an equivalent
assurance of conformity. We recall in this regard that the complainants bear the burden of
identifying a possible alternative measure.
855 Canada proposes a supplier declaration of
conformity, and Norway proposes the designation of a recognized body in the absence of third-
party recognized bodies.
7.545. With respect to Canada's suggested altern ative of supplier declaration of conformity, such
an alternative would appear to be less restrictive in that it would dispense with suppliers'
dependence on third-party accreditation to asse ss conformity. However, Canada has not provided
specific arguments as to how such an alternative would provide an equivalent assurance of
conformity as the current CAP. Moreover, Canada has not indicated whether such suppliers would
be subject to some form of approval based on capacity/credibility, or instead would have
automatic and undifferentiated eligibility to make conformity declarations. Therefore, we do not
consider that Canada has made a prima facie case establishing that an alternative of supplier
declaration of conformity would be less trade restrictive and make an equivalent contribution to
assuring conformity.
7.546. We observe that Norway's suggested alte rnative does not fundamentally differ from the
EU Seal Regime CAP, but rather would supplement the existing CAP with a designated entity to
enable trade in conforming seal products. In th is regard, Norway specifies that the designated
body in the alternative CAP would exist within the European Union. As mentioned, the function of a
recognized body under the EU Seal Regime CAP pert ains to the verification and inspection of seal
products for compliance with IC and MRM requirements. Further, as pointed out by the
European Union, certification of conformity in the present context may require verification and
inspection at the place of origin of the product in order to obtain positive assurance that all
requirements are met. An entity based in the European Union would therefore be required to
manage the added difficulties of assessing the conf ormity of products that are potentially derived
from hunts occurring at considerable distances outside the European Union. In our view, this may
have implications for the level of contribution to fulfilment of the relevant objective by Norway's
alternative CAP, and we have not been provided any evidence or arguments as to how such an
entity would make an equivalent contribution to confidence of conformity. Furthermore, the
difference of location between applicants and th e conformity assessment body may result in the
imposition of additional costs and burdens in order to verify compliance.
856
7.547. In conclusion, we do not consider that Canada and Norway have established that an
alternative CAP would make a contribution to confidence of conformity at the same level as the
current CAP. We therefore reject the complainants ' claim that the EU Seal Regime CAP is more
strict or applied more strictly than is necessary to give adequate confidence of conformity with the
applicable technical regulations within the meaning of the second sentence of Article 5.1.2.

854 This role is distinct from the more limited responsibilities of "competent authorities" under Article 9 of
the Implementing Regulation, which provides for narrowly defined functions for verification, control, and
repository. The European Union also notes that competent authorities would be precluded from serving as
recognized bodies due to the Implementing Regulation's prohibitions on conflicts of interest. (European Union's
response to Panel question No. 86, paras. 243-247).
855 See, e.g. Appellate Body Reports, US – Tuna II (Mexico), para. 323; US – Gambling, para. 309;
China – Publications and Audiovisual Products, para. 319.
856 In this regard, we also note that Article 5.2.5 of the TBT Agreement addresses "fees imposed for
assessing the conformity of products originating in the territories of other Members" and provides that such
fees may be imposed "taking into account communication, transportation and other costs arising from
differences between location of facilities of the applicant and the conformity assessment body". (See also
European Union's first written submission, para. 467).
WT/DS400/R • WT/DS401/R

7.3.4.3 Article 5.2.1: whether the EU Se al Regime is "undertaken and completed as
expeditiously as possible"
7.3.4.3.1 Main argument of the parties
7.3.4.3.1.1 Complainants
7.548. The complainants contend that the obligation in Article 5.2.1 is similar to that found in
Annex C(1)(a) of the SPS Agreement which requires control, inspection and approval procedures
to be "undertaken and completed without undue delay". The complainants accordingly cite to the
interpretation of the panel in EC – Approval and Marketing of Biotech Products in the context of the
SPS Agreement to further develop the meaning of the provisions in Article 5.2.1. In particular, the
complainants note that the SPS Agreement was found to allow Members "the time that is
reasonably needed to determine with adequa te confidence whether their relevant SPS
requirements are fulfilled".
857 Notwithstanding this allowance, the requirement to carry out such
actions "without undue delay" means that "approval procedures be undertaken and completed with
no unjustifiable loss of time". 858 They also describe the ordinary meaning of the word
"expeditiously" to refer to the performance of an action as quickly as possible without
compromising the effectiveness of the action.859
7.549. Against the interpretive benchmark of unjustifiable delay or loss of time, Canada and
Norway emphasize that Article 5.2.1 requires that conformity assessment procedures be
undertaken and completed "as expeditiously as possible". 860 The complainants contend that the
EU Seal Regime violates this obligation by fa iling to create or designate a body capable of
conducting the conformity assessment, instead leaving it to other entities to seek authorization for
the performance of this task. In the complainants' view, this results in the effective impossibility of
determining conformity with the requirements set out in the EU Seal Regime.861
7.550. Canada additionally asserts that, even if the "failure to create a designated body itself does
not per se give rise to a violation of Article 5.2.1", th e sheer lapse of time during which no bodies
have been recognized as competent to issue attesting documents "amounts to a failure to ensure
that the conformity assessment procedure estab lished by the Implementing Regulation can be
undertaken and completed as expeditiously as possible".
862
7.551. Highlighting the lapse of more than two ye ars for the approval of a Greenlandic applicant,
Norway argues that Article 5.2.1 suggests that a violation of this provision is established only if the
more rapid conduct of a CAP is "possible". Norway reiterates its view that it would be "possible" for
the European Union to conduct its procedures more rapidly than under the current Regime by
designating a body that could act in a timely fashion, without making its procedures depend on the
desire of a third party entity to seek, and secure, approval as a recognized body.
863

857 Canada's first written submission, para. 725 (citing Panel Report, EC – Approval and Marketing of
Biotech Products, para. 7.1498); Norway's first written submission, para. 955 (citing a similar statement made
in Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1499).
858 Canada's first written submission, para. 725 (citing Panel Report, EC – Approval and Marketing of
Biotech Products, para. 7.1495). See also Norway's first written submission, para. 954.
859 Canada's first written submission, para. 724 ("a requirement to undertake and complete something
'as expeditiously as possible' means that the action must be performed as quickly as possible without
compromising the effectiveness of the action, having regard to its purpose and the surrounding
circumstances"); Norway's first written submission, para. 954 ("The ordinary meaning of the term
'expeditiously' refers to action taken as speedily as possible, without compromising the quality or effectiveness
of the action at issue".).
860 Canada's first written submission, para. 727; Norway's first written submission, para. 957; Norway's
second written submission, para. 385.
861 Canada's first written submission, paras. 728-731 (asserting that "it is legally and practically
impossible for seal products to be certified as conforming with the conditions, even if, as a matter of fact, they
do"); Norway's first written submission, paras. 958-961 (describing the practical consequences of the
"institutional lacuna" left by the EU Seal Regime conformity assessment procedures).
862 Canada's first written submission, para. 732.
863 Norway's second written submission, paras. 387-393.
WT/DS400/R • WT/DS401/R

7.3.4.3.1.2 Respondent
7.552. The European Union agrees that the jurisprudence on Annex C(1)(a) of the SPS Agreement
is relevant in interpreting the obligation under Article 5.2.1. 864 Specifically, the European Union
refers to the panel's findings in EC – Approval and Marketing of Biotech Products that "the phrase
'undertake and complete' covers all stages of approval procedures and should be taken as
meaning that, once an application has been received , approval procedures must be started and
then carried out from beginning to end". 865 The European Union concurs with the complainants in
citing to the requirement that there be "no unjustifiable loss of time" 866, but additionally cites to
the finding that "delays attributable to action, or inaction, of an applicant must not be held against
a Member" in a panel's determination of "undue delay".867
7.553. On these foundations, the European Union addresses the complainants' arguments as
consisting of claims against the Implementing Regulation as such and as applied.868 Regarding the
claim against the Implementing Regulation as such, that European Union argues that the
TBT Agreement does not oblige Members to crea te "default" conformity assessment bodies.
Moreover, the phrase "undertake and complete" as interpreted by the panel in EC – Approval and
Marketing of Biotech Products establishes that obligations are triggered only once an application
for conformity assessment has been received. Acco rding to the European Union, despite providing
for broad potential eligibility under the Implementing Regulation, it has received "only twelve
applications to be added on the list of recognized bodies". The European Union contends it has
discharged the duties of good faith under Article 5.2.1 and the low interest of other public
authorities and private entities is not attributable to the European Union.
869
7.554. As to the separate claim by Canada agai nst the Implementing Regulation as applied, the
European Union first argues that such a claim is outside the Panel's terms of reference based on
the text of Canada's panel request.
870 Alternatively, the European Union argues that any delays in
processing applications to date are not imputable to the European Union as they are due to the
deficiency of the application referenced by Canada (i.e. from Greenland).871
7.3.4.3.2 Analysis by the Panel
7.555. Article 5.2.1 provides:
5.2 When implementing the provisions of paragraph 1, Members shall ensure that:
5.2.1 conformity assessment procedures are undertaken and completed as
expeditiously as possible and in a no less favourable order for products originating in
the territories of other Members than for like domestic products; (emphasis added)
7.556. The chapeau of Article 5.2 directly references Article 5.1 and clarifies the relationship
between the obligations in the sub-paragraphs of the two provisions. Specifically, Article 5.2
provides that "[w]hen implementing the provisions of" Article 5.1, Members must adhere to the
specific obligations laid out in the sub-paragraphs of Article 5.2 with respect to the implementation
of the CAP.
872 Among the detailed rules contained in Article 5.2, the complainants have raised a
challenge as to whether the EU Seal Regime CAP is "undertaken and completed as expeditiously as
possible" within the meaning of the first clause of Article 5.2.1.

864 European Union's first written submission, para. 475.
865 European Union's first written submission, para. 476 (citing Panel Report, EC – Approval and
Marketing of Biotech Products, para. 7.1494) (emphasis added by the European Union)
866 European Union's’s first written submission, para. 477 (citing Panel Report, EC – Approval and
867 European Union's’s first written submission, para. 478 (citing Panel Report, EC – Approval and
Marketing of Biotech Products, para. 7.1497) (emphasis added by the European Union)
868 European Union's’s first written submission, paras. 471-472.
869 European Union's’s first written submission, paras. 479-484; second written submission,
paras. 330-332.
870 European Union's’s first written submission, para. 485.
871 European Union's first written submission, paras. 486-487.
872 See also Canada's response to Panel question No. 50; Norway's response to Panel question No. 50;
second written submission, paras. 381-382.
WT/DS400/R • WT/DS401/R

7.557. To assess the complainants' claim under Article 5.2.1, we must therefore examine the
meaning of the phrase "undertaken and completed as expeditiously as possible".
7.558. First, we address the question concerning the precise point in time when the obligation to
"undertake and complete" a CAP is triggered during the implementation process of a CAP. The
parties dispute whether this obligation predates the receipt of an application for recognition under
the CAP.
7.559. In our view, the chapeau of Article 5.2 di ctates that the detailed obligations of the sub-
paragraphs are confined to the implementation of the more general obligations under Article 5.1.
While Article 5.1.2 covers the entire process in which a CAP is "prepared, adopted or applied",
Article 5.2.1 applies only to the implementation stage of the process. This means that the
obligations of Article 5.2 are not coterminous with those of Article 5.1, but limited to the
application of a CAP.
7.560. We further note that the SPS Agreement contains a similar obligation as that contained in
Article 5.2.1 of the TBT Agreement; Annex C(1)(a) of the SPS Agreement provides:
Members shall ensure, with respect to any procedure to check and ensure the
fulfilment of sanitary or phytosanitary measures, that … such procedures are
undertaken and completed without undue delay. (emphasis added)
7.561. Given the similarity in the text, we agree with the parties that there are certain parallels in
the terms and scope of Article 5.2.1 of the TBT Agreement and Annex C(1)(a) of the SPS
Agreement. Both provisions pertain to procedures adopted to ensure fulfilment of specific
requirements contained in a measure falling und er the TBT Agreement or the SPS Agreement,
respectively.
873
7.562. Regarding the phrase "undertaken and completed" in particular, the panel in EC – Approval
and Marketing of Biotech Products concluded:
[t]he verb 'undertake' makes clear that Members are required to begin, or start,
approval procedures after receiving an application for approval .874 … Thus, in our
view, the phrase 'undertake and complete' covers all stages of approval procedures
and should be taken as meaning that, once an application has been received, approval
procedures must be started and then carried out from beginning to end. 875 (emphasis
added)
7.563. Based upon the relevant text and context of Article 5.2.1, and consistent with the
interpretive guidance of the same phrase in the SPS Agreement, we consider that "undertaken and
completed" in Article 5.2.1 applies to the impl ementation of a CAP from the moment when an
application for recognition has been received and through the completion of the process. In the
present dispute, the application in question is for inclusion on the list of recognized bodies under
Article 6 of the Implementing Regulation. Our understanding of the temporal scope of the
obligation in Article 5.2.1 is unaltered by the fact that the application is for accreditation to
perform conformity assessment, rather than a direct application for certification of conformity to
an existing authorized entity.876

873 There is also overlap in the indicative terms provided in the explanatory notes for "conformity
assessment procedures" under the TBT Agreement and "control, inspection and approval procedures" under
the SPS Agreement. In particular, these terms and their explanatory notes coincide with respect to "sampling",
"testing", and "inspection", and the inclusion of "inter alia" to indicate the non-exhaustive nature of the list.
874 The dictionary meanings of the verb "undertake" include "[t]ake on (an obligation, duty, task, etc.);
commit oneself to perform; begin (an undertaking, enterprise, etc.)". The New Shorter Oxford English
Dictionary, L. Brown (ed.) (Clarendon Press, 1993), Vol. II, p. 3476. The French and Spanish versions of
Annex C(1)(a), first clause, also support this reading. The French version uses the verb "engager", the Spanish
version the verb "iniciar". (footnote original)
875 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1494 (emphasis added)
876 See, e.g. Japan's third-party submission, para. 58 (distinguishing the present dispute from EC –
Approval and Marketing of Biotech Products where "the issue did not relate to the designation of the certifying
body but rather to a de facto moratorium on approvals").
WT/DS400/R • WT/DS401/R

7.564. Further, we observe that the adverb "exped itiously" indicates that the obligation relates to
the speed and/or timing of the performance of a CAP. 877 At the same time, the term
"expeditiously" is qualified by the phrase "as possible". We take this qualification to be based on
the fundamental purpose of any CAP to secure "a positive assurance of conformity with technical
regulations"
878, and recognition that doing so may necessarily entail some time to determine that
relevant requirements are fulfilled.
7.565. In this connection, we also take note of the interpretation by the panel in EC – Approval
and Marketing of Biotech Products of the phrase "without undue delay" to mean that approval
procedures were required to be undertaken an d completed "with no unjustifiable loss of time". 879
The panel similarly accounted for the function of approval procedures to check and ensure
fulfilment of SPS requirements, and reasoned on this basis that "Members applying such
procedures must in principle be allowed to take the time that is reasonably needed to determine
with adequate confidence whether their relevant SPS requirements are fulfilled".880
7.566. We agree with the approach of the panel in EC – Approval and Marketing of Biotech
Products. While the duty of expeditious conformity a ssessment prescribed in Article 5.2.1 must be
carried out so as not to create an unnecessary ob stacle to trade, such duty of the regulating
Members must be balanced against the regulating Members' need and practical ability to make an
adequate conformity assessment. 881 Therefore, in our view, Article 5.2.1 permits the time that is
reasonably required to assess conformity with technical requirements.
7.567. Turning to the question of whether the CAP in question has been undertaken "as
expeditiously as possible" in the particular circum stances of this dispute, the parties' arguments
mainly concern the issue of the justifiability and attribution of delay caused under the CAP.
7.568. First, the complainants criticize the design of the CAP as creating an absence, attributable
to the European Union, of any body competent to "undertake and complete" the required CAP. In
other words, we understand the complainants' arguments to be based on the same grounds as
those raised in the context of their claim under Article 5.1.2, namely the absence of a default body
(i.e. an "institutional lacuna"). We recall our finding above on this question that Article 5.1.2 does
not impose an obligation to create or designate a default body pending accreditation or recognition
of third-party entities to perform a CAP. In ligh t of this finding, we are not persuaded of the
complainants’ contention that the absence of a default body in the CAP leads to a violation of
Article 5.2.1.
882
7.569. Next, regarding the arguments based on the actual time taken for the European Union to
process conformity assessment applications, the European Union attributes delay in the application
process to the complainants themselves for failing to initiate the procedures that would prompt the
European Union's obligation to undertake and complete the CAP as expeditiously as possible. The
European Union also contends that delays in the processing of requests from Sweden and
Greenland cannot be considered attributable to the European Union.
883 We must thus assess the
evidence relating to the application of the CAP with respect to those applications that were
submitted to the Commission. On the basis of ou r assessment, we evaluate whether the CAP, as
applied in those cases, was not undertaken and completed as expeditiously as possible in
compliance with Article 5.2.1.

877 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 898 ("1. Speedily performed or given; conducive to speed performance").
878 Article 5.1 of the TBT Agreement.
879 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1495.
880 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1498. The panel further
stated: "Put another way, we view Annex C(1)(a), first clause, essentially as a good faith obligation requiring
Members to proceed with their approval procedures as promptly as possible, taking account of the need to
check and ensure the fulfilment of their relevant SPS requirements."
881 See Annex 1.3 of the TBT Agreement (definition of "conformity assessment procedures").
882 We note that that there has not been any contention that the European Union has prevented the
submission or receipt of applications in its administration of the CAP, but rather that there were inadequate
incentives to apply because of the substantive requirements of the EU Seal Regime. (See Canada's and
Norway's responses to Panel question Nos. 84 and 85). Because no applications for recognition from Canadian
or Norwegian entities have ever been submitted, we do not consider the obligations of Article 5.2.1 to have
been breached by the European Union in respect of the non-approval of such entities where it was not possible
to "undertake" the CAP in the first place.
883 See, e.g. European Union's second written submission, para. 327.
WT/DS400/R • WT/DS401/R

7.570. Regarding the application from Greenland, on 21 February 2011, the Greenlandic
government notified that its Department for Fisheries, Hunting, and Agriculture (APNN) would
serve as certifying authority under Article 6 of Implementing Regulation.
884 On 7 July 2011, the
Commission sent a formal deficiency letter stating that, although there was no evidence that the
entity was ineligible, there was insufficient documentary evidence to demonstrate fulfilment of all
of the requirements of Article 6 of Implementing Regulation. 885 The Greenlandic authorities
provided an initial reply letter on 5 January 2012 with supporting documentation 886 and
subsequently provided supplementary information on 1 November 2012 887 and
29 January 2013.888 The Commission issued its decision recognising the APNN of Greenland on
25 April 2013.889
7.571. With respect to the applications received from Swedish entities under the CAP, the first
applications were received on 20 January 2011 from 11 county administrative boards designated
by the Swedish government.890 A formal deficiency letter was sent on 7 July 2011 (the same date
as the letter to Greenland) similarly stating that there was no evidence that the applicants were
ineligible and detailing documentary insufficiencies of the application. 891 The Swedish authorities
replied on 6 October 2011 with an item-by-item response to the Commission's deficiency letter 892,
and the Commission issued its decision recognising the Swedish bodies on 18 December 2012.893
7.572. It is thus clear that there were some delays of varying length in the exchanges between
the Commission and the respective applicant bodies in Sweden and Greenland.
7.573. In the case of Greenland, we observe the multiple exchanges of information with
Greenlandic authorities in the course of the recognition process. The formal deficiency letters from
the Commission, sent several months after the applications, itemize the deficiencies of each
application with specific reference to the enumerated requirements of Article 6 of the
Implementing Regulation. The letters also contain references to information provided in the
original applications and request elaboration and additional documentation on certain points with
indications of the type of evidence that would be suitable, such as legal references or factual
explanations.
7.574. The first response from Greenland to the deficiency letter was submitted approximately six
months afterwards and acknowledges "the tardy reply, which is the result of internal discussion
and the number and scope of the questions". Th is response goes on to provide extensive
explanation of export authorizations as well as the licensing and monitoring scheme of the
commercial seal hunt.
7.575. Subsequent communications elaborate upon relevant laws and monitoring functions, while
also indicating that there may have been meetings and exchanges outside the exchange of written
correspondence and documentation.
894 Given the multiple submissions of documentation made to
the Commission as well as indications of other forms of engagement, the evidence regarding the
Greenlandic application does not enable us to make a precise assessment of the cause or
attribution of the overall length of the proceedings. Nor have the complainants provided a
sufficient basis for us to conclude that the procedures under the CAP with respect to the specific
applications from Greenland were not undertake n and completed as expeditiously as possible
within the meaning of Article 5.2.1

884 Greenland's request pursuant to Article 6(2) of the Implementing Regulation, (Exhibit EU-148).
885 Deficiency letter to Greenland of 7 July 2011, (Exhibit EU-150).
886 Greenland's response of 5 January 2012, (Exhibit EU-151) and Supporting documentation to the
submission of 5 January 2012, (Exhibit EU-152).
887 Supplementary document received from Greenland on 1 November 2012, (Exhibit EU-153).
888 Submission by Greenland of 29 January 2013, (Exhibit EU-154) and annexes, (Exhibit EU-155).
889 Commission decision of 25 April 2013 recognising the Greenland Department of Fisheries, Hunting
and Agriculture (APNN), (Exhibit EU-149).
890 Sweden's request pursuant to Article 6(2) of the Implementing Regulation, (Exhibit EU-156).
891 Deficiency letter to Sweden of 7 July 2011, (Exhibit EU-157) (also indicating the decision to treat the
applications of the 11 county administrative boards jointly).
892 Sweden's response of 6 October 2011, (Exhibit EU-158).
893 Commission decision of 18 December 2012 recognising the Swedish County Administrative Boards,
(Exhibit EU-159).
894 See, e.g. Submission by Greenland of 29 January 2013 , (Exhibit EU-154) (referring to a meeting
with a Commission official in Brussels in December 2012).
WT/DS400/R • WT/DS401/R

7.576. With respect to the Swedish application, the Commission sent a formal deficiency letter to
the applicants about 6 months from receipt of the applications. The nature and content of the
deficiency letter appears to be similar to that sent to the applicants from Greenland. The applicants
then sent a reply to this deficiency letter roughly three months later containing an item-by-item
response with extensive reference to Swedish legi slation and an explanation of the function of
county administrative boards. As was the case with respect to the applications from Greenland, we
are not presented with any specific explanation regarding the time taken from receiving the
applications to responding to the applicants with a deficiency letter. Nor do we find any additional
evidence of activity regarding the Swedish application prior to recognition over one year later.
895
7.577. As a general observation based on the factual circumstances described above, the CAP
conducted with respect to both the Greenlandic an d the Swedish applications took some time until
their completion. Particularly, the circumstances surrounding the Swedish applications reveal a
delay greater than one year from receipt of the applicants' responses to the Commission's
deficiency letter until the final approval by the Commission. The amount of time taken in this
specific instance, without sufficient justification, would not therefore seem "expeditious" within the
meaning of Article 5.2.1.
7.578. In addressing the length of time taken to approve a recognized body under the CAP, the
complainants have referred simply to the lapse of time from the effective date of the EU Seal
Regime until the approval of the applications from Greenland and Sweden. They have not
otherwise explained how specifically the CAP was not as expeditious as possible in undertaking and
completing the applications concerned in this dispute.
7.579. We first recall our consideration above that the obligations of Article 5.2.1 apply upon
receipt of an application. Accordingly, we do not consider the effective date of the EU Seal Regime,
as suggested by the complainants, to be the correct benchmark against which the time taken for
the undertaking and completion of the CAP is to be judged. Further, in our view, a violation of
Article 5.2.1 must be examined in light of the specific circumstances relating to a given CAP. This
would entail an evaluation of not only the entire period of time taken from receipt of an application
until completion of a CAP, but also the specif ic time taken for each procedural step (e.g.
correspondences between an applicant and the Comm ission) during the course of the undertaking
and completion of a CAP. This would allow us to objectively assess whether the time taken for the
conformity assessment of a given application was "as expeditious as possible". As noted above, in
the present dispute, however, the complainants have not provided any specific argument as to
how the CAP was not conducted in the concerned instances as expeditiously as possible within the
meaning of Article 5.2.1.
896
7.580. Therefore, in spite of our concern expressed above regarding the time taken with respect
to the Swedish applications, we have not been provided a sufficient basis to conclude that the CAP
was not undertaken and completed as expeditiously as possible within the meaning of Article 5.2.1
of the TBT Agreement.
7.4 Non-discrimination claims under the GATT 1994
7.4.1 Relationship between the GATT 1994 and the TBT Agreement
7.581. The complainants in this dispute pr esented claims under both the GATT 1994 and the
TBT Agreement, including claims concerning the non-discrimination obligations. As we already
addressed Canada's non-discrimination claim under Article 2.1 of the TBT Agreement, we find it
useful to review the relationship between, an d the legal standards under, the GATT 1994 and the

895 Although the European Union has asserted that it "explained why the processing of the request made
by entities from Sweden took as long as it took", the reference to its first written submission allegedly doing so
merely recounts what transpired in October 2011 and then in December 2012, without accounting for the
intervening period of time. (European Union's second written submission, para. 327).
896 We observe that the panel in EC – Approval and Marketing of Biotech Products considered that,
although "a Member is not legally responsible for delays which are not attributable to it", it would be sufficient
to establish that the general de facto moratorium on approvals "caused undue delay in at least one instance".
(Panel Report, EC – Approval and Marketing of Biotech Products, paras. 7.1497 and 7.1504). However, in
contrast to the present dispute, the parties in that case had developed extensive arguments concerning specific
actions that could have been taken to prevent the delays at issue and the justifiability of the reasons for which
such actions were not taken.
WT/DS400/R • WT/DS401/R

TBT Agreement before we begin our examination of the parties' non-discrimination claims under
the GATT 1994.
7.582. In the recent trilogy of disputes invo lving the claims under the TBT Agreement and the
GATT 1994, the Appellate Body provided guidance on the relationship between the obligations
under these two Agreements. 897 Based on the text of the second recital of the preamble of the
TBT Agreement, the Appellate Body observed, "t he TBT Agreement expands on the pre-existing
GATT disciplines and emphasizes that the two Agreements should be interpreted in a coherent and
consistent manner."898
7.583. More specifically, the Appellate Body stated that the balance set out in the preamble of the
TBT Agreement between, on the one hand, the desi re to avoid creating unnecessary obstacles to
international trade under the fifth recital and, on the other hand, 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 trea tment in Article III are qualified by the general
exceptions provision of Article XX.899
7.584. In the context of addressing the nation al treatment obligation under Article 2.1 of the
TBT Agreement , the Appellate Body made the following observations: first, the similar formulation
of the provisions under Article 2.1 of the TB T Agreement and Article III:4 of the GATT 1994 900;
second, the overlap in their scope of application in respect of technical regulations 901; and third,
the absence of a general exceptions clause in the TBT Agreement that resembles a general
exceptions clause in Article XX contained in the GATT 1994.
902 Based on these observations, the
Appellate Body considered that Article III:4 of the GATT 1994 provides relevant context for the
interpretation of the national treatment obligatio n of Article 2.1 of the TBT Agreement. However,
noting the scope of the TBT Agreement as an agreement governing "technical regulations" 903; the
sixth recital of the preamble of the TBT Agreement 904; and the object and purpose of the
TBT Agreement to strike a balance between the objective of trade liberalization and Members' right
to regulate, the Appellate Body concluded that Article 2.1 should not be interpreted as prohibiting
any detrimental impact on competitive opportunities for imports in cases where such detrimental
impact on imports stems exclusively from a legitimate regulatory distinction.
7.585. Therefore, the Appellate Body clarifie d the legal standards for the non-discrimination
provisions under the GATT 1994 (Articles I:1 an d III:4) and the TBT Agreement (Article 2.1):
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, 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.
905 The additional element (i.e. legitimate
regulatory distinction) that the Appellate Body considered as necessary to complete an analysis
under Article 2.1 of the TBT Agreement reflects the Appellate Body's earlier observation regarding
the absence in the TBT Agreement of a general exce ptions clause equivalent to Article XX in the
GATT 1994.

897 See Appellate Body Reports, US – Clove Cigarettes, US – Tuna II (Mexico), and US – COOL.
898 Appellate Body Report, US – Clove Cigarettes, paras. 90-91. The Appellate Body further read the
sixth recital of the preamble of the TBT Agreement as counterbalancing the trade-liberalization objective
expressed in the fifth recital. Specifically it found that the sixth recital "recognizes" Members’ right to regulate
versus the "desire" to avoid creating unnecessary obstacles to international trade, expressed in the fifth recital.
Thus, according to the Appellate Body, the sixth recital suggests that Members have a right to use technical
regulations in pursuit of their legitimate objectives, provided that they do so in an even-handed manner and in
a manner that is otherwise in accordance with the provisions of the TBT Agreement. (Appellate Body Report,
US – Clove Cigarettes, para. 95).
899 Appellate Body Report, US – Clove Cigarettes, para. 96.
900 Appellate Body Report, US – Clove Cigarettes, para. 99.
901 Appellate Body Report, US – Clove Cigarettes, para. 100.
902 Appellate Body Report, US – Clove Cigarettes, para. 100.
903 Appellate Body Report, US – Clove Cigarettes, para. 169. The Appellate Body also found support for
this interpretation in the obligations under Article 2.2 as well as the sixth recital of the preamble of the
TBT Agreement (paras. 170-173).
904 Appellate Body Report, US – Clove Cigarettes, para. 173.
905 Appellate Body Report, US – Clove Cigarettes, paras. 180-182, 215; US – Tuna II (Mexico),
para. 215.
WT/DS400/R • WT/DS401/R

7.586. Therefore, we do not consider that the legal standard with respect to the non-
discrimination obligation under Article 2.1 of the TBT Agreement "equally applies" to claims under
Articles I:1 and III:4 of the GATT 1994 as argued by the European Union. 906 As noted by the
Appellate Body, under the GATT 1994, the objectiv e of trade liberalization, including Members'
obligation to respect non-discrimination obligations as embodied in Articles I:1 and III:4, are
balanced against Members' right to regulate und er the separate general exceptions clause of
Article XX.
7.587. Bearing the above in mind, we begin our analysis of whether certain aspects of the EU Seal
Regime modify the conditions of competition for Canadian and Norwegian imports of seals
products on the EU market vis-à-vis Greenlandic and EU domestic seal products within the
meaning of Articles I:1 and III:4 respectively. If we find in the affirmative, we will then examine
whether the European Union has demonstrated why such aspects of the EU Seal Regime are
nevertheless justified under Article XX.
7.4.2 Article I:1
7.4.2.1 Main arguments of the parties
7.588. As Canada’s arguments under Article I:1 of the GATT 1994 largely resemble those under
Article 2.1 of the TBT Agreement, we summarize in this section Norway’s arguments only.
To recall, Norway did not present a claim under Article 2.1 of the TBT Agreement. We will however
cross-reference Canada's arguments to the extent relevant and appropriate in the context of our
analysis.
7.589. Like Canada, Norway argues that the EU Seal Regime violates Article I.1 of the GATT 1994
because it grants a market access advantage to certain seal products from Greenland without
extending such advantage "immediately and unconditionally" to "like" seal products from Canada
and Norway.
907
7.590. Norway further argues that the conditions of the IC exception discriminate on grounds of
origin by establishing explicit links between importation and the territory of production. 908
In respect of both its express wording and the necessary implications of the terms used, the
EU Seal Regime restricts market access advantages to a "limited" and "closed" group of countries
under the IC exception.909 Norway argues that the IC exception benefits predominantly one single
country out of the list of countries identified, namely Greenland. 910 Further, the measure is
expected to operate, in practice, in a manner that confers little or no benefit on seal products

906 European Union's first written submission, para. 528. See, for instance, Canada's opening statement
at the first meeting of the Panel, paras. 51-53, 55; Norway's opening statement at the first meeting of the
Panel, paras. 23-25.
See, for instance, US – Tuna II (Mexico), para. 405 where the Appellate Body notes that the scope and
content of Article 2.1 of the TBT Agreement and Articles I:1 and III:4 of the GATT 1994 are not the same.
907 Canada's opening statement at the second meeting with the Panel, para. 31; Norway's first written
submission, para. 286. In making its argument, Norway distinguishes between "finished" and "intermediate"
products. (See Norway's first written submission, paras. 369-371 and 372-375, respectively).
908 Norway's first written submission, para. 286. It should be noted that Norway is not making a claim of
de jure discrimination per se. However, Norway notes in its submission that "[t]he facts set forth … in support
of Norway's claim that the European Union Seal Regime de facto discriminates contrary to Article I:1 of the
GATT 1994 would also support a finding by the Panel that the European Union Seal Regime is indeed de jure
inconsistent with Article I:1 of the GATT 1994, since it necessarily limits the extension of a relevant
"advantage" to a defined and closed group of countries." (Norway's first written submission, para. 377,
footnote 595).
909 Norway notes that the Basic Seal Regulation expressly names certain Members or territories of
Members as qualifying under this aspect of the IC exception. In particular, Article 2(4) of the Basic Regulation
lists the following six Inuit Communities: Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), Kalaallit
(Greenland) and Yupik (Russia). As regards the definition of "indigenous communities" in Article 2(1) of the
Implementing Regulation, Norway argues that it also establishes a "closed group" because an indigenous
community must have inhabited the territory of the Member in question "at the time of the conquest or
colonisation or the establishment of present State boundaries". (Norway's first written submission,
paras. 378-380).
910 Norway's first written submission, para. 389.
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originating in Norway. 911 N o r w a y f u r t h e r c o n t e n d s t h a t b y c o n d i t i o n i n g m a r k e t a c c e s s o n t h e
existence of a tradition of producing certain goods in the country; of belonging to a certain people
that has long resided in the country; or on factors such as the partial use of the product in the
country of production, the European Union conditions market access on the "situation or conduct"
of the exporting countries.
912 This reflects a failure to extend the advantage of market access
"unconditionally" to like products originating in all WTO Members, as required by Article I:1 of the
GATT 1994.
913
7.591. The European Union does not contest that the EU Seal Regime, through the IC exception,
confers an "advantage" in the sense of Article I:1 of the GATT 1994 to the extent that it permits
the placing on the EU market of seal products that would otherwise be excluded through the
general prohibition.
914 In response to Norway's argument, the EU asserts that the conditions under
the IC exception are origin-neutral as they refer to the type and purpose of the hunt, rather than
to a defined origin. 915 The reference to country names where Inuit and indigenous communities
currently live does not imply that the IC exception applies only to a "limited" or "closed" list of
countries.916 In the EU's view, the fact that hunts conducted by Inuit and other indigenous
communities in countries such as Canada and Norway represent a lower percentage than in other
countries, such as Greenland, cannot be found to be discriminatory per se.
917 The European Union
also disagrees with Norway's contention that the advantage under Article I:1 may not be granted
subject to conditions relating to the situation or conduct of other countries; if the conditions to
obtain a certain advantage are drafted in an or igin-neutral manner, the requirement of such
conditions would not be discriminatory.
918
7.4.2.2 Analysis by the Panel
7.592. Article I:1 of the GATT 1994 provides that:
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 originating 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].
7.593. Based on this provision, three elements must be satisfied in order to demonstrate an
inconsistency with Article I:1 of the GATT 1994: (i) there must be an "advantage, favour, privilege
or immunity" of the type covered by Article I:1; (ii) the advantage is not granted "immediately and
unconditionally"; (iii) to like products originating in or destined for all other WTO Members.
919
7.594. In the context of Canada's claims under Article 2.1 of the TBT Agreement, the Panel
addressed the question of whether Canadian seal products are "like" seal products of other origin
(Greenland). We found in section 7.3.2.1 above that the seal products belonging to these different
groups are like products, irrespective of whether they conform or not to the requirements under
the EU Seal Regime. We recall that the parties do not dispute that conforming and non-conforming
seal products are like.

911 It is not clear from Norway's submission whether they are referring to their seal products derived
from Inuit or from commercial hunts.
912 Norway's first written submission, para. 388 (referring to Canada – Autos, para. 10.23).
913 Norway's first written submission, para. 388.
914 European Union's first written submission, para. 542.
915 According to the European Union, the terms "Inuit" and "indigenous communities" defined in the
Basic and Implementing Regulations, respectively, are not indicative of a particular origin. In fact, these
communities are widely spread around the world. (See European Union's first written submission,
paras. 280-283 and 547).
916 European Union's first written submission, para. 557.
917 European Union's first written submission, para. 289.
918 European Union's first written submission, para. 538.
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7.595. The term "advantage" in Article I:1 is broad and applies to all matters referred to
in paragraphs 2 and 4 of Article III of the GATT 1994. Article III:4 applies in turn to all
"laws, regulations and requirements affecting the internal sale, offering for sale, purchase,
transportation, distribution or use [of a product]." The EU Seal Regime is undoubtedly a "law or
regulation" within the meaning of Article III:4 of the GATT 1994 and therefore, the measure also
falls within the scope of Article I:1 of the GATT 1994.
7.596. Furthermore, the advantage granted by th e EU Seal Regime is in the form of market
access; it is granted to seal products that meet the conditions under the IC exception. The EU Seal
Regime affects the placing on the market of se al products and therefore the "internal sale",
"offering for sale", "distribution" and "purchase" of seal products.
7.597. With respect to the third element of Article I:1, the MFN obligation contained therein
requires that once seal products from Greenland are granted the advantage of access to the
European Union market, such advantage be extended "immediately and unconditionally" to
Canadian and Norwegian seal products that are found to be "like".
920 As explained above, the
evidence suggests that this has not been the case because the vast majority of seal products from
Canada and Norway do not meet the IC requiremen ts for placing on the market under the EU Seal
Regime.921 In contrast, virtually all of Greenlandic seal products are likely to qualify under the
IC exception for placing on the market. 922 Thus, in terms of its design, structure, and expected
operation, the EU Seal Regime detrimentally affects the conditions of competition on the market of
Canadian and Norwegian origin as compared to seal products of Greenlandic origin.
7.598. Bearing in mind this finding, we addre ss Norway's argument that the IC requirements
give rise to origin-based discrimination. Norway argues that in order to qualify under the
IC exception, seal products must originate in one of a limited number of countries inhabited by an
indigenous community that meets the specific terms of the conditions.
923 According to Norway, the
origin of seal products that are likely to qualify under the IC exception can be determined by
necessary implication.924 First, based on Norway's arguments in this regard, it is not clear whether
Norway is presenting a de jure claim with respect to the IC exception in this dispute. Although
Norway refers to the term " de jure " in a footnote in the context of its arguments relating to
Article I:1, it has not fully developed a de jure claim, as a separate and additional claim from its de
facto claim with respect to the IC exception. Furthermore, to the extent we already found a de
facto violation with respect to the IC exception above, we do not find it necessary to make a
finding on a de jure claim.
7.599. We note that several countries, including non-EU member States, have Inuit or indigenous
communities living in their territory. 925 For instance, Canada's Inuit and Inuvialuit populations are
specifically mentioned in the Basic Regulation 926; there is also evidence that Norway's Sami

920 For the purpose of this analysis, the groups of products compared are all Norwegian seal products
and all Greenlandic seal products (i.e. with reference to Table 1 above, cells B+G are compared to cells D+I).
921 The evidence before us shows that roughly 5% of Canada's seal harvest and less than 4.5% of
Norway's seal harvest are likely to comply with the requirements of the IC exception. (See Canada's first
written submission, para. 286 and footnote 391; Norway's first written submission, para. 391, Table 1 citing
COWI 2010 Report, (Exhibit JE-21), pp. 27, 30-31; Nunavut Report (2012), (Exhibit JE-30), p. 1; and
Norwegian Ministry of Fisheries and Coastal Affairs, Facts about Fisheries and Aquaculture 2010
(Exhibit NOR-63), p. 21).
922 It is estimated that 100% of Greenland's seal products would qualify under the IC exception.
(See Norway's first written submission, paras. 391-394, citing COWI 2010 Report, (Exhibit JE-21), section 3.1,
pp. 28-30 and Management and Utilization of Seals in Greenland (Exhibit JE-26), p. 13; and European Union's
response to Panel question No. 156 (where the European Union notes that entities from Greenland have been
authorized as "designated bodies" that could deliver attesting documents for the purpose of placing
Greenlandic seal products on the EU market)).
923 We note that Norway submits this argument in the context of its de facto discrimination claims while
noting that the same arguments would support a claim of de jure discrimination to the extent that the EU Seal
Regime limits the extension of a relevant "advantage" to a defined and closed group of countries. (See
Norway's first written submission, para. 377, footnote 595).
924 Norway's opening statement at the first meeting of the Panel, paras. 43-44. As noted, it is unclear to
the Panel whether Norway is arguing that the EU Seal Regime is de jure discriminatory against Norwegian
imports of seal products. (Norway's first written submission, footnote 595; opening statement at the first
925 European Union's first written submission, paras. 283-284.
926 The definition of "Inuit" in Article 2(4) contains a reference to these two populations.
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population would qualify as an "indigenous comm unity" within the meaning of the definition in
Article 2(1) of the Implementing Regulation. The COWI 2010 Report identifies a number of
countries whose Inuit or indigenous populations are likely to meet the requirements of the
IC exception.
927 The IC requirements permit the placin g on the market based on conditions
relating to the characteristics of seal hunts as o pposed to a "closed list" of countries. We also note
that some of the communities whose seal products may qualify under the exception are not
concentrated in one single country.
928 In light of these considerations, we do not believe that the
EU Seal Regime gives rise to discrimination based on origin per se.
7.600. Based on our findings in paragraph section 7.3.2.2.2 above, we consider that the measure
at issue does not "immediately and unconditionall y" extend the same market access advantage on
the EU market to the complainants' imports as they do to seal products originating from Greenland
and thus is inconsistent with the obligation under Article I:1 of the GATT 1994.
7.4.3 Article III:4
7.4.3.1 Main arguments of the parties
7.601. As in the case of Canada’s claim under Article 1:1, Canada’s arguments under Article III:4
largely resemble those under Article 2.1 of the TBT Agreement. Thus, we summarize below
Norway’s arguments under Article III:4 of the GA TT 1994 by cross-referencing as appropriate to
Canada's arguments under Article 2.1 of the TBT Agreement.
7.602. Like Canada, Norway argues that the EU Seal Regime violates Article III:4 of the
GATT 1994 because through the requirements of the MRM exception, the Regime accords to
imported seal products from Norway (and Canada) a treatment that is less favourable to that
accorded to like domestic seal products.
929 Specifically, Norway argues that by introducing the
"non-systematic", "non-profit", and "sole purpose" requirements, the European Union has tailored
the MRM exception to the realities of the seal hunt in the European Union.
930 In contrast, Norway's
seal products are ineligible under the MRM exception despite the fact that the hunts are conducted
in accordance with sustainability principles. 931 Unlike the seal hunts conducted in the
European Union, the hunt in Norway is not merely incidental to other fishing activities; as such, it
cannot be carried out on condition that no profit is derived from the hunt. 932 In addition, the
treatment of subsidies in the EU definition of "non-profit" serves to further exclude Norwegian
products from the EU market while allowing seal products from the European Union.933

927 COWI 2010 Report, p. 30.
928 The evidence before the Panel suggests that Inuit and indigenous populations may occupy the
territories of adjacent countries. (See, e.g. European Union's first written submission, paras. 283-284). The
European Union gives the example of Sami communities who live and hunt in both Norway and Sweden. (See
COWI 2010 Report, p. 33).
929 Norway's first written submission, para. 424.
930 Norway's first written submission, para. 430 (citing Comments from EU Member States on Proposal
for a Regulation of the European Parliament and of the Council concerning trade in seal products,
(Exhibit JE-10), pp. 16 and 18; and European Parliament Debates, (Exhibit JE-12), p. 72). Norway notes that
according to scientific literature, the problem posed by seals to the fishing activities of Finland, Latvia,
Lithuania, and Sweden relates essentially to seals' attacks on fishing gear. (Norway's first written submission,
para. 431 (referring to Finnish Game and Fisheries Research Institute, Symposium on Biology and Management
of Seals in the Baltic Area held in Helsinki (2005), (Exhibit NOR-64)).
931 Norway's first written submission, paras. 434-441. Norway does not contend that the first
requirement under the MRM exception (i.e. that seal products must derive from hunts conducted under a
natural resources management plan which uses scientific population models of marine resources and applies
the ecosystem-based approach, and that the seal catch must not exceed the total allowable catch quota
established under the plan) is discriminatory. Norway further notes that it expects the products of its seal hunt
to meet this requirement under the MRM exception because the hunt in Norway is conducted "based on
ecosystem management principles". (Norway's second written submission, paras. 81-82 (citing COWI 2010
Report, Annex 5, p. 13)).
932 Norway's first written submission, paras. 444-445.
933 Norway notes that "[i]n order to allow the long-term viability of the seal hunt and maintain the
professional capabilities necessary to carry out the hunt, Norway does provide a subsidy in relation to the
hunt." Norway adds that "[t]he purpose of the subsidy is to ensure that the recommended TAC quotas are
taken." (Norway's first written submission, paras. 448-449 and footnote 708).
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7.603. The European Union argues that the MRM exception does not modify the conditions of
competition to the detriment of Norway's (and Canada's) seal products. 934 The EU Seal Regime
equally affects seal products resulting from hunts for commercial purposes (non-conforming) and
seal products resulting from hunts for marine resource management purposes (conforming).
935
The European Union further argues that the MRM exception is based on considerations that are
completely unrelated to the domestic origin of seal products.936
7.4.3.2 Analysis by the Panel
7.604. Article III:4 of the GATT 1994 provides that:
The products of the territory of any Member 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 laws, regulations and requirements affecting
their internal sale, offering for sale, purchase, transportation, distribution or use.
7.605. There are three elements that must be examined to assess a measure's consistency with
Article III:4 of the GATT 1994: (i) whether the me asure is a law, regulation or requirement
affecting the internal sale, offering for sale, purchase or use of goods; (ii) whether the products at
issue are like; and (iii) whether imported products are accorded less favourable treatment than
that accorded to like domestic products.
937
7.606. With respect to the first element of Arti cle III:4, we note that the EU Seal Regime is
undoubtedly a "law" or "regulation" affecting the internal sale, offering for sale, purchase,
distribution and use of seal products within the meaning of Article III:4.
7.607. As regards the second element of Article III: 4, we found in the context of Canada's claims
under Article 2.1 of the TBT Agreement that seal pr oducts are "like" irrespective of whether they
conform or not to the requirements under the EU Seal Regime. We also recall that the parties do
not dispute that conforming and non-conforming seal products are like.
7.608. With respect to the third element under Article III:4, the national treatment obligation
contained therein requires that imported produc ts from Canada and Norway receive a treatment
no less favourable than that accorded to domestic seal products.
938 Based on the evidence before
the Panel, it appears that the vast majority of seal products from Canada and Norway are excluded
from the EU market by the terms of the MRM exception. 939 In contrast, evidence shows that
virtually all domestic seal products are likely to qualify for placing on the market.940
7.609. In light of the above considerations, we conclude that the measure at issue grants
Canadian and Norwegian seal products a treatment less favourable than that accorded to EU seal
products within the meaning of Article III:4 of the GATT 1994.
7.4.4 The European Union's justification of the EU Seal Regime under Article XX
7.4.4.1 Introduction
7.610. Article XX of the GATT 1994 provides:

934 European Union's first written submission, paras. 500-525; second written submission,
paras. 235-263 and 369-372.
935 European Union's second written submission, para. 370.
936 European Union's first written submission, para. 323; second written submission, paras. 207, 247
and 370.
937 Appellate Body Report, Korea – Various Measures on Beef, para. 133.
938 For the purpose of this analysis, the groups of products compared are all Norwegian seal products
and all EU seal products (i.e. with reference to Table 1 above, cells B+G are compared to cells A+F).
939 We note, for instance, that although Norway's hunts take place under a natural resources
management plan which uses scientific population models of marine resources and applies the ecosystem-
based approach, Norway's seal products would not meet the "non-profit", "non-systematic" and "sole purpose"
requirements under the MRM exception (See COWI 2010 Report, Annex 4, p. 3 as discussed in Norway's first
written submission, paras. 263-265). Regarding Canada's arguments that its seal products would not be
eligible under the MRM exception, we refer to our analysis in section 7.3.2.2 above.
940 See, for instance, COWI 2008 Report, p. 117.
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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 contracting party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health …
7.611. As noted above, under the GATT 1994, the objective of trade liberalization through
principles such as non-discrimination is balanced against Members' right to regulate to pursue the
policy objectives listed in Article XX.
7.612. We found that the IC exception and the MRM exception under the EU Seal Regime are
inconsistent with the obligations under Articles I:1 and III:4 by modifying the conditions of
competition for Canadian and Norwegian seal products vis-à-vis like products of Greenlandic and
EU domestic origins on the EU market. The European Union alleges that these exceptions are
based on "regulatory differences"
941 that are "necessary" to achieve the objectives invoked by the
European Union under Article XX(a) and XX(b). Accordingly, we must examine whether the
European Union has established its case under Article XX by demonstrating two elements: first,
the measure falls within the scope of, and meets the requirements under paragraph (a) and/or
paragraph (b) of Article XX; and, second, the measure satisfies the requirements of the chapeau of
Article XX.
942
7.613. In this connection, we recall that "the GATT 1994 and the TBT Agreement should be
interpreted in a coherent and consistent manner". 943 Under the TBT Agreement, we found that the
EU Seal Regime as a technical regulation, contri butes, to a certain extent, to the objective of
addressing the public moral concerns on seal welfare within the meaning of Article 2.2. 944 We
further found under Article 2.1 of the TBT Agreem ent that the IC and MRM exceptions under the
Regime caused detrimental impacts on Canadian and Norwegian seal products, which was found
not to stem exclusively from legitimate regulatory distinctions.
945 All of these considerations under
the TBT Agreement are therefore relevant to our examination of the European Union's claim under
Article XX of the GATT 1994. We are however mindful that the obligations under these two
Agreements are not the same.
946
7.614. Having the above in mind, we start by ex amining the specific aspects of the measure that
must be considered in our analysis of Article XX in this dispute.
7.4.4.2 Aspects of the EU Seal Regime to be considered
7.4.4.2.1 Main arguments of the parties
7.615. According to the European Union, the analysis should focus on whether the "regulatory
differences" upon which the finding of less favourable treatment is based are "necessary" in order
to achieve the objectives at the level of protection chosen by the responding Member. In this case,
the alleged less favourable treatment "results from the interplay between the General Ban and the
IC and MRM exceptions".
947 Thus, the Panel should examine whether the "regulatory differences"

941 We note that the European Union uses the term "regulatory differences" rather than "regulatory
distinctions" in the context of Article XX of the GATT 1994.
942 Appellate Body Report, US – Shrimp, para. 119.
943 Appellate Body Report, US – Clove Cigarettes, para. 91.
944 See section 7.3.3.3.2 above.
945 See section 7.3.2 above.
946 For instance, Article XX of the GATT 1994 is a general exceptions provision under which a measure
found inconsistent with one or more provisions of the GATT 1994 can be justified. Accordingly, the burden of
proving a case under Article XX of the GATT 1994 rests with the respondent. As observed by the Appellate
Body, the TBT Agreement does not contain a general exceptions provision. In light of the similarities in the text
between the GATT 1994 and the TBT Agreement, and given the overlap in their coverage, the Appellate Body
addressed the absence of a general exceptions provision in the TBT Agreement by clarifying the specific
requirements to be established under Article 2.1 of the TBT Agreement. See section 7.4.1 above.
947 European Union's second written submission, para. 382.
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between the General Ban and the two exceptions are "necessary" in order to achieve the
objectives invoked by the European Union. 948 Specifically, the European Union submits that the
following must be shown: (a) the treatment provided by the General Ban is "necessary" to achieve
the objective at the selected level of protection; and (b) it is not "necessary", in order to achieve
the objective at the same level of protection, to extend the same treatment provided under the
General Ban to seal products falling under the MRM exception or the IC exception.949
7.616. Canada similarly submits that the focus of the analysis under Article XX(a) and (b)
justifying an inconsistency with provisions under the GATT 1994 should be on whether the
discriminatory treatment based on the regulatory differences is necessary. 950 To Canada, the
relevant regulatory differences are found in the expected operation of the three categories under
which seal products will qualify for market access. Thus, the conditions that restrict market access
for seal products under the IC, MRM, and Travellers categories must be necessary in order for the
EU Seal Regime to be found provisionally justified under Article XX. Specifically, the

European Union is required to show how the discriminatory treatment of Canadian seal products
makes a material contribution to the achievement of its objectives.951
7.617. Norway contends that "what the EU must justify under Articles XX(a) and XX(b) is the
discrimination on grounds of origin that violates Article I:1 and III:4".952 Norway considers that the
European Union only defends the "General Ban" aspect of the measure, whereas "it is the
restrictive conditions of the IC and [MRM] requirements that favour certain origins".953
7.4.4.2.2 Analysis by the Panel
7.618. In examining Members' right to regulate under Article XX of the GATT 1994, a question
arises as to what aspects of a measure must be analysed under the legal framework of
Article XX.
954 Based on their submissions, the parties in this dispute appear to be in agreement
that it is the aspect of a measure infringing the GATT 1994 that must be justified under Article XX.
H o w e v e r , t h i s d o e s n o t m e a n t h a t a p a n e l c a n c o n s i d e r o n l y t h a t a s p e c t o f t h e m e a s u r e t o
determine the measure's justifiability under Article XX.
7.619. In our view, the question concerning the specific aspects of a measure that must be
considered for a claim under Article XX should be dealt with in light of the specific circumstances of
a given dispute. 955 Such circumstances include the nature and characteristics of a measure at

948 European Union's second written submission, para. 383.
949 European Union's response to Panel question Nos. 43 and 139.
950 Canada's response to Panel question No. 43, para. 167.
951 Canada's response to Panel question No. 43
952 Norway's response to Panel question No. 43, para. 224 (relying on Appellate Body Report, Thailand –
953 Norway's response to Panel question No. 43, para. 225.
954 In US – Gasoline, the Appellate Body touched upon the meaning and scope of the term "measures"
as referenced in the chapeau and paragraph (g) of Article XX. (See Appellate Body Report, US – Gasoline,
pp. 12-13). While not providing a concrete view on this question, the Appellate Body observed that "the Panel
[in that dispute] was following the practice of earlier panels in applying Article XX to provisions found to be
inconsistent with Article III:4: the 'measures' to be analyzed under Article XX are the same provisions
infringing Article III:4. These earlier panels had not interpreted "measures" more broadly under Article XX to
include provisions not themselves found inconsistent with Article III:4."
See also Appellate Body Report in Thailand – Cigarettes (Philippines), citing GATT Panel Report, US –
Section 337 Tariff Act. The Appellate Body stated 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 the finding of less
favourable treatment." (Appellate Body Report, Thailand – Cigarettes (Philippines), paras. 177 and 179). The
Appellate Body further stated, "when less favourable treatment is found based on differences in the regulation
of imports and of like domestic products, the analysis of an Article XX(d) defence should focus on whether
those regulatory differences are 'necessary' to secure compliance with 'laws or regulations' that are not GATT-
inconsistent." The Appellate Body observed that "in putting forth its defence, Thailand sought to justify
administrative requirements relating to VAT liability generally, rather than to justify the differential treatment
afforded to imported versus domestic cigarettes under its measure".
955 The Appellate Body in US – Gasoline states:
The relationship between the affirmative commitments set out in, e.g. Articles I, III and XI, and the
policies and interests embodied in the "General Exceptions" listed in Article XX, can be given meaning within
the framework of the General Agreement and its objective and purpose by a treaty interpreter only on a case-
by-case basis, by careful scrutiny of the factual and legal context in a given dispute, without disregarding the
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issue, the manner in which the complainants present their claims with respect to the measure, and
the relationship between the GATT 1994 and other WTO covered agreements that were also
examined with respect to the measure concerned.
7.620. Regarding the nature and characteristics of the measure at issue in the present dispute,
the two components (i.e. a ban and exceptions) comprising the EU Seal Regime are closely
connected to each other. As discussed in section 7.3.1 above, we considered that the IC and MRM
exceptions cannot operate in isolation without the ban. For example, similar factual circumstances
were also present in US – Gasoline. In that dispute, the Appellate Body examined how the
discriminatory aspect of the measure (baseline establishment rules for refiners, blenders, and
importers of gasoline) was to be analysed under Article XX(g) with respect to other parts of the
measure. The Appellate Body stated:
The baseline establishment rules, taken as a whole …, need to be related to the "non-
degradation" requirements set out elsewher e in the Gasoline Rule. Those provisions
can scarcely be understood if scrutinized strictly by themselves, totally divorced from
other sections of the Gasoline Rule which certainly constitute part of the context of
these provisions. … Without baselines of some kind, such scrutiny would not be
possible and the Gasoline Rule's objective of stabilizing and preventing further
deterioration of the level of air pollution prevailing in 1990, would be substantially
frustrated. The relationship between the baseline establishment rules and the "non-
degradation" requirements of the Gasoline Rule is not negated by the inconsistency,
found by the Panel, of the baseline establishment rules with the terms of Article III:4 .
We consider that, given that substantial relationship, the baseline establishment rules
cannot be regarded as merely incidentally or inadvertently aimed at the conservation
of clean air in the United States for the purposes of Article XX(g).
 956
7.621. Although the analysis above was conducted in the context of paragraph (g) rather than (a)
or (b) of Article XX, we do not see any reason why it would not be relevant to our examination of
the EU Seal Regime under paragraphs (a) and (b) of Article XX. Specifically, we find guidance in
the manner in which the Appellate Body weighed and considered the interrelationship of different
components of the measure for the purpose of a sub-paragraph of Article XX.
7.622. Like the measure in question in US – Gasoline , 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 ba n. Accordingly, the IC and MRM exceptions can
"scarcely be understood if scrutinized strictly by themselves, totally divorced from" the ban of the
EU Seal Regime.
957 We also consider that this relationship between the exceptions and the ban "is
not negated by the inconsistency" of the exceptions aspect of the EU Seal Regime with the terms
of Articles I:1 and III:4.958
7.623. Furthermore, as discussed in section 7.3. 1 above, the EU Seal Regime in its entirety,
comprising both the ban and the exceptions, was fo und to constitute a technical regulation within
the meaning of Annex 1.1 of the TBT Agreement. A legitimate policy objective pursued by the
EU Seal Regime as a technical regulation was de termined to be "addressing the EU public moral
concerns on seal welfare". Having found as such, the EU Seal Regime as a whole was examined for
the necessity of its trade-restrictiveness in fulfilling the identified policy objective under Article 2.2,
whereas the justification of the detrimental im pacts caused by the IC and MRM exceptions
(regulatory distinctions) on the imported products was examined under Article 2.1.
7.624. Under these circumstances, we consider that although 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. We must then
examine whether the EU Seal Regime, in particular the distinctions drawn in the form of the IC and

words actually used by the WTO Members themselves to express their intent and purpose. (Appellate Body
Report, US – Gasoline, p. 17) (emphasis added)
956 Appellate Body Report, US – Gasoline, p. 19.
957 Appellate Body Report, US – Gasoline, p. 17.
958 See Appellate Body Report, US – Gasoline, p. 19.
WT/DS400/R • WT/DS401/R

MRM exceptions, are applied in a manner consiste nt with the requirements under the chapeau of
Article XX. This approach is justified in our view by the fact that an exception to a general rule, by
definition, would hardly be considered as "necessary", when considered on its own, to achieve a
policy objective of the general rule.
959
7.4.4.3 Paragraph (a) of Article XX
7.4.4.3.1 Main arguments of the parties
7.625. In support of its claim that the EU Seal Regime is "necessary to protect public morals"
within the meaning of Article XX(a)
960, the European Union largely refers back to its arguments on
Article 2.2 of the TBT Agreement. 961 The European Union emphasizes that moral concern with
r e g a r d t o t h e p r o t e c t i o n o f a n i m a l s i s r e g a r d e d a s a v a l u e o f h i g h i m p o r t a n c e i n t h e
European Union, which is now expressly enshrined in its constitutional treaties.
962 Regarding the
measure's restrictive effect on trade, the European Union concedes that the EU Seal Regime aims
at being very trade-restrictive, consistently with the desired high level of fulfilment of the policy
objective.
963
7.626. The European Union argues that the EU Seal Regime makes a substantial contribution to
its policy objective. Further, none of the alternative measures as suggested by the complainants in
the context of Article 2.2 is apt to make an equiva lent contribution to the policy objective sought
by the EU Seal Regime.
964
7.627. Canada argues that the EU Seal Regime does not fall within the scope of the protection of
public morals. Article XX(a) of the GATT 1994 requires a moral norm that is a standard of conduct
applied generally throughout the community or society and broadly accepted within the
community. Canada contends that the European Union has not set out a clearly discernible and
unambiguous rule of moral conduct, particularly with respect to the claimed distinction between
"commercial" and "non-commercial" hunts. The public "concerns" cited by the European Union do
not rise to the level of public morals, and the idea that the EU Seal Regime addressed public moral
concerns rests on a false premise that the commercial seal hunt is inherently inhumane.
965
7.628. Canada further submits that, even if th e EU Seal Regime falls within the scope of
Article XX(a), it is not necessary to protect public morals. The protection of public morals requires
the prevention of some type of harm to a public moral within the territory of the Member whose
measure is at issue. Although this is in principle a highly important interest or value, Canada
questions the seriousness of the harm that might be expected to arise to public morals in the
absence of the EU Seal Regime. In addition, the claim that the measure makes a material
contribution to the EU public’s moral concerns is dependent on the artificial distinction between
commercial and non-commercial seal hunts, and between Inuit and non-Inuit hunts. Finally, the
EU Seal Regime imposes the most trade-restrictive type of measure and a less trade-restrictive

959 See footnote 454 above.
960 European Union's first written submission, paras. 578-590. See also European Union's response to
Panel question No. 43 (noting that what must be found to be necessary are the "regulatory differences" in the
EU Seal Regime, namely that it is not necessary to extend the same treatment provided under the General Ban
to seal products falling under the MRM or IC exceptions).
961 See European Union's response to Panel question No. 139 (explaining that it cross-references its
arguments under Article 2.2 of the TBT Agreement to show a substantial contribution to the policy objective
and that alternative measures do not make an equivalent contribution; specifically that "the arguments put
forward under Article 2.2 of the TBT Agreement are equally relevant and valid under Article XX(a) of the
GATT"); European Union's comments on the complainants responses to Panel question No. 139, para. 93 ("The
reasons why it is not "necessary", in order to achieve the objectives mentioned in Article XX(a) or XX(b), to
extend the General Ban to the marketing of seal products falling within the IC exception and the MRM
exception are essentially the same as the reasons that render the regulatory distinction between those
categories "legitimate" for the purposes of both Articles I:1 and III:4 of the GATT and Article 2.1 of the
TBT Agreement.").
962 European Union's first written submission, para. 585. Moreover, the measure at issue was adopted in
response to longstanding public demands and with the support of the vast majority of the members of both the
European Parliament and the EU Council. The measure is also supported by a very large majority of the
European population.
963 European Union's first written submission, para. 586.
964 European Union's first written submission, paras. 587-589.
965 Canada's second written submission, paras. 130-169.
WT/DS400/R • WT/DS401/R

alternative of animal welfare criteria with a certification and compulsory labelling scheme is
reasonably available.966
7.629. Norway argues that the European Union ha s failed to meet its burden to show that the
violation of the GATT 1994 resulting from the IC and MRM exceptions is necessary to protect public
morals. With respect to the arguments of the European Union under Article 2.2 of the
TBT Agreement, Norway submits that the legal standards and the allocation of the burden of proof
are not the same under Article XX of the GATT 1994 and Article 2.2 of the TBT Agreement.967
7.4.4.3.2 Analysis by the Panel
7.630. The necessity of a measure within the mean ing of Article XX(a) is determined through "a
process of weighing and balancing" of "all the relevant factors, particularly the extent of the
contribution to the achievement of a measure's obje ctive and its trade restrictiveness, in the light
of the importance of the interests or values at stake".
968 The more vital or important the values or
interests furthered by a measure are, the easier it will be to accept that measure as necessary. 969
According to the Appellate Body, "if this analysis yields a preliminary conclusion that the measure
is necessary, this result must be confirmed by comparing the measure with its possible
alternatives, which may be less trade restrictive while providing an equivalent contribution to the
achievement of the objective pursued".
970
7.631. With this guidance in mind, we begin our analysis by considering whether the
European Union's 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). We recall our conclusion in
section 7.3.3.1 that the European Union seeks to address the public moral concerns on seal
welfare through the EU Seal Regime. We reached this conclusion by confirming, based on the
evidence before us, the existence of the EU publ ic concerns on seal welfare in general and by
finding that such concerns are of a moral nature within the European Union. In this connection, we
followed the guidance provided by previous pane ls concerning the scope of the notion "public
morals" as stipulated in Article XX(a) of the GATT 1994 and Article XIV(a) of the GATS. In light of
these considerations, we find that the policy objective pursued by the European Union
("addressing the EU public moral concerns on seal welfare") falls within the scope of Article XX(a)
("to protect public morals").
7.632. The European Union submits that the "mor al concern with regard to the protection of
animals" is regarded as a value of high importance in the European Union.
971 We consider, and the
parties do not dispute, that the protection of such public moral concerns is indeed an important
value or interest.972
7.633. Next, in assessing a measure's contribution to the objective pursued under Article XX of
the GATT 1994, the Appellate Body stated that such a contribution exists when there is a genuine
relationship of ends and means between the objective pursued and the measure at issue.

966 Canada's second written submission, para. 170-203. See Canada's second written submission,
para. 196 ("Although this alternative measure was asserted in Canada’s claim under Article 2.2 of the
TBT Agreement, the reasons why the alternative is a less trade-restrictive alternative under that provision
apply mutatis mutandis to the less trade-restrictive alternative element of the the necessity test under
Article XX(a)."). See also Canada's response to Panel question No. 43.
967 Norway's second written submission, paras. 126-134. See also Norway's response to Panel question
Nos. 17, 18, 43, and 139.
968 Appellate Body Reports, Brazil – Retreaded Tyres, para. 156; Korea – Various Measures on Beef,
Cigarettes, para. 70.
969 Appellate Body Report, Korea – Various Measures on Beef, para. 162.
970 Appellate Body Report, Brazil – Retreaded Tyres, para. 156.
971 This part of the Article XX analysis may be comparable to the risks of non-fulfilment under Article 2.2
of the TBT Agreement.
972 The European Union also refers to the panel statement in China – 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 report, China – Audiovisual Products, para. 7.817).
The panel elaborated that "we do not consider it simply accident that the exception relating to 'public
morals' is the first exception identified in the ten subparagraphs of Article XX. We therefore concur that the
protection of public morals is a highly important value or interest." (Panel Report, China –Audiovisual Products,
para. 7.817).
WT/DS400/R • WT/DS401/R

Regarding the methodology used to make an assessment of the measure's contribution, the
Appellate Body clarified that it ultimately depend s on the nature, quantity, and quality of evidence
existing at the time the analysis is made. 973 Further, the analysis of the contribution can be done
either in quantitative or qualitative terms.974
7.634. Given the close relationship between the GATT 1994 and the TBT Agreement and the need
to interpret relevant provisions under both Agreements in a consistent and harmonious manner,
we consider 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. The Appellate
Body in US – Tuna II (Mexico) recalled that in assessing the necessity of a measure under
Article 2.2, a panel must assess the contribution to the legitimate objective actually achieved by
the measure at issue as in other situations, such as for instance when determining the contribution
of a measure to the achievement of a particular objective in the context of Article XX.
975
Accordingly, we will refer back to our 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.
7.635. Before beginning our analysis, we address one additional element in relation to the
measure's contribution in the context of Article XX of the GATT 1994: trade-restrictiveness of a
measure. The Appellate Body stated in the context of Article XX(b) 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.
976 Thus, the trade-
restrictiveness of a measure is closely linked to the extent of the measure's contribution to the
objective that must be proved in assessing the overall necessity of a measure in the context
Article XX of the GATT 1994.
977
7.636. In light of the particular circumstances of the present dispute, and given the guidance by
the Appellate Body, we consider that, for a preliminary finding that the measure as a whole is
"necessary" within the meaning of paragraph (a), 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. As discussed under Article 2.2 of the TBT Agreement, the actual degree of the
contribution by the ban must also be assessed by taking account of the impact of the explicit and
implicit exceptions on the operation of the ban. This will allow us to objectively evaluate the
necessity of the measure against any reasonably available GATT-consistent or less trade-restrictive
alternative measures that make an equivalent or greater contribution to the objective than the
measure in question.
7.637. With respect to the ban aspect of the EU Seal Regime, we recall our earlier finding that the
ban does contribute to the European Union's object ive by reducing, to a certain extent, the global
demand for seal products and by helping the EU public avoid being exposed to seal products on
the EU market that may have been derived from seals killed inhumanely.
978 To the extent that
such seal products are prohibited from the EU market 979, we find that the ban makes a material
contribution to the objective of the measure.

973 Appellate Body Report, Brazil – Retreaded Tyres, paras. 145-157.
974 According to the Appellate Body, the same applies to the analysis of the existence of a risk (in the
case of Article XX(b)) that the measure aims to prevent. (Appellate Body Report, Brazil – Retreaded Tyres,
para. 146).
975 Appellate Body Report, US – Tuna II (Mexico), para. 317. (emphasis added) Accordingly, we followed
the analytical approach taken for the assessment of a measure’s contribution under Article XX in previous
disputes for the purpose of our analysis of the measure’s contribution under Article 2.2 of the TBT Agreement.
976 Appellate Body Report, Brazil – Retreaded Tyres, paras. 150-151.
977 By contrast, under Article 2.2 of the TBT Agreement, the Appellate Body did not consider that a
certain threshold degree of contribution exists. For example, in US – Tuna II (Mexico) and US – COOL, the
necessity test by the Appellate Body in the context of Article 2.2 entailed an assessment of the "degree of
contribution" by a measure without necessarily determining whether the actual degree of contribution by the
measure reaches a certain minimum threshold such as a material or significant contribution.
978 See section 7.3.3.3.2 above.
979 We recall that the EU market constituted an important market for seal products from Canada and
Norway prior to the introduction of the EU Seal Regime. (See, for example, Canada's response to Panel
question No. 96). For Canada, Norway and the European Union were the two main markets for raw seal skins,
WT/DS400/R • WT/DS401/R

7.638. However, as discussed in section 7.3.3.3.2 in detail, the degree of the contribution made
by the ban is diminished by both the explicit and implicit exceptions under the measure.
Specifically, with respect to the IC and MRM exceptions, we considered that the exceptions,
combined with the absence of any mechanism un der the measure to inform consumers of the
presence of seal products on the EU market, reduced the effectiveness of the ban under the
measure by allowing seal products access to the EU market. Further, the implicit exceptions
provided under the measure through certain commercial activities such as transit and inward
processing for export were also found to undermine the measure's fulfilment of the objective.
Overall, with respect to the EU Seal Regime as a whole, however, we found that it contributed to a
certain extent to its objective of addressing the EU public moral concerns on seal welfare.
7.639. Based on the assessment above, the EU Seal Regime can be provisionally deemed
"necessary" within the meaning of Article XX(a) of the GATT 1994, unless it is demonstrated that
the European Union could have adopted a GATT-consistent or less trade-restrictive measure as an
alternative to the EU Seal Regime. For the reason s discussed in detail in se ction 7.3.3.3.4 above,
however, we concluded 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
found to exist in seal hunting in general. Therefore, we consider that the EU Seal Regime is
provisionally deemed necessary within the meaning of Article XX(a) of the GATT 1994.
7.4.4.4 Paragraph (b) of Article XX
7.640. We have taken note of the European Unio n's argument that the EU Seal Regime, to the
extent that it addresses the moral concerns of th e EU population by reducing the number of seals
that are killed, also falls within the scope of Article XX(b) because it contributes to protecting the
health of seals.
980 The European Union never submitted in this dispute that the protection of seal
welfare as such was the objective of the EU Seal Regime. Based on the examination of the
measure at issue as well as other available eviden ce before us, we determined that the objective
of the EU Seal Regime was to address the EU public moral concerns on seal welfare.981 We further
found this objective to fall within the scope of the policy objective governed by Article XX(a).
Under these circumstances, and given the limited extent of the European Union's arguments under
Article XX(b), we consider that the European Union has failed to establish a prima facie case for its
claim under Article XX(b).
7.4.4.5 Chapeau of Article XX
7.4.4.5.1 Main arguments of the parties
7.641. The European Union argues that the EU Seal Regime is not applied in a manner that
constitutes "arbitrary or unjustifiable discrimination between countries where the same conditions
prevail" because it applies indistinctly irrespective of the country of origin of the products.982
7.642. Canada notes that the focus under the chapeau is on the cause or rationale for the
discrimination in the light of the policy objective, and contends that the regulatory distinctions
introduced by the IC and MRM categories do not bear any rational relationship to the two policy
objectives advanced by the European Union. According to Canada, the rigidity with which the
EU Seal Regime is applied and the disregard for di ffering regulatory conditions in sealing countries
demonstrates that the EU Seal Regime, as applied, constitutes arbitrary and unjustifiable
discrimination between countries where the same conditions prevail.
983
7.643. Norway submits that under the chapeau of Article XX a panel may consider both the
substantive content and the application of a measure. Although the chapeau of Article XX refers to
the application of a measure, this does not mean that substantive content (design and structure)
is irrelevant. In Norway's view, the manner of application of a measure will be heavily influenced,

fats and oils, etc. during the period of 2000-2010 with the European Union receiving 50% of all Canadian
exports.
980 European Union's first written submission, para. 591; Canada's second written submission,
para. 204; Norway's second written submission, paras. 126-134.
981 See section 7.3.3.1 above.
982 European Union's first written submission, para. 590.
983 Canada's second written submission, paras. 218-226.
WT/DS400/R • WT/DS401/R

possibly decisively so, by the substantive content of the measure. Thus, while the legal standards
of discrimination under the provisions are not the same, in this case the same elements considered
under Articles I and III also lead to the measure failing to meet the requirements of the chapeau
of Article XX. Norway also cites arbitrary and unjustifiable discrimination between countries where
the same animal welfare and resource management conditions prevail, and the European Union's
failure to engage in international negotiations (referencing US – Shrimp).
984
7.4.4.5.2 Analysis by the Panel
7.644. Having found that the EU Seal Regime as a whole is "necessary" within the meaning of
Article XX(a), we examine its consistency with the requirements under the chapeau of the
provision. The chapeau of Article XX provides:
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 contracting party of measures …
7.645. The focus of the chapeau, according to the Appellate Body, is on the application of a
measure already found inconsistent with an obligation of the GATT 1994 but falling within one of
the paragraphs of Article XX.
985 Specifically, the existence of one of the three types of situations
regarding the application of measures might lead to an inconsistency with the chapeau of
Article XX: (a) arbitrary discrimination between countries where the same conditions prevail; (b)
unjustifiable discrimination between countries where the same conditions prevail; or (c) a
disguised restriction on international trade.
986 We observe that in previous disputes, the first two
situations (i.e. arbitrary or unjustifiable discrimination) were often addressed together. 987 We are
also mindful of the Appellate Body's guidance that "the fundamental theme – when interpreting
the chapeau – is to be found in the purpose and object of avoiding abuse or illegitimate use of the
exceptions to substantive rules available in Article XX".988
7.646. Based on this guidance, the focus of our analysis under the chapeau with respect to the
EU Seal Regime is whether the EU Seal Regime, in particular the distinctions drawn in the form of
the IC and MRM exceptions, are applied in a manner which would constitute a means of arbitrary
or unjustifiable discrimination.

984 Norway's response to Panel question No. 146.
985 Appellate Body Report, Brazil – Retreaded Tyres, para. 215. Further, the Appellate Body emphasizes
the principle of good faith embodied in the chapeau: "[t]he chapeau serves to ensure that Members' rights to
avail themselves of exceptions are exercised in good faith to protect interests considered legitimate under
Article XX, not as a means to circumvent one Member's obligations towards other WTO Members." (Appellate
Body Report, Brazil – Retreaded Tyres, paras. 215 and 224).
The Appellate Body further states in this regard:
[t]he function of the chapeau is the prevention of abuse of the exceptions specified in the
paragraphs of Article XX. … "[t]he chapeau of Ar ticle XX is, in fact, but one expression of the
principle of good faith." … "[o]ne application of this general principle … prohibits the abusive
exercise of a state's rights and enjoins that whenever the assertion of a right 'impinges on the
field covered by [a] treaty obligation, it must be exercised bona fide, that is to say, reasonably'."
Accordingly, the task of interpreting and applying the chapeau is "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 …" The location of this line of equilibrium may move "as the kind
and the shape of the measures at stake vary and as the facts making up specific cases differ".
(Appellate Body Report, Brazil – Retreaded Tyres, para. 224 (citing Appellate Body Report, US -
Shrimp)) (footnotes omitted)

986 Appellate Body Report, US – Shrimp, para. 184.
987 See, for instance, Appellate Body Reports, US – Gasoline, US – Shrimp (Article 21.5 – Malaysia), US
– Gambling, and Brazil – Retreaded Tyres; and Panel Reports, US – Gambling, EC – Tariff Preferences, EC –
Asbestos, and Brazil – Retreaded Tyres.
988 Appellate Body Report, US – Gasoline, p. 25 (emphasis added); Panel Report, Brazil – Retreaded
Tyres, para. 7.221.
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7.647. First, with respect to the existence of "d iscrimination" within the meaning of the chapeau,
we find it useful to recall the panel's finding in Brazil – Retreaded Tyres:
[t]he initial violation identified in relation to this measure is a prohibition or restriction
on importation within the meaning of Article XI. This type of measure (an import ban
in this instance), does not necessarily ipso facto result in discrimination, as an
inconsistency with Articles I or III would. Thus, any discrimination alleged to exist in
the application of the measure would arise, in this case, in addition to the restriction
that is inherently present in the measure by its very nature.
989
7.648. As in that dispute, the measure in question here also consists of a ban, albeit formulated in
positive forms, and exceptions. We note however that, unlike the measure in Brazil – Retreaded
Tyres, the IC and MRM exceptions are embedded in the measure itself rather than arising from the
subsequent application of the measure. In our view, this is merely a formal difference that does
not change the substantive character of a measure consisting of a ban with discriminatory
exceptions.
990 Therefore, under the circumstances of this dispute, we consider that discrimination
alleged to exist in the application of the EU Seal Regime within the meaning of the chapeau results
from the discriminatory impact found in the IC and MRM exceptions under Articles I:1 and III:4.991
7.649. Accordingly, we proceed to examine whether such discrimination is arbitrary or
unjustifiable within the meaning of the chapeau of Article XX and arises between countries where
the same conditions prevail. An assessment of this question leads us to recall our analysis of the
legitimacy of the regulatory distinctions drawn in the IC and MRM exceptions under Article 2.1 of
the TBT Agreement. As noted in section 7.4.1, the Appellate Body clarified the legal standard
under Article 2.1 of the TBT Agreement (i.e. "l egitimate regulatory distinction") based on inter alia
its observation regarding the relationship between the GATT 1994 and the TBT Agreement and the
absence in the TBT Agreement of a general except ions clause equivalent to Article XX in the
GATT 1994.
992 This means, in our view, that our analys es under Article 2.1 of the TBT Agreement
regarding the legitimacy of the IC and MRM exceptions are relevant and applicable to the
assessment of the exceptions for its consistency with the requirements under the chapeau.
7.650. More specifically, under Article 2.1 of th e TBT Agreement, we examined, first, whether the
regulatory distinctions drawn between commercial and IC/MRM hunts were rationally connected to
the objective of the EU Seal Regime as a whole or otherwise based on justifiable grounds, and,
second, whether such distinctions, as reflected in the IC and MRM exceptions under measure, were
designed and applied in an even-handed manner among the potential beneficiaries.
993 For the
IC exception, given the recognized benefits to In uit, we found the distinction between commercial
and IC hunts (and hence the products regulated based on that distinction) to be justifiable despite
the lack of a rational connection to the measure's objective. For the same reasons discussed under
the TBT Agreement, however, we find that due to the lack of even-handedness in the design and
application of the IC exception, the IC except ion does not meet the requirements under the
chapeau of Article XX. Regarding the MRM exception, we found that the distinction between
commercial and MRM hunts is neither rationally connected to the objective nor based on any
justifiable grounds. Further, consistent with our view under the TBT Agreement, the MRM
exception is not designed and applied in an even -handed manner and hence is inconsistent with
the requirements of the chapeau of Article XX.

989 Panel Report, Brazil – Retreaded Tyres, para. 7.229. We note that in Brazil – Retreaded Tyres the
complainant raised a claim against the ban under Article XI of the GATT 1994.
990 This was also taken into account in our consideration of the EU Seal Regime's qualification as a
technical regulation. (See, above section 7.3.1).
991 We are mindful that "the 'nature and quality' of the discrimination referenced in the chapeau of
Article XX is different from the discrimination in the treatment of products that might already have been found
to be inconsistent with one of the substantive obligations of the GATT 1994". Panel Report, Brazil – Retreaded
Tyres, para. 7.229 (referring to Appellate Body Report, US – Gasoline, p. 21) However, we consider that the
circumstances in the present dispute support our approach here. Specifically, such circumstances include the
following: the character of the measure having exceptions to a ban that result in discrimination; the manner in
which the complainants framed their contentions by focusing on the exceptions aspect of the measure; and the
need to read relevant provisions of the TBT Agreement (e.g. preamble and Articles 2.1 and 2.2) and of the
GATT 1994 in a consistent and harmonious manner.
992 See section 7.3.2.3 above.
993 See sections 7.3.2.3.3 and 7.3.2.3.4 above.
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7.651. Therefore, we conclude that the European Union has failed to establish that the
discriminatory impact found in the IC and MRM exceptions under the EU Seal Regime is justified
under Article XX(a) of the GATT 1994.
7.5 Claims under Article XI:1 of the GA TT 1994 and Article 4.2 of the Agreement on
Agriculture
7.5.1 Article XI:1 of the GATT 1994
7.5.1.1 Summary of the parties' arguments
7.652. In their respective first written submissions, the complainants argue that the "EU Seal
Regime" is inconsistent with the European Union's obligations under Article XI:1 of the
GATT 1994.
994 Specifically, Canada argues that the EU Seal Regime is a border measure that
operates as a quantitative restriction for foreign seal products, and as an import prohibition on
Canadian seal products derived from commercial hunts. 995 Norway also asserts that the EU Seal
Regime effectively operates as a border measure that is inconsistent with Article XI:1 to the extent
that importation of seal products is permitted only if the products conform to one of the three
exceptions imposed under the Seal Regime.
996
7.653. In the subsequent stages of the proceedings, however, the complainants argue that each
of the IC, MRM, and Travellers exceptions under th e Regime, rather than the EU Seal Regime as a
whole, violates Article XI:1 of the GATT 1994 beca use they all impose quantitative restrictions on
the importation of Canadian and Norwegian seal products. 997 Seal products can only be placed on
the EU market if they satisfy the conditions of one of the exceptions; as such, each of the
exceptions has a "limiting effect" on the importation of seal products, which amounts to a
restriction on imports within the meaning of Article XI:1.998
7.654. More specifically, according to the compla inants, the IC and Travellers exceptions do not
apply to domestic seal products as the conditions only apply to seal products at the point of
import.999 The nature and quantity of the seal products imported under the Travellers exception
cannot be such as to indicate that the products are being imported for commercial reasons1000, and
the conditions of the IC exception effectively apply only to imported seal products.1001

994 In its panel request, Canada states, "each of the measures referred to above [the Regulations] is
inconsistent with … Article XI:1 of the GATT 1994 because the measures result in a prohibition or restriction on
the importation of seal products from Canada into the European Union." (Canada's request for the
establishment of a panel, p. 2). We also observe that Canada argued that "the measure" operates de facto as a
border measure imposing a discriminatory restriction on the importation of seal products, in violation of
Articles I:1 and XI:1 of the GATT 1994, rather than as an internal measure. (Canada's response to Panel
question No. 1).
Norway states in its panel request, "by restricting the importation of seal products, the EU Seal Regime
appears to violate Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture." For its
claims under Articles I:1 and III:4, by contrast, Norway refers to "the general prohibition and the exceptions
set out [in the EU Seal Regime]" in its panel request. (Norway's request for the establishment of a panel, p. 2).
995 Canada's first written submission, para. 281.
996 Norway's first written submission, para. 457.
997 Canada's second written submission, para. 121; Norway's second written submission, para. 94;
Parties' responses to Panel question No. 3. The complainants submit that different aspects of a measure may
affect the competitive opportunities of imported products "in different ways"; it is therefore appropriate to
examine these aspects under different provisions. The IC, MRM, and Travellers exceptions under the EU Seal
Regime may thus be assessed on their own for the purpose of determining the specific GATT article under
which they should be examined.
998 Canada's second written submission, paras. 124-129; Norway's second written submission,
paras. 114-125.
999 Canada's second written submission, paras.124-126; Norway's second written submission,
paras. 102, 105-106; response to Panel question No. 3, paras. 16-17. Seal products qualifying under the
Travellers exception are acquired outside of the European Union and can only be "imported" for personal use of
travellers or their families. (Canada's second written submission, para. 124; Norway's second written
submission, para. 115 (referring to Basic Regulation, Article 3(2)(a))).
1000 Canada's second written submission, para. 124; Norway's second written submission, para. 116.
1001 Canada and Norway argue that in any event, the IC category violates Article I:1 of the GATT 1994.
The complainants note in respect of the IC exception that their claims under Article I:1 are not alternative to
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7.655. Further, the complainants indicate that th eir claims under Article III:4 and Article XI:1 of
the GATT 1994 with respect to the MRM exception are alternative claims. The complainants assert
that the application of Article III:4 or XI:1 of the GATT 1994 depends on a factual determination
as to whether the restrictive conditions of the MRM exception apply effectively to the placing on
the market of seal products of EU origin.
1002
7.656. The European Union argues that the measure does not fall within the scope of
Article XI:1; the EU Seal Regime is not a border measure but an internal measure that applies
indistinctly to foreign and domestic products. 1003 The Regime imposes a "General Ban" on seal
products, and the IC and MRM exceptions apply to both imported and "like" domestic seal
products. With respect to the Travellers exception, which applies only to imports, it provides "more
favourable treatment" by way of derogation from the "General Ban".
1004 The exceptions under the
EU Seal Regime are not trade restrictive and thus cannot amount to import restrictions under
Article XI:1 of the GATT 1994. 1005 The European Union notes that "the fact that the EU Seal
Regime is enforced at the border is merely for administrative convenience in order to ensure
effective enforcement."1006
7.5.1.2 Analysis by the Panel
7.657. Article XI:1 of the GATT 1994 requires that WTO Members not institute or maintain any
"prohibitions or restrictions other than duties, taxes, or other charges, whether made effective
through quotas, import or export licences or other measures … on the importation of any product
of the territory of any other [Member]."
1007
7.658. The complainants contend that each of the IC, MRM, and Travellers exceptions, considered
individually, imposes quantitative limitations on imported seal products in violation of Article XI:1
of the GATT 1994. 1008 Therefore, we do not understand the complainants to be claiming that the
EU Seal Regime as a whole has a restrictive impact on imported seal products inconsistently with
Article XI:1 of the GATT 1994; rather, they contend that each exception results in a limiting effect
on imports and thus violates Article XI:1.

their claims under Article XI:1. (Canada's second written submission, para. 126; Norway's response to Panel
question No. 3).
1002 See the complainants' responses to Panel question No. 3; Canada's second written submission,
paras. 127-129; Norway's second written submission, paras. 94-95.
In the complainants' view, the MRM exception operates "in effect" as a border measure. The design,
structure and expected operation of the MRM exception are such that none of the restrictive conditions under
that exception "applies to … the like domestic product" in the sense of the Ad Note to Article III; therefore, the
"real impact" of the MRM requirements can only be felt by imported products.
1003 European Union's first written submission, paras. 488-499; second written submission, para. 374.
1004 European Union's second written submission, para. 378.
1005 European Union's second written submission, para. 379.
1006 European Union's second written submission, para. 376.
1007 The guidance provided in previous disputes regarding its scope suggests that Article XI:1 does not
apply to internal regulations affecting imported products that also apply to the like domestic products; instead,
according to the Ad Note to Article III of the GATT 1994, these are dealt with under Article III.
The Ad Note to Article III of the GATT 1994 reads as follows:
Any internal tax or other internal charge, or any law, regulation or requirement of the kind
referred to in paragraph 1 which applies to an imported product and to the like domestic product
and is collected or enforced in the case of the imported product at the time or point of
importation, is nevertheless to be regarded as an internal tax or other internal charge, or a law,
regulation or requirement of the kind referred to in paragraph 1, and is accordingly subject to the
provisions of Article III.

See, for instance, Panel Report, India – Autos, para. 7.220 (referring to GATT Panel Report, Canada –
FIRA, para. 5.14) ("… the General Agreement distinguishe s between measures affecting the 'importation' of
products, which are regulated in Article XI:1, and those affecting 'imported products', which are dealt with in
Article III. If Article XI:1 were interpreted broadly to cover also internal requirements, Article III would be
partly superfluous.").
1008 With respect to the MRM exception, the complainants explain that their claim under Article XI:1 is
alternative to their claim under Article III:4 in light of the Ad Note to Article III, to the extent that the MRM
exception can be considered as applying to domestic products. At the same time, in the context of Article XI:1,
the complainants argue that the conditions under the MRM exception do not apply de facto to the
European Union's domestic seal products.
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7.659. In our understanding, the complainants' claims under Article XI:1 of the GATT 1994 are
linked to their position, as discussed in section 7. 2.2 above, that the EU Seal Regime consists of
three sets of requirements (IC, MRM, and Travelle rs), rather than a ban with exceptions. For the
complainants, each of these three sets of re quirements can independently violate different
provisions of the GATT 1994 such as Articles I:1, III:4, and XI:1, as they "affect the competitive
opportunities for imported products in different ways". 1009 For example, the allegedly
discriminatory impact of the IC and MRM exceptions was presented in the complainants' claims
under Articles I:1 and III:4 of the GATT 1994, respectively.
7.660. We recall our finding above regarding the characterization of the EU Seal Regime as a
measure containing both prohibitive and permissive aspects, namely a ban and exceptions. 1010 In
reaching this conclusion, we found that the prohibitive aspect of the measure, namely the ban on
the placing on the market and importation of seal products, was implied in the terms and expected
operation of the provisions under the Basic Regulation. Specifically, we observed that the
importation and placing on the market of seal products are allowed under the measure only
through the three exceptions.
1011 Consequently, the measure works effectively as a ban on seal
products, including imports, in any other situation.
7.661. Hence, it is the implicit prohibitive aspect of the measure, the scope of which is informed
by the exceptions, that restricts imported seal products rather than the exceptions considered
individually.1012 In the factual circumstances of this dispute, a restriction on imported products is
imposed in the form of an implicit ban under the measure rather than through the individual
exceptions as claimed by the complainants. 1013 I n o t h e r w o r d s , i t i s t h e E U S e a l R e g i m e a s a
whole, providing for specific exceptions to a ban, that results in a restrictive impact on the
importation of products from certain sources.
7.662. In this dispute, the complainants focused on the discriminatory aspects of the Regime,
particularly with respect to the IC and MRM exceptions of the Regime, rather than the measure in
its entirety as an import "prohibition or restriction" within the meaning of Article XI:1 of the
GATT 1994.
1014 The complainants consider that each individual exception is an independent source

1009 See, e.g. Canada's second written submission, para. 121; Norway's second written submission,
para. 106
1010 See section 7.2.2 above.
1011 We also observed above that certain commercial activities such as transit and inward processing of
seal products that are otherwise prohibited under the measure are implicitly allowed under the Regime. (See
para. 7.53 above).
1012 This is not to say that different aspects of a measure cannot be examined under different provisions
of the WTO Agreement, as we clarified in para. 7.27 above.
See Panel Report, India – Autos, para. 7.223. The panel in India – Autos noted that it saw "merit in the
proposition that there may be circumstances in which specific measures may have a range of effects. In
appropriate circumstances they may have an impact both in relation to the conditions of importation of a
product [Article XI:1] and in respect of the competitive conditions of imported products on the internal market
within the meaning of Article III:4." (Panel Report, India – Autos, paras. 7.223 and 7.296). Accordingly, added
the panel, any analysis of the applicability of either Article III:4 or XI:1 should thus be based on the principles
within Article 3.2 of the DSU. (Panel Report, India – Autos, para. 7.224)
The panel in India – Autos exercised judicial economy for the United States' claim under Article III:4
with respect to the measure that was already found inconsistent with Article XI:1; the panel did not consider it
necessary to separately consider the United States' general claim that the measure was also inconsistent with
Article III:4. While the panel thus refrained from further consideration of the broader application of Article III:4
to the same features of the measure dealt with in the Article XI analysis, it nevertheless found it appropriate to
make a separate ruling on one distinct element of the (same) measure, which was alleged by the complainants
to constitute a violation of Article III:4 but was not considered in the panel's Article XI analysis.
1013 See section 7.2.2 above.
1014 As noted in above, in its first submission, both Canada and Norway argued that the EU Seal Regime
as a whole is a quantitative restriction on importation for purposes of Article XI:1. However, in the subsequent
phases of the proceedings, Canada and Norway focus on the restrictive effect of the requirements under the
IC, MRM, and Travellers exceptions respectively.
We note that in EC – Asbestos, where the measure at issue also consisted of a ban and exceptions to
the ban, Canada argued that Article XI:1 applies to the ban on imports (one component of the EC measure),
whereas the European Union considered that as the import ban is merely the logical corollary of the general
prohibition on the use of asbestos and asbestos-containing products, Article III:4 must be assessed in the light
of Note Ad Article III. Canada put forward several propositions in sequential order with respect to its claims:
(a) first, the EC measure comes in part under Article III:4 and in part under Article XI:1; (b) if the panel were
to reject that proposition, then the whole of the EC measure at issue should fall under Article XI:1; or (c) if the
panel were also to reject that approach, the whole of the EC measure should then fall under Article III:4.
WT/DS400/R • WT/DS401/R

of restrictiveness for imports. For the reasons ex plained above, however, we disagree with the
complainants. With respect to the Travellers exception, the complainants did not present any other
specific claim than Article XI:1 of the GATT 1994. However, we do not consider that the Travellers
exception, considered on its own, imposes an import restriction within the meaning of Article XI:1
of the GATT 1994. As a derogation from the implicit ban, the Travellers exception allows travellers
to bring into the European Union seal products that are otherwise prohibited under the
measure.
1015
7.663. Based on our considerations above, we are not persuaded by the complainants' argument
that each of the IC, MRM, and Travellers exceptions individually imposes an import restriction in
violation of Article XI:1 of the GATT 1994. Thus, the Panel rejects the complainants' claims under
Article XI:1 of the GATT 1994 with respect to all three exceptions under the EU Seal Regime.
7.5.2 Article 4:2 of the Agreement on Agriculture (Norway)
7.664. Norway argues that the "EU Seal Regime" violates Article 4.2 of the Agreement on
Agriculture.
1016 Norway asserts that if the "EU Seal Regime" is found to violate Article XI:1 of the
GATT 1994, then it would also violate Article 4. 2 of the Agreement on Agriculture, because a
quantitative restriction on importation for purposes of Article XI:1 would also constitute a
"quantitative import restriction" on agricultural products prohibited under Article 4.2 of the
Agreement on Agriculture.
1017 The European Union requests the Panel to reject Norway's claim
because the EU Seal Regime is not a border measure subject to Article XI:1 of the GATT 1994, but
an internal regulatory measure that applies to both domestic and imported seal products.1018
7.665. In light of Norway's reliance on Article XI:1 of the GATT 1994 for its claim under Article 4.2
of the Agreement of Agriculture, and given our find ing above in the context of Article XI:1 of the
GATT 1994, the Panel rejects Norway's claim under Article 4.2 of the Agreement on Agriculture.
7.6 Non-violation claim under Article XXIII:1(b) of the GATT 1994
7.666. Having addressed the complainants' claims of inconsistency with the TBT Agreement and
the GATT 1994, we now turn to the complainants' non-violation claims under Article XXIII:1(b) of
the GATT 1994.
1019

The panel in EC – Asbestos commented that it was difficult to tell, based on Canada's arguments,
whether Canada was claiming a cumulative application of Articles III:4 and XI:1 to the part of the measure
banning imports. It then further stated that "[i]f Canada does in fact make such a claim …, we do not consider
that this forms part of the terms of reference given to the Panel by the DSB and, even if that were the case,
Canada's arguments do not make a prima facie case in the sense given to this concept by the Appellate Body."
The panel consequently did not consider it necessary to examine this point any further. (Panel Report, EC –
Asbestos, paras. 8.83-8.100).
1015 Further, see footnote 71 above for the definition of the term "import" under the EU Seal Regime.
Given the scope and use of the term "import" in the measure, combined with the nature of the Travellers
requirements, the scope of seal products allowed to "enter into the customs territory of the Community" under
the Travellers exception seems to have a fundamentally different character (i.e. being "exclusively … for …
personal use") than seal products governed by the ban and the IC and MRM exceptions of the EU Seal Regime.
1016 Norway argues that for the same reasons that these requirements constitute restrictions prohibited
under Article XI:1, they also constitute a "quantitative import restriction" on agricultural products that is
prohibited under Article 4.2 of the Agreement on Agriculture. (Norway's second written submission, para. 118).
Norway considers that the Agreement on Agriculture is applicable to seal products restricted by the EU Seal
Regime because all the products covered by the EU Seal Regime are listed in Annex 1 of the Agreement on
Agriculture as falling within the scope of the Agreement. These products are listed in the European
Commission's Technical Guidance Note issued pursuant to Article 3(3) of the Basic Regulation (Exhibit JE-3).
1017 Norway refers to the finding of the panel in Korea – Various Measures on Beef that "… the general
prohibition against import restrictions contained in Article XI and its Ad Note find a more specific application in
Article 4.2 of the Agreement on Agriculture together with its footnote with regard to agricultural products."
(Norway's first written submission, paras. 465-466 (citing Panel Report, Korea – Various Measures on Beef,
footnote 400)).
1018 European Union's first written submission, paras. 623 and 625.
1019 We note that this follows the sequence in which the complainants have presented their claims, and
is in keeping with the general priority to be accorded to addressing violation as opposed to non-violation
claims. (See Panel Reports, US – COOL, para. 7.888; Japan – Film, para. 10.26 ("traditionally in cases
involving both violation and non-violation claims, panels first address claims of inconsistency with a covered
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7.6.1 Main arguments of the parties
7.667. As referenced by all three parties 1020, the panel in Japan – Film laid out the three required
elements of a claim under Article XXIII:1(b) that are applicable in the current dispute:
The text of Article XXIII:1(b) establishes three elements that a complaining part must
demonstrate in order to make out a cognizable claim under Article XXIII:1(b): (1)
application of a measure by a WTO Member; (2) a benefit accruing under the relevant
agreement; and (3) nullification or impairment of the benefit as a result of the
application of the measure.1021
7.668. With regards to the first element, both Canada and Norway argue, and the European Union
does not dispute, that the EU Seal Regime is a measure within the meaning of Article XXIII:1(b)
that has been applied by the European Union.
1022
7.669. Regarding the second element, both Ca nada and Norway rely on the conception of
"benefit" under Article XXIII:1(b) as "that of le gitimate expectations of improved market-access
opportunities arising out of relevant tariff concessions". 1023 Additionally, both complainants
recognize in their arguments that "in order for expectations of a benefit to be legitimate, the
challenged measures must not have been reasonably anticipated at the time the tariff concession
was negotiated."
1024
7.670. As to the relevant tariff concessions, Canada and Norway identify concessions granted by
the European Union for the seal products listed in Exhibit JE-42. 1025 Regarding the legitimacy of
their expectations of improved market-access oppo rtunities, both Canada and Norway invoke the
rebuttable presumption articulated by the panel in Japan – Film that measures introduced after the
conclusion of tariff negotiations are not reasonably anticipated by a complainant.1026 In the case at
hand, the complainants indicate that the relevant tariff concessions were granted at the close of
the Tokyo and Uruguay negotiating rounds, both of which were concluded years before the
adoption of the Basic Regulation in 2009.
1027 Consequently, the complainants state that the burden
is on the European Union to show that Canada and Norway should have anticipated the adoption of
measures similar to the EU Seal Regime.
1028
7.671. The European Union counters that "recourse to GATT Article XXIII:1(b) should be treated
as 'particularly exceptional' in relation to measures justified by Article XX(b)". 1029 The
European Union generally relies on the conclusions of the panel in EC – Asbestos, which found that
"situations that fall under Article XX justify a stri cter burden of proof being applied…, particularly
with regard to the existence of legitimate expectations". 1030 As a consequence, the panel declined

agreement pursuant to Article XXIII:1(a), before moving on to consider claims of non-violation nullification or
impairment under Article XXIII:1(b)").
1020 See Canada's first written submission, para. 736; Norway's first written submission, paras. 975;
European Union's first written submission, para. 592.
1022 Canada's first written submission, paras. 738-739; Norway's first written submission,
paras. 1007-1008.
1023 Panel Report, Japan – Film, para. 10.61. See Canada's first written submission, para. 741; Norway's
first written submission, para. 980.
1024 Panel Report, Japan – Film, para. 10.76. See Canada's first written submission, para. 741; Norway's
first written submission, para. 985.
1025 Canada's first written submission, para. 743; Norway's first written submission, para. 1009.
1026 Panel Report, Japan – Film, para. 10.79. See Canada's first written submission, para. 741; Norway's
first written submission, para. 990.
In this connection, the complainants dispute the position taken by the panel in EC – Asbestos that there
is no such rebuttable presumption for measures justified under Article XX of the GATT 1994, arguing inter alia
that this is contrary to relevant treaty text and past jurisprudence. (See Canada's and Norway's responses to
Panel question No. 51).
1027 Canada's first written submission, para. 743; Norway's first written submission, para. 1011.
1028 Canada's first written submission, para. 744; Canada's second written submission, para. 352;
Norway's first written submission, para. 1012; Norway's second written submission, paras. 406-409.
1029 European Union's first written submission, para. 597, citing Panel Report, EC – Asbestos,
para. 8.272.
1030 Panel Report, EC – Asbestos, para. 8.282; European Union's first written submission, para. 601. The
panel went on to state that "Members have recognized a priori the possibility that the benefits they derive from
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to apply the rebuttable presumption of Japan – Film as it did "not consider such a presumption to
b e c o n s i s t e n t w i t h t h e s t a n d a r d o f p r o o f … a p p l i c a b l e … i n t h e c a s e o f a n a l l e g a t i o n o f a n o n -
violation nullification concerning measures falling under Article XX of the GATT 1994".
1031
7.672. Under this burden of proof, and abse nt the rebuttable presumption described in Japan –
Film, the European Union contends that the complainants could have reasonably anticipated the
measure due to long-standing public concern about seal hunts and corresponding legislation, both
internationally and within Canada and Norway specifically.
1032
7.673. Canada submits that the history of anti-sealing activities cited by the European Union to
show concerns about the Canadian hunt fails to explain the nature of those concerns and to
acknowledge that they were addressed by the Canadian government.
1033 Norway argues that the
circumstances surrounding the adoption of the EU Seal Regime1034 as well as its "design, structure,
and operation"1035 demonstrate that such measures could not have been reasonably anticipated,
and distinguishes various past measures relating to seals from the EU Seal Regime.1036
7.674. Finally, under the third element, Canada and Norway adhere to the explanation of this
element by the panel in Japan – Film that "it must be demonstrated that the competitive position
of the imported products subject to and benefi tting from a relevant market access (tariff)
concession is being upset by ('nullified or impaired … as the result of') the application of a measure
not reasonably anticipated". 1037 The complainants likewise follow the interpretation that this
element concerns a causal connection between th e measure and the nullification or impairment
which must be more than de minimis.1038
7.675. Norway cites the statement by the panel in EC – Asbestos that "[b]y its very nature, an
import ban constitutes a denial of any opportunity for competition" 1039, and both complainants
argue that the EU Seal Regime indeed results in the denial of competitive opportunity for their
products in the European Union market. 1040 Canada and Norway allege that the discriminatory
nature and impacts of the EU Seal Regime are furt her evidence of the contribution to nullification
or impairment of benefits 1041, with Canada adding that European Union legislators specifically
intended to target imports of Canadian seal products.1042
7.676. In response, the European Union reiterates its position that "the EU Seal Regime does not
discriminate, either de iure or de facto , between domestic and imported like products" and

certain concessions may eventually be nullified or impaired at some future time for reasons recognized as
being of overriding importance. […] Moreover, the natu re and importance of certain measures falling under
Article XX can also justify their being taken at any time, which militates in favour of a stricter treatment of
actions brought against them on the basis of Article XXIII:1(b)". Panel Report, EC – Asbestos, para. 8.281;
European Union's first written submission, para. 602.
1031 Panel Report, EC – Asbestos, para. 8.291; European Union's first written submission, para. 604.
1032 European Union's first written submission, paras. 608-618.
1033 Canada's second written submission, para. 353-357. Canada refers to the focus of past anti-sealing
activity on seal pups that are no longer hunted in Canada, as well as regulatory improvements that Canada has
made over the years.
1034 Norway's first written submission, paras. 1015-1024. In particular, Norway discusses the
contemporary recognition of the novelty of the matter and substantial amendment over the course of the
legislative process
1035 Norway's first written submission, paras. 1025-1028. Norway specifically argues that it could not
have anticipated a measure having contradictory results in the pursuit of animal welfare (i.e. allowing products
from inhumanely killed seals while banning products from humanely killed seals).
1036 See Norway's second written submission, paras. 410-431.
1037 See Panel Report, Japan – Film, para. 10.82 (emphasis in original); Canada's first written
submission, para. 745; Canada's second written submission, para. 346; Norway's first written submission,
para. 1002.
1038 See Panel Report, Japan – Film, para. 10.84; Canada's first written submission, paras. 745, 747;
Canada's second written submission, para. 346; Norway's first written submission, para. 1000.
1039 Norway's first written submission, para. 1001, citing Panel Report, EC – Asbestos, para. 8.289. See
also Norway's second written submission, para. 434 (clarifying that the effect of the EU Seal Regime is to ban
imports of seal products from Norway, even though other products are permitted).
1040 Canada's first written submission, para. 747; Canada's second written submission, para. 347;
Norway's first written submission, para. 1034.
1041 Canada's first written submission, paras. 748-749; Canada's second written submission, para. 347;
Norway's first written submission, para. 1035; Norway's second written submission, paras. 435-437.
1042 Canada's first written submission, para. 750.
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therefore the complainants have not shown that the EU Seal Regime upsets the competitive
relationship between them.1043
7.6.2 Analysis by the Panel
7.677. The Appellate Body has endorsed the rationale for non-violation complaints identified in
GATT precedent that "[t]he idea underlying [the provisions of Article XXIII:1(b)] is that the
improved competitive opportunities that can legitimately be expected from a tariff concession can
be frustrated not only by measures proscribed by the General Agreement but also by measures
consistent with that Agreement."
1044 At the same time, however, the Appellate Body has confirmed
that "the remedy in Article XXIII:1(b) 'should be approached with caution and should remain an
exceptional remedy".
1045
7.678. In this connection, we also note that the panel in Japan – Film underscored that under
Article XXIII:1(b) "each case should be examined on its own merits" involving an assessment of
the particular circumstances of each dispute.1046
7.679. We recall that we have found that the IC and MRM exceptions violate Articles I:1 and III:4
of the GATT 1994, respectively, and are not justified under Article XX(a) of the GATT 1994.
Additionally, both exceptions were also fo und to be in violation Article 2.1 of the
TBT Agreement.1047 In light of these findings, we must consider whether it is necessary for us to
additionally address the complainants' non-violation claim under Article XXIII:1(b) of the
GATT 1994.
7.680. In previous disputes where a similar non-violation claim was addressed, a finding of
violation of the provisions of the GATT 1994 wa s considered to render an examination of
non-violation nullification or impairment of benefits unnecessary, for example "if compliance by the
[respondent] with the finding on Article III:4 woul d necessarily remove the basis of the … claim of
nullification or impairment". 1048 Similarly, the relevant question in the present dispute is whether
compliance by the European Union with the above-mentioned findings of violation would remove
the basis of the complainants' non-violation claims.
7.681. We observe certain parallels between the elements of the legal tests under Articles I:1 and
III:4, and Article XXIII:1(b) of the GATT 1994. The panel in Japan – Film , after reviewing
WTO/GATT case law under Articles I and III of the GATT 1994 concerning de facto discrimination,
considered that "the reasoning contained therein appears to be equally applicable in addressing
the question of de facto discrimination with respect to claims of non-violation nullification or
impairment".
1049 In identifying this similarity, the panel stated that non-violation claims relate not
to "equality of competitive conditions" but to the upsetting of "relative conditions of competition"
created by tariff concessions.
1050 The panel further elaborated this statement as follows:
[I]t could be argued that the stan dard we enunciated and applied under
Article XXIII:1(b) – that of 'upsetting the competitive relationship' – may be different
from the standard of 'upsetting effective equality of competitive opportunities'
applicable to Article III:4. However, we do not see any significant distinction between
the two standards apart from the fact that this Article III:4 standard calls for no less
favourable treatment for imported products in general, whereas the Article XXIII:1(b)
standard calls for a comparison of the competitive relationship between foreign and

1043 European Union's first written submission, paras. 606-607.
1044 Appellate Body Report, EC – Asbestos, para. 185 (citing GATT Panel Report, EEC – Oilseeds,
1045 Appellate Body Report, EC – Asbestos, para. 186 (citing Panel Report, Japan – Film, para. 10.37).
The Appellate Body cited with approval the explanation given by the panel in Japan – Film that "Members
negotiate the rules that they agree to follow and only exceptionally would expect to be challenged for actions
not in contravention of those rules". Panel Report, Japan – Film, para. 10.36.
1046 Panel Report, Japan – Film, para. 10.37. See also Panel Report, US – COOL, para. 7.902.
1047 This finding is confined to the dispute brought by Canada only.
1048 Panel Report, US – COOL, para. 7.904 (citing GATT Panel Report, ECC – Oilseeds I, para. 142).
WT/DS400/R • WT/DS401/R

domestic products at two specific points in time, i.e. when the concession was granted
and currently.1051
7.682. We note that the parties have each cross-referenced their own arguments regarding the
discriminatory nature of the EU Seal Regime under Articles I:1 and III:4 of the GATT 1994 to
support their respective positions as to the nullification or impairment of benefits under
Article XXIII:1(b) of the GATT 1994. 1052 Moreover, on the specific question of the upsetting of
"relative conditions of competition", both complainants premise their claim of nullification or
impairment on the fact that domestic and other foreign products may continue to have access to
the EU market under the IC and MRM exceptions .1053 In our view, the "relative conditions of
competition" that the complainants claim are up set by the IC and MRM exceptions are precisely
those that have been addressed in our findings of violations under Articles I:1 and III:4 of the
GATT 1994 and Article 2.1 of the TBT Agreement.
7.683. Therefore, compliance by the European Union with our findings of violations under
Articles I:1 and III:4 of the GATT 1994 and Articl e 2.1 of the TBT Agreement would remove the
basis of the complainants' non-violation claims of nullification or impairment. Accordingly, we
refrain from examining the complainants' non-violation claims under Article XXIII:1(b) of the
GATT 1994.

1052 See Canada's first written submission, para. 748; European Union's first written submission,
1053 See Canada's second written submission, para. 347; Norway's second written submission,
paras. 435-436.
We note that Norway has also raised the competitive position of Norwegian seal products vis-à-vis "non-
seal products that compete with seal products". Norway's second written submission, para. 435. Although
Norway asserts that "[s]eal products are in competitive relationships with other products" (para. 437), Norway
has not developed arguments or put forward evidence as to the nature and extent of such competitive
relationship. In the absence of such evidence and argument, we are unable to determine the "relative
conditions of competition" between such products and, consequently, whether such conditions have been upset
as a result of the EU Seal Regime.

- CAN-183 -

8 CONCLUSIONS AND RECOMMENDATIONS
8.1 Complaint by Canada (DS400): Conclusions and recommendations
8 . 1 . C a n a d a h a s m a d e c l a i m s w i t h r e g a r d t o certain aspects of the EU Seal Regime under
Articles 2.1, 2.2, 5.1. 2, and 5.2.1 of the TB T Agreement and Articles I:1, III:4, XI:1, and
XXIII:1(b) of the GATT 1994.
8.2. With respect to Canada's claims under the TBT Agreement, we conclude that:
a. the EU Seal Regime is a "technical regulation" within the meaning of Annex 1.1 to the
TBT Agreement;
b. the IC exception and the 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 the EU public moral concerns on seal welfare to a certain extent, and no
alternative measure has been demonstrated to make an equivalent or greater
contribution to the fulfilment of the objective as the EU Seal Regime;
d. the European Union has 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 has not demonstrated that the European Union acted inconsistently with its
obligations under Article 5.2.1.
8.3. With respect to Canada's claims under the GATT 1994, we conclude 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 the like products originating in Canada;
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 exceptions is not inconsistent with Article XI:1;
d. the IC exception and the MRM exception under the EU Seal Regime are not justified
under Article XX(a) because they fail to meet the requirements under the chapeau; and
e. the IC exception and the MRM exception under the EU Seal Regime are not justified
under Article XX(b) because the European Union has failed to make a prima facie case
for its claim.
8.4. Finally, in light of the above findings of violation, we have refrained from examining Canada's
non-violation claim under Article XXIII:1(b) of the GATT 1994.
8.5. Under Article 3.8 of the DSU, in cases wh ere there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment of benefits under that agreement. Accordingly, we conclude that to the
extent that the European Union has acted incons istently with Articles 2.1 and 5.1.2 of the
TBT Agreement and Articles I:1 and III:4 of the GATT 1994, it has nullified or impaired benefits
accruing to Canada under these agreements.

- CAN-184 -

8.6. Pursuant to Article 19.1 of the DSU, we recommend that the Dispute Settlement Body
request the European Union to bring the inconsistent measures into conformity with its obligations
under the TBT Agreement and the GATT 1994.

- NOR-185 -

8.1 Complaint by Norway (DS401): Conclusions and recommendations
8.1. Norway has made claims with regard to certain aspects of the EU Seal Regime under
Articles 2.2, 5.1.2, and 5.2.1 of the TBT Agreement; Articles I:1, III:4, XI:1, and XXIII:1(b) of the
GATT 1994; and Article 4.2 of the Agreement on Agriculture.
8.2. With respect to Norway's claims under the TBT Agreement, we conclude that:
a. the EU Seal Regime is a "technical regulation" within the meaning of Annex 1.1 to the
TBT Agreement;
b. the EU Seal Regime is not inconsistent with Article 2.2 because it fulfils the objective of
addressing the EU public moral concerns on seal welfare to a certain extent, and no
alternative measure has been demonstrated to make an equivalent or greater
contribution to the fulfilment of the objective as the EU Seal Regime;
c. European Union has 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
d. Norway has not demonstrated that the European Union acted inconsistently with its
obligations under Article 5.2.1.
8.3. With respect to Norway's claims under the GATT 1994, we conclude 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 the like products originating in 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 exceptions is not inconsistent with Article XI:1;
d. the IC exception and the MRM exception under the EU Seal Regime are not justified
under Article XX(a) because they fail to meet the requirements under the chapeau; and
e. the IC exception and the MRM exception under the EU Seal Regime are not justified
under Article XX(b) because the European Union has failed to make a prima facie case
for its claim.
8.4. Given our finding on Article XI:1 of the GATT 1994 above, we reject Norway's claim under
Article 4.2 of the Agreement on Agriculture that the EU Seal Regime constitutes a quantitative
import restriction on agricultural products.
8.5. Finally, in light of the above findings of violation, we have refrained from examining Norway's
non-violation claim under Article XXIII:1(b) of the GATT 1994.
8.6. Under Article 3.8 of the DSU, in cases wh ere there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment of benefits under that agreement. Accordingly, we conclude that to the
extent that the European Union has acted inconsis tently with Article 5.1.2 of the TBT Agreement
and Articles I:1 and III:4 of the GATT 1994, it has nullified or impaired benefits accruing to
Norway under these agreements.

- NOR-186 -

8.7. Pursuant to Article 19.1 of the DSU, we recommend that the Dispute Settlement Body
request the European Union to bring the inconsistent measures into conformity with its obligations
under the TBT Agreement and the GATT 1994.