EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS REPORTS OF THE PANEL
Document: Addendum
Date: 25 November 2013
Document codes: WT/DS400/R/Add.1; WT/DS401/R/Add.1; WT/DS400/R; WT/DS401/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
Addendum
 This addendum contains Annexes A to C to the Reports of the Panel to be found in
documents ,

 •

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 Canada B-2
Annex B-2 Integrated executive summary of Norway B-24
Annex B-3 Integrated executive summary 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
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ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
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ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 23 October 2012

1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following
Working Procedures shall apply.
General

2. The deliberations of the Panel and the document s submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential
summary of the information contained in its submissions that could be disclosed to the public.
3. The Panel shall conduct its internal deliberati ons in closed session. The parties, and Members
having notified their interest in the dispute to the Dispute Settlement Body in accordance with
Article 10 of the DSU (hereafter "third parties"), shall be present at the meetings only when invited
by the Panel to appear before it. The Panel shall open its meetings with the parties to the public,
subject to appropriate procedures to be adopted by the Panel after consulting the parties. These
procedures shall include measures to protect the personal safety of delegates and WTO officials.
4. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure th a t e a c h m e m b e r o f s u c h d e l e g a t i o n a c t s i n
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions
5. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which it presents the facts of the case and its arguments, in accordance with
the timetable adopted by the Panel. Each party sha ll also submit to the Panel, prior to the second
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by
the Panel.
6. A party shall submit any request for a prelimin ary ruling at the earliest possible opportunity
and in any event no later than in its first writte n submission to the Panel. If the complainants
request such a ruling, the respondent shall submit its response to the request in its first written
submission. If the respondent requests such a ruling, the complainants shall submit their response
to the request prior to the first substantive meeting of the Panel, at a time to be determined by
the Panel in light of the request. Exceptions to this procedure shall be granted upon a showing of
good cause.
7. Each party shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evid ence 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. Where such exception has been
granted, the Panel shall accord the other party(ies) a period of time for comment, as appropriate,
on any new factual evidence submitted after the first substantive meeting.
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8. Where the original language of exhibits is not a WTO working language, the submitting party
or third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
in writing as promptly as possible. Any objection shall be accompanied by a detailed explanation of
the grounds of objection and an alternative translation.
9. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as Annex
1, to the extent that it is practical to do so.
10. To maintain transparency between the proceedings in DS400 and DS401, the parties to
these disputes shall make their written submissions prior to the first substantive meeting available
to all third parties in both disputes at the time the parties transmit them to the Panel.
11. To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by Canada could be numbered CAN-1,
CAN-2, etc. If the last exhibit in connection with the first submission was numbered CAN-5, the
first exhibit of the next submission thus would be numbered CAN-6. To avoid the duplication of
exhibits, the parties may submit joint exhibits by numbering them as JE-1, JE-2, etc. Each party
may also cross-refer to an exhibit submitted by the other parties by using the number attributed
to the exhibit.
Questions

12. The Panel may at any time during the proceedings pose questions to the parties and third
parties, either orally in the course of a meeting or in writing.
Substantive meetings

13. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel. This list should be pr ovided no later than 5.00 p.m. on the previous
working day.
14. The first substantive meeting of the Panel wi th the parties shall be conducted as follows:
(a) The Panel shall invite the complainants to make opening statements to present
their case first. Subsequently, the Panel shall invite the respondent to make its
opening statement. Before each party takes the floor, it shall provide the Panel and
other participants at the meeting with a provisional written version of its
statement. In the event that interpretation is needed, each party shall provide
additional copies to the interpreters through the Panel Secretary. Each party shall
make available to the Panel and the other parties the final version of its statement,
preferably at the end of th e meeting, and in any event no later than 5.00 p.m. on
the first working day following the meeting.
(b) After the conclusion of the statements, the Panel shall give each party the
opportunity to ask questions or make comments, through the Panel. Each party
shall send in writing, within a timeframe to be determined by the Panel, any
questions to the other party(ies) to which it wishes to receive a response in
writing. Each party shall be invited to respond in writing to the other party's
questions within a deadline to be determined by the Panel.
(c) The Panel may subsequently pose questions to the parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the parties to
which it wishes to receive a response in writing. Each party shall be invited to
respond in writing to such questions within a deadline to be determined by the
Panel.
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(d) Once the questioning has concluded, the Panel shall afford each party an
opportunity to present a brief closing stat ement, with the complainants presenting
their statements first.
15. The second substantive meeting of the Panel wi th the parties shall be conducted as follows:
(a) The Panel shall ask the respondent if it wishes to avail itself of the right to present
its case first. If so, the Panel shall invite the respondent to present its opening
statement, followed by the complainants. If the respondent chooses not to avail
itself of that right, the Panel shall invite the complainants to present their opening
statements first. Before each party takes the floor, it shall provide the Panel and
other participants at the meeting with a provisional written version of its
statement. In the event that interpretation is needed, each party shall provide
additional copies to the interpreters through the Panel Secretary. Each party shall
make available to the Panel and the other parties the final version of its statement,
preferably at the end of th e meeting, and in any event no later than 5.00 p.m. on
the first working day following the meeting.
(b) After the conclusion of the statements, the Panel shall give each party the
opportunity to ask questions or make comments, through the Panel. Each party
shall send in writing, within a timeframe to be determined by the Panel, any
questions to the other party(ies) to which it wishes to receive a response in
writing. Each party shall be invited to respond in writing to the other party's
questions within a deadline to be determined by the Panel.
(c) The Panel may subsequently pose questions to the parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the parties to
which it wishes to receive a response in writing. Each party shall be invited to
respond in writing to such questions within a deadline to be determined by the
Panel.
(d) Once the questioning has concluded, the Panel shall afford each party an
opportunity to present a brief closing statement, with the party(ies) that presented
its opening statement first, presenting its closing statement first.
Third parties
16. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the first substantive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel. To maintain transparen cy between the proceedings in DS400 and DS401,
the Panel shall also invite third parties in each dispute to make their written submissions to the
Panel available to all parties and third parties in both disputes.
17. Each third party shall also be invited to presen t its views orally during a session of this first
substantive meeting, set aside for that purpose. Ea ch third party shall provide to the Panel the list
of members of its delegation in advance of th is session and no later than 5.00 p.m. on the
previous working day.
18. The third-party session shall be conducted as follows:
(a) To maintain transparency between th e proceedings in DS400 and DS401, all third
parties in both disputes may be present during the entirety of this session.
(b) The Panel shall first hear the arguments of the third parties in alphabetical order.
Third parties present at the third-party session and intending to present their
views orally at that session, shall provide the Panel, all parties and third-parties in
both disputes with provisional written versions of their statements before they take
the floor. In the event that interpretation is needed, third parties shall provide
additional copies to the interpreters through the Panel Secretary. Third parties
shall make available to the Panel, all part ies and third parties in both disputes the
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final versions of their statements, preferab ly at the end of the session, and in any
event no later than 5.00 p.m. on the first working day following the session.
(c) After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification
on any matter raised in the third parties' submissions or statements. Each party
shall send in writing, within a timeframe to be determined by the Panel, any
questions to a third party to which it wishes to receive a response in writing.
(d) The Panel may subsequently pose questions to the third parties. The Panel shall
send in writing, within a timeframe to be determined by it, any questions to the
third parties to which it wishes to receive a response in writing. Each third party
shall be invited to respond in writing to such questions within a deadline to be
determined by the Panel.
Descriptive part

19. Each party shall submit an integrated executive summary of its arguments as presented in
its written submissions, statements and responses to questions in two parts. The total number of
pages for the integrated executive summary, both parts combined, shall not exceed 30 pages. The
parties shall submit the first part of the integr ated executive summary at the latest 10 calendar
days after the responses to questions following the first substantive meeting. The parties shall
submit the second part of the integrated executiv e summary at the latest 10 calendar days after
the comments on the responses to questions following the second substantive meeting.
20. Each third party shall submit an integrated executive summary of its arguments as
presented in its written submission and statement at the latest 7 calendar days from the date of
the third party session, or in the event that the Panel addresses questions to the third parties, at
the latest 7 calendar days after the deadline for submission of responses to these questions. The
integrated summary to be provided by each third party shall not exceed 5 pages.
21. The executive summaries referred to above shall not in any way serve as a substitute for the
submissions of the parties and third parties in th e Panel's examination of the case. The description
of the arguments of the parties and third parties in the descriptive part of the Panel reports shall
consist of these executive summaries, which shall be annexed as addenda to the reports.
Interim review

22. Following issuance of the interim reports, each party may submit a written request to review
precise aspects of the interim reports and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
23. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review, in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
24. The interim reports as well as the final reports before translation shall be kept strictly
confidential and shall not be disclosed.
Service of documents

25. The following procedures regarding service of documents shall apply:
(a) Each party and third party shall submit all documents to the Panel by filing them
with the DS Registry (office No. 2047).
(b) Each party and third party shall file 9 paper copies of all documents it submits to
the Panel. However, when exhibits are provided on CD-ROMS/DVDs,
5 CD-ROMS/DVDs and 3 paper copies of those exhibits shall be filed. The DS
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Registrar shall stamp the documents with the date and time of the filing. The
paper version shall constitute the official version for the purposes of the record of
the dispute.
(c) Each party and third party shall also prov ide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, preferably in
Microsoft Word format, either on a CD-ROM, a DVD or as an e-mail attachment. If
the electronic copy is provided by e-mail, it should be addressed to
*****@wto.org, with a copy to *****.*****@wto.org, *****.*****@wto.org,
*****.*****@wto.org, *****.*****@wto.org and *****.******@wto.org. If a
CD-ROM or DVD is provided, it shall be filed with the DS Registry.
(d) Each party shall serve any document submitted to the Panel directly on the other
parties. Each party shall, in addition, serve on all third parties its written
submissions in advance of the first substa ntive meeting with the Panel. Each third
party shall serve any document submitted to the Panel directly on the parties and
all other third parties. Each party and third party shall confirm, in writing, that
copies have been served as required at the time it provides each document to the
Panel.
(e) Each party and third party shall file its documents with the DS Registry and serve
copies on the other parties (and third parties where appropriate) by 5.00 p.m.
(Geneva time) on the due dates established by the Panel.
(f) The Panel shall provide the parties with an electronic version of the descriptive
part, the interim reports and the final reports, as well as of other documents as
appropriate. When the Panel transmits to the parties or third parties both paper
and electronic versions of a document, the paper version shall constitute the
official version for the purposes of the record of the dispute.

WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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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
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ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA
I. INTRODUCTION
1. This dispute concerns the regulatory framewor k of the European Union (EU) for trade in seal
products, which is principally contained in two legal instruments: Regulation No. 1007/2009 (the
Basic Regulation) and Regulation No. 737/2010 (the Implementing Regulation). These two
instruments make up the EU Seal Regime. The Basi c Regulation establishes strict conditions under
which seal products may be placed on the EU mark et. The conditions apply to seal products that
fall under the "Inuit Communities" (IC), "Marine Management" (MM) and "Consumer Choice" (CC)
categories. The Implementing Regulation lays down rules that elaborate on the conditions under
which seal products may be imported and placed on the market, and establishes a conformity
assessment procedure (CAP) to ensure that only products that meet the conditions are being
placed on the EU market. According to the European Union, the objectives of the EU Seal Regime
are animal welfare with respect to seals and addressing the moral concerns of the EU public in this
respect.
2. The effect of the EU Seal Regime is to exclude from the EU market all seal products derived
from seals killed in commercial hunts, regardless of whether they were harvested humanely. In
doing so, the EU Seal Regime has effectively shut out Canadian seal products from the EU market.
The negative economic impacts of this measure have reverberated through coastal communities in
the Canadian Maritimes, where economic opportunities are limited, and in Canada's Inuit
communities, where the Inuit have historically relied on the income generated from seal skin sales
to supplement their subsistence-oriented lives.
3. In contrast, the EU Seal Regime minimizes any negative commercial impact on seal products
from Greenland and the European Union, as well as on the EU's economic actors with a commercial
stake in seal products through processing of them for export and transit. Indeed, the EU Seal
Regime was written in such a way that products from Greenland and the European Union would be
able to access the EU market, regardless of whet her the seals were killed humanely. It has not
disrupted the access these products have to the EU market.
4. The EU Seal Regime imposes an import restriction on Canadian seal products, contrary to
GATT Article XI:1. It also constitutes a de facto violation of the MFN and national treatment
obligations in TBT Article 2.1 and GATT Articles I:1 and III:4. Further, it is more trade-restrictive
than necessary to fulfill its objectives and thus constitutes an unnecessary obstacle to international
trade, contrary to TBT Article 2.2. Finally, th e CAP established by the Implementing Regulation
violates TBT Articles 5.1.2 and 5.2.1.
II. FACTUAL BACKGROUND
A. Overview and history of th e Canadian sealing industry
5. Seals have been harvested, first by the Inuit and other Aboriginal peoples, and, starting in
the 16
th century, by European settlers. Commercial sealing on Canada's east coast emerged in the
18th century.
6. For Inuit communities, the marketing of seal products continues to contribute to their
economic development in the 21 st century. The Inuit hunt mostly ringed seals. The Inuit hunt
takes place throughout the year and is primarily for subsistence purposes although some skins are
sold on the commercial market. Revenues generated from the sale of these products help finance
Inuit hunting activities generally. Seal hunting is an intrinsic part of the Inuit way of life, and an
integral part of Inuit culture and survival. Seal meat is a dietary staple and skins and bones are
used to produce clothing for locals. It is not economically feasible for the Inuit to develop their own
processing and distribution chains. Therefore, th ey have largely relied on commercial processing
and marketing chains for east coast seal products. The decline in Canada-Europe trade in seal
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products derived from the east coast commercial harvest has disrupted the functioning of such
chains. Unless the Inuit develop their own processing and distribution networks, which would likely
be prohibitively costly given the small volume of Inuit trade, they will be unable to access global
markets.
7. The seal harvest has evolved from a subsiste nce activity into a commercial industry and an
important economic driver for coastal communities. Sealing has played an integral role in the
development and maintenance of Canada's eastern and northern coastal communities, and is at
the heart of their culture and economy. Individual sealers are highly dependent on the income it
generates, which allows them to pay for fishing-related expenses and earn an income from that
activity.
8. There are two main areas of sealing on Canada 's east coast: the Gulf and the Front. They
both focus on the harp seal and, in accordance with the Marine Mammal Regulations (MMR) and
depending on the ice conditions, run from mid-or late March to May (Gulf) or in April and May
(Front). In both the Gulf and the Front, the harv est is conducted using a mix of small vessels and
long-liners. The harvest in the Gulf generally takes place on pack ice or large ice floes, and the
sealers use a mix of rifles and hakapiks. Smaller ice floes and more open water on the Front mean
that the sealers tend to rely more on rifles to shoot before landing crewmen to confirm the kill or
dispatch the seal with a hakapik, if necessary. Approximately 70 percent of the seal harvest occurs
at the Front
9. Canada's east coast seal harvest is completely sustainable and is part of a larger marine
resource management program. The Department of Fisheries and Oceans (DFO) has administered
a total allowable catch (TAC) system since 1971 and the east coast harvest has been managed
using a precautionary approach-based framework since 2003. TACs are set for three-years, with
an annual TAC taking into account various considerations. Catch data must be recorded and
reported daily. In addition, population estimates are revised annually. The Northwest Atlantic harp
seal population is at just under eight million and scientists believe that it is at or near an historical
high. This population has been rising steadily for the last two decades, despite increasing TACs and
harvests in the last ten years.
10. Commercial sealing in Canada focuses on three main commodities, namely skins, oil and
meat, from which a number of consumer goods are derived. In the last few years, seal oil has
eclipsed fur to become Canada's primary se al-derived commodity. The available data
demonstrates that the value of the seal harv est over the last two decades has fluctuated
dramatically, with a sharp increase in value beginning in 2002 until 2006. Starting in 2007, the
value of landed seals fell dramatically for a variety of reasons; including bans on seal products
imposed by Belgium and the Netherlands that year and the introduction of the draft EU Seal
Regime in 2008. Consistent with that trend and for similar reasons, Canada's export figures
fluctuated dramatically over the 2000s, with a precipitous fall from 2006 to 2010. A key factor
contributing to this was the EU and Member State seal product measures.
11. Canada's seal hunt is one of the most strictly regulated and closely monitored large-scale
wild animal harvests in the world. At the federal level, DFO implements humane harvesting
methods and animal welfare standards, administers licensing regimes, and conducts effective
monitoring and enforcement. The Inuit hunt is subjec t to the MMR but, in some cases, land claims
agreements complement them and may supersede them if there is a conflict.
12. The Canadian east coast seal hunt takes place in a regulatory environment characterized by
clear and rigorous animal welfare standards that are based on the most current scientific research
and independent expert advice. The MMR prescribe k illing methods that oblige sealers to kill seals
in a manner that avoids all unnecessary pain and suffering. The MMR and Canada's licensing
conditions also require that every seal be harvested in accordance with the three-step process
(striking, checking and bleeding), which mirrors processes used in commercial slaughterhouses
around the world. This process has been recomme nded and endorsed by a number of veterinary
and scientific panels, including the panel establ ished by the European Food Safety Authority
(EFSA). The three-step process clearly exceeds what is required for the vast majority of wild
animal harvests. Recent statistics with respect to sealers' compliance with the three-step method,
based on both on-site observations and post mortem skull checks, reveal a compliance rate that
exceeds 95 percent.
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13. Under the MMR, all sealers participating in the commercial seal harvest are required to have
licenses. Canadian sealers are professionals wh o are experienced and knowledgeable about the
animals they hunt, recognize the importance of adhering to the rules and requirements for
harvesting seals, and are familiar with and comfor table in the physical en vironment in which they
work.
14. The issuance of sealing licenses is governed by the MMR and guided by the Seal Licensing
Policy. A voluntary training program developed through the cooperation of DFO and other agencies
that covers many aspects of the MMR, such as the use of approved weapons and ammunition as
well as humane harvesting (the three-step proc ess), is offered each year in advance of the
opening of the harvest. To date over 3000 sealer s have participated. While this voluntary program
has been successful, the training will be mandatory starting in 2014. This means that sealers will
not be able to renew their licenses unless they have been formally trained.
15. In cooperation with other government agencies, DFO monitors the seal hunt closely and
strictly enforces the Fisheries Act, the MMR and seal licencing conditions in an effort to ensure,
among other things, that seals are killed in a way that inflicts as little pain and suffering as
possible. To do so, a team of DFO Fishery Office rs is deployed on a full-time basis on board a
Canadian Coast Guard vessel (ice breaker) dedica ted to monitoring sealing activities for the
duration of the harvest in the Gulf and on the Front. In addition, the Royal Canadian Mounted
Police and the provincial police have teams of officers aboard the icebreaker.
16. The Coast Guard vessel has been able to participate in all monitoring, control and
surveillance activities. DFO has also employed th e services of two or three Canadian Coast Guard
helicopters. Other Fishery Officers are stationed near seal harvesting locations and they conduct
activities such as: overhead monitoring by helicopters operating from land; patrolling areas of
active harvesting with vehicles; accompanying and mo nitoring sealing crews, for a half or full day,
directly onboard sealing vessels; conducting dockside verifications of catches; participating in daily
aerial patrols in fixed wing aircraft to identify active harvesting sites; and coordinating the
deployment of the icebreaker and helicopters. A number of advanced technological tools, including
high-definition cameras, are at their disposal. DFO contracts with independent at-sea observers,
who are randomly deployed on sealing vessels, and allows third parties to observe the harvest.
17. Sealers who fail to comply with the MMR or the conditions of their sealing licence are
prosecuted. The consequences of illegal actions include fines, licence prohibitions, and the
forfeiture of catches, fishing gear, vessels and vehicles.
18. In seeking to justify why it is necessary for products of the Canadian commercial seal
harvest to be banned completely from its market, the European Union cites a number of studies,
which it says demonstrate that: Canada has not prescribed an appropriate standard for humane
killing; Canadian sealers fail to follow even the prescribed standards; and there are inherent
obstacles to killing seals humanely. As confirmed by the EFSA 2007 Opinion and recent, peer-
reviewed research by independent veterinary expe rts, there is nothing inherently inhumane about
harvesting seals in Canada.
19. EFSA has also recognized that there is no pe rfect or ideal killing method that can guarantee
the complete absence of pain, distress and other forms of suffering. Contrary to what the
European Union is arguing in this dispute, EFSA did not conclude that Canada's east coast seal
hunt is inherently inhumane; rather, it concluded that "[m]any seals can be, and are, killed rapidly
and effectively without causing avoidable pain, distress, fear and other forms of suffering […]"
According to EFSA, Canada's regulatory regime constituted an effective framework to ensure that
seals are killed humanely, provided that the sealers use their tools properly and comply with the
regulatory requirements prescribing the three- step method. To the extent that EFSA found
evidence that some seals might experience pain or suffering, it provided a number of
recommendations on how to minimize these events. These recommendations have been the basis
for revisions to Canada's MMR. Canada's seal hunt compares well with other well-managed wildlife
hunts and even approved slaughter methods used in abattoirs.
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B. Greenland seal harvest
20. Historically, the seal harvest in Greenland has been one of the largest in the world. Since the
adoption of the EU Seal Regime, it has become the largest. The harp seal hunt takes place all year
round, but predominantly during the summer and au tumn in open water. This method has been
recognized to result in a significant percentage of struck seals sinking in the water before the
sealer reaches them. Ringed seals are hunted primarily during the winter, using netting
techniques, which were considered by the EFSA Panel to cause "considerable suffering".
21. Greenland's sealing community is almost exclusively made up of Inuit. The Inuit harvest
seals for both subsistence and commercial purposes. It is estimated that over half of the seal skins
from the Greenlandic hunt are sold to the Great Greenland A/S tannery, which processes them and
either sells them in Denmark or through agents lo cated there. Seal skins are sold during fashion
fairs in Denmark or abroad, as well as at auctions.
22. The authorities in Greenland do not make a distinction between subsistence and commercial
hunts when regulating these activities. Until recently, Greenland did not have any legislation
specific to the seal harvest. The Executive Order that came into effect in December 2010 imposes
requirements with respect to licenses, catch reporting and hunting methods, but there are no TACs
for seals. There is no requirement for checking and bleeding or any other specific animal welfare
requirements. In addition, there is no required testing or training of sealers and the monitoring of
the hunt is very limited.
C. Sealing and animal welfare issues in the EU
23. There is very little sealing in the European Union with most of it concentrated in Sweden,
Finland, and the United Kingdom (Scotland). In Sweden, and Finland, seals have generally been
considered as pests due to the damage they cause to fisheries and thus are hunted primarily for
marine resource management purposes and to protect the sustainability of fisheries. Swedish and
Finnish sealers mainly consume what they catch or use seals to make commercial products on a
small scale for sale locally or on the EU market. In the United Kingdom, grey seals are harvested
as nuisance animals around fisheries and fish farms.
24. The numbers of seals that are subject to qu otas or are actually killed in the EU Member
States annually vary from 200 in Sweden to 3,500 in the United Kingdom. Hunters in Finland are
largely self-regulated and it is unclear if there is any independent monitoring of that hunt. It is also
unclear how well monitored the Swedish hunt is due to the relative scarcity of inspectors. The
evidence shows that culls in Sweden and Finland do not require the application of the three-step
method for killing seals.
25. The main legislation dealing with the killing and slaughter of animals in the European Union
is Regulation 1099/2009 on the protection of anim als at the time of killing, which applies to the
killing of animals bred or kept for the production of food, wool, skin, fur or other products. This
Regulation retained some of the stunning and killing methods prescribed under the previous
legislation, including some that were associated with poor animal welfare outcomes. The slaughter
methods accepted and used in the European Union do not "guarantee instantaneous death,
without suffering" and, in fact, a number of the "best" or "recommended" methods may still cause
pain, distress and suffering in animals.
26. Regulation 1099/2009 does not provide for independent monitoring of animal welfare
protection. The European Union relies on a sy stem where slaughterhouse operators appoint a
certified animal welfare officer who is responsible for monitoring compliance with animal welfare
rules. In smaller slaughterhouses, there is no requirement to monitor compliance. In addition,
each kill of an animal is not monitored. Checks are carried out to verify that animals are stunned
properly using only a representative sample at a frequency that takes account of previous checks.
Moreover, the implementation of mandatory training for officers is, in practice, far from uniform
and in most Member States there is no compul sory system of certification by the competent
authorities to ensure that proper training is provided to staff.
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27. Monitoring compliance with animal welfare regulations is also a challenge in all wildlife
hunts. For instance, the deer hunt in the United Kingdom is not closely monitored. Hunters
generally operate alone or in small groups and they are expected to police themselves.
D. EU legislative process
28. In 2006, the European Parliament passed a declaration requesting the European Commission
(Commission) to draft a regulation to ban the impo rt, export and sale of all harp and hooded seal
products, which was aimed specifically at the Cana dian east coast seal harvest. In response, the
Commission undertook to make a full objective assessment of the animal welfare aspects of seal
hunting. In 2008, it published a legislative proposal for a regulation on trade in seal products that
imposed a prohibition on the placing on the market , import, transit or export of seal products,
coupled with a derogation for seal products derived from seals harvested and skinned in a country
where: (1) adequate legislative provisions or other requirements apply ensuring effectively that
seals are harvested and skinned without causing avoidable pain and suffering; (2) the legislative
provisions or other requirements are effectively enforced; and (3) a certification scheme is in
place. The proposal also specified that the fundamental economic and social interests of Inuit
communities traditionally engaged in seal hunting should not be adversely affected.
29. Following a series of amendments by the European Parliament, the proposal was
transformed into the EU Seal Regime, which excludes seal products derived from any non-Inuit
commercial harvests from the EU market while allowing seal products from non-commercial hunts,
regardless of whether the seals are killed humanely.
30. Before and during the legislative process, Ca nada sought to engage with the European Union
in discussions on a multilateral process that would lead to an international animal welfare standard
to be applied to sealing. These efforts were ignored by the European Union.
III. LEGAL ARGUMENTS
A. The EU Seal Regime violates the GATT 1994
1. GATT Article XI:1
31. In this dispute, Canada's claim under GATT Article III:4 is an alternative to its claim under
GATT Article XI:1.
32. Article XI:1 applies to any "measure" that pr ohibits or restricts imports from other Members,
including laws, regulations and requirements. The EU Seal Regime is a "law" or "regulation" and
thus clearly falls within the scope of a "measure". Panels and the Appellate Body have concluded
that the term "restriction" is very broad and includes any "limitation on action, a limiting condition
or regulation". It has also been confirmed that Article XI:1 applies to de jure and de facto
prohibitions and restrictions, and that this provision protects competitive opportunities rather than
actual trade flows. By limiting imports to products falling within the three categories, the EU Seal
Regime imposes de facto quantitative restrictions on the importation of Canadian seal products in
violation of Article XI:1.
33. The European Union has confirmed that seal products from Canada's east coast harvest do
not fall within the scope of the IC or MM categori es. As approximately 95 percent of Canada's total
seal harvest placed into commerce in the last five years has come from this harvest, the vast
majority of Canada's seal products are excluded from the EU market.
34. Ad Article III, which precludes the application of Article XI:1 for internal measures that are
enforced at the time or point of importation, does not apply to the EU Seal Regime If a measure
affects the competitive opportunities of imported products in different ways, its different aspects
can fall within the scope of either Article III or XI. The three categories, which determine whether
seal products have access to the EU market, can be assessed on their own for the purpose of
determining which GATT Article to apply. The nature of the measure being a restriction in relation
to importation is the key factor to consider in determining whether it may properly fall within the
scope of Article XI:1.
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35. The facts show that the EU Seal Regime does not meet the conditions set out in
Ad Article III. The applicability of that provision turns on the application of the measure to both the
imported and like domestic products. Under the CC category, the conditions only apply to the
importation of seal products. By virtue of the fact that these seal products can only be imported
for personal use, there is no "like" domestic product. Similarly, the conditions under the IC
category effectively apply only to imported seal products as the European Union has acknowledged
that there are no EU seal products that would qu alify under that category. Therefore, Article III:4
would never apply because there are no "like" domestic products.
36. For its part, the MM category is also effectively a restriction on importation. Its conditions do
not restrict EU domestic seal products as they we re crafted to specifically reflect sealing practices
in the relevant EU Member States (i.e., Sweden). The conditions under that category effectively
operate as a border measure because their actual impact (i.e., restriction) would only be felt by
imported products. Indeed, Canadian seal products not derived from seals killed as part of a
marine resource management cull can never fulfil the conditions to enter the EU market. Even if
some Canadian seal products were derived from such a cull, the non-systematic and non-profit
conditions would prevent their entry into, and plac ement on, the EU market. In contrast, all of the
EU's domestic seal products derive from marine management hunts and will therefore satisfy the
conditions. No domestic seal products are effectively prevented from being placed on the EU
market.
2. GATT Article I:1
37. Article I:1 prohibits discrimination between "like" products originating in, or destined for,
different countries. The primary objective of the MFN obligation is to ensure "equality of
opportunity to import from, or to export to, all WTO Members." As found by the Appellate Body in
EC – Bananas III , it requires that all "like" products be treated equally regardless of their origin.
The MFN obligation covers both de jure and de facto discrimination.
38. The term "advantage" in Article I:1 is broad an d, by reference to Article III:4, it includes
"laws, regulations and requirements" affecting the "internal sale, offering for sale, purchase,
transportation, distribution or use" of products. The EU Seal Regime is a law or regulation that
"affects" the "internal sale", "offeri ng for sale", "purchase" and "distribution" of seal products. The
E U S e a l R e g i m e c o n f e r s a n a d v a n t a g e t o G r e e n l a n d i c s e a l p r o d u c t s b y a l l o w i n g t h e m t o b e
imported and placed on the EU market and to circulate freely between EU Member States given
that they meet all of the conditions under the IC category.
39. In EC – Asbestos , the Appellate Body noted that a determination of likeness is
"fundamentally, a determination about the nature and extent of a competitive relationship
between and among products". Pursuant to the criteria set out by the Appellate Body, seal
products from Canada's non-Inuit east coast commercial seal harvest and seal products from Inuit
hunts in Greenland, whether they are inputs or finished products, are physically similar, have the
same or similar end-uses, consumers considered them to be highly substitutable before the
introduction of the EU Seal Regime and they are cl assified under the same tariff lines. In addition,
the parties to the dispute agree that all seal products, whether or not they conform to the EU Seal
Regime, are like products that compete and are substitutable between each other in the EU
market. Thus, Canadian and Greenlandic seal products are "like" products.
40. The trade advantage granted to Greenlandic se al products is not granted "immediately and
unconditionally" to "like" Canadian seal products. Indeed, the conditions under the IC category
effectively permit all Greenlandic seals products to be placed on the EU market, while excluding
the vast majority of Canadian seal products from the same market. This is due to the fact that
Canada's east coast commercial seal harvests are not "hunts traditionally conducted by Inuit or
other indigenous communities" as required under the IC category.
3. GATT Article III:4
41. The EU Seal Regime violates the national treatment obligation under Article III:4 because it
treats Canadian seal products less favourably than EU seal products. The EU Seal Regime changes
the conditions of competition to the detriment of Canadian seal products. In particular, the MM
category effectively allows all domestic seal products from the EU to continue to be placed on the
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EU market, but excludes Canadian seal products from the same market, thus constituting a de
facto violation of Article III:4.
42. The parties to this dispute agree that all seal products are like products that compete and
are substitutable between each other in the EU ma rket. The like products to be compared are all
domestic (EU) products that both conform and do not conform to the conditions allowing them to
be placed on the market and all conforming for non-conforming seal products from Canada.
43. The EU Seal Regime is a law, regulation or requirement affecting the internal sale, offering
for sale, purchase and distribution of seal products in the EU. In particular, the MM category
imposes conditions for seal products to be placed on the market and restrictions on the manner in
which such products must be marketed in order to qualify under this category. Thus, the operation
of the category limits the internal sale, offering for sale, distribution, and ultimately, the purchase
of seal products.
44. In Korea – Various Measures on Beef , the Appellate Body determined that "treatment no
less favourable" under Article III:4 means "according conditions of competition no less favourable
to the imported product than to the like domestic product." Ultimately, this inquiry turns on
whether the EU Seal Regime modifies the conditio ns of competition to the detriment of Canadian
seal products. In this case, the design, structure and operation of the category indicate that EU
seal products (i.e., those originating in Sweden, Finland and the United Kingdom), were expected
to, and, in the case of Sweden, will meet all the conditions under the category, including the
"non-systematic", "non-profit basis" and "ecosystem-based approach" conditions, while Canadian
seal products do not. Canadian seal products ar e effectively excluded from qualifying under the
MM category. The recent approval of Swedish authorities to issue accreditation documents
confirms that such conditions were set to accommodate the existing practices of EU Member
States. Thus, the EU Seal Regime modifies the conditions of competition to the detriment of
Canadian seal products and accords those products less favourable treatment.
4. Incorrect legal standards proposed by the EU under GATT
Articles I:1 and III:4
45. Despite the European Union's concessions regarding the elements under Articles I:1 and
III:4, it defends the discrimination of the EU Seal Regime, not on the basis of facts, but on the
application of erroneous legal standards. The European Union does this by attempting to
incorporate the legitimate regulatory distinction test into the less favourable treatment analysis
under Articles I:1 and III:4. However, the legitimate regulatory distinction test was developed for
the sole purpose of addressing claims regarding measures falling under TBT Article 2.1. In US –
Clove Cigarettes, the Appellate Body concluded that the preamble in the TBT Agreement sets out a
balance not unlike the balance found between GATT Articles III and XX, and it suggested that the
absence in the TBT Agreement of a general exceptions clause like Article XX necessitates a
different reading of Article 2.1. That reading resulted in the incorporation of the legitimate
regulatory distinction element in the legal standard for Article 2.1 aiming to preserve the balance,
a s f o u n d b y t h e A p p e l l a t e B o d y i n US – Clove Cigarettes , between the objective of trade
liberalization and a WTO Member's right to regulate. In contrast, the text and context of
Articles I:1 and III:4 neither allow for, nor do they require, an inquiry into the legitimacy of policy-
based distinctions drawn between products that have been found to be like. As the Appellate Body
intimated in US – Clove Cigarettes , Article XX is the appropriate GATT provision for this. The
European Union's attempts to insert a legitimate regulatory distinction element into Articles I:1
and III:4 are not supported by the jurisprudence, or the text and context of those provisions.
Further, its argument regarding the possible in congruence between the TBT Agreement and the
G A T T 1 9 9 4 i s m e r e c o n j e c t u r e , a s i t i s b a s e d o n a n a s s u m p t i o n t h a t t h e r a n g e s o f t h e p o l i c y
objectives covered under the TBT Agreement is greater than what is found under Article XX. The
European Union is incorrect as a matter of law when it asserts that the legal standard for
determining less favourable treatment under GATT Articles I:1 and III:4 is the same as for TBT
Article 2.1.
46. The European Union applies another incorrect legal standard with respect to Canada's
de facto discrimination claims when it tries to distinguish between like products on the basis that
they are in different situations. To be able to justify differences in treatment on such a basis
between like products would eliminate the possibility of de facto discrimination being found under
Articles I:1 and III:4, and thus overturn more than three decades of GATT and WTO jurisprudence.
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In US – Clove Cigarettes , the Appellate Body has ruled that a panel is to assess objectively the
universe of domestic products that are "like" the products that are imported from the complainant,
on the basis of the nature and extent of the comp etitive relationship between the products in the
market of the regulating WTO Member.
47. The universe of products that the Panel must consider is all domestic seal products that are
"like" the products from Canada and products that originate from other countries, whether they
conform to the conditions imposed by the EU Seal Regime or not. Any grouping of products based
on differences in how the products are treated under the EU Seal Regime does not alter the fact
that they are in a competitive relationship. In this case, all seal products are in a competitive
relationship despite any differentiation between the seal products based on who produces them,
where they originate from or the purpose for which they are produced. The different situations that
may exist in the production of seal products do not affect which seal products are to be compared
for the purpose of determining discrimination under the GATT 1994 or the TBT Agreement.
48. Product grouping does not have any role in a determination of a violation under Article I:1.
The test for a violation under Article I:1 is not whether there has been less favourable treatment
accorded to a like product from one country but whether an advantage has been provided to a like
product from a WTO Member that is not accorded immediately and unconditionally to an individual
like product from any other country. The fact that some like products, which are placed into a
category or group of products under a measure, are accorded an advantage does not negate the
failure to accord the same advantage to a like product that is not part of that group.
49. In addition, the division of products into groups is not relevant in proving less favourable
treatment. Generally, different treatment between like products is not dispositive of less
favourable treatment. The inverse is also true in that treatment under a measure that results in
the same treatment being accorded to domestic and some imported products does not prove that
there is no less favourable treatment. A violation is established when there has been a change in
the conditions of competition to the detriment of imported products as a whole. It is not necessary
to show a detriment to every single imported prod uct. Where almost all of the imported products
are accorded less favourable treatment, which is the case for Canadian seal products, this is
sufficient to demonstrate a violation of the non-discrimination obligations in Articles I:1 and III:4.
50. Even if the groupings of like products base d on different situations should be assessed, quod
non, the result in this case would still be that the overwhelming majority of Canadian seal products
are discriminated against. By comparison, virtually all EU and Greenlandic seal products conform
to the EU Seal Regime conditions and thus receive more favourable treatment by being able to
compete in the EU market. The fact that there may be equal treatment amongst a sub-category of
products, or that the conditions under such sub-ca tegories are origin-neutral on their face, does
not dismiss the discrimination against nearly all Canadian seal products.
5. GATT Article XX
51. In US – Gasoline , the Appellate Body found that the burden of proof rests on the party
invoking a GATT XX exception. The European Union has conceded that point. Accordingly, it must
demonstrate that its measure falls within the scope of either Article XX(a) or (b), and that it is
necessary for the protection of public morals or the protection of animal life or health. In
particular, the European Union must demonstrate that the less favourable treatment accorded to
Canadian seal products (Article III:4) and the failure to grant to those products the same
advantage granted to Greenlandic seal products (Article I:1) are necessary to protect public
morals or animal life or health. It is also for the European Union to demonstrate that its measure,
in its application, does not constitute arbitrary or unjustifiable discrimination between countries
where the same conditions prevail, or a disguised restriction on international trade.
52. According to the European Union, its measure pursues two closely related objectives:
addressing the moral concerns of the EU populati on with regard to the welfare of seals, and
contributing to the welfare of seals by reducing the number killed in an inhumane way. The first
objective is stated to be the "overarching" objective of the EU Seal Regime. As explained by the
European Union, by reducing the global demand for seal products and thus the number of seals
not killed in a humane way, this improves the we lfare of seals and partially addresses the alleged
moral concerns of the EU population. The allege d moral concerns are also addressed because EU
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citizens would not be an "accomplice" to an immoral act being the killing of seals in an inhumane
way and they would not be confronted with seal products that result from such activity.
53. In addition, the European Union asserts that both moral concerns stem from a basic rule of
morality according to which it is wrong for humans to inflict suffering on animals without sufficient
justification. This rule attempts to bring the objectives of protecting the economic and social
interests of the Inuit and marine resources mana gement under the "umbrella" objective of public
morals. Canada also observes that this so-called basic rule of morality is not articulated anywhere
else in official EU documents dealing with animal welfare issues, despite the fact that there is a
considerable body of both policy and legislative documents that deal with animal welfare in the
European Union. The complete absence of such references suggests that its articulation here is
largely an ex post facto attempt to justify the EU Seal Regime.
54. As recognized by the Appellate Body in US – COOL and US – Gambling, a Member's
characterization of its own measure is not binding on a panel, which may also look to the structure
and operation of the measure along with contra ry evidence adduced by the complainant. The
evidence shows that the EU Seal Regime has a number of objectives, with the primary goal being
to address animal welfare. The Basic Regulation refers to the animal welfare aspects of harvesting
seals and the concerns of citizens about those animal welfare aspects. In contrast, the EU Seal
Regime does not refer either to the public morals of EU citizens or to the need to protect them.
Concerns about seal welfare as such can be based on a broad range of factors not connected to a
judgement as to the rightness or wrongness of specific conduct, including pragmatic or utilitarian
considerations, or a desire to minimize pain and suffering. In this dispute, the public concerns
relating to the animal welfare of seals are just that – a public concern.
a) Article XX(a) (protection of public morals)
55. Under this provision, the European Union must establish that (1) the purpose of the
measure falls within the scope of protecting public morals, and (2) the measure is necessary to
accomplish that objective. The EU Seal Regime do es not fall within the type of measures under
Article XX(a) as the alleged public moral upon which it is based is not a clearly discernible and
unambiguous rule of right and wrong conduct. The content of the moral norm is not precise
enough to allow individuals to understand what is required to adhere to it. In addition, the alleged
moral norm is not applied consistently in the EU Seal Regime, undermining its coherence and
precluding the alleged norm from rising to the level of a moral imperative. The EU Seal Regime
also does not protect the public morals of its citize ns. In any event, even if the EU Seal Regime is
measure that falls under Article XX(a), it would not be necessary to achieve the protection of
public morals.
56. The panel in US – Gambling defined "public morals" as "standards of right and wrong
conduct maintained by or on behalf of a community or nation". This phrase discloses several
elements that must be present for a measure to be said to concern itself with the protection of
public morals. First, the policy being pursued must include a clearly discernible standard with a
normative dimension that discloses whether conduct is right or wrong. Second, it must be clear
what conduct is at issue and whose conduct is being targeted by the measure. Third, the phrase
"maintained by or on behalf of a community or nation" suggests that a high level of consensus
must exist with respect to whether the conduct in question is right or wrong. In addition,
Article XX(a) refers to the "protection" of public morals, which entails that the purpose of a
measure sought to be justified under that provision is to forestall or prevent some type of harm.
57. In US – Gambling and China – Publications and Audiovisual Products , there was ample
evidence that the measure aimed to prevent societ al harm from the particular service or product
being regulated. In both cases, the evidence th at allowing the importation of the products or
service would give rise to a risk of harm to the society of the Member whose measure was at issue
was inherent in the measure. Further, the complainants in these disputes did not argue that the
measures at issue were not measures to protect public morals. This is not the case in the present
dispute.
58. The European Union has failed to meet its burden to establish the existence of a clearly
discernible and unambiguous rule of moral conduct, and that the conduct gives rise to a risk of
harm within its territory. Its articulation of the alleged public morality objective has changed over
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the course of this dispute, which demonstrates the risk of accepting an ill-defined public morality
objective. The European Union sometimes uses th e term "excessive" when it refers to "pain,
distress, fear and other forms of suffering" but it does not do so in all cases. While the European
Union does not define that term, its ordinary meaning implies that some level of pain is
acceptable. This also undermines the European Union's argument that the hunt is inherently
inhumane as a concern regarding "excessive suffering" acknowledges that there is a degree of
suffering that is acceptable to the EU public. On that point, the Commission's proposal and
Regulation 1099/2009 both refer to "avoidable" pain, distress and other forms of suffering. Later in
the course of these proceedings, the European Un ion indicated that it is seeking to, "uphold a
standard of conduct according to which it is morally wrong for humans to inflict suffering upon
animals without sufficient justification." This last phrase is inherently subjective and it offers little
guidance as to what would constitute acceptable conduct and under what circumstances. The
European Union has not explained how these appare ntly different characterizations of the alleged
moral norm relate to each other, or if they are meant to articulate the same standard.
59. It is not enough for the European Union to assert that its measure reflects a public norm in
the sense of a standard of right and wrong conduct. As the party alleging the affirmative of this
factual claim, it must demonstrate the existence of that standard with affirmative evidence. The
European Union claims that these moral concerns are evidenced by a series of opinion polls
conducted between 2006 and 2008 (prior to the entry into force if the EU Seal Regime) in several
EU Member States and a multi-country survey conducted after the measure was adopted. The
evidence advanced by the European Union suffers from a number of critical shortcomings. First,
many of the surveys cited by the European Unio n do not provide sufficient information (e.g.,
margins of error, confidence intervals, respon se rates and sampling methodology) to determine
whether they are methodologically sound from the standpoint of proper survey techniques. Thus, it
is impossible to extrapolate the findings of the surveys to the broader population. In addition,
most of the surveys are quite old. Second, the polls disclose that the views of EU citizens are not
rooted in any knowledge about the hunt. In some cases, the views are even expressed by
respondents who profess not to be aware of the hunt. Even for those respondents who
characterized themselves as knowledgeable, perc eptions regarding the humaneness of Canada's
commercial seal hunt are contradicted by the most recently available peer-reviewed scientific
evidence. Third, several of the su rveys filed by the EU as exhibits contain questions that do not
comport with proper question design, and are framed in a leading or biased manner, undermining
the accuracy of the data generated from the an swers. In sum, the public survey evidence
advanced by the European Union does not support its assertion that the EU public is deeply
concerned, in moral terms, about the presence of seal products on the EU market. However, it
does show that, in general, EU citizens do not know very much at all about the seal industry. More
generally, public opinion cannot itself be equated with public morals.
60. The idea that the EU Seal Regime addresses public moral concerns rests on a false premise
that the commercial seal hunt is inherently inhumane. This is not the case. Therefore, any public
concerns, be they moral in nature or reflecting some other value, are based on misinformation
about the seal hunt. Hence, the European Union's cl aim that the concerns of EU citizens will be
addressed by the expectation that fewer seals will be killed inhumanely is rooted in the
misperception that a significant number of seals are not killed humanely as part of the Canadian
seal hunt.
61. The European Union's alleged moral norm does not apply universally. According to the
European Union, the concerns of the public relate only to seals that are killed in commercial hunts.
The European Union claims that it is consistent with its public morals objective to allow seal
products to be placed on its market despite the risk that the seals from which they were derived
were killed in a manner that gave rise to the "moral concerns" in the first place, provided that they
satisfy the conditions in the IC or MM categories. The European Union alleges that the hunts
covered by the IC and MM categories justify or requ ire toleration of a higher level of risk to the
welfare of seals.
62. The European Union thus seeks to distinguish between seal products on the basis that they
derive from "commercial" or "non-commercial" seal hunts, but this distinction is illusory for a
number of reasons. First, the polls cited by the European Union did not elicit views on the trade-
offs between seal welfare and the economic and social interests of the Inuit or marine resource
management. Moreover, nowhere does the European Union adequately explain why allowing
products to be placed under the IC and MM catego ries could not be conditioned on a requirement
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that animal welfare standards be respected. Second , to the extent that seals experience pain and
suffering when they are killed, this is not increa sed or decreased depending on the purpose of the
hunt. What matters is the harvesting method used and whether it is applied effectively. Hence, if
there is a standard of conduct with respect to the killing of seals based on the degree of suffering,
that standard must apply consistently and coherently, regardless of the purpose of the hunt. Third,
hunts that qualify under the IC and MM categories have significant commercial dimensions. For
instance, over one-half of the total annual seal harvest in Greenland is sold commercially. Marine
management hunts also have a commercial element as they are used to minimize damage to
commercial fisheries and the seal by-products are tr aded commercially, even if the fisher/sealer is
prevented from making a profit. In addition, the EU Seal Regime allows for commercial activities
within the EU such as sales at auction houses, inward processing for export and production of final
products for export.
63. The European Union's articulation of the alleged public morality objective was transformed
from a single objective based on concerns about animal welfare and the possible presence on the
market of products derived from animals killed in a way that causes pain and suffering, to a rule of
public morality in which it is acceptable, even required, to inflict suffering upon seals provided that
there is a sufficient justification. The European Union has not been able to provide any objective
criteria to determine whether there is a sufficient justification. The European Union has not
provided a consistent and coherent articulation of the public morality objective; rather, it has used
the "umbrella" of public morals to cover various competing and contradictory objectives depending
on which aspect of the EU Seal Regime it is trying to defend.
64. This is arbitrary and it fatally undermines the normative character of the standard of conduct
that is allegedly the basis for the public moral concerns of EU citizens. The so-called standard is
not applied consistently and coherently, and this is particularly problematic where the
"exceptional" treatment essentially eviscerates the norm relating to the conduct. Indeed, the effect
of the IC category is that seal products from Greenland can be imported into the European Union
at numbers which would fully satisfy the historical demand for seal products, despite sealing
practices that have been characterized by EFSA as falling below humane animal welfare standards.
65. The European Union is also required to demonstrate how the EU Seal Regime protects public
morality in order for it to constitute a measure that falls within the scope of Article XX(a). It
alleges that the moral concerns of its citizens would be "addressed" if the placement on the market
of seal products is prohibited given that the popu lation would then not be an "accomplice" to seals
being killed in a manner that causes them excessive pain, fear, distress or other forms of
suffering, and would not have to be confronted wi th such products on the EU market. Both of
these claims presuppose that a failure to achieve these objectives would result in actual injury or
harm to an EU citizen. None of the evidence provided by the European Union (including the polls)
pertains specifically to any moral concerns about the hunt or discloses any specific injury or harm
to EU citizens that would arise as a result of the continued trade in seal products. In addition, it is
difficult to reconcile the alleged wrong conduct of buying and selling seal products in the European
Union while allowing the marketing of seal products under the IC and MM categories. This is
compounded by the Regime's toleration of the im portation, use and consumption of seal products
by EU citizens pursuant to the CC category, and th e processing of such products for the purposes
of exporting them from the EU. Therefore, the Eu ropean Union has not established a public moral
concern that is in need of protection in the sense of Article XX(a).
66. The European Union has also failed to disch arge its burden that the EU Seal Regime is
necessary to protect public morals. Establishing the necessity of a measure entails determining
whether its discriminatory elements were necessary to achieve its objectives. According to the
Appellate Body in Brazil – Retreaded Tyres , this is a weighing and balancing test between three
elements: the importance of the common interest s or values being sought; the extent of the
contribution the measure makes to achieve the obje ctive; and the degree of trade-restrictiveness
of the measure. If this assessment leads to a finding of provisional necessity, a further assessment
must be made of possible alternative measures advanced by the complainant that may be
reasonably available to the WTO Member. The onus is then on the respondent to demonstrate that
such alternative measures are not reasonably available and that they would not make an
equivalent contribution to the achievement of the objective.
67. While the protection of public morals is, in principle, a highly important interest or value, an
assessment of the relative importance of the intere st or value at stake must take into account the
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specific measure at issue and, in particular, the nature or quality of the harm that might be
expected to arise, having regard to the specific circumstances of the matter before the Panel. The
European Union has not fully explained whether the EU Seal Regime intended to "protect" public
morals in the European Union; rather, it has stated that its measure is meant to "address" public
moral concerns. However, there are reasons to doubt the seriousness of the harm that might be
expected to arise from the presence of seal prod ucts on the EU market. First, the European Union
only proscribes certain classes of seal products, which it characterizes as "commercial". Second,
seal products that qualify under the three categories are permitted access to the EU market,
regardless of whether they have been derived from seals killed in a manner that causes them
excessive pain, fear, distress or other forms of suffering. It is thus entirely possible that EU
citizens will continue to be confronted with the very products about which the EU alleges they
harbour serious moral concerns. Further, because of the absence of labelling requirements, these
citizens will have no way of knowing whether the seal products with which they are being
confronted will have been derived from seals ki lled in such manner. Third, under the CC category,
EU citizens remain free to purchase seal products that do not qualify to be placed on the EU
market and other citizens will continue to be confronted with them in their daily lives.
68. In Brazil – Retreaded Tyres , the Appellate Body determined that a measure must make a
material contribution to the achievement of the objective. A measure that makes a marginal or
insignificant contribution to the achievement of the objective cannot be considered necessary
especially where it is very trade-restrictive. A panel is required to assess the "actual contribution"
made by the measure to the objective pursued. To demonstrate that such contribution has been
made, there must be a genuine relationship of ends and means between the objective pursued and
the measure at issue.
69. The EU Seal Regime does not make a material contribution to the objective of protecting the
public morals of EU citizens relating to the welfare of seals. The categories of seal products that
can be placed on the market regardless of animal welfare concerns highlights the marginal
contribution the EU Seal Regime makes towards protecting animal welfare and the moral concerns
surrounding the alleged inhumaneness of the seal hunt. The EU Seal Regime does not prevent EU
citizens from being complicit in seal hunts that conflict with positive animal welfare outcomes,
which is at the root of their alleged moral concerns. This is because seal products can still enter
the EU under the categories without any requir ement that the seals be killed humanely. The
measure thus fails to address the alleged moral concerns of EU citizens and does not make a
material contribution to the objective of protecting public morality.
70. In addition, the European Union has failed to explain the public morality dimension of the
seal product categories that would justify, under its rationale, accepting the alleged wrongful
conduct, that is, inflicting pain and suffering on seals when they are killed. The European Union
has not offered any evidence how the categories contribute to protecting public morals of EU
citizens other than relying on its own bare assertions.
71. According to the Appellate Body, the more trade-restrictive a measure is, the more difficult
it becomes to demonstrate that it is necessary to achieve the policy objective. In this case, the
proper comparison to determine if the EU Seal Regime is trade-restrictive is to compare the
measure as a whole, that is, the categories of seal products that can enter the European Union and
the consequential prohibition of all other seal products, to the situation prior to the enactment of
the measure when market access was not prohibited for commercial seal products. As the IC and
MM categories impose conditions that limit which seal products may be imported and placed on the
market, and that these categories exclude virtually all Canadian seal products, it is clear that the
EU Seal Regime as a whole is severely trade-restrictive.
72. Weighing and balancing the relative low importance of the value or interest being pursued,
the marginal contribution the measure makes to the protection of public morals and its severe
trade-restrictiveness, leads to the conclusion that the measure is not provisionally necessary to
protect public morals under Article XX(a). In any event, a less trade-restrictive alternative exists –
that is a regime that conditions market access on compliance with animal welfare criteria for seal
harvesting methods, combined with a certification and compulsory labelling scheme – and it is
reasonably available to the European Union while offering at least an equivalent level of protection.
Canada has identified the alternative measure in the context of TBT Article 2.2, which is equally
applicable for the necessity test under Article XX in this case.
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b) Article XX(b) (protection of animal life or health)
73. According to the European Union, its measure contributes to protecting the health of seals
because it limits global demand for seal products, thereby reducing the number of seals that are
killed in a manner that causes them excessive suffering. Canada considers that the animal welfare
objective (i.e., the protection of seals from avoidable pain, distress and other forms of suffering)
falls within the scope of the protection of animal health.
74. However, in this case, there is an insufficient "nexus" between the European Union and the
seals whose welfare is allegedly protected under the EU Seal Regime. Those seals occur entirely
outside EU territory. If a jurisdictional limitation to Article XX(b) exists, as found by the panel in EC
– Tariff Preferences, the EU Seal Regime does not fall within the scope of Article XX(b).
75. If the EU Seal Regime falls within the scope of measures covered by Article XX(b), the EU
Seal Regime is not necessary to protect the health of seals and a less trade-restrictive, reasonably
available alternative exists that makes an equivalent or greater contribution to the protection of
the welfare of seals.
76. The European Union claims that the Seal Regime contributes to protecting the health of
seals because it has the effect of "limiting global demand for seal products, thereby reducing the
number of seals which are killed every year in a manner that causes them excessive suffering". Its
assertion that the Seal Regime will result in lowering the number of seals killed and thus the
incidence of inhumane killings is not based on any specific evidence and is thus nothing more than
speculation. In addition, the Seal Regime, due to the fact that seal products that derive from seals
killed in an inhumane manner are permitted to be placed on the market while seal products that
derive from seals killed in an inhumane manner ar e not, defeats the objective of protecting the
welfare of seals. Finally, the Seal Regime allows several types of commercial activities within the
European Union involving seal products without regard for whether the seals were killed humanely
such as the importation for the purposes of processing and re-exportation.
c) Article XX – chapeau (arbitrary or unjustifiable
discrimination)
77. If a measure is provisionally justified under Article XX(a) or (b), it still must meet the
requirements of the chapeau. A measure must no t be applied in a manner that would constitute
"arbitrary or justifiable discrimination" between countries where the same conditions prevail or "a
disguised restriction on international trade".
78. The focus of the analysis under the chapeau is on the application of the measure already
found to be inconsistent with an obligation under the GATT 1994. The design, structure and
expected operation of a measure can provide info rmation about how a measure will be applied,
including how it discriminates against imported products. The relevance of the measure's design,
structure and expected operation is more readily apparent when there is no or little discretion
available to authorities in the implementation of the measure. The parts of the measure that are to
be assessed will consist of those that govern its ap plication and that result in a violation of certain
GATT provisions. In this case, it is the conditions under the EU Seal Regime, which determine
whether a seal product can be either placed on the market or imported for that purpose, that
govern its application.
79. As held by the Appellate Body in US – Gasoline, the type of discrimination examined under
the chapeau differs from the discrimination giving rise to a violation under GATT Article I:1 or
III:4. Analyzing whether the discrimination is arbitrary or unjustifiable will normally involve an
analysis that relates primarily to the cause of the discrimination in the light of the policy objective.
An important factor is whether the measure operates to exclude products from the market whose
presence on that market would be consistent with the objective of the measure. If so, as found by
the Appellate Body in Brazil – Retreaded Tyres, the restriction on trade is not rationally connected
to the objective being pursued. For example, in US – Shrimp , the Appellate Body found that, in
certain circumstances, shrimp caught abroad using methods identical to those employed in the
United States would be excluded from that market. This result was judged to be at odds with the
objective of the measure to protect and conserve sea turtles.
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80. In this case, the regulatory distinctions between prohibited and permitted seal products
under the IC and MM categories are not rationally connected to the policy objectives under
Article XX(a) and (b). Permitting seal products to be placed on the EU market under the IC and MM
categories, while disregarding animal welfare considerations, indicates that the discrimination does
not relate to the pursuit of the objective of protecting seal welfare and even goes against it, as
admitted by the European Union. Any public moral concerns that depend on such protection would
also be undermined. Therefore, there is an absence of a genuine connection between the
discrimination in the measure, as applied, and the objectives of the EU Seal Regime.
81. In addition, the rigidity with which the EU Seal Regime is applied and its disregard for the
differing regulatory conditions amount to arbitrary and unjustifiable discrimination. Seal products
are either permitted to, or prohibited from, being placed on the EU market because of the nature
of the hunt but without any consideration as to how the hunt is regulated. Further, the European
Union has failed to engage in multilateral negotiations on animal welfare standards in relation to
seal hunting.
82. These factors strongly demonstrate that the EU Seal Regime, as applied, constitutes
arbitrary and unjustifiable discrimination between countries where the same conditions prevail.
B. The EU Seal Regime violates the TBT Agreement
1. TBT Annex 1.1 (definition of "technical regulation")
83. Following the approach of the Appellate Body in EC – Asbestos , the EU Seal Regime should
be viewed as an "integrated whole", taking into consideration both its prohibitive and permissive
elements. In any event, whether these elements are viewed individually or together as an
integrated whole, it is clear that the definition of "technical regulation" under TBT Annex 1.1 is
met.
84. The EU Seal Regime applies to an identifiable group of products, namely all products. The EU
Seal Regime lays down a product characteristic in the definition of "seal product": "all products […]
deriving or obtained from seals". This is an intrinsic characteristic to the products covered by the
measure. The product characteristic is prescribed in a negative manner: products placed on the EU
market cannot contain seal unless they satisfy the conditions under the IC or MM categories. The
conditions include applicable administrative provisions that must be met for products to have the
product characteristic of containing seal. The same is true for products qualifying under the CC
category.
85. The identity of a producer may also be a relevant factor in the identification of related
processes and production methods. In this case, certain elements of the IC category can be
characterized as such. Compliance with the product characteristics and administrative
requirements is mandatory, as evidenced in the text of the Basic Regulation and the Implementing
Regulation, as well as the imposition of penalties under the Implementing Regulation. Therefore,
the EU Seal Regime is a technical regulation.
86. The European Union does not dispute that the EU Seal Regime applies to an identifiable
group of products and that it is mandatory but it contends that the requirements under the IC and
MM categories, considered separately, do not lay down product characteristics because they do not
relate to the product itself. However, the issue is whether the EU Seal Regime, as a whole,
establishes a regulatory scheme that conditions market access on whether a product exhibits a
certain characteristic. In EC – Asbestos , the exceptions to the prohibition permitted certain
products to contain chrysotile asbestos, which was the product characteristic, provided that certain
conditions, unrelated to the products themselves, existed and that certain administrative
requirements were met. The parallel in this case is that the three categories set out requirements
that themselves are not product characteristics but are applicable to products with certain
characteristics, that is, products containing se al. Thus, it is not necessary for the IC and MM
categories to lay down product characteristics themselves, given that the measure as a whole
does.
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2. TBT Article 2.1 (national treatment)
87. The national treatment obligations in Ar ticle 2.1 and GATT III:4 contain the same core
terms,

namely like products and less favourable treatment. Canada has demonstrated that
Canadian and EU seal products are "like" and that Canadian seal products are treated less
favourably than domestic seal products under the MM category. However, unlike under
Article III:4, a finding that a measure has resulted in a detrimental impact on competitive
opportunities for the group of imported products vis-à-vis the group of domestic like products may
not be inconsistent with Article 2.1 if the impact stems exclusively from a legitimate regulatory
distinction.
88. There are two steps in the legitimate regula tory distinction test. First, the Panel must
identify the regulatory distinction that causes th e detrimental impact on the imported product as
explained by the Appellate Body in US – Tuna II (Mexico). This requires the Panel to determine the
objective being pursued and how the distinction manifests itself, which can be discerned from the
design, architecture, revealing structure, operat ion and application of the measure. Second, the
legitimacy of the distinction is assessed. This is done by examining whether the regulatory
distinction is even-handed. In US – COOL , the Appellate Body found that evidence of "arbitrary
and unjustifiable discrimination" towards imported products would tend to show that the measure
is not "even-handed", and that a measure that is not designed or implemented in an even-handed
manner cannot be considered to have a legitimate regulatory distinction. To determine whether it
is legitimate, the regulatory distinction must be assessed against the backdrop of its objectives.
However, the legitimacy of the objective cannot be equated with the legitimacy of the regulatory
distinction.
89. The EU Seal Regime distinguishes between seal products that can be imported into the
European Union or placed on the EU market and those that cannot. For seal products to qualify for
importation and placement on the market, they must meet the conditions under the three
categories in the EU Seal Regime. The regulatory distinction arises from the operation of the
conditions.
90. With respect to the national treatment claim under Article 2.1, the distinction is between
seal products from commercial seal hunts and from those marine management hunts. The
regulatory distinction reflected in the conditions under the MM category is unrelated to the central
objective of the EU Seal Regime to address animal welfare concerns or even the alleged public
moral concerns. There is no requirement that the seals be harvested in a way that avoids pain,
distress and other forms of suffering. The design, structure and expected operation of the
conditions leave open the possibility that products derived from seals that suffered pain and
distress when killed will be available on the EU market. The European Union assumes that marine
management hunts are conducted in a way that positive animal welfare outcomes can be achieved
due to the incentive of sealers to be able to reco up the costs of seal hunts, rather than imposing
any specific requirements to that effect. However, under the EU Seal Regime, the Canadian east
coast seal hunt does not benefit from the same assumption. Therefore, the distinction between
hunts is arbitrary given that the same logic would apply to commercial sealers. The European
Union also disregards the fact that marine management hunts have commercial elements because
they are conducted to protect fisheries and because the MM category only eliminates profit-making
from the seal products at the hunt level but allows it at the downstream level through processing,
manufacturing and retailing.
91. Distinguishing between seal products based on whether the seals are harvested on a profit
or non-profit basis is not relevant to the efficacy of the objective relating to sustainable marine
management and it bears no rational connection to it. Also, there is no rational connection
between the objective of promoting the sustai nable management of seal populations and
restricting commerce in seal products. The regulatory distinction also arbitrarily favours marine
management programs involving small seal populations such as those in Sweden, Finland and the
United Kingdom. The conditions are arbitrary and unjustifiable in that they reflect the
characteristics of the hunts taking place in those countries.
92. The distinction between commercial and non-commercial hunts that the European Union
claims to be legitimate is more apparent than real given the commercial elements of non-
commercial hunts. Seal products qualifying under the MM category have tangible commercial
elements

that are not just the "'incidental' or 'ancillary' results"

of such hunts. Further, such a
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distinction is not legitimate as it is not applied consistently under the EU Seal Regime and it is
therefore arbitrary. It is also unjustifiable in that it ignores animal welfare considerations. Non-
commercial seal products can still be placed on the market without any requirement that the seals
from which those products are derived be killed without experiencing excessive pain, fear, distress
or other forms of suffering. The distinction is administered in an arbitrary and unjustifiable manner
and is therefore not even-handed.
93. It is clear that the detrimental impact on virtually all Canadian seal products arising from the
conditions under the MM category cannot be explained exclusively by a legitimate regulatory
distinction. Rather, it reflects discrimination and results in a violation of the national treatment
obligation found in Article 2.1.
3. TBT Article 2.1 (most-favoured-nation treatment)
94. The MFN obligation under Article 2.1 requires that the imported products be "like" the
products originating in other countries that have access to the market of the regulating WTO
Member, and that the treatment accorded by the measure to products originating in the
complainant be no "less favourable" than that ac corded to like products of other countries. The
Appellate Body in US – Tuna II (Mexico) suggests that the legitimate regulatory distinction
element is also part of the MFN test.
95. The EU Seal Regime violates the MFN obligation under Article 2.1 because it accords less
favourable treatment to seal products from Canada as compared to like products originating in
Denmark (Greenland). Greenlandic and Canadian seal products are like products, as confirmed by
the European Union. The EU Seal Regime creates inequality of competitive opportunities for
Canadian seal products as the EU market is closed to virtually all of them while effectively being
open to all seal products from Greenland. Thus, the EU Seal Regime modifies the conditions of
competition to the detriment of Canadian seal products resulting in inequality of competitive
opportunities.
96. The detrimental impact from the loss of compet itive opportunities is not based exclusively on
a legitimate regulatory distinction. The distinction between commercial seal products and IC seal
products is not even-handed because it is administered in an arbitrary and unjustifiable manner.
First, the regulatory distinction is unjustifiable in that it does not contribute to the advancement of
the EU's animal welfare objective. This is because the EU Seal Regime allows the marketing of seal
products derived or manufactured from large-scale seal harvests in Greenland on the grounds that
those are Inuit hunts, but it does not impose any requirements that the seals be killed humanely.
A significant number of seals killed as part of that hunt are harvested in a manner that is likely to
lead to avoidable pain or suffering. Second, the IC category is arbitrary in that it restricts the
harvesting of seals to a narrow population of hunters based only on their ethnic origin while
disregarding the significant commercial aspects of the Greenlandic seal hunt. In addition, the
distinction ignores the similarities between the historical and socio-economic context of the
Greenlandic and Canadian seal harvests. Canadian east coast seal products meet all of the
conditions under the IC category except for the indigenous status of the harvester.
97. The regulatory distinction under the EU Seal Regime is not even-handed and therefore not
legitimate. Consequently, the detrimental impact from the changes in the conditions of competition
reflects discrimination and therefore the EU Seal Regime violates the MFN obligation found in
Article 2.1.
4. Incorrect legal standard proposed by the EU under Article 2.1
98. Contrary to the test set out by the Appellate Body in US – Clove Cigarettes , the European
Union conflates the detrimental impact and legitimate regulatory distinction elements of the less
favourable treatment test by making regulatory objectives a factor in determining whether the
measure has caused a detrimental impact on the competitive opportunities for imported seal
products. According to the European Union, the regulatory objectives of the measure create
different situations that justify the creation of sub-categories of like products within which there is
no differential treatment. This does not mitigate, nor justify, the detrimental impact on the
competitive opportunities for seal products that fall under one of the sub-categories. The European
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Union's claim that different circumstances are relevant in addressing whether there has been a
detrimental impact on imported products has no jurisprudential support.
5. TBT Article 2.2
a) Objectives of the EU Seal Regime
99. The EU Seal Regime pursues different and often contradictory objectives. The overarching
objectives, based on the legislative history and the preamble of the measure, are to protect the
animal welfare of seals and to address public conc erns in that regard. In addition, the EU Seal
Regime appears to pursue other objectives: preven tion of consumer confusion; protection of the
economic and social interests of Inuit and other indigenous communities engaged in sealing;
sustainable management of marine resources; consumer choice; and the harmonization of the EU
internal market.
100. These objectives can be discerned from the de sign, architecture and structure of the EU Seal
Regime and the legislative history of the Basic Regulation. Notably, the objective of ensuring
animal welfare, which is in the preamble, is absent from the operative text of the EU Seal Regime.
Also, the alleged public morality objective of the EU Seal Regime is not articulated anywhere in the
measure. The preamble of Basic Regulation refers to concerns about the animal welfare of seals
but these concerns are qualitatively different from moral concerns about seal welfare. In other
words, the concerns to which the EU Seal Regime refers do not arise from a standard of right or
wrong conduct regarding the killing of seals; rather, they relate to a desire to minimize or prevent
pain, distress, fear and other forms of suffering when seals are killed. The evidence submitted by
the European Union fails to establish that any concerns expressed by EU citizens are moral in
nature.
b) Legitimacy of the objectives
101. Animal welfare appears to fall within the scope of the objective relating to the protection of
animal life or health listed in Article 2.2. It is therefore legitimate for the purposes of that
provision. Providing consumers with product information is likely to be a legitimate objective. The
panel in US – COOL concluded – a finding that was upheld by the Appellate Body – that providing
consumer information is related to the prevention of deceptive practices which is a legitimate
objective under Article 2.2. Protecting the economic and social interests of Inuit and other
indigenous communities engaged in seal hunting does not fall within the list of objectives
contained in Article 2.2. Nevertheless, it is a policy matter that has received international attention
and is of considerable importance for Canada, and it also falls within the types of policies for which
governments are generally acknowledged to carry responsibility. It is therefore a legitimate
objective for the purposes of Article 2.2. The sustainable management of marine resources is an
aspect of protecting the environment, as found by the Appellate Body in US – Shrimp. The
protection of the environment is listed in Article 2.2. Consequently, it is also a legitimate objective.
Preserving the personal choice of consumers is not one of the enumerated objectives; however, it
is consistent with the overall objectives of the WTO regime. Finally, the harmonization of the EU
internal market does not fall within the enumerated objectives in Article 2.2, nor can it be found
elsewhere in the TBT Agreement or the WTO Agreement. As conceded by the European Union, in
this case, it is not a legitimate objective for the purposes of Article 2.2.
c) Necessity of the EU Seal Regime
102. Determining whether a technical regulation is more trade-restrictive than necessary involves
a weighing and balancing of three factors (trade-restrictiveness, degree of contribution to the
objective, and risks arising from non-fulfilment), as well as the consideration of possible
alternative measures. It is not disputed that the EU Seal Regime is trade-restrictive. However, the
European Union misinterprets and misapplies the jurisprudence when it suggests that only the
prohibitive aspect of the measure and not the pe rmissive aspects need to be examined under
Article 2.2 because the operations of the cate gories allow trade that would otherwise be
prohibited. Both aspects of the EU Seal Regi me must be examined, and the comparison to
determine whether the measure is trade-restrictive is between the measure as a whole and the
situation prior to the EU Seal Regime, that is, the absence of restrictions on the import and placing
on the market of seal products.
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103. The EU Seal Regime either does not contribute or partially contributes to its objectives. In
some cases, the Seal Regime, based on its desi gn, structure and expected operation, undermines
its objectives. As determined by the Appellate Body in US – COOL , a panel is not required to
identify the level at which the respondent aims to achieve or fulfil the objective but only to "assess
the degree to which a Member's technical regulation, as adopted, written and applied, contributes
to the legitimate objective pursued by that Member ". Thus, it is the actual contribution of the
measure to the objective that is relevant.
104. The EU Seal Regime prohibits the importatio n and placing on the market of seal products
unless they meet the conditions of the EU Seal Regime. At the same time, the trade in the
categories of seal products undermine the achi evement of the purported objective of public
morality by allowing for the possibility that an unlimited number of seal products derived from
seals killed inhumanely will have access to the EU market. The result is that EU citizens will be
confronted by the very products that the European Union claims they abhor. Any indirect and
minor contribution to the animal welfare objective and alleged public moral objective is offset by
granting market access to seal products that do not meet animal welfare standards.
105. The EU Seal Regime partially contributes to the protection of the economic and social
interests of Inuit Communities engaged in seal harvesting but, as conceded by the European
Union, also undermines it. In particular, the replacement of Canadian east coast seal products with
those of the Canadian Inuit is unlikely to occur, as recognized in COWI's 2010 report, due to
factors such as remoteness of the communities and limited access to the supply chains needed to
increase production
106. The EU Seal Regime partially contributes to the sustainable marine management objective
but, in some cases, it undermines it. The MM category allows the by-products of this type of
harvest to be placed on the market and some of its conditions support this objective. However,
some of its other conditions (i.e., "sole purpos e", "non-profit basis", "non-systematic way" and
"not of a commercial nature") result in the exclusion of seal products that derive from sustainable
marine management hunts.
107. The EU Seal Regime makes no contribution towards the objective of preventing consumer
confusion. The Implementing Regulation does not provide any information to retail consumers with
respect to the presence of seal in the product, compliance with animal welfare criteria, or whether
the conditions under the EU Seal Regime have been met.
108. The EU Seal Regime only partly contributes to the objective of protecting consumer choice
but it also undermines it as consumers who do not want to purchase seal products may still
inadvertently do so because they lack the information necessary to make an informed choice.
Further, consumers who want to purchase seal products but do not have the option of travelling
abroad can only purchase from a limited supply of seal products, namely those that meet the IC
and MM categories.
109. The nature of the risks of non-fulfilment of the objectives of the measure and the gravity of
the consequences arising from such non-fulfilm ent must be examined for each legitimate
objective. Under the EU Seal Regime, the objective of animal welfare is important and the
consequences of non-fulfilment are serious. However, the EU Seal Regime makes little to no
contribution to the objective and thus the consequences of non-fulfilment have already been
accepted through the placement on the market of se al products that derive from seals killed in a
way that causes pain and suffering. In that regard, the risks non-fulfillment would create in
relation to the alleged public moral objective are that EU citizens would be morally offended about
the continuous inhumane killing of seals and the products from those hunts being placed on the EU
market. An additional risk is that EU consumers would continue participating or being complicit in
supporting the market for products from inhumanely killed seals. In fact, the EU Seal Regime
already exposes the EU public to these risks by a llowing Greenlandic and EU seal products to be
placed on the market under the IC and MM categories.
110. The risk that the consumers may be confused as to whether products contain seal harvested
in a manner consistent with animal welfare principles and may inadvertently purchase such
products that are not already accepted under th e EU Seal Regime. Thus, the European Union's
rejection of a labelling system that would inform consumers demonstrates that the risks of
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confusion are not significant and the consequences of non-fulfilment of the objective are not
particularly serious.
111. The EU Seal Regime restricts the fulfillment of the objective regarding consumer choice to
those able to travel abroad. Therefore, the consequences that many EU consumers will be unable
to purchase seal products within the European Union are accepted under the EU Seal Regime.
112. Some of the conditions under the MM catego ry (i.e., non-profit, non-systematic) prevent
trade in seal products derived from sustainably managed hunts. In addition, these conditions
provide no incentive for sustainable marine management in commercial harvests. Thus, the risks
that the objective of sustainable marine management will not be fulfilled are tolerated because of
the conditions.
113. Canada has put forward a measure that has three main features: (1) it sets out animal
welfare requirements that must be met; (2) it requires certification of, and compliance with those
requirements; and, (3) it includes product labelling. As found by the Appellate Body in US –
Tuna II (Mexico), the alternative measure must make an equivalent or greater contribution to the
fulfillment of the objective than the measure at i ssue. There is no requirement for the alternative
measure to fully achieve the objective at the level of fulfilment chosen by the Member if the
measure at issue does not fully achieve the objective at that level.
114. At best, the EU Seal Regime makes a minor an d indirect contribution to the objectives of
protecting animal welfare and addressing alleged public moral concerns related to this issue. On
the other hand, conditioning compliance on animal welfare standards would make a substantial
and thus greater contribution to those objectives directly addressing the methods of killing seals.
The European Union concedes that fulfilling the animal welfare objective would also address any
related public moral concerns, which means that conditioning market access on compliance with
animal welfare requirements would fulfil both ob jectives. In addition, EU consumers would not be
confronted with seal products that derive from inhumanely killed seals nor be accomplice to such
killing.
115. The alternative measure would provide market access for all seal products, as long as those
products were derived from seals harvested in a manner that meets animal welfare standards. This
would keep the commercial supply chains of the market intact and restore the demand and higher
prices for seal products. The alternative measure would thus advance the objective of protecting
the economic and social interests of the Inuit by allowing them to market their products in a global
market driven by demand and therefore provide much-needed income for other subsistence
activities. Thus, the alternative measure would make a greater contribution to protecting the
economic and social interests of the Inuit than the EU Seal Regime.
116. The alternative measure, by requiring the use of a label on the final product when sold to
the retail consumer, would make a greater contribution to the objective of preventing consumer
confusion by enabling consumers to make informed purchases. It also would facilitate greater
consumer choice as consumers would have the opti on of purchasing any seal products harvested
in accordance with animal welfare requirements, and thus have a wider variety of products from
which to select.
117. The alternative measure would encourage sustainable marine management by allowing
market access for all seal products that meet the requirements relating to conservation and
sustainable marine management, many of which are currently excluded under the EU Seal Regime.
118. The alternative measure proposed by Canada is reasonably available. Scientifically-based
animal welfare criteria are available and applied at the international, regional and national levels.
The general principle is that methods of animal harvest should not cause avoidable pain, distress
or other forms of suffering. There are also accepted, general rules or steps in methods of harvest
that can be and are applied to animals taking into account, inter alia, their physiology, behaviours
and mental states. These rules or steps are expressed in different ways, but common to them are
requirements to strike, check and bleed the anim al. The field studies of Canada's seal harvest
found its protection of animal welfare comparable to, or better than that found in other types of
hunts and some domestic slaughters. This demonstrates that meaningful and measurable animal
welfare criteria for the harvesting of seals is currently available and being applied. It is also
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possible to monitor and enforce compliance with these criteria, as found in the study conducted by
Professors Daoust and Caraguel.
119. The second element of the alternative measure, certification of compliance with animal
welfare requirements, is reasonably available. Th e Implementing Regulation requires that a seal
product be accompanied by an "attesting document" at the time of placing on the market, which is
issued by a "recognized body". Therefore, the st ructure for certification already exists, and the
functions of that body could be modified to requir e that it have the capacity to ascertain if the
animal welfare criteria are met and to monitor compliance. In addition, the regulation proposed by
the Commission in 2008 also provided for a certification scheme for seal products meeting animal
welfare criteria. The EU also has a process in place to certify individuals and slaughterhouses with
respect to animal welfare criteria under Regulation 1099/2009. Given that the EU Seal Regime
significantly affects non-EU countries, the Agreement on International Humane Trapping Standards
provides another possible model for certification under which the animal welfare criteria are
certified based on certification in the exporting country. The European Union could then establish
conformity assessment requirements for the recognition of these products. In the context of a wild
game hunt, the certification of the hunter can be done through the licencing process. Thus,
contrary to the European Union's argument, certification does not need to be done on a seal-by-
seal basis. In fact, the European Union does not require animal-by-animal certification in the killing
of any other animals.
120. The third element of the alternative measure, product labelling, is reasonably available. A
labelling scheme was considered by the Commission and proposed by the European Parliament's
Committee on the Internal Market and Consumer Protection.
121. In Korea – Various Measures on Beef , the Appellate Body recognized that measures
addressing similar risks and objectives in "related product areas" or with respect to "like, or at
least similar, products" can provide guidance on possible alternatives that are reasonably
available. For instance, the EU set up a system under Regulation 1099/2009, composed of animal
welfare criteria, competence certification, supervision and monitoring, and penalties and
enforcement provisions. This is in stark contrast to the approach applied to the Canadian seal
hunt. Given that one of the underlying issues and overarching objectives of both the Regulation
1099/2009 and the EU Seal Regime are protecting animal welfare, there is no logical reason why a
similar regime could not be applied to seals and seal products.
122. The reasonable availability of the alternative measure is also confirmed by looking at similar
schemes for other animals (e.g., labelling and certification scheme for the commercial harvest of
kangaroos and international trade in the resulting skins and meat, Origin Assured certification and
labelling scheme for fur products, France's Label Rouge) and the regulatory approach taken by EU
Member States with respect to wild deer hunts, an activity that presents many characteristics that
are very similar to Canada's east coast seal hunt.
123. The alternative proposed by Canada is less trade-restrictive than the EU Seal Regime.
Currently, all non-Inuit commercial seal products are effectively excluded from the EU market as
they cannot meet either the IC or MM requir ements. The alternative regime would exclude
products that do not meet the animal welfare requirements. However, it would allow all seal
products to be placed on the EU market provid ed they meet those requirements. In its initial
proposal, the Commission concluded that such a measure constituted the "least burdensome
measure" that can effectively achieve the objectives of the EU Seal Regime.
6. TBT Article 5
124. The certification regime created by the Implementing Regulation (recognized bodies,
attesting documents and competent authorities) constitutes a CAP as defined in TBT Annex 1.3. It
is thus subject to Article 5. However, that regime has not been fully operationalized and seal
products that satisfy the conditions of the IC an d MM categories are therefore unable to be placed
on the EU market. This is due to the fact that the European Union has failed to establish a body
that is authorized to assess conformity and to issue attesting documents.
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a) Article 5.1.2
125. The failure by the European Union to ensure the existence of a recognized body means that
the CAP cannot function, which prevents trade in se al products even if they meet the applicable
conditions. This amounts to an unnecessary obstacle to international trade. The European Union
elected to set up a regime whereby it will consider applications for third party entities requesting
that they be listed as "recognized bodies" in stead of creating one under the Implementing
Regulation. Conditioning market access on the prospect that a third party entity will apply for, and
be recognized as such by the EU, creates uncerta inty. Further, even if a recognized body is
established, it may decide at any time to cease its operations or it could have its authority revoked
by the Commission. Thus, the fail ure by the European Union to en sure that a recognized body
exists amounts to a violation of Article 5.1.2.
126. The similarities between TBT Articles 5.1. 2 and 2.2 suggest that the test under both
provisions is very similar. Textually, the first sent ence of Article 2.2 and that of Article 5.1.2 are
virtually identical, and the second sentence of Article 5.1.2 contains further close textual
similarities as compared to the second sentence of Article 2.2. The fifth preambular recital of the
TBT Agreement was explicitly referred to by the Appellate Body in US – Clove Cigarettes, as being
relevant to an interpretation of Article 2.2. Given the reference to CAPs in the fifth recital, its
terms are equally applicable to them. Conceptual ly, the requirement under Article 2.2 that links
trade-restrictiveness to the achievement of a specif ic objective is very similar to the requirement
in Article 5.1.2 that links the strictness of the CAP to the objective of ensuring conformity with the
substantive requirement set out in the relevant technical regulation. In both cases, the concept
invites the application of what the Appellate Body, in US – Tuna II (Mexico) , has referred to as a
relational analysis to determine whether the CAP is necessary. This would include consideration of
reasonably available, less trade-restrictive altern ative measures, such as supplier declaration of
conformity, rather than a third party CAP.
b) Article 5.2.1
127. Given the similarities with Annex C.1(a) to the SPS Agreement, the approach of the panel in
EC – Biotech provides relevant guidance to the interpretation of Article 5.2.1. The panel in that
case found that Annex C.(1)(a) requires that "a pproval procedures be undertaken and completed
with no unjustifiable loss of time". The Implementi ng Regulation does not provide for the creation
of a recognized body, but merely creates a process whereby an entity can apply to become such a
body. As a result, the CAP cannot be undertaken and completed "as expeditiously as possible" and
the European Union's failure to create a recognized body gives rise to a violation of Article 5.2.1.
128. The chapeau of Article 5.2 signifies that the sp ecific obligations set out in Article 5.2.1, while
being autonomous obligations that are in addition to the general obligation in Article 5.1.2, are
also relevant to a determination of whether a CAP, in its development or implementation, meets
the requirements set out in the more general obligation in Article 5.1.2. Thus, a WTO Member may
violate both Article 5.1.2 (e.g., because its CAP is applied more strictly than necessary to give the
Member concerned adequate confidence that a product conforms to its technical regulation) and
Article 5.2.1 (e.g., because the CAP was not undertaken and completed as expeditiously as
possible). At the same time, Article 5.2.1 is not exhaustive of the considerations that may go into
an analysis of whether a given CAP meets the requirements set out in Article 5.1.2.
C. The EU Seal Regime nullifies or impair s benefits accruing to Canada in the
sense of Article XXIII:1(b) of the GATT 1994
129. If the Panel were to find that the EU Seal Regime does not violate the TBT Agreement or the
GATT 1994, its application nevertheless nullifies or impairs benefits that would otherwise accrue to
Canada in a manner that is inconsistent with GATT Article XXIII:I(b). The adoption of the EU Seal
Regime has essentially nullified and impaired the value of these concessions since 20 August 2010.
Canada's claim is in respect of all the products covered by the indicative list published by the
Commission. The European Union granted market access concessions to Canada for these products
in the Tokyo and Uruguay Rounds.
130. The three elements that must be satisfied to prove this claim are present in this case. First,
the European Union has applied the EU Seal Regime. Second, Canada had a "legitimate
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expectation" of improved market access as a result of the relevant tariff concessions granted to it
by the EU. At the time these concessions were made, Canada could not have anticipated the
implementation of the EU Seal Regime and, th erefore, Canada benefits from the presumption
found by the panel in Japan – Film . The European Union has failed to rebut this presumption.
While it relies on a description of anti-sealing activities and a series of trade measures that took
place or were adopted over the last few decades, the European Union fails to acknowledge that,
over the years, Canada has improved its sealing regulations and policies to address the concerns
raised about its seal hunt. As a result of these efforts, Canada could not have reasonably
anticipated the adoption of the EU Seal Regime. Third, the application of the EU Seal Regime has
resulted in Canada's benefits under the GATT Article II:1(a) being nullified or impaired. The EU
Seal Regime has resulted in an almost complete loss of access to the EU market for Canadian seal
products and its adoption has almost completely nullified the value of the EU's tariff concessions.
The relative conditions of competition between domestic and foreign products, or between foreign
products of different origins, have been upset.
131. In response, the European Union argues that its measure does not discriminate in the sense
of Articles I:1 and III:4 and that, as a result, it does not upset the competitive relationship
between them. This argument should be rejected not only because the EU Seal Regime violates
Articles I:1 and III:4 but also because, if upheld, it would make it impossible for a complainant to
succeed in a non-violation claim pertaining to a measure that has been found to be in compliance
with those provisions. The European Union's reasoning does not find support in the text of the
WTO Agreement or the jurisprudence. As for the European Union's argument that the Panel should
extend the application of the panel's approach in EC – Asbestos to situations where a measure
pursuing one of the objectives in Article XX is fo und to be WTO-consistent rather than justified
under that provision, the reasoning of the panel in that case contains a number of errors and
should therefore not be followed by the Panel.
132. Pursuant to Article XXIII:1(b) and Article 26.1 of the DSU, Canada is entitled to have the
balance of concessions restored through a mutually satisfactory adjustment.
IV. CONCLUSION AND REQUEST FOR RELIEF
133. Canada requests that the Panel find that the EU Seal Regime:
 is a technical regulation in the sense of TBT Annex 1.1;
 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;
 is inconsistent with the European Union's obligations under the GATT 1994, in
particular Articles I:1, III:4 and XI:1; and,
 is not justified by Article XX(a) or XX(b) of the GATT 1994.
134. Accordingly, Canada requests, pursuant to Article 19.1 of the DSU, that the Panel
recommend to the Dispute Settlement Body that it request the EU to bring its measures into
conformity with its obligations under the TBT Agreement and the GATT 1994.
135. In the event that the Panel finds that the EU Seal Regime does not violate the European
Union's obligations under the TBT Agreement or the GATT 1994, Canada requests that the Panel
nevertheless find that the EU Seal Regime has nulli fied and impaired benefits accruing to Canada
in the sense of Article XXIII:1(b), and recommend to the Dispute Settlement Body that it request
the EU to make a mutually satisfactory adjustment as required by Article 26.1 of the DSU.
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ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. THE MEASURE AT ISSUE
1. This dispute concerns the European Union’s legislation that imposes restrictive conditions on
the import and sale of products obtained from, or containing, seal ("seal products"), namely
Regulation (EC) No. 1007/2009 of 16 September 2009 on Trade in Seal Products (the "Basic Seal
Regulation") and Regulation (EU) No. 737/2010 of 10 August 2010 Laying Down Detailed Rules for
the Implementation of Regulation (EC) No. 1007/ 2009 of the European Parliament and of the
Council on Trade in Seal Products (the "Implementing Regulation"). These regulations are
collectively referred to as the "EU Seal Regime".
2. The measure at issue consists of three sets of trade-restrictive conditions, which present
both prohibitive and permissive elements. The prohibitive elements serve to limit the placing on
the market of seal products from some sources, and effectively ban Norwegian seal products from
the EU market. The permissive elements, by contrast, open the EU market to products that
conform with the relevant conditions.
3. Under the Indigenous Communities ("IC") requirements, which are the first set of restrictive
conditions, seal products may be placed on the EU market if they derive "from hunts traditionally
conducted by the Inuit and other indigenous communities and contribute to their subsistence".
"Inuit" for purposes of these requirements are defined as "indigenous members of the Inuit
homeland, namely those arctic and subarctic areas where, presently or traditionally, Inuit have
aboriginal rights and interests, [including] Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada),
Kalaallit (Greenland) and Yupik (Russia)". "Other indigenous communities" are, in turn, defined as
"communities in independent countries who are regarded as indigenous on account of their
descent from the populations which inhabited the country … at the time of conquest or colonisation
or the establishment of present State boundaries an d who … retain some or all of their own social,
economic, cultural and political institutions". Products deriving from IC hunts qualify under the IC
requirements if: (i) the IC in question has a tradition of seal hunting in the community and in the
geographical region; (ii) the products in question are at least partly used, consumed or processed
within the communities according to their traditions; and (iii) the seal hunts in question contribute
to the subsistence of the community.
4. Under the Sustainable Resource Management ("SRM") requirements, which are the second
set of restrictive conditions, seal products may be placed on the EU market if they are "by-
products of hunting that is regulated by national law and conducted for the sole purpose of the
sustainable management of marine resources", pr ovided that those products are placed on the
market on a "non-profit basis", in a "non-systematic way", and are not of a "nature and quantity"
that indicates they are placed on the market for commercial reasons.
5. Finally, the third set of restrictive conditions, the Personal Use ("PU") requirements, permit
the occasional importation of seal products "for th e personal use of travellers or their families",
namely where those products: (i) are either worn by the travellers, or carried or contained in their
personal luggage; (ii) are contained in the person al property of a natural person transferring his
normal place of residence from a third country to the Union; or (iii) are acquired on site in a third
country by travellers and imported by those travellers at a later date.
II. THE EU SEAL REGIME DISCRIMINATES INCONSISTENTLY WITH ARTICLE I:1
AND III:4 OF THE GATT 1994
6. The EU Seal Regime violates Articles I:1 an d III:4 of the GATT 1994. Th e structure, design
and expected operation of the EU Seal Regime effectively bars all seal products of Norwegian
origin from the EU market. At the same time, because all or virtually all seal products from
Denmark (Greenland) are expected to qualify und er the IC requirements, the EU Seal Regime
discriminates in favour of seal products originating in Denmark (Greenland) and against "like"
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products from Norway, contrary to Article I:1. Further, all or virtually all seal products originating
in Sweden and Finland are expected to qualify und er the SRM requirements. In this way, the EU
Seal Regime provides treatment that is less favourable for seal products from Norway than for
"like" products originating in the European Union, contrary to Article III:4.
7. For purposes of both these claims, the parties agree that seal products conforming to the
requirements of the EU Seal Regime are "like" those that do not, including because all such
products share "identical product characteristics".
A. The structure, design and expected operation of the IC requirements
result in discrimination inconsistent with Article I:1 of the GATT 1994
1. The IC requirements are de jure discriminatory
8. The Basic Seal Regulation expressly names certain beneficiary Members (or territories within
Members) as qualifying under those requirements, namely: "Canada", Denmark ("Greenland"),
"Russia", and the United States ("Alaska"). Thus, according to the words used in the measure ,
goods originating in these Members expressly qualify for market access opportunities under the
requirements.
9. Moreover, for "other indigenous communities ", the words used in the Implementing
Regulation define, by necessary implication, a limited, additional group of WTO Members whose
goods also qualify for market access opportunities under the IC requirements. This group is
defined and closed because a qualifying indigenous community is one descended from people that
have "inhabited" a particular territory "at the time of conquest or colonisation or the establishment
of present State boundaries "; they must have retained "political institutions"; and the community
must have a " tradition" of seal hunting " in the geographical region ". Based on these criteria, the
additional qualifying Members under this aspect of the IC requirements constitute a closed group:
the European Union (Sweden and, possibly, Finland) and Norway. Irrespective of the facts
examined in a de facto analysis, products from other countries where seal products are produced,
such as Iceland or Namibia, can never qualify under the IC requirements.
2. The IC requirements result in de facto discrimination in favour of
products originating in Denmark (Greenland)
10. For the qualifying countries listed above, the extent of the benefit differs de facto from
country-to-country. Under the IC requirements, the factors that determine the extent to which a
Member may benefit from market access are (i) the size of the indigenous community with a seal
hunting tradition; (ii) the volume of seals harvested by that community; and (iii) whether the
products of the seal hunt contribute to the subsistence of the community and are partly used,
consumed, or processed within the community in question according to tradition.
11. Based on these criteria, Denmark (Greenland) is, overwhelmingly, the primary beneficiary of
the IC requirements. In fact, almost the entirety of Greenland’s population is Inuit with a strong
seal hunting tradition, and the products derived from the Inuit seal hunt are partly consumed
within the community and contribute to its subsistence. Further, the Greenlandic hunt represents a
very important proportion (between 20 and 25 per cent) of the world’s seal hunt, with 189,000
seals hunted in 2006 and an average annual catch of circa 162,000 seals between 2006 and 2009.
It is not contested that all, or virtually all of th e Greenland harvest is likely to qualify under the IC
requirements.
12. By contrast, the benefits afforded to seal products from other WTO Members that, by the
structure and design of the EU Seal Regime, may benefit from the IC requirements, are different
from those of Denmark (Greenland). In particular, virtually no Norwegian seal products will benefit
under those requirements, either in absolute terms or as a proportion of total Norwegian
production. Indigenous communities take part, at times, in the coastal hunt in Norway. However,
the Norwegian coastal hunt accounted for just 810 seals in total in 2006, which is about 4.5% of
the total Norwegian hunt during the same year. The indigenous portion of the seals taken in the
coastal hunt is a further fraction of the total. Similarly, the evidence on the record shows that the
vast majority – around 97 per cent – of seal products originating in Canada will not qualify under
the IC requirements.
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13. As a result, through its design, structure, an d expected operation, the IC requirements
confer a significant advantage on seal products that originate in Denmark (Greenland). The
competitive opportunity conferred on seal products from this origin is, as a matter of fact, not
extended immediately and unconditionally to seal products (finished or intermediate) originating in
other countries, including Norway.
B. The SRM requirements result in de facto discrimination inconsistent with
Article III:4 of the GATT 1994
14. Norway does not allege discrimination in respect of the first set of conditions attached to the
SRM requirements, namely that products derive from hunts "regulated by national law", subject to
a total allowable catch ("TAC") quota established in accordance with a natural resources
management plan. Indeed, Norway expects the produc ts of its seal hunt to meet this condition,
because Norwegian regulations establish a TAC aimed at stabilizing (or reducing, if need be) the
future population of adult seals
 on the basis of ecosystem-based population models taking into
account, inter alia , the role of seals as apex predators in the ecosystem, as well as their
reproductive rates and mortality.
15. However, the three additional conditions attached to the SRM requirements – namely, the
"non-systematic", "non-profit" and "sole purpose" conditions – are expected to operate to the
preponderant advantage of EU seal products an d to the preponderant disadvantage of "like"
products from Norway.
1. The "non-systematic" condition
16. As shown by the evidence on the record, th e "non-systematic" condition reflects the
characteristics of seal hunting as it is carried out in the European Union and, therefore, does not
restrict any seal products originating in the European Union from being placed on the EU market.
In fact, during the legislative process, both Finland and Sweden requested to be allowed to
continue placing their seal products on the market, indicating that the size of their respective
hunts was small and sporadic. The scientific literature on the interaction between seals and
fisheries in EU countries confirms these characteristics. Further, Sweden has 11 recognized bodies
that can approve the marketing of local seal pr oducts under the EU Seal Regime. It is not
contested that seal products from Sweden and Finland would meet the "non-systematic" condition.
17. Conversely, the condition excludes the products of the sustainable management hunts
conducted in non-EU countries, including Norway, from access to the EU market. As a result of the
size of the seal populations involved in the Norw egian seal hunt, which are also reflected in the
TACs recommended on the basis of scientific population models, the Norwegian seal hunt
necessarily involves larger numbers than the occasional, incidental hunting carried out in the
European Union.
18. In fact, the size of the harp seals stocks su bject to Norwegian hunting is approximately 2.01
million. One estimate showed that the total consumption by harp seals in the East Ice (one of
Norway’s sealing areas) was about 4 million tons of fish stocks such as cod, herring and capelin
utilized in wild capture fisheries – that is, almo st twice the size of the catch by the Norwegian
fishing fleet. Further, at times, key fish stocks in the marine food chain do not spawn in sufficient
numbers, leading to harp seals migrating to the coast in Northern Norway to feed, creating
significant problems. The seals damaged fish catches and many drowned after becoming entangled
in fishing gear. For instance, in 1987, up to 60,000 seal carcasses were found. The government
had to support the fishermen and find ways to dispose of seal carcasses.
19. In light of the ecosystem-based needs outlined above, which result in larger TACs,
Norwegian seal products would not fulfil the SR M requirements, because they are placed on the
market "systematically".
20. In these ways, the design, structure, and expected operation of this aspect of the SRM
requirements allow marketing of seal products originating in the European Union, while denying
non-EU products an opportunity to compete, thereby according imported products treatment less
favourable than that accorded to "like" domestic products inconsistent with Article III:4 of the
GATT 1994. In addition, as discussed in paragraphs 0-0 below, the "non-systematic" condition
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results in arbitrary and unjustifiable discriminati on between countries where the same sustainable
resource management conditions prevail.
2. The "non-profit" and "sole purpose" conditions
21. The "non-profit" and "sole purpose" conditions, too, are tailored to the reality of the EU seal
hunt and, therefore, do not restrict seal products originating in the European Union from being
placed on the EU market. At the same time, th ose conditions effectively exclude from the EU
market seal products originating in Norway.
22. In the European Union, the seal hunt is an occasional activity conducted by fishermen,
incidental to their fishing activities. The economic benefit derived to fishermen from seal hunting
consists of the elimination of seals causing problems to fisheries by damaging gears and catches,
thereby avoiding costs and losses and securing an improved fishing activity. EU fishermen do not
need to earn a profit from sealing, because sealin g improves the return on their fishing activities.
By contrast, Norway’s exploitation of living marine resources includes harvesting on all levels of
the ecosystem and makes an important contribution to the Norwegian economy. In this way, in
implementing an effective SRM plan, Norway seeks to make use of its marine resources in a
manner that is both environmentally and economical ly sustainable. As a result of the different
approach to seal hunting in Norway, no products from Norway would qualify under the "non-profit"
and "sole purpose" conditions of the SRM requirements.
23. In sum, the result of the "non-profit" and "sole purpose" conditions is that, while seal
products from the European Union have access to the EU market, seal products from Norway do
not. In this way, the conditions in question modify the competitive opportunities for seal products
to the detriment of products imported from non- EU countries such as Norway, resulting in "less
favourable treatment" inconsistent with Article III:4 of the GATT 1994. In addition, as discussed in
paragraphs 0-0 below, the "non-profit" and "sole purpose" conditions result in arbitrary and
unjustifiable discrimination between countries where the same sustainable resource management
conditions prevail.
C. The European Union posits the wrong legal standard for Articles I:1 and
III:4 of the GATT 1994
24. The European Union posits the wrong legal standards for Articles I:1 and III:4 of the
GATT 1994 in several ways. With respect to de facto discrimination, the European Union wrongly
equates the legal standard for "less favourable treatment" under Articles I:1 and III:4 of the
GATT 1994 and Article 2.1 of the TBT Agreement. It argues that, under each of these three
provisions, a panel determines whether any detrimental impact on imports results from a
legitimate regulatory distinction. However, the Appellate Body has already said that the "scope and
content of these provisions is not the same".
1 Under Articles I:1 and III:4, a panel determines
whether a regulatory distinction has a detrimental impact on imports. If so, the legitimacy of that
distinction may then be examined under a separa te GATT exception, such as Article XX. Under
Article 2.1, if a regulatory distinction has a detrimental impact on imports, a panel may assess its
legitimacy under Article 2.1 itself.
25. Further, the European Union wrongly argues that the legal standard for "less favourable
treatment" involves a "quantitative" assessment of detrimental impact and a "qualitative"
assessment of the legitimacy of the regulatory dist inctions. In Norway’s view, whilst there is often
a quantitative aspect in analysing whether a regulatory distinction alters competitive opportunities
to the detriment of imports, that analysis also has important qualitative aspects relating to the
design, structure and expected operation of the me a s u r e . I n d e e d , i t i s h a r d t o c o n c e i v e o f t h e
analysis being conducted without qualitative aspects.
III. THE
 EU SEAL REGIME IS INCONSISTENT WITH ARTICLE XI:1 OF THE GATT 1994
AND ARTICLE 4.2 OF THE AGREEMENT ON AGRICULTURE
26. The PU requirements constitute quantitative import restrictions on seal products that are
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture.

1 Appellate Body Report, US – Tuna II (Mexico), para. 405.
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27. These requirements restrict imports of seal products by laying down conditions as to the use
and the nature and quantity of those imports. By their very terms, these conditions apply only at
the point of importation in respect of products or iginating outside the EU territory. By definition,
these conditions do not apply "to the like domestic product" in the sense of the Ad Note to
Article III. Accordingly, the core features of the PU requirements constitute de jure a border
measure, which should be analysed under Articl e XI:1 of the GATT 1994. The PU requirements
constitute limiting conditions on importation, expressed in terms of "quantity". For the same
reasons, the PU requirements constitute a "quantitative import restriction" on agricultural products
that is prohibited by Article 4.2 of the Agreement on Agriculture.
28. In addition, as an alternative to its claim under Article III:4 of the GATT 1994 that the SRM
requirements result in de facto discrimination in favour of seal products originating in the
European Union, Norway submits that the EU Seal Regime as a whole operates de facto as a
border measure which restricts imports of seal products from Norway, but, by virtue of the
permissive elements of the SRM requirements, does not apply to "like" domestic products. Indeed,
evidence of the design, structure, and expected op eration of the EU Seal Regime suggests that all
seal products produced in the European Union w ill meet the conditions of the SRM requirements,
because three of the conditions comprised in the SRM requirements – namely, the "non-
systematic", "non-profit" and "sole purpose" conditions – are tailored to meet the characteristics of
seal hunting as it is carried out in Sweden and Finland. Conversely, as discussed in paragraphs 12,
17 and 22 above, the requirements of the EU Seal Regime deny market access to all seal products
from Norway.
29. Viewed in this way, the EU Seal Regime as a whole constitutes a quantitative restriction on
imports inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on
Agriculture, because the "centre of gravity"
2 o f t h e E U S e a l R e g i m e i s o n e t h a t i m p o s e s a
restriction – indeed, a complete ban – in relation to imports of seal products from Norway,
whereas it effectively does not restrict the internal sale of domestic seal products by virtue of the
permissive scope of the SRM requirements.
IV. THE
 EUROPEAN UNION’S VIOLATIONS OF THE GATT 1994 ARE NOT JUSTIFIED
UNDER ARTICLE XX
30. I n r e s p o n d i n g t o N o r w a y ’ s c l a i m t h a t t h e E U S e a l R e g i m e g i v e s r i s e t o v i o l a t i o n s o f t h e
GATT 1994, the European Union invokes the exceptions provided by Articles XX(a) and XX(b) to
justify the measure at issue. The European Un ion bears the burden of proving the elements
required to make out an Article XX defence. It has, however, failed to meet this burden.
31. In relation to subparagraph (a), the European Union has failed to prove the existence of the
complex public morals that it asserts exist. We discuss this further below. 3 In particular, it has
failed to prove the existence of the alleged public morals that compel discriminatory treatment of
seal products. The European Union says that its morals regarding seals include norms regarding
indigenous communities and resource management . Absent proof of the alleged public morals,
however, the European Union has no basis for asserting that preferring seal products from some
origins, over others, is "necessary to protect public morals".
32. Just as the European Union has not proven the existence of relevant "public morals", so too
has it failed to demonstrate that the discriminatory treatment of seal products from IC and SRM
hunts is necessary to protect the welfare of seals , whether welfare is considered as "animal ... life
or health" in the sense of subparagraph (b) or as part of "public morals" under subparagraph (a).
The European Union argues that its measure is "necessary" because it limits global demand for
seal products, thereby reducing the number of seals killed inhumanely every year. However, in this
way, the European Union defends only the prohibitive elements of the EU Seal Regime, effectively
ignoring that the GATT violations arise from the differential impact of the measure on seal
products from Norway, Denmark (Greenland) and the European Union itself. This argument does
not explain why the differential treatment of products from these sources is necessary on animal
welfare grounds.

2 Appellate Body Report, China – Auto Parts, para. 171.
3 See below, paras. 45-47.
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33. Further, even leaving to one side the Europe an Union’s failure to prove that its animal
welfare objective (whether as part of a public morals or as such) compel discrimination, the EU
Seal Regime makes no "material" contribution 4 to animal welfare for another reason. Specifically,
even if the prohibitive aspects of the measure were to reduce the number of seals killed in
unfavoured sources (quod non), this contribution would be undermined by the permissive aspects
of the measure under the IC and SRM requiremen ts, which permit seals to be killed, without
regard to animal welfare, in the favoured sources, which could readily meet all EU demand with
seal products derived from seals suffering poor er animal welfare outcomes than seals in the
Norwegian hunt.
34. Norway has put forward three alternatives that would be less restrictive, but which would
contribute to all of the European Union’s legitimate objectives to an equal or greater extent than
the EU Seal Regime. These alternatives would also contribute to the policy objectives invoked by
the EU under Article XX of the GATT 1994 to an equal or greater extent than the EU Seal Regime.5
35. As to the requirements of the chapeau to Ar ticle XX, Norway contends that the EU Seal
Regime introduces several aspects of arbitrary or unjustifiable discrimination between countries
where the same conditions prevail and a disguised restriction on international trade. 6 Thus, even
if the European Union were to show that its measure were provisionally justified under one of the
subparagraphs of Article XX (quod non), the European Union’s defence under Article XX would still
fail because the measure is applied in a manner contrary to the requirements of the chapeau.
V. THE EU SEAL REGIME IS A TECHNICAL REGULATION WITHIN THE MEANING OF
ANNEX 1.1 OF THE TBT AGREEMENT
A. It is uncontested that the EU Seal Regime applies to identifiable
products and compliance with it is mandatory
36. The EU Seal Regime is a technical regulation within the meaning of Annex 1.1 of the
TBT Agreement, because (i) it applies to identifiable products; (ii) it lays down product
characteristics, or alternatively, their relate d processes and production methods, including
applicable administrative provisions; and (iii) compliance with its requirements is mandatory. It is
not contested that the EU Seal Regime applies to identifiable products; namely, all products. No
product can be derived from seals unless it satisfies the requirements set out in the measure. Nor
is it contested that compliance with the EU Seal Regime is mandatory.
B. The EU Seal Regime lays down product characteristics or their related
processes, including applicable administrative provisions
37. In EC – Asbestos , the Appellate Body explained that "p roduct characteristics" could include
"any objectively definable ‘features’, ‘qualities’, ‘attributes’, or other ‘distinguishing mark’ of a
product", as well as related "characteristics" that are not "intrinsic" to a product, such as "means
of identification, the presentation and the appearance of a product".
7 The Appellate Body also
stated that whether a measure comprising both prohibitive and permissive elements "lays down
product characteristics" cannot be determined unless the measure is examined as a whole. The
permissive elements in a measure have no autonomous legal significance in the absence of the
prohibitions. Therefore, permissive elements of a measure must be considered together with, and
not in isolation from, the prohibitive elements.
8
38. The EU Seal Regime sets out in a negative and positive manner – that is, through the
prohibitive and permissive aspects of the measure – whether products may and may not possess
certain physical characteristics, i.e., that they contain seal. Indeed, the three sets of requirements
under the EU Seal Regime in and of themselves prescribe the conditions that must be fulfilled for
seal products to gain access to the EU market, formally and substantively combining the
permissive and prohibitive elements of the measur e. Failing fulfilment of the conditions, a seal

4 Appellate Body Report, Brazil – Retreaded Tyres, para. 210.
5 For further discussion of these alternatives, see below, paras. 45-53 and 61-64 below.
6 Norway’s arguments on arbitrary and unjustifiable discrimination are summarized in paras. 74-80
below.
7 Appellate Body Report, EC – Asbestos, para. 67.
8 Appellate Body Report, EC – Asbestos, para. 64.
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product may not be marketed in the European Union. The legal situation is therefore the same as
the one confronting the Appellate Body in EC – Asbestos , in which the measure established when
and under what conditions products marketed in the European Union could, and could not, contain
asbestos.
39. The European Union suggests that the measure in EC – Asbestos was different because "the
exceptions [in that dispute] permitted certain products which were identified according to their
intrinsic characteristics". By contrast, it argues, the permissive elements of the three sets of
marketing requirements – which it calls "exceptions" – make reference to characteristics, such as
the type of hunters and the traditions of communities and the purpose of the hunt, which do not
relate to the intrinsic features of, the product. This argument is misplaced, because it is incorrect
to analyse the three requirements in isolation from the totality of the measure, considering all
components of the measure in combination. More over, the presence of these other "conditions"
does not affect the characterization of the measure as a technical regulation.
40. Alternatively, the EU Seal Regime also lays down "related processes". The panel in EC – GIs
said that a "process" is "a systematic series of ac tions or operations directed to some end, as in
manufacturing…".
9 The IC and SRM requirements lay down "processes" that "relate" to defined
product characteristics, that is, when a product containing seal can be marketed. The IC
requirements prescribe a "process" involving a particular course of action (a traditional seal hunt
by specified persons) with a defined end (the production of seal products for community
subsistence). For the SRM requirements, the course of action concerns the purpose of the hunt
(sustainable management of marine resources); the way in which the hunt is conducted (it must
be regulated at national level pursuant to an SRM plan); and the way in which the seal products
are marketed (not-for-profit, non-commercial nature and quantity); and the action also has a
defined end (the sale of SRM by-products).
41. Finally, the EU Seal Regime prescribes the "applicable administrative provisions" that must
be satisfied for products to contain seal. For instance, parties wishing to market seal products
under the IC and SRM Requirements must obtain a certificate to prove that the requirements set
out in either exception are met. EU residents wi shing to take advantage of the PU requirements
must, "upon arrival" in the European Union, present to customs authorities "a written notification
of import", details of the product characteristics, and "a document giving evidence that the
products were acquired in the third country concerned".
VI. THE
 EU SEAL REGIME VIOLATES ARTICLE 2.2 OF THE TBT AGREEMENT
42. The EU Seal Regime violates Article 2.2 of the TBT Agreement because it is more trade-
restrictive than necessary to fulfil legitimate objectives. Under Article 2.2 of the TBT Agreement, a
panel must: (i) ascertain the objectives of the EU Seal Regime; (ii) assess whether those
objectives are legitimate; and (iii) assess whether the EU Seal Regime is "necessary" to pursue its
legitimate objectives, which, as explained below involves, a relational analysis.
A. Identification of the objectives of the EU Seal Regime
1. Objectives revealed by the me asure, the legislative history and
other evidence
43. The Appellate Body has stated that "the importance of a panel identifying with sufficient
clarity and consistency the objective or objectives pursued by a Member through a technical
regulation cannot be overemphasized".
10 The Appellate Body has also cautioned that panels must
objectively assess the objectives pursued by a measure, having regard to "the texts of statutes,
legislative history, and other evidence regarding the structure and operation" of the measure.11
44. On the basis of "the texts of statutes, legislative history, and other evidence regarding the
structure and operation of the measure", Norw ay identifies that the measure pursues six
objectives: (i) the protection of animal welfare, including responding to consumer concerns
regarding animal welfare; (ii) the protection of the economic and social interests of indigenous

9 Panel Report, EC – Trademarks and Geographical Indications (Australia), para. 7.510.
10 Appellate Body Report, US – COOL, para. 387.
11 Appellate Body Report, US – COOL, para. 371.
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communities; (iii) the encouragement of the sustainable management of marine resources; (iv)
allowing consumer choice; and (v) preventing consumer confusion; and (vi) harmonizing the
internal market. The parties agree that the Pane l need not address the objective of harmonizing
the internal market, since any measure adopted at the EU level would achieve that objective.
2. The European Union argues, but fails to prove, that the EU Seal
Regime aims to protect public morals
a. The European Union’s description of the measure reveals internal
inconsistencies
45. In response to Norway’s argument that the EU Seal Regime pursues several separate
objectives, the European Union argues that it is not pursuing two of the objectives identified by
Norway, namely, consumer choice and the prevention of consumer confusion. However, this
position is contradicted by the preamble and provis ions of the Basic Seal Regulation, as well as a
recent judgment of the EU General Court.12
46. In respect of the other identified objectives, the European Union says that they all are
elements of a single umbrella objective consisting of the protection of public morals. The European
Union argues it is morally wrong to kill seals inhumanely except when justified by benefits to
humans or other animals, such as those reflecte d in the IC and SRM requirements. EU consumers
aid or abet an immoral act when they are confronted with seal products in EU shops, except where
the seal products comply with marketing requirements under the EU Seal Regime. Further, it is not
immoral to commercially exploit seal products in the European Union, provided the products are
not placed on the EU market.
47. The moral norms purportedly protected by the EU Seal Regime are thus replete with
contradictions and inconsistencies.
b. The European Union fails to prove the existence of its alleged
public morals
48. The parties agree that "public morals" refers to a "standard[] of right and wrong conduct
maintained by or on behalf of a community or nation".
13 A standard is distinguished from a mere
public concern because it connotes the existence of a societal rule or norm with precise and
specific content that unambiguously delineates right and wrong conduct, and which is generally
applied within the community.
49. The European Union bears the burden of provin g the existence of the different moral norms
alleged. However, the evidence submitted by the Eu ropean Union to substantiate its position that
the EU Seal Regime responds to the "public morals" held in the European Union – (i) the measure
at issue; (ii) surveys of the EU public opinion; and (iii) scientific evidence – does not substantiate
the existence of the specific norms alleges with all their precise and conflicting features.
50. First, the measure at issue reflects no "s tandard of right and wrong conduct" to be
consistently applied; but rather a variety of different and inconsistent standards applying to the
treatment of seals and the commercial exploitation of seal products. Although institutions,
including democratic institutions, can take action in pursuit of a vast variety of objectives, the
mere fact that the institutions in question, or the decision-making process, are "democratic and
open", does not in itself demonstrate that the measure pursues the protection of "public morals".
51. Second, the surveys do not evidence the exis tence of the "public morals" invoked by the
European Union. To the contrary, the surveys (1 ) highlight an extremely low level of knowledge
about seal hunting; (2) did not use techniques that would provide information on the moral views

12 General Court of the European Union (Seventh Chamber), Judgment, Inuit Tapiriit Kanatami v.
European Commission, Case T-526/10 (25 April 2013), available
at http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d5708fecd272ff44e2ba90b6184
274b9b4.e34KaxiLc3eQc40LaxqMbN4OaheOe0?text=&docid=136881&pageIndex=0&doclang=EN&mode=req&
dir=&occ=first&part=1&cid=233545 (last checked 11 May 2013).
13 Panel Report, US – Gambling, para. 6.465; see also Panel Report, China – Publications and
Audiovisual Products, para. 7.759.
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respondents; and (3) do not even elicit information on the different normative aspects of the
umbrella public moral that the European Union invokes.
52. Third, although the EU invokes scientific evidence as grounds for the umbrella public moral,
the evidence that was before the European Union during the legislative process does not support
the existence of the purported public moral norms, in particular the elements pertaining to IC and
SRM hunts, and the allowance of commercial exploitation other than placing seal products on the
market. Indeed, the scientific evidence shows that the hunts to whose products the EU Seal
Regime grants market access pose greater animal welfare problems than those whose products
are denied market access.
53. Thus, the evidence provided by the European Union does not support its assertion that the
EU Seal Regime responds to the "public morals" held in the European Union, with all its peculiar
nuances and contours. Instead, the legislative history shows that the peculiar choices made by the
EU legislator were motivated by political expedi ency and policy choices, and not public morals.
Hence, Norway contends, therefore, that the diffe rent elements of the EU Seal Regime cannot be
understood as pursuing a single, coherent "pub lic morals" objective, but rather must be
understood as pursuing separate, competing object ives; namely, animal welfare; protecting the
economic and social interests of indigenous communities; promoting the sustainable management
of marine resources; promoting the personal choice of travelling EU consumers; and preventing
consumer confusion.
B. The objective of discriminating in favo ur of particular communities is not
"legitimate" within the meaning of Article 2.2
54. Norway accepts that the protection of anim al welfare, the sustainable management of
marine resources, the encouragement of consum er choice, and the prevention of consumer
confusion are "legitimate" objectives for purposes of an Article 2.2 analysis. With respect to the
European Union’s alleged public morals, if the Panel agrees this as an "objective", Norway
considers this "legitimate" for purposes of an analysis under Article 2.2, but only to the extent that
such public moral relates to "animal welfare".
55. However, Norway does not consider that the objective of protecting the economic and social
interests of indigenous communities is "legitimate" in the sense that term is used in Article 2.2 of
the TBT Agreement. This is because the European Union’s pursuit of this objective necessarily
involves the introduction of a regulatory trade preference for products of certain origins, to the
detriment of products from other sources, such as Norway. The granting of such selective special
and differential treatment cannot be "legitimate" under Article 2.2 because it runs counter to the
cornerstone non-discrimination principle, which is reflected in the TBT Agreement itself. If a
Member wishes to infringe that principle by gran ting special and differential treatment to products
from some sources because of economic or social considerations, it must obtain express
authorization within the WTO legal system, in the form of a WTO waiver or in line with specific
provisions of the covered agreements enabling special and differential treatment.
56. In support of its position, the European Union refers to certain instruments of international
law addressing the rights of indigenous peoples. However, none of the cited instruments compel
the granting of discriminatory trade preferences. Moreover, if other sources of international law
could serve as a basis for justifying discriminatory trade restrictions under Article 2.2 of the
TBT Agreement, the lack of harmony between the TBT Agreement and the other covered
agreements would prejudice one of the cornerst one principles of WTO law, namely, the non-
discrimination principle that is reflected, inter alia, in Articles I:1 and III:4 of the GATT 1994 as
well as the TBT Agreement itself. Thus, the mere fact that instruments of international law call for
the favourable consideration of certain producers does not, and cannot, result in unfettered
authority for a WTO Member to grant discriminatory trade preferences through technical
regulations.
C. The EU Seal Regime is more trade-restrictive than necessary to fulfil its
legitimate objectives
57. Having considered, first, the objectives of the EU Seal Regime and, second, the legitimacy of
these objectives (concluding that certain of the European Union’s objectives are not legitimate),
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Norway demonstrates that the EU Seal Regime is "more trade-restrictive than necessary" to fulfil
its legitimate objectives.
58. The assessment of the necessity of trade restrict iveness in a technical regulation, requires a
weighing and balancing of: (i) the trade-restrictiveness of the technical regulation; (ii) the degree
to which it contributes to its legitimate objectives; and (iii) the risks non-fulfilment would create.
In weighing and balancing these different elements, the panel is typically aided by a comparison
with less trade-restrictive alternatives put forward by the complainant. If a less trade-restrictive
alternative is reasonably available, and makes a contribution to the measure’s objectives that is at
least equivalent to that of the challenged measure, the challenged measure is more trade
restrictive than necessary for purposes of Article 2.2 and Article XX.
1. The EU Seal Regime is "trade-restrictive"
59. The EU Seal Regime is trade restrictive. The legal conditions that must be satisfied in order
to comply with the IC, SRM, and PU requirements have "a limiting effect"
14 on the ability of a
trader to place seal products on the market. Seal products cannot be lawfully marketed without
complying with one set of restrictive conditions, which constitutes a restriction on international
trade. Moreover, the IC and SRM requirements introduce discrimination between different sources
of supply, which is also trade restrictive.
2. Contribution
60. Under Article 2.2 of the TBT Agreement, a panel must establish the " degree of
contribution"
15 made by the measure towards achievemen t of its objective. If there is no
contribution, then consideration of an alternative is not required because, absent a contribution,
the measure is not "necessary" under Article 2.2. 16 If a technical regulation makes an overall
positive contribution to achieving the objective, the level of that contribution will be compared with
the level of contribution that would be achieved by a reasonably available and less-restrictive
alternative measure.
a. The EU Seal Regime fails to contribute to animal welfare or the
alleged public morals relating to animal welfare
61. Beyond the general, hortatory wording in the Basic Regulation, there is nothing explicit in
the EU Seal Regime apt to affect the animal we lfare of seals that are killed to produce seal
products, in particular, those that may be sold in the European Union. In particular, the EU Seal
Regime does not condition market access on compliance with animal welfare requirements. At the
moment, it is possible to place on the EU market seal products from seals killed by drowning, seals
shot in the water, and seals killed in a hunt with extremely high struck and lost rates, like those
from favoured sources under the measure.
62. Nor is the EU Seal Regime apt to reduce the number of seals killed inhumanely, since the
volume of pr oducts able to be placed on the EU market from sources with poor animal welfare
regulation matches or exceeds the total size of the EU market prior to the Regime. Conversely,
animal welfare-compliant products, among others from Norway, are unable to access the EU
market.
63. Further, contrary to the European Union’s argu ments, the EU Seal Regime does not shield
the EU public from being confronted with seal products, including seal products derived from "an
immoral act (the killing of seals in an inhumane way)". Seal products may be placed on the EU
market or imported under the EU Seal Regime an d consumers are not even informed of the fact
that the products in question contain seal, let alone of whether the seals were caught humanely.
64. F i n a l l y , a l s o c o n t r a r y t o t h e E U a r g u m e n t s , t h e E U S e a l R e g i m e d o e s n o t p r o h i b i t t h e
"commercial exploitation" of seal products "within the EU territory": seal products may be placed
on the EU market, or imported regardless of compliance with animal welfare requirements. The EU

14 See Appellate Body Report, US – Tuna II (Mexico), para. 319 (quoting Appellate Body Report, China –
15 Appellate Body Reports, US – Tuna II (Mexico), para. 315 (emphasis added); US – COOL, para. 373.
16 Appellate Body Report, US – COOL, para. 376 and fn 748 thereto.
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Seal Regime also 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. Thus, EU citizens are
allowed to participate in the commercial exploitation of seal resources in a variety of ways.
b. Contribution to sustainable resource management
65. As noted above, the SRM requirements provide: first, that seal hunts must be conducted on
the basis of a natural resources management plan using scientific population models and applying
the ecosystem-based approach; second, that the se al hunt must not exceed the TAC; and third,
that the SRM hunt must be for the "sole purpose" of marine resource management, and that the
by-products on these hunts must be marketed on a "not-for profit" and "non-systematic" basis.
66. It is not contested that the first two above-mentioned conditions promote the objective of
sustainable resource management or that the Norwegian hunt complies with both these
requirements.
67. However, the "sole purpose", "not-for profit" and "non-systematic" conditions do not
contribute to the objective of resource manage ment, and indeed, undermine it. They provide a
legal basis for the European Union to cherry pick and favour seal products derived from "small-
scale" SRM hunts in the European Union, like Sweden and Finland.
68. The "non-systematic" requirement discriminates in favour of EU Member States and to the
detriment of third countries, including Norway, inconsistently with Article III:4 of the GATT 1994.
It serves as a quantity-based distinction that is irrational and arbitrary because the size of the seal
quota is based on rational scientific principles that ensure the achievement of the objective of
managing marine resources in a sustainable mann er. The size of the quota – and therefore the
"scale" of the hunt – may, therefore, be larger in some countries than others, precisely to ensure
that the SRM objective is achieved.
69. The "sole purpose" and "non-profit" requirem ents are equally irrelevant for, and also
undermine, the sustainable management of resources. The European Union suggests that
"exploitation of natural resources" and commercial seal hunting are inherently at odds with
efficient marine resource manage ment. However, as Norway explained above, this is flawed.
Indeed, from a sustainable management resource perspective, allowing the hunter to make a
profit creates a favourable economic incentive that contributes positively to achieving the SRM
goals. The European Union’s suggestion that the hunts conducted in Sweden are somehow
non-commercial, as explained above, is also inco rrect, as Swedish fishermen derive a commercial
advantage from killing seals that endanger fish stocks and gear.
70. In its arguments about these conditions, the EU has sought to draw a distinction between
commercial and non-commercial seal hunting. Norway considers this distinction to be an illusory
one, since all seal hunts that result in seal products have commercial dimensions. The Greenland
Government itself notes that its seal hunting is both subsistence oriented and a commercial
activity. In other words, it is conducted for profitable financial returns. The SRM requirements
allow fishermen to kill seals as pests that endanger fish stocks and that cause problems to
fisheries by damaging gears and catches. Fishermen who kill seals for these purposes have
commercial motives: they are killing seals to benefit commercial fishing activities by protecting
"fish stocks" and "gear and catches". The legislative history also suggests that the fisherman is
entitled to earn "income" compensating for the cost of his time. Further, other commercial parties
in the supply chain, such as processors, distributo rs, and retailers, can earn profits from the sale
of the seal products.
c. Contribution to consumer choice and to the prevention of
consumer confusion
71. The EU Seal Regime does not prevent consumer confusion and undermines consumer
choice. To recall, seal products allowed onto th e EU market under the IC or SRM requirements do
not even have to bear a label indicating that they contain seal , let alone provide information on
compliance with animal welfare. The EU Seal Regime has in fact made the situation worse for
many consumers, because those consumers will now believe that trade in seal products is banned.
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As a result, those EU consumers that care whether they purchase seal products may unwittingly
purchase unlabelled seal products.
72. Further, in respect of consumer choice, the EU Seal Regime allows consumers to exercise
their personal choice provided they travel abroad , by purchasing seal products for their "personal
use" or that of "their families". 17 However, it denies that same choice to consumers within the
European Union.
d. Arbitrary or unjustifiable discrimination
73. In its Article 2.2 case law, the Appellate Body has reasoned that the sixth recital of the
preamble reflects an important aspect of the balance between the TBT Agreement’s trade
liberalizing objective and its objective to allow Members to retain regulatory freedom. 18 Just as
the trade liberalizing provisions of the GATT 1994 are counterbalanced by the general exceptions
found in Article XX, which allows Members to purs ue the objectives reflected in the subparagraphs
to that provision, so long as the measures taken are "not [] applied as a means of arbitrary or
unjustifiable discrimination between countries where the same conditions prevail", so too is this
same balance reflected in the provisions of the TBT Agreement. Specifically, Article 2.2 permits
Members to adopt trade-restrictive technical regula tions in order to contribute to the legitimate
objectives of the regulation at a certain level of protection. However, this authority is not
unfettered, since, in taking measures to achieve it s legitimate objectives, a Member is "subject to
the requirement that such measures are not applied in a manner that would constituted a means
of arbitrary or unjustifiable discrimination between countries where the same conditions prevail".
74. The EU Seal Regime draws arbitrary distinctions between countries where the same
conditions prevail, and thereby constitutes a me ans of arbitrary and unjustifiable discrimination
and a disguised restriction on international trade.
75. First, as regards animal welfare, the same animal welfare conditions prevail in all countries
where seals are hunted: seals in Denmark (Greenland) are not less susceptible to unnecessary
pain, distress and suffering than seals hunted elsewhere, such as in Norway. This same "condition"
relating to the vulnerability of seals is common to the situation of all countries. However, the
European Union disregards animal welfare risks with respect to countries whose seal products
comply with the IC or SRM requirements, by allowing the marketing of products originating from
those countries despite poor animal welfare outcomes in their hunts.
19 At the same time, the
European Union gives decisive significance to these same risks in connection with seal hunting in
other countries, where hunting predominantly does not meet these requirements, such as Norway,
despite good animal welfare outcomes in those hunts.20
76. Second, as regards encouraging sustainable resource management, the "not for profit",
"sole purpose" and "non-systematic" conditions at tached to the SRM requirements are rationally
disconnected from the objective of allowing the sustainable management of marine resources, and
thereby introduce arbitrary or unjustifiable discrimination between countries that have sound,
science-based management plans that establish quotas for seal hunting.
77. For purposes of the sustainable management of marine resources, all countries having
sound, science-based marine resource management plans that establish a quota for seal hunting
are countries "where the same [SRM] conditions prevail". In all countries, the size of the seal
quota is based on rational scientific principles that ensure achievement of the objective of
managing marine resources in a sustainable manner.
78. Under the "non-systematic" condition, a country may be able to place all of its seal products
on the EU market only if the permissible seal catch under an SRM plan is sufficiently small that

17 Basic Seal Regulation, Article 3(2)(a).
18 Appellate Body Report, US – Clove Cigarettes, para. 95.
19 See paras. 61-62 above.
20 For instance, Norway’s regulations prohibit the shooting of seals in the water and catching of seals in
nets, Regulation Relating to the Conduct of the Seal Hunt in the West Ice and East Ice, adopted by the
Norwegian Ministry of Fisheries and Coastal Affairs as Regulation of 11 February 2003 No. 151, amended by
the Regulation of 11 March 2011 No. 272 (original and unofficial translation) ("Conduct Regulation"), Exhibit
NOR-15, Sections 6 and 11. Furthermore, Norwegian authorities require the presence of an inspector.
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sales are "non-systematic" (e.g. Sweden or Finland). Conversely, another country may not do so,
because the seal catch is too large to allow for the disposal of all of its seal products in a "non-
systematic" manner (e.g. Norway). Discriminating between such countries on the basis of the
number of seals that the respective country may take, and put on the market each year, without
regard to the quota size determined in order to maintain a balance in the ecosystem, is "arbitrary
or unjustifiable discrimination" in terms of the regulatory objective, in violation of Article 2.2 of the
TBT Agreement. Further, the "sole purpose" and "not for profit" conditions remove an important
economic incentive for commercial actors to participate in the efficient implementation of SRM
plans. This frustrates the successful implementation of such plans, making implementation likely
depend on government funding, and not harnessing the efficiencies of the market. The limitations
also frustrates the efficient use of seals, as a natural resource, once they have been harvested,
which is contrary to basic principles of sustainable resource management. This introduces a further
element of arbitrary and unjustifiable discriminat ion between countries where the same conditions
prevail.
79. Third, as regards consumer confusion, the EU Seal Regime involves conditions that not only
make no contribution to preventing consumer confusion, those conditions also fail to deal even-
handedly with the products of countries where the same conditions prevail in respect of this
regulatory objective also. This introduces another element of arbitrary and unjustifiable
discrimination, since unlabelled seal products from all countries are equally capable of deceiving
EU consumers who are unaware of the seal-content of products placed on the EU market. Thus,
products originating from Denmark (Greenland), marketed under the IC requirements, and
products from the European Union, marketed under the SRM requirements, pose the same risks of
consumer confusion as products from other countries. Yet, the EU Seal Regime permits seal
products from Denmark (Greenland) and the European Union, while banning them from other
countries.
80. Finally, just as in US – Shrimp, the primary targets of the "unilateral and non-consensual"
21
EU Seal Regime are third countries. Although Norway emphasized the importance of the
sustainable use of marine resources, and offered to negotiate international standards for seal
hunting, the European Union has not engaged "in serious, across-the-board negotiations" 22 with
Norway on seal hunting. By contrast, the European Union was prepared to accommodate the
interests of Denmark (Greenland) and of certain EU Member States. As in US – Shrimp , the
willingness of the European Union to accommodate the interests of some, but not other, countries
is "plainly discriminatory" and "unjustifiable".
23
3. Risks non-fulfilment would create
81. The EU Seal Regime accepts significant risks of non-fulfilment for all of its legitimate
objectives. In particular, the European Union concedes that it has chosen to accept non-fulfilment
of the animal welfare objective. The EU legislators chose to grant privileged market access to seal
products from indigenous communities and EU fish ermen because, in those cases, the benefits to
humans or other animals outweighs the risk of suffering being inflicted upon seals. Moreover,
because the EU Seal Regime provides no information to consumers on whether products on the EU
market contain seal, the measure contributes to consumer confusion and prevents consumers from
being able to act upon any personal convictions they may have about seal products.
4. Less trade restrictive alternatives
82. As Norway has shown that the EU Seal Regime does not contribute to the four objectives,
and is therefore not "necessary", the Panel could end its analysis under both Articles 2.2 and
Article XX here. In any event, however, Norway offers three less trade-restrictive alternatives that
are reasonably available that would make an equivalent or greater contribution to all of the
legitimate objectives of the EU Seal Regime.
 The first alternative consists of the removal of the three sets of marketing
requirements;

21 Appellate Body Report, US – Shrimp, para. 171.
22 Appellate Body Report, US – Shrimp, para. 166.
23 Appellate Body Report, US – Shrimp, para. 172.
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 A second alternative consists of restricting access to the EU market to those seal
products that are demonstrated to comply with animal welfare requirements
through (i) the adoption by the European Union of animal welfare (and related
enforcement) requirements for the killing of seals; (ii) conditioning market access
on certification of conformity with those animal welfare requirements; and (iii)
labelling to inform consumers that a product contains seal and is derived from a
seal hunted in accordance with the prescribed animal welfare requirements;
 With respect to the SRM requirements, a third alternative would allow market
access for seal products derived from sustainable resource management hunts,
without requiring that the hunt be for the "sole purpose" of sustainable resource
management; and that sales by the hunter be "non-systematic" and "not for
profit". If it were necessary to contribute further to animal welfare, a modified
version could couple removal of the contested conditions with the addition of
explicit animal welfare requirements.
83. With respect to the first and third alternatives, there is no question that these options are
"reasonably available" to the European Union as they would simply involve the removal of
requirements that currently exist under the EU Seal Regime.
84. The second alternative, which involves the adop tion of added requirements by the European
Union, is also reasonably available to the European Union. During the course of the proceedings,
the European Union attempted to cast doubt on the feasibility of laying down and enforcing
appropriate animal welfare standards in the killin g of seals. It argued that seal hunting is
"inherently inhumane", because insurmountable obstacles make it impossible to hunt seals in a
manner that avoids pain, stress or other forms of suffering. In the European Union’s view, these
"obstacles" include: various environmental factors, such as wind and cold, which affect accuracy
in shooting; the significance of delays between shooting seals and administration of the further
fail-safe killing steps (i.e., hakapik and bleeding out); and the allegedly frenetic pace of the
Norwegian seal hunt.
85. Norway has offered ample evidence showing that it is not impossible to hunt seals
humanely, or to lay down and enforce standards that result in the humane killing of seals. This is
also confirmed by documents from the legislative history. In relation to the Norwegian hunt,
Norway has shown that: (i) the Norwegian seal hunt is not characterized by competitive pressure
on sealers; (ii) factors such as low visibility, wind, swells and waves, and cold do not adversely
affect hunters or the accuracy of shooting, and in practice steps are taken on the Norwegian hunt
to ensure they do not; (iii) the presence of veterinary inspectors on board every sealing vessel
ensures a high level of compliance with relevant regulations and animal welfare standards.
86. The European Union has also argued that no alternative measure could achieve the level of
protection desired by the EU legislator. Howeve r, Norway has shown that the level of animal
welfare protection actually achieved by the EU Seal Regime (i.e., its contribution) is lower than
what would be achieved under Norway’s alternative measure.
87. As for the certification and labelling components, Norway refers to various schemes that
have already been adopted that illustrate the practical feasibility of certifying compliance with
animal welfare or other standards, and reliably labelling conforming products.
VII. THE
 EUROPEAN UNION’S CONFORMITY ASSESSMENT PROCEDURE IS
INCONSISTENT WITH ARTICLE 5 OF THE TBT AGREEMENT
A. The European Union’s conformity a ssessment procedure is inconsistent
with Article 5.1.2 of the TBT Agreement
88. The European Union’s conformity assessment procedure, aimed at ensuring compliance with
the IC and SRM requirements and based on the Commission’s appointment of recognized
certification bodies, creates an unnecessary obstacle to international trade in seal products and is,
therefore, inconsistent with Article 5.1.2 of the TBT Agreement.
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89. Such procedure does not include the designation of a "default" recognized body able to issue
conformity certificates in the absence of third-party recognized bodies. This institutional lacuna
makes the effectiveness of its conformity assessmen t procedures depend entirely on the extent of
the willingness of third parties to act as recogniz ed bodies – an element over which traders in
conforming seal products have no control.
90. The conformity assessment procedure entered into force on 20 August 2010, that is, on the
same day of the entry into force of the prohibitive elements of the EU Seal Regime. As a
consequence, when the three restrictive requir ements established under the EU Seal Regime
entered into force, trade in conforming seal products was necessarily and inevitably prohibited,
because the European Union failed to establish a designated recognized body, or procedures for
the establishment of such a body, in due time. Mo reover, following the entry into force of the EU
Seal Regime, it took the European Union more than two years to establish recognized bodies
which, at the time of the filing of this summary, cover only conforming products from Sweden and
Denmark (Greenland). Therefore, for a period of 28 months following entry into force, the
European Union’s conformity assessment procedures created a ban on trade in seal products that
conform to the IC and SRM requirements and that, in principle, enjoy access to the EU market.
91. The European Union could have easily avoided this highly trade-restrictive situation by
designating a recognized body able to issue confor mity certificates pending the approval or in the
absence of third-party recognized bodies. Such a system would ensure that the conformity
assessment procedures always function to enable traders to secure approval for conforming seal
products, whether or not a third party is willing and approved to serve as a recognized body. If the
European Union did not wish to establish a re cognized body capable of functioning from
20 August 2010, it should – by way of alternat ive – have given interested third parties an
adequate opportunity to apply sufficiently far in advance of the entry into force of the EU Seal
Regime, so as to allow recognized bodies to be established before the Regime entered into force
on 20 August 2010.
92. The European Union lays the blame for the failings of its procedures on the lack of successful
applications by third parties. However, a WTO Member cannot contract out of its WTO obligations,
by making third parties responsible for the performance of those obligations. Further, "the
intervention of some element of private choice does not relieve [a WTO Member] of responsibility
under the [covered agreements]".
24 In light of the above, the European Union’s conformity
assessment procedure results in an unnecessary barrier to trade, inconsistent with Article 5.1.2 of
the TBT Agreement.
B. The European Union’s conformity a ssessment procedure is inconsistent
with Article 5.2.1 of the TBT Agreement
93. The conformity assessment procedure fails to ensure that the procedures concerned are
undertaken and completed as expeditiously as possi ble, inconsistently with Article 5.2.1 of the
TBT Agreement. Article 5.2.1 suggests that a violation of this provision is established only if the
more rapid conduct of conformity assessment procedures is "possible". Again, it would be perfectly
"possible" for the European Union to conduct its pr ocedures more rapidly than by imposing infinite
delay, namely, by designating a body that could act in timely fashion, without making its
procedures depend on the desire of third party entity to seek, and secure, approval as a
recognized body; or by giving interested third parties adequate time to become recognized in
advance of the entry into force of the EU Seal Regime.
94. Instead, the above-mentioned institutional lacuna results in a situation where procedures
can never be commenced with respect to seal products originating in countries other than Sweden,
and therefore do not meet the basic requiremen t that they be undertaken and completed, as
"expeditiously as possible". In short, infinite delay does not meet a requirement of timeliness. The
European Union has therefore violated its obligation, under Article 5.2.1 of the TBT Agreement, to
ensure that conformity assessment procedures ar e undertaken and completed as expeditiously as
possible.

24 Appellate Body Report, Korea – Various Measures on Beef, para. 146; see also Appellate Body Report,
US – Tuna II (Mexico), paras. 236-240.
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VIII. THE APPLICATION BY THE EUROPEAN UNION OF THE EU SEAL REGIME NULLIFIES
AND IMPAIRS BENEFITS ACCRUING TO NORWAY UNDER THE GATT 1994
95. The European Union’s adoption of the EU Seal Regime nullifies and impairs benefits accruing
to Norway under the GATT 1994 within the meanin g of Article XXIII:1(b) thereof. The measure at
issue does so by: (i) effectively barring Norway’s seal products from accessing the EU market;
and (ii) modifying the competitive position of Norwegian seal products vis-à-vis "like" seal products
that are permitted to be marketed under the IC or SRM requirements, as well as non-seal products
that compete with seal products. In this way, the European Union has upset the negotiated
balance reflected in the Tokyo Round and Uruguay Round outcomes. Because Article XXIII:1(b)
applies "whether or not the measure conflicts" with other GATT provisions, Norway’s claim under
this provision stands irrespective of whether or not the Panel finds the EU Seal Regime to be
inconsistent with the GATT 1994.
96. There is no contest between the parties that the tariff concessions negotiated between
Norway and the European Union during the To kyo and Uruguay Rounds constitute "benefits"
protected under Article XXIII:1(b). However, with respect to the nullification and impairment of
those benefits, the European Union contends that Norway has failed to show that: (i) the EU Seal
Regime could not have been reasonably anticipated by Norway; and (ii) the EU Seal Regime
upsets the competitive relationship between Norwegian seal products and other products.
97. As well settled in WTO case law shows, there is a rebuttable presumption that a measure
could not reasonably have been anticipated in cases where it was adopted subsequent to the
making of the relevant tariff concessions.
25 The EU Seal Regime came into effect in August 2010,
16 years after the conclusion of the Uruguay Round and 30 after the conclusion of the Tokyo
Round. These facts raise a presumption that Norway did not reasonably anticipate the adoption of
the EU Seal Regime.
98. In attempting to rebut such presumption, th e European Union provides a short history of
what it labels "public morals concerns" with regard to the killing of seals, and refers to a series of
measures, not all of which are measures of European countries, of which four precede the
conclusion of the Tokyo Round and five precede the conclusion of the Uruguay Round. However,
the policy objective of such measures was generally to protect seals from unsustainable
exploitation. Accordingly, Norway could, at mo st, have anticipated a measure of a type that
pursued conservation ends. Since Norway carefull y manages its TACs for seals based on scientific
evidence, Norway could not reasonably have envisaged that the "market access guarantees"
secured from the European Union would be nullified for other reasons. Further, even assuming
arguendo that at the time of the Tokyo and Uruguay rounds some of the current EU Member
States had adopted measures regulating trade in seal products for reasons of "public morals
concerns", there was no reason for Norway to expect that the same moral values exhibited by a
small number of Member States would become shared by the community of the dramatically
enlarged EU-27 as a whole.
26
99. Moreover, the European Union fails to demonstrate that the imposition of a measure of the
same type as the measure at issue27 could have been reasonably anticipated by Norway. To recall,
the EU Seal Regime is not structured, designed or expected to operate as a ban on the marketing
seal products. Rather, the placing on the market is allowed for products: (i) falling within the IC
requirements, which are expected to operate to a llow virtually all products of Greenland to be
sold; and (ii) complying with the SRM and PU requirements, under which virtually all EU products
are eligible to be sold. Nor does the EU Seal Regime contain any provisions whatsoever addressing
animal welfare. To the contrary, as explained in paragraphs 0-0 above, the measure allows the
marketing of products deriving from hunts that present the poorest animal welfare outcomes and
excludes products deriving from hunts ensuring higher animal welfare standards.

26 When the Tokyo Round was concluded in April 1979, the European Communities comprised just
9 member states, and when the Uruguay Round was concluded in December 1993 it comprised just 12
member states.
27 Any expectation of a measure must be of the same time as that actually adopted: Panel Report,
Japan – Film, paras. 10.79, 10.124 and 10.125; Panel Report, EC – Asbestos, para. 8.291(a).
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ANNEX B-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
1. INTRODUCTION
1. The measure at issue in this dispute (the "EU Seal Regime") provides for a general
prohibition of the placing on the market of all seal products. That prohibition is subject to
three exceptions: the Indigenous Communities ("IC") exception, the Marine Resources
Management ("MRM") exception and the Travelle rs exception. The EU disagrees with the
Complainants' characterization of the EU Seal Regime as containing three self-standing
"requirements". Besides, this characterization is at odds with the characterization included
in the Complainants' panel requests. Consequently, in the event that the Panel were to
decide that, as alleged by the Complainants, the EU Seal Regime cannot be characterized
as a General Ban subject to three exceptions, the European Union hereby requests the
Panel to find that Norway's and Canada's panels requests do not meet the requirements of
Article 6.2 of the DSU and reject all the claims submitted by them.
2. The EU Seal Regime seeks to address deep and longstanding moral concerns of the EU
public with regard to the presence in the EU market of seal products. 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.
3. The EU public's moral concerns find adequate support in qualified scientific opinions,
according to which: Canada's and Norway's sealing regulations fail to prescribe a humane
killing method; there are inherent obstacles which render it impossible to effectively
employ humane killing methods on a consistent basis; and there is evidence that, largely
as a result of those inherent obstacles, even the inadequate killing methods prescribed by
Canada's and Norway's regulations are not effectively and consistently applied in practice.
4. The IC exception and the MRM exception are based on moral grounds connected to the
objective of the EU Seal regime. When assessing the moral implications of seal hunting it
is essential to take into account, together with the welfare of seals, the purpose of each
type of hunt. It would be morally wrong to endanger the subsistence of the Inuit and other
indigenous communities by prohibiting the placing on the market of seal products resulting
from hunts traditionally conducted by those communities. In turn, prohibiting the placing
on the market, on a non-profit basis, of seal products resulting from small-scale hunts
conducted for the exclusive purpose of ensu ring a sustainable management of marine
resources would be unnecessary and counterproductive in light of the objective pursued by
the EU Seal Regime.
5. The EU Seal Regime is neither protectionist nor discriminatory. Both the General Ban and
the IC and MRM exceptions apply indistinctly with regard to all seal products, whether
domestic or imported, and irrespective of the country of origin. Nor does the EU Seal
Regime create unnecessary obstacles to trade. The General Ban is necessary in order to
achieve the high level of fulfilment of the intended policy objective which was desired by
the EU legislators and the EU citizens. None of the alternative measures identified by the
complaining parties would make an equivalent contribution to that objective.
2. BACKGROUND
6. IDENTIFICATION OF THE POLICY OBJECTIVE OF THE MEASURE
7. The immediate objective of the EU Seal Regi me is to harmonise the requirements applied
by the EU Member States with regard to the marketing of seal products, so as to prevent
obstacles to intra-EU trade in those or other products. It is obvious, however, that, if this
were the only objective, it could have been achieved through the adoption of measures
with a very different content, ranging from the full liberalization of trade in seal products
to a complete ban.
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8. The General Ban of the Basic Regulation resp onds to the moral concerns of the EU public
in two different manners. First, because of the way in which seals are killed, the EU public
regards seal products from commercial hunts as morally objectionable and is repelled by
their availability in the EU market. The General Ban addresses directly this concern by
prohibiting the placing on the EU market of se al products, so that the members of the EU
public do not have to confront those products . Second, the EU public does not wish to be
accomplice to the killing of seals in a manner which causes them excessive suffering. By
prohibiting the placing on the EU market of seal products, the General Ban reduces the
global demand for those products.
9. By enacting a general prohibition of the placing on the market of seals products, the
European Parliament and the EU Council have chosen a high level of fulfilment of the
intended policy objective.
10. The IC exception and the MRM exception are not "rationally disconnected" from the
objective sought by the EU Seal Regime. In assessing the moral implications of seal
hunting it is essential to take into account, together with the welfare of the seals, the
purpose of each type of hunt.
11. Some hunts are conducted primarily for commercial purposes, such as obtaining skins for
manufacturing inessential clothing items. According to the moral assessment of the EU
legislators and the EU public, in the case of these hunts it is warranted to adopt a high
level of protection against the risk that seals will experience excessive suffering when they
are killed. In contrast, other seal hunts ha ve a non-commercial purpose, such as the
subsistence of indigenous communities or the sustainable management of natural
resources. In such cases, 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.
12. The IC exception and the MRM exception are based on moral grounds rationally connected
to the objective of the EU Seal Regime. If the EU Seals Regime allows the placing on the
market of seal products under those two exceptions it is because products qualifying for
those exceptions do not raise the same moral concerns as products from commercial seal
hunts. In view of this, the EU legislators concluded that it was unnecessary to prescribe, in
addition to the conditions attached to each exception, some form of labelling requirement.
2.1. LEGITIMACY OF THE POLICY OBJECTIVE
13. According to the prevailing view in the Eu ropean Union, the way in which humans treat
animals is a matter of public morals: humans are not free to treat and use animals as they
wish, but ought instead to conform to cert ain moral standards of right and wrong.
Furthermore, such standards must be defined and enforced by the public authorities.
These views have led to the adoption of laws aimed specifically at protecting animals
against human behaviour.
14. Currently all EU Member States have in place animal protection laws based on public moral
considerations. Animal welfare is also recognised as a value of concern to the European
Union and has been enshrined by the Treaty of Lisbon in Article 13 of the TFEU.
15. Like the European Union, other WTO Members restrict the importation and/or marketing of
certain animal products on public moral grounds which are often related, at least in part,
to the way in which the animals are killed.
2.2. SCIENTIFIC GROUNDS FOR THE MEASURES
16. The European Union showed that, according to some qualified scientific opinions, Canada's
and Norway's sealing regulations fail to prescribe a humane killing method; there are
inherent obstacles which render impossible the effective and consistent implementation of
any humane killing method; and there is evidence that, largely as a result of those
inherent obstacles, even the inadequate ki lling methods prescribed by Canada's and
Norway's regulations are not effectively and consistently applied in practice.
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17. It is not the Panel's task to choose one amon g the various expert opinions available or to
substitute its own scientific judgement. Rather, the Panel's task should be limited to
examine whether, in so far as the policy choices which are reflected in the measure at
issue purport to be based on science, such choices can find adequate support on qualified
scientific opinions, irrespective of whether they represent the majority view.
1
18. The measure at issue takes into account the opinion issued by the European Food Safety
Authority (EFSA) on 6 December 2007 at the request of the European Commission. Having
considered EFSA's opinion and the scientific evidence reviewed by EFSA, the EU legislators
concluded that the risks to the welfare of seals which result from the inherent obstacles to
the effective and consistent application of humane killing methods in commercial seal
hunts documented by such evidence are excessive and morally unacceptable. While in
selecting a level of protection of public morals it is appropriate to take into account
available relevant scientific evidence, as the EU legislators did in this case, the choice of a
level of protection of public morals is not a scientific judgement. It is a policy decision
involving a moral judgement which, in the pr esent case, was the exclusive prerogative of
the EU legislators.
19. In addition to the EFSA opinion, reference should be made to two recent reports, which
have reviewed the available scientific evidence pertaining to the Canadian commercial
hunt. These are, first, the Richardson (2007) report, and second, the Butterworth (2012)
report. The Richardson (2007) report concludes that, while it might be possible to
prescribe a killing technique that would fit within accepted guidelines of humane slaughter,
Canada’s commercial seal hunt can never be made acceptably humane because of the
conditions in which the hunt takes place. Th e Butterworth (2007) report concludes that
Canada's commercial seal hunt adopts procedures, and has measurable outcomes that do
not meet internationally recognized st andards of humane slaughter. There are
unacceptable (and unlawful) things being done to animals for profit in this hunt. The
evidence clearly shows that the actions of governments in prohibiting seal product trade
are, and will continue to be, justified.
2.2.1. Recommended killing methods
20. Various veterinary reports, including Bu rdon and Smith, have recommended a killing
method involving a "three-step" process: First, the seal must be effectively stunned by a
blow to the head or by shooting the animal in the head. Second, the stunned seal must be
checked for irreversible unconsciousness. Seals which are not irreversibly unconscious
must be immediately re-stunned. Third, the seal must be bled out to confirm or achieve
death by terminating blood flow to the brainste m. Each of the three steps must be carried
out effectively and in rapid succession. Any undue delay in completing the second or third
steps may result in a situation in which the animal experiences severe suffering.
 Moreover,
seals should not be shot in the water or in any circumstance when it is possible that the
carcass cannot be recovered.
21. Drawing on the above opinions, EFSA reco mmended that: The time between shooting and
monitoring of the state of the shot animal should be short, and seals should be bled out as
soon as possible and, preferably immediat ely, after the effectiveness of the stunning
process has been verified (which in turn should be as soon as possible after stunning).
Moreover, unless they are in the water, animals 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. Furthermore, if animals are in
water or located where they cannot be bled-out immediately, they should be monitored as
soon as possible for consciousness and, if not dead or irreversibly unconscious, they
should be re-stunned or killed. Last, shooting animals where the likelihood of reaching
them quickly is reduced or questionable (e.g. on thin and loose pack ice, open deep water)
poses an unknown risk of causing avoidable pain, distress and suffering.
22. When considering the above recommendations it must be recalled that EFSA deliberately
omitted to take into account the "ethical aspects" of killing seals and that its

1 Cfr. Appellate Body Report, EC – Asbestos, para. 178.
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recommendations only sought to minimise the suffering experienced by seals by
addressing the avoidable risks.
23. Butterworth (2012) stresses that the different versions of the three-step method
recommended by previous veterinary experts involve an unacceptable compromise with
commercial interests and do not ensure a humane killing. In order to qualify as humane, a
method for killing seals would have to comply with the following generally accepted
principles of humane slaughter: Minimizing distress experienced by the animal prior to and
during stunning; rendering the animal unconscious (and therefore insensitive to pain)
without the need to repeat the application of the stunning method; confirming
unconsciousness by monitoring for multiple indicators of consciousness; delivering death
without delay through an accepted euthanasia method; and, ensuring that
unconsciousness persists until death occurs . He concludes, nevertheless, that the review
of available data indicates that the abov e generally accepted principles of humane
slaughter cannot be carried out effectively and consistently in the commercial seal hunt.
2.2.2. Canada's commercial hunt
24. Although the Canadian regulations purport to prescribe a humane killing method based on
the 'three-step' process, they fail to do so. Instead, gaps, loopholes and imprecise wording
in the regulations allow for sealers to engage in behaviours that cause excessive pain and
distress. The deficiencies observed in Canada's hunting regulations affect each of the three
'steps': the method of stunning, the confirmation of unconsciousness and the bleeding.
25. Even if Canada's regulations were amended in order to address the deficiencies regarding
the three-step process, there are, according to qualified scientific opinions, a number of
inherent obstacles that would still make impossible, in practice, the application of a
humane killing method in an effective and consistent manner. Indeed, it is presumably in
recognition of such inherent obstacles that no commercial sealing regulations in existence
today prescribe a humane killing method. These ob stacles are, essentially, of three types:
obstacles resulting from the unique physical environment in which commercial seal hunting
occurs; obstacles resulting from the intense competitive pressure and other time
constraints that characterise the commercial seal hunt; and obstacles relating to the
inability of the responsible authorities to effectively monitor the killing and enforce the
hunting regulations.
26. The ice conditions and extreme weather that make up the physical environment of the seal
hunt make it impossible, in practice, for sealers to apply effectively and consistently the
different steps of the prescribed killing me thod, let alone a genuinely humane method.
Accurate and effective clubbing of seals becomes even more difficult while sealers
scramble across broken, unsteady and slippery ice floes and attempt to maintain their
balance without falling into the ocean, and the same is the case for shooting. In practice,
extreme weather conditions, including strong winds, high ocean swells and waves,
extreme cold and low visibility (snow, freez ing rain, fog) make accurate shooting even
more difficult. The Royal Commission on Seals and Sealing recognised in its 1986 report
that many Canadian hunts take place, or have taken place, under conditions which make it
impossible to obtain an acceptably high prop ortion of kills with head shots. Moreover,
Butterworth (2007) concluded that, since it is impossible to ensure a high level of accuracy
when shooting from a boat, even when using telescopic sights, hunting seals with rifles
should be viewed as inherently inhumane and it is highly improbable that any
improvements would lead to internationally acceptable standards of welfare. Furthermore,
EFSA concluded that there is a risk of a targeted animal being hit with insufficient force
and accuracy to cause instantaneous death or unconsciousness, and possibly escaping
wounded.
27. Because of deteriorating ice conditions, the sealers are often unable to disembark to
retrieve the seals. According to EFSA, consid ering the safety issues associated with the
difficult working conditions often encountered during certain seal hunts 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. Moreover, Smith
recognised that the ice, sea and weather conditions present greater challenges for hunters
to carry out all three steps of stunning, checking by palpation of the skull, and bleeding.
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The European Union agrees of course that the sealers' personal safety should not be put at
risk. However, if the three-step process cannot be properly conducted due to concerns
about the safety of the sealers, the conclusion to be drawn is that seals should not be shot
or clubbed in the first place, and not that sealers should be allowed to dispense with that
process. What is more, ice conditions enhance the risk of wounded seals slipping into the
water and diving beneath the surface ("struck and lost").
28. Canada's commercial hunt is a highly competitive industry, with staggering numbers of
seals killed in a very short period of time by a large number of sealers. Every year
Canada's DFO sets a quota for harp seals and allocates it according to region and vessel
size. As a result, the hunt effectively turns into a race between sealers to collect as many
skins as possible, as quickly as possible, until the quota assigned to each region is
reached. In addition to the quota system, a number of other factors contribute to make
Canada's commercial hunt a frenetic affair: the high risk of damages to the vessels and
crew and the corresponding insurance costs; the high costs of operating a vessel (such as
fuel or maintenance items); and the fact that most vessels are licensed for other, more
lucrative fisheries, with overlapping seasons. Under considerable pressure to work quickly,
for long hours and in extreme weather conditions, sealers are very susceptible to fatigue.
This, as noted above, compounds the risk of inaccurate clubbing and shooting.
29. Another inherent obstacle to the effective im plementation of humane killing methods is the
inability of the authorities to monitor the hunt and enforce the regulations. In 1986 the
Royal Commission on Seals and the Sealing Industry reported on the inability of the
fisheries officers to adequately monitor the seal hunt. They noted that the area that they
must patrol is very extensive, the number of sealers is large, and sealing operations are
multifaceted. For these reasons, it is impossible to keep all parts of the seal hunt under
close supervision at all times. Moreover, Smith observed that the physical realities of the
Canadian harp seal hunt present a significant set of challenges for observation,
supervision, monitoring and enforcement, and he also drew attention to the limitations of
aerial surveillance. Furthermore, he identified conflicts of interest, which could affect the
willingness of the authorities to effectively monitor and enforce compliance with the sealing
regulations.
30. The inherent obstacles described in the preceding section have the consequence that, in
many cases, the killing methods prescribed by the existing hunting regulations are either
disregarded or ineffectively applied. EFSA reported that it has been observed by several
independent groups that sealers in the Canadian hunt, on many occasions do not comply
with the regulations. Burdon reached a similar conclusion, while Butterworth (2007) stated
that a maximum of only 15% of seals they observed on the videos were killed in a manner
that conformed to the Marine Mammal Regulations. EFSA also found that there is strong
evidence that in practice, effective killing do es not always occur. The veterinary reports
examined by EFSA include evidence showing that clubbing is not always performed
effectively, and they also provide clear evid ence of inaccurate and ineffective shooting.
Moreover, all the reports examined by EFSA agree that in many cases the second and third
steps (monitoring for consciousness and bleeding) are either omitted or not performed
rapidly enough.
2.2.3. Norway's commercial hunt
31. Norway's regulations are in some respects stricter than Canada's. In particular, Norway's
regulations, unlike Canada's, prohibit shooting seals in the water. But they are deficient in
other respects.
32. Some of the deficiencies have been openly admitted by Norway's own regulators. In
November 2010 Norway's Fisheries Directorate issued for consultation a proposal to
amend the hunting regulations. That proposal provided inter alia for the repeal of those
provisions that permit hooking and hoisting the seals on board before bleeding them. The
proposal was strongly opposed by both sealers and ship owners. As a result, the provisions
allowing the bleeding of seals on board were left unmodified by the amending regulation
eventually adopted by the Fisheries Directorate on 23 March 2011.
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33. There is very little scientific evidence on th e effectiveness of the prescribed killing methods
in the conditions in which the Norwegian commercial hunt takes place. The VKM report
acknowledges that scientific, peer-reviewed studies and scientific data on the actual
performance of the Norwegian seal data are very limited. More specifically, VKM
recognised that: the scientific data on the effi ciency of the Norwegian hakapik are limited;
only a limited number of studies is available from Norwegian seal hunts which investigate
how effective rifles are; and there are no official statistics on numbers of percentages of
seals struck and lost, either alive or dead during Norwegian hunts. To some extent the
lack of evidence can be filled by examining the reports drawn by the inspectors on board
of the sealing vessels. Those reports though cannot be regarded as independent evidence,
since the inspectors are government employees. Moreover, the inspection reports are
often very brief and uninformative.
34. Norway's commercial hunt takes place in the Greenland Sea ("West Ice") and in the
Barents Sea/White Sea ("East Ice"), under very similar environmental conditions as
Canada's commercial hunt. For that reason, the observations made above in section 2.4
with regard to the inherent obstacles to the effective implementation of a humane killing
method resulting from environmental factors are equally relevant with regard to Norway's
commercial hunt.
35. Unlike Canada's regulations, Norway's regu lations prescribe the presence of an inspector
on board of each vessel. Nevertheless, in practice it is very difficult for the inspector to
keep an adequate overview over all th e activities of the hunt at all times.
 Moreover,
inspectors live closely together with the sealers over extended periods of time. As a result,
they are exposed to intense social pressure. They may easily compromise and tolerate
practices which are against the regulations because, like the sealers, they come to
perceive such practices as 'usual' and 'unavoidable' for the commercial success of the
hunt.
36. Inspection reports provide further evidence that, in practice, seals are not always
effectively killed in a humane manner. The Norwegian sealers have repeatedly voiced
discontent with the existing regulations. Th e inspection reports provide evidence that
those regulations are often disregarded, even if formal charges are very rarely brought
against the offenders. Mention should be made, in particular, of a recent and exceptionally
detailed report of 2009 by Inspector Liv Greve- Isdahl concerning a sealing expedition by
the vessel Kvitungen, which provides ample evidence, inter alia , of careless and very
inaccurate shooting; a high rate of 'struck and lost' animals; hooking of animals, despite
good ice conditions and when animals where not obviously dead; excessive delays in
bleeding the animals; and use of semi-automatic weapons (Kalashnikov).
2.2.4. Reliability of the evidence submitted by the European Union
37. The Complainants assert that Burdon (2001) and Butterworth (2007) are not peer
reviewed and thus are less credible studies. However, Burdon (2001) and Butterworth
(2007) were produced for reasons other than publication and both were reviewed by peers
far more exhaustively than would have occurred in a formal peer review for publication.
Moreover, the attempts by the Complainants to challenge the scientific credentials of the
experts who authored the studies relied by the European Union, are baseless. The
qualifications of all these experts go well beyond their experiences observing seal hunting.
Many of them are internationally renowned, distinguished scientists in the field of humane
slaughter, and with their expertise have evaluated commercial sealing in comparison with
other large-scale commercial slaughter operations.
38. With regard to the facilitation of some studies by NGOs, the European Union does not
believe that scientific research becomes unreliable merely because it has been
commissioned or facilitated by NGOs with a non-commercial interest. The key point is
whether the scientists involved produce unbiased scientific information. Besides, Canada's
own evidence is questionable in view of Dr P.Y. Daoust's close links to the Canadian fur
industry. Moreover, the allegation that the ev idence submitted by the EU is "dated" is
spurious. Not only were the changes made to Canada's regulations in 2009 very minimal
and inconsequential, but also the studies reli ed upon by the European Union focus on the
inherent obstacles to humane killing. Furthe rmore, more than two thirds of the video
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evidence submitted by the EU was produced after the most recent regulatory changes
occurred in Canada.
39. The EU has also demonstrated that video evidence is reliable and credible, in that it is 1)
more accurate than first hand observation/memory; and 2) obtained in a random fashion.
That EFSA regarded video evidence as reliable is confirmed by the fact that the EFSA
opinion is largely based on studies which made extensive use of video evidence. Moreover,
Canada's position that video evidence is unreliable is difficult to reconcile with the fact that
Canada claims to rely on video evidence for monitoring the hunt or with the fact that the
Canadians authorities have sometimes laid charges against sealers based on video
evidence of commercial sealing supplied by NGOs.
2.3. EVIDENCE OF THE PUBLIC MORAL CONCERNS
40. The European Union has identified various types of evidence that may be relevant in order
to establish the existence of "public morals". The starting point of the enquiry should be
the measure itself, including its preamble and the legislative history. The structure and
design of the EU Seal Regime is fully consistent with the public morals objective invoked
by the European Union. To begin with, the prea mble to the Basic Regulation confirms that
it was enacted in response to the "serious concerns" expressed by the public with regard
to the way in which seals are killed. Moreover, the Impact Assessment accompanying the
European Commission proposal confirms that, by improving the welfare of seals, the
proposal aimed at addressing the public's moral concerns. Furthermore, the amendments
to the European Commission proposal made by the EU legislators were aimed at
responding to the public morals concerns of the EU citizens, which the EU legislators
considered had not been sufficiently addressed by the proposal. Last, the Basic Regulation
was enacted in order to replace and pre-empt the measures already taken, or about to be
taken, by some EU Member States.
41. The EU Seal Regime seeks to uphold a standard of conduct according to which it is morally
wrong for humans to inflict suffering upon animals without sufficient justification. This
basic rule reflects a long-established tradition of moral thought, which in its modern form
is usually designated as "animal welfarism"."Animal welfare" and morality, albeit different,
are inseparable.
42. The moral standard which the EU Seal Regime seeks to uphold appears to be shared by
the Complainants themselves, and in particular by Norway. The same standard also
inspires other measures and policies of the European Union, pursuant to Article 13 of the
TFEU, while all EU Member States have in place animal protection laws based on
public moral considerations. Moreover, opinion polls conducted in various EU Member
States show a strong public demand for a ban on the marketing of seal products. This
demand indicates the unacceptability of seal hunting. What is more, all these actions are
aligned with actions taken by international organizations. Among others, the OIE has
considered to develop a standard with regard to the commercial killing of seals.
Nevertheless, the discussions soon revealed that the humane killing standards developed
by OIE for the commercial slaughtering of animals for food cannot be transposed to the
commercial seal hunts due to the environmental conditions in which the latter take place.
43. The European Union has referred to various measures restricting trade in animal products
applied by other Members on public moral grounds related to animal welfare, including
measures restricting trade in seal products, as evidence of the fact that the objective
pursued by the EU Seal Regime is a legitimate objective and, more specifically, that it falls
within the scope of Article XX(a) of the GATT.
44. Last, 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. Governments are not required to test the populace´s support
for each and every element of an envisaged pi ece of legislation based on public morals
before enacting it. Indeed, as illustrated by the measures at issue in both U.S. - Gambling
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or China – Publications and Audio-visual Products, regulations on public morals can be
very complex and do not lend themselves easily to that kind of testing. Instead, all that
may be necessary is to show that the subject matter of the measure at issue (e.g. the
protection of animals) is regarded as an issue of public morals in the responding Member.
3. THE
 TBT AGREEMENT
3.1. APPLICABILITY OF THE TBT AGREEMENT
45. The complainants' claims under Articles 2.1, 2.2, 5.1.2 and 5.2.1 of the TBT Agreement
require that the EU seals regime is a "technical regulation", according to Annex 1.1 of the
TBT Agreement. Pursuant to the interpretation which the Appellate Body developed in EC –
Asbestos and summarised in EC – Sardines , a document must meet three criteria to fall
within this definition: first, it must apply to an identifiable product or group of products.
Second, it 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. These three criteria apply cumulatively.
Contrary to the allegations of Canada and Norway, the EU seals regime is not a technical
regulation since it does not meet the second criterion, i.e. it does not lay down product
characteristics
46. According to WTO jurisprudence,
2 a document fulfilling the second criterion for a technical
regulation needs to "lay down", in positive or negative form, one of three types of subject
matter: (1) "product characteristics" which encompass (a) intrinsic features and qualities
to the product, and (b) related "characteristics" (2) "processes and production methods"
which are "related" to such product characteristics; or (3) "administrative provisions"
which are "applicable" to such product characteristics or their related processes and
production methods. The analysis of whethe r a document prescribes such subject matter
needs to examine the measure as an integrated whole, taking into account, as
appropriate, the prohibitive and the permissi ve elements. Furthermore, the determination
of whether the measure constitutes a technical regulation must be made in the light of the
characteristics of the measure at issue and the circumstances of the case.
47. The EU seals regime does not prescribe any of the subject matter covered by the second
criterion of a "technical regulation" within the meaning of Annex 1.1 of the
TBT Agreement. The regime does not lay down "product characteristics"; be it intrinsic or
related characteristics in either positive or negative form. More specifically, it is not a
technical regulation to the extent that it prohibits products which exclusively consist of
seal. With regard to products not only containing seal but also other ingredients ("mixed"
products) the EU seals regime does not constitute a simple ban of seal ingredients in their
natural state. Canada and Norway primarily argue that the EU seals regime lays down
intrinsic product characteristics in negative form by providing that all products may not
contain seal. However, their argument ignores that the EU seals regime is not limited to
prohibiting the placing on the market of products containing seal, but that it also provides
for three exceptions under which products containing seal may be placed on the EU
market.
48. As the Appellate Body held in EC-Asbestos, "the proper legal character of the measure at
issue cannot be determined unless the measure is examined … as an integrated whole,
taking into account, as appropriate, the prohibitive and the permissive elements". The
Appellate Body also explicitly stated that "t he scope and generality of those prohibitions
can only be understood in the light of the exceptions to it". The characterization of the EU
seals regime under Annex 1.1 of the TBT Agreement in the light of its exceptions is
particularly important since most claims of the complainants under the TBT Agreement
actually focus on the exceptions. Therefore, the EU Seal Regime must be examined as an
integrated whole taking into account the three exceptions. None of the three exceptions
lays down product characteristics within the meaning of Annex 1.1 of the TBT Agreement.
To the extent that the EU Seal Regime provides for exceptions from the ban, it does so not
by relying on product characteristics or their related processes or production methods as

2 Appellate Body Report, EC-Asbestos, and Appellate Body Report US-Tuna II (Mexico)
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conditions, but by relying on conditions that are not related to product characteristics. The
EU seals regime as an integrated whole , therefore, does not lay down "product
characteristics" within the meaning of Annex 1.1 of the TBT Agreement.
49. Canada and Norway further submit that the EU Seal Regime establishes process or
production methods within the meaning of A nnex 1.1 of the TBT Agreement. The EU does
not agree with Canada and Norway, and submits that the EU Seals Regime does not
regulate any processes and production me thods. The ban read together with the
exceptions allows the placing on the market of seals products depending on the identity of
the hunter (for the IC exception) and the purpose of the hunt (for the IC and the MRM
exception), which have nothing to do with methods for the production of seals products.
50. Canada and Norway also argue that certai n procedural provisions in the Implementing
Regulation relating to the operation of th e three exceptions constitute "applicable
administrative provisions" within the meaning of Annex 1.1 of the TBT Agreement. The EU
argues that whereas the procedural requiremen ts set out in the Implementing Regulation
may be considered as administrative provisions, they do not constitute "applicable
administrative provisions" within the mean ing of Annex 1.1 of the TBT Agreement.
Annex 1.1 of the TBT Agreement only addresses those administrative provisions which
apply to product characteristics or their related processes and production methods .
Already the term "applicable" in the wording of Annex 1.1 of the TBT Agreement indicates
that only administrative provisions which apply to the subject matters mentioned in the
first part of the definition may qualify a document as a technical regulation. This is further
supported by the context. The reference to "applicable administrative provisions"
immediately follows the mention of "product characteristics or their related processes and
production methods". The linkage to these two categories of subject matter is expressed
by the conjunctive term "including".
3.2. ARTICLE 2.1 OF THE TBT AGREEMENT
51. Canada argues that the EU Seal Regime, through the IC exception, de facto violates the
MFN obligation under Article 2.1 of the TBT Agreement, because it accords less favourable
treatment to Canadian products as compared to like products from Greenland. Further,
Canada submits that the EU Seal Regime, through the MRM exception, de facto violates
the national treatment obligation under Article 2.1 of the TBT Agreement, because it treats
Canadian seal products less favourably than domestic seal products.
52. As argued above, the European Union consid ers that the TBT Agreement does not apply in
the present case since the EU Seal Regime, including any of its exceptions, does not
amount to a "technical regulation" in accordan ce with Annex 1 of the TBT Agreement. In
any event, assuming that the TBT Agreemen t is applicable in the present case, the
European Union considers that Canada's claim that the EU Seal Regime violates Article 2.1
of the TBT Agreement must fail. In particular, the EU Seal Regime, through any of the
exceptions challenged by Canada, does not discriminate between the group of imported
products and the group of domestic/other origin like products. Any difference in treatment
between certain sub-categories of like products within those groups stems from a
legitimate regulatory distinction that is designed and applied in an even-handed manner.
As the EU explained in its reply to Question 29 of the First Set of Questions from the
Panel, this regulatory distinction made by the EU Seal Regime between conforming and
non-conforming seal products is primarily based on the "purpose" of the hunt. In this
sense, the EU Seal Regime distinguishes among seal hunts i) for commercial purposes; ii)
for subsistence purposes (of the Inuit and other indigenous communities); and iii) for the
purpose of the sustainable management of marine resources.
3.2.1. Legal standard
53. According to WTO case-law, 3 in order for a complaining Member to prevail in a de facto
claim under Article 2.1 of the TBT Agreemen t, like the one brought by Canada in the
present case, the following elements must be proven: (i) that the measure at issue

3 Appellate Body Report, US-Tuna II (Mexico), Appellate Body Report, US-Clove Cigarettes, Appellate
Body Report, US-COOL
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constitutes a "technical regulation" within the me aning of Annex 1.1; (ii) that the group of
imported products must be "like" the group of domestic/other origin products; and (iii)
that the treatment accorded to the group of imported products must be less favourable
than that accorded to the group of "like" domestic/other countries products. With respect
to the last element, in cases where no de jure discrimination is claimed (i.e., when the
measure is origin-neutral on its face), it is not sufficient for the complaining Member to
show that the technical regulation at issue modifies the conditions of competition in the
relevant market to the detriment of the group of imported products vis-à-vis the group of
like domestic/other origin products. Rather, it needs to be examined whether the
detrimental impact on imports stems exclusively from a legitimate regulatory distinction
rather than reflecting discrimination against the group of imported products. It is against
this legal standard that the European Union examined the merits of Canada's claim against
the IC and MRM exceptions.
3.2.2. Likeness
54. The European Union submits that Canada's identification of "like" products is partial and
skewed towards finding discrimination in the present case. The Panel is not bound to limit
its analysis to those products identified by Canada in its first written submission, but is
required to determine the group of domestic and/or other origin products that are "like"
the group of products imported from the complaining Member. The European Union
considers that the relevant group of products with respect to Canada's claim under
Article 2.1 of the TBT Agreement are those co nforming and non-conforming with the EU
Seal Regime. The European Union also considers that all seal products, regardless of the
type and purpose of hunt they were obtained from, compete and are substitutable
between each other in the EU market.
3.2.3. Less Favourable Treatment - IC exception
55. Canada argues that the Indigenous Communities exception de facto violates Article 2.1 of
the TBT Agreement since such exception effe ctively permits 100% of Greenlandic seal
products to be placed on the EU market, but excludes virtually all Canadian seal products
from the same market, thereby modifying the conditions of competition to the detriment of
Canadian seal products and resulting in inequality of competitive opportunities. The
European Union has shown that the IC exception does not provide for less favourable
treatment to the group of Canadian imported products, because any detrimental impact on
Canadian imports derived from the IC exception stems exclusively from a legitimate
regulatory distinction rather than reflecting discrimination against the group of imported
products. More specifically, the European Union has, first, demonstrated that the objective
pursued by the IC exception is "legitimate". A fortiori, the regulatory distinction should also
be considered "legitimate". Second, the European Union has established that the IC
exception does not de jure discriminate by reasons of origin. Third, the European Union
has shown that the IC exception does not de facto discriminate against the group of
Canadian imported products.
3.2.3.1 Legitimate objective behind the IC exception
56. Contrary to what Canada suggests, the IC exception is "rationally connected" to the main
objective of the EU Seal Regime, i.e., addressi ng the moral concerns of the EU public with
respect to seal hunting. The IC exception takes into account that the Inuit and other
indigenous communities have a long tradition of seal hunting, which continues to make an
essential contribution to their subsistence. As stressed by Canada, seal hunting is an
intrinsic part of the Inuit way of life, and an integral part of Inuit culture and survival. The
same could be said of other indigenous communities in similar circumstances.
Consequently, the situation of the Inuit and other indigenous communities is rather
unique. In view of this, the EU legislator came to the conclusion that it would be "morally
wrong" to prohibit the placing on the market of seal products resulting from hunts
traditionally conducted by those communities and which contribute to their subsistence.
Indeed, the moral perception of products from seals hunted by Inuit and other indigenous
communities is the result of a practice whose inherent legitimacy (subsistence of
indigenous people) overrides the general concerns over the killing methods for purely
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commercial motives. Besides, as the European Union observes, the protection of the Inuit
and indigenous communities has been widely recognised in the international fora.
3.2.3.2 The IC exception – no de jure discrimination
57. The European Union observes that Canada challenges the IC exception as a de facto
discrimination. In other words, Canada does not dispute that the IC exception is origin-
neutral on its face. In any event, for the av oidance of any doubt, the European Union has
shown that the IC exception is origin-neutral on its face and, thus, there is no de jure
discrimination. More specifically, the terms empl oyed in either the Basic Regulation or the
Implementing Regulation with respect to the IC exception are origin-neutral.
58. First, Article 3.1 of the Basic Regulation, referring to the Indigenous Communities
exception, covers the placing on the market of seal products that result from "hunts
traditionally conducted by Inuit and other Indigenous Communities and contributing to
their subsistence". In this respect, the wording of Article 3.1 of the Basic Regulation does
not list countries by name or specify a particular origin of seal products. Rather, it refers to
(i) the type of the hunt, i.e. traditional hunts carried out by Inuit and other indigenous
communities, and (ii) the purpose of the hunt (i.e., contributing to the subsistence of the
hunter). Second, the Basic Regulation does not define the term "Inuit" as being indicative
of a particular origin. In fact, those communities are widely spread around the world.
Third, the conditions for qualifying for the IC exception are further specified in Article 3 of
the Implementing Regulation. Like the Basi c Regulation, the Implementing Regulation
refers to seal products originating from seal hunts (not from specific countries) where
certain conditions are met. None of these conditions explicitly relate to a country or limited
group of countries, but rather to the characte ristics (i.e., type and purpose) of the seal
hunts. Fourth, as evidenced by the legislative history, there is no indication that the
European Union intended to design the IC exception to privilege certain WTO Members
among others. Fifth, the European Union observes that other countries have likewise
introduced the same exception to the imports of seal products. Finally, the European Union
considers that the fact that some countries happen to have –at a given moment–
indigenous population and others do not may create an incidental disparate impact, but
the EU Seal Regime is not structured or designed to benefit a limited group of countries
based on the nationality or origin of seal products. In sum, the European Union considers
that there is no de jure discrimination in the present case, because the EU Seal Regime is
origin-neutral on its face.
3.2.3.3 The IC exception – no de facto discrimination
59. Canada argues that the EU Seal Regime creates inequality of competitive opportunities
between Canadian seal products and Greenlandic seal products because the vast majority
of Canadian seal products cannot be placed on the EU market, due to the fact that the
east coast commercial harvest in Canada from which the products derived does not meet
the definition of 'indigenous', whereas "s eal products from Greenland meet all the
conditions set out in the Implementing Regulati on and are therefore entitled to be placed
on the EU market".
60. Canada's "quantitative approach" is entirely without merit. Canada ignores the fact that
the relevant group of imported products in this case not only includes Canadian seal
products derived or obtained from non-Inuit commercial hunts but also Canadian seal
products obtained from Inuit hunts. The European Union considers that, in order to
examine whether there is less favourable treatment, the group of imported products (in
particular, from Canada) and the group of products from other origin chosen (in particular,
Greenland) must take into account the existence of the legitimate regulatory
differentiation made in the Basic Regulation. When the treatment granted to the group of
Canadian seal products (including both seal products derived from Inuit and commercial
hunts) is compared to the treatment granted to the group of products from other origin
covered by the EU Seal Regime (also including both seal products derived from Inuit and
commercial hunts), the result is that no discrimination arises. What is crucial for this
comparison, in order to examine whether there is less favourable treatment or not, is the
aggregate competitive opportunities afforded to these two groups of products.
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61. Thus, when making a category-to-category comparison within the groups of products in
each side of the comparison (i.e., Canada versus other origins, such as
Greenland/Norway), it should be concluded that there is no alteration of the aggregate
competitive opportunities in favour of those other origins' groups of products. Put in simple
terms, this approach shows that there is no discrimination since each category in the same
situation (by reference to the "purpose" of the hunt) is treated equally and has identical
access to (or prohibition to access) the EU market, regardless of the origin of the products.
Moreover, as the EU replied to Question 34 of the First Set of Questions from the Panel ,
the trade data provided by the Complainants with regard to the alleged detrimental impact
of the EU Seal Regime on the competitive conditions for their seal products are
inconclusive. Indeed, the fact that there have not been imports from Canada (and Norway)
falling under the IC exception is the result of the inaction by the relevant entities in
Canada which have failed to request the certification envisaged in Article 6 of the
Implementing Regulation. In other words, it is the action (or more concretely the
omission) of the countries in question, and not the EU Seal Regime, that explains the
relevant trade data.
62. The "regulatory distinction" made by the EU Seal Regime between conforming seal
products under the IC exception and non-conforming products subject to the General Ban
is "legitimate", and not discriminatory, because (i) it is based on a legitimate objective,
and (ii) it is designed and applied in an even-handed manner.
63. Canada agrees that the protection of public morals is a legitimate objective under
Article 2.2 of the TBT Agreement. The IC except ion stems from the rule of public morality
which the EU Seal Regime seeks to uphold. Even if the IC exception did not reflect a rule
of morality, as Canada asserts, the European Union submits that the protection of Inuit
and other indigenous communities would be a legitimate objective in itself. The protection
of the economic and social interests of Inui t and other indigenous communities is widely
recognised in the international forum. As explained in the European Union's response to
Question 39 of the First Set of Questions from the Panel , the European Union considers
that such international context supports the conclusion that the objective pursued by the
IC exception, and on which the regulatory distinction is based, is "legitimate" for the
purpose of Article 2.1 of the TBT Agreement.
64. Moreover, the IC exception is designed and applied in an even-handed manner. It is
"calibrated" to the animal welfare concerns it pursues. More specifically, it strikes a
balance between the welfare of seals and the subsistence of the Inuit and other indigenous
communities and the preservation of their cultural identity. The latter provide benefits to
humans that, from a moral point of view, outweigh the risk of suffering inflicted upon seals
as a result of the hunts conducted by those communities. Moreover, the IC exception does
not go beyond what it is necessary to achieve its purpose, and it applies only to seal
products from genuinely hunts for subsistence purposes.
3.2.4. Less Favourable Treatment – MRM exception
65. Canada argues that the EU Seal Regime is a de facto violation of the national treatment
obligation under Article 2.1 of the TBT Agr eement because the MRM exception effectively
permits all EU products to be placed on the EU market, while excluding 90-95% of
Canadian seal products from the same market.
 Thus, Canada follows here the same
"quantitative approach" as with respect to the IC exception to show de facto less
favourable treatment. As the EU has explaine d in the context of the IC exception, such
"quantitative approach" cannot be dispositive in finding a detrimental impact on Canadian
imports.
66. More specifically, as the EU replied to Question 28 of the First Set of Questions from the
Panel, when making a category-to-category comparison within each of the groups of
products in each side of the comparison (i.e., Canada versus European Union), it should be
concluded that there is no alteration of the aggregate competitive opportunities in favour
of the EU's group of products. The EU Seal Regime equally affects all seal products derived
from hunts for commercial purposes, as well as seal products derived from hunts for
marine resource management purposes. The fact that Canada and Norway have decided to
structure their industries around hunts for commercial purposes does not necessarily show
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a detrimental impact in the sense of affording fewer competitive opportunities to the
Canadian and Norwegian seal products. The EU Seal Regime accords the same competitive
opportunities to all seal products falling under the same category, on the basis of the
purpose behind the hunt (the regulatory distinction).
67. Even if the Panel were to agree with Canada that the EU Seal Regime, through the MRM
exception, modifies the conditions of competition to the detriment of Canadian imports,
the European Union submits that such detrimental impact would not reflect discrimination
because it would stem exclusively from the legitimate regulatory distinction embedded in
the EU Seal Regime. The MRM exception reflects the EU legislators' assessment that hunts
conducted exclusively for management purposes do not raise moral concerns, because the
benefits to humans and other animals which are part of the same ecosystem, outweigh the
risk of suffering being inflicted upon the relatively small number of seals concerned.
Moreover, the prohibition of the marketing of products from the hunts covered by the MRM
exception would not contribute to reduce the suffering of seals, because those hunts would
take place in any event, as they are conducted exclusively for management purposes and
not for commercial reasons.
68. The "regulatory distinction" made by the EU Seal Regime is also "legitimate" because it is
designed and applied in an even-handed manner. Moreover, it contains elements which
ensure the non-commercial purpose behind the hunt in question: the by-products of those
seal hunts are placed on the market in a non-systematic way; the by-products of those
seal hunts are placed on the market 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; and finally, Article 3.2 of the Basic Regulation further provides
that the application of this exception "shall not undermine the achievement of the
objective of this Regulation". All these conditions ensure that only seal products from
genuinely hunts for management purposes qualify for the MRM exception, avoiding
potential circumvention of the General Ban.
3.3. ARTICLE 2.2 OF THE TBT AGREEMENT
69. Should the Panel find that the measure at issue falls within the scope of application of the
TBT Agreement, the European Union submits, in the alternative, that the measure in
dispute is fully consistent with Article 2.2 of the TBT Agreement. More specifically, the
European Union has shown that the measure at issue has neither the purpose nor the
effect of creating "unnecessary obstacles to trade", given that: it pursues a legitimate
objective; and it is not more trade-restrictive than necessary in order to fulfil that
objective.
70. The European Union has shown that the policy objective that it pursues is a legitimate
objective for the purposes of Article 2.2 TBT. Unlike Article XX GATT, Article 2.2 TBT does
not mention explicitly the protection of public morals as a legitimate objective. But the list
of legitimate objectives in Article 2.2 TBT is not exhaustive. Moreover, the Appellate Body
has indicated that the objectives recognised under other covered agreements may provide
guidance for the purposes of the Article 2.2 TBT. The objectives cited in Article XX GATT
are particularly relevant given that, as stated expressly in its preamble, the
TBT Agreement seeks to "further the objectives of the GATT." The justifications provided
by Article XX of the GATT 1994 and Article 2.2 of the TBT Agreement should be read
harmoniously. Besides, the complaining parties agree that the protection of animal welfare
is a "legitimate objective" for the purposes of Article 2.2 TBT, which is "related" to the
protection of animal life or health, one of th e objectives expressly mentioned in Article 2.2
TBT, as well as in Article XX(b) of the GATT.
71. With regard to the trade-restrictiveness of th e measure, it is beyond question that the EU
Seals Regime restricts trade to the extent that the General Ban provides for a prohibition,
as a general rule, on the placing on the EU market of all seal products, whether domestic
or imported. Indeed, the General Ban ai ms at being very trade-restrictive, consistently
with the high level of fulfilment of the EU Seal Regime's policy objective that was sought
by the EU Seal Regime. Unlike the General Ban, the three exceptions to that prohibition
are not trade-restrictive. To the contrary, they allow trade which would otherwise be
prohibited by the General Ban. The three exceptions could only be regarded as being
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trade-restrictive if they discriminated in favour of domestic seal products or between
different sources of imports. But neither the IC nor the MRM exceptions are discriminatory.
Since the exceptions are not trade-restrictive, they do not require justification under
Article 2.2 TBT.
3.3.1. The EU Seal Regime makes a substantial contribution to its objective
72. Through the General Ban the EU Seal Regime makes a very substantial contribution to its
policy objectives. The EU Seal Regime pursues two closely related objectives: In the first
place, the General 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. Furthermore, by limiting
the global demand for seal products, the General 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.
73. "Animal welfare" and "public moral concerns on animal welfare", albeit different objectives,
are closely connected. More specifically, the public moral concerns on seal welfare fall
within two related, but distinguishable categories. First, EU citizens are morally concerned,
as an absolute measure of right and wrong, about the incidence of inhumane killing of
seals as such. Second, they are morally concerned about their own, and the wider EU
public’s, agency in the context of violations of their standards of right and wrong, i.e.,
their individual and collective participation as consumers in, and exposure to, the
economic activity which sustains the market for commercially-hunted seal products.
74. The General Ban makes a material, but necessarily partial, contribution to addressing the
animal welfare concerns by reducing global demand for seal products resulting from
commercial hunts, with the consequence that less seals are killed in an inhumane way.
Contrary to the Complainants' allegations, the three exceptions to the General Ban do not
nullify the contribution of the EU Seal Regime to the welfare of seals. The MRM exception
is subject to strict conditions. Its scope is very limited and the trade potentially concerned
very small. Moreover, prohibiting the placing on the market of products within the scope of
the MRM exception would not prevent the killing of the seals concerned, which are hunted
exclusively for management purposes, and could be counterproductive from an animal
welfare point of view. With regard to the IC exception, it does not seek to promote exports
from Greenland, but 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. In order to address in full the animal
welfare concerns it would be necessary to put an end to the commercial seal hunts, given
that humane killing methods cannot be applied on a consistent basis. This solution,
however, is beyond the powers of the European Union.
75. On the other hand, the General Ban addresses successfully the second type of moral
concerns of the EU population in two different ways: First, by prohibiting the marketing of
seal products resulting from commercial hunts on the EU market, the General Ban seeks to
reduce global demand for those products and, consequently, the number of seals which
are not killed in a humane way in the commercial hunts. This improves the welfare of seals
and, at the same time, addresses the public moral concerns with regard to the act of
killing seals as such. Second, by prohibiting the marketing of seals, the EU Seal Regime
addresses the moral concerns with regard to certain acts performed within the EU territory
which are morally reprehensible in themselves: selling seal products from commercial
hunts, because it involves an act of commercial exploitation of an immoral act (the killing
of seals in an inhumane way); and purchasing those seal products, because it promotes
such immoral killings. Furthermore, by prohib iting the marketing of seal products from
commercial hunts in the EU market, the EU Seal Regime also addresses the broader
concern of the EU population not to render itself accomplice collectively to an immoral act
by tolerating the marketing of seal products within the European Union, while shielding the
EU public from being confronted with the products resulting from such immoral act.
76. The contribution of the EU Seal Regime to its public moral objective is very substantial,
notwithstanding the exclusion of exports and transit from the scope of the General Ban.
Banning exports of seal products or the entry of goods in transit would indeed have made
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a greater contribution to the public morals objective pursued by the European Union.
However, the EU acceded to exclude transit and inward processing from the scope of the
ban for reasons of comity. In any case, the ex clusion of those activities does not prevent
the EU Seal Regime from being justified under Article 2.2 of the TBT Agreement or
Article XX of the GATT. The 'all or nothing' approach advocated by the Complainants on
the grounds of 'consistency' or 'coherence' has no basis in the WTO Agreement. A Member
may choose to pursue each of its policy objectives to a limited extent only, so as to take
into account other policy objectives. Besides, a measure excluding also exports and transit
would have been more trade-restrictive, and prima facie inconsistent with Articles XI and V
of the GATT.
3.3.2. The alternative measures identified by the Complainants would fail to make
an equivalent contribution to the objective of the EU Seal Regime
77. Both Canada and Norway identified as a le ss restrictive alternative measure a regime that
would condition market access on compliance with animal welfare standards combined
with a labelling requirement. In addition, Norway identified two other alternative
measures: the removal of the three sets of re quirements comprising the EU Seal Regime;
and the removal from the MRM exception of th e requirements that the product be placed
on the market in a non-systematic way and on a non-profit basis.
78. With regard to the first alternative measure, this is essentially the same measure which
had been proposed by the European Commission during the legislative process. However,
the EU legislators rejected the derogation proposed by the European Commission because,
in their view , it failed to provide a sufficiently high level of fulfilment of the objective
pursued by the EU Seal Regime . The EU legislators concluded that, although it could be
possible, in theory, to prescribe a humane method for killing seals, in practice the unique
conditions in which commercial seal hunting takes place would render it impossible to
apply and enforce such method in an effective and consistent manner . Contrary to what
the Complainants appear to consider, there is no rule in the TBT Agreement or elsewhere
in the WTO Agreement which would require a Member to tolerate certain risk merely
because it is unavoidable. Where the unavoidable risks of an activity are excessive in light
of a Member's chosen level of protection, as in the case of commercial seal hunting, a
Member is entitled to ban the products result ing from such activity. According to the EU
legislators' assessment, the unavoidable risks to the welfare of seals that are inherent in
commercial seal hunting are excessive and morally unacceptable. Thus, the General Ban of
those products is necessary in order to achieve the high level of protection that the EU
Seal Regime is seeking to achieve.
79. According to the moral judgement made by the EU legislators, the inherent risks that seals
could experience excessive suffering were too high and could not be tolerated having
regard to the objective pursued by the measure. While the selection of a level of
protection of public morals must certainly take into account relevant scientific evidence, it
is not a scientific judgement. It is a policy decision involving a moral judgement which, in
the present case, was the exclusive prerog ative of the EU legislators. The moral
judgement made by the EU legislators finds adequate support on qualified scientific
opinions. Moreover, the Panel should not choose one among the various expert opinions
available or substitute its own scientific judgem ent. Rather, the Panel's task is limited to
examine whether, in so far as the policy choices reflected in the EU Seal Regime purport to
be based on science, such choices find adequate support from qualified scientific opinions,
irrespective of whether they represent the majority view.
80. Canada's and Norway's proposed alternative measure would fail to make an equivalent
contribution to the objective pursued by the EU Seal Regime. Indeed, the proposed
alternative presupposes that it is feasible to apply and enforce effectively and consistently
a humane killing method. Yet, according to qualified scientific opinions, it is not possible to
do so in practice . As a result, the proposed alternative would allow the placing on the
market of seal products obtained from seals hunted for commercial purposes which may
have been killed in a manner that causes them excessive suffering. In contrast, the
General Ban prevents that result by prohibiting the placing on the market of any seal
products, except when duly justified on moral grounds under one of the exceptions.
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81. The complaining parties contend that it is perfectly feasible to prescribe animal welfare
requirements for hunting seals. But the relevant issue is not whether it is feasible to
prescribe just any kind of welfare requirements. Instead, the complaining parties are
required to prove that it is feasible to prescribe genuinely humane killing methods which,
in practice, can be applied and enforced effectively and consistently , so as to achieve the
level of protection selected by the EU legislators.
82. What is more, Canada and Norway do not specify what welfare requirements should be
prescribed as part of their proposed alternative measure, perhaps because they cannot
agree even among themselves. Instead, each of them refers to different sets of criteria
and recommendations contained in the reports issued by various groups of veterinary
experts.
83. Article 2.2 of the TBT does not impose a requirement of "consistency". Members are free
to set different policy objectives and to select different levels of protection in respect of
different products or, as in this case, in respect of different species of animals. The
examination of measures applied to other species of animals could be relevant only in so
far as such measures concerned sufficiently similar situations and then only as a mere
"indication" of the availability of alternative measures.
4 The measures applied by the
European Union to other species and cited by the complainants are of little relevance as
examples of available alternative measures because there are major differences between
the situations concerned. At any rate, Members are entitled not only to select different
levels of protection with regard to different species of animals, but also to legitimately take
into account, in choosing the appropriate level of protection, together with the risk that
individual animals may experience suffering, other pertinent moral considerations. Such
moral considerations may relate, for example, to whether the animals concerned are wild
or have been reared in farms for the purpose of being slaughtered, or the purpose for
which animals are killed, or the use given to the products obtained from the killed animals.
84. The examples of certification and labelling systems mentioned by the Complainants lack
pertinence. Some of them are not even primarily concerned with animal welfare (e.g. Krav
and Label Rouge). Furthermore, in each case, the animals concerned are different, the
environment is different, the killing methods ar e different and, consequently, the risks to
animal welfare are also very different. Moreover, it appears that the various schemes
mentioned by the Complainants are based on the assumption that the underlying animal
welfare requirements can be applied on a consistent basis. However, in the case of
commercial seal hunting such humane killing methods cannot be applied effectively and
consistently. Since it would not be possible to certify a priori that all products originating in
a given country or region or hunted by a certain person will comply with the requirements
of such methods, it would be necessary to certify that each and every individual seal from
which the marketed products are obtained has been hunted humanely. The effective
monitoring and enforcement of such compliance, and thus the practical viability of such
"seal-by-seal" certification system, is very questionable, and would fail to make an
equivalent contribution to the objective pursued by the EU Seal Regime.
85. It should be pointed out that the practical difficulties faced by an inspector in fully
monitoring the implementation by sealers of the sealing regulations are unique and have
no equivalent in slaughterhouses. Slaughte rhouses provide a controlled, predictable and
safe environment, where both the effective implementation of the prescribed killing
methods and adequate monitoring and enforcement is possible and common in practice.
86. With regard to the second alternative measure (removing the "three sets of
requirements"), this measure amounts to repealing the EU Seal Regime and allowing the
placing on the market of seal products without any restriction. While this alternative
measure is certainly less trade-restrictive, it makes no contribution to the objective
pursued by the EU Seal Regime.
87. With regard to the third alternative measure (removal from the MRM exception of the
requirements that the product be placed on the market "in a non-systematic way" and "on

4 Cf. Appellate Body Report, Korea – Various Measures on Beef, paras. 170 and 172.
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a non-profit basis"), Norway has explained that this alternative relates only to the MRM
exception. However, since that exception is not trade-restrictive, it does not require
justification under Article 2.2 TBT. Moreover , contrary to Norway's assumption, the MRM
exception does not seek to promote the sustainable management of marine resources.
Therefore, this alternative measure would not contribute to the objective of the EU Seal
Regime. At the same time, by removing from the MRM exception the requirements that
the product be placed on the market "in a non-systematic way" and "on a non-profit
basis", this alternative measure would enlarge considerably the scope of application of that
exception, thereby undermining the objective of the EU Seal Regime.
3.4. ARTICLES 5.1.2 AND 5.2.1 OF THE TBT AGREEMENT
88. The provisions of the Implementing Regula tion, which Canada and Norway challenge with
their claims under Articles 5.12 and 5.2.1 of the TBT Agreement, set out procedures to
determine whether the conditions of the IC and MRM exception are met. The European
Union has submitted that its Seals regime, including the exceptions in question, is not a
technical regulation within the meaning of Annex 1 of the TBT Agreement, and thus, the
procedural provisions under the Implementing Regulation, which merely concern the
operation of the exceptions do not constitute "conformity assessment procedures" within
the meaning of Annex 1.3 of the TBT Agreement. Nevertheless, should the Panel find that
the measures at issue do constitute conformity assessment procedures within the meaning
of the TBT Agreement, the European Union submits, in the alternative, that the
mechanism for assessing compliance with the Indigenous Communities and Marine
Resources Management exceptions laid down in the Implementing Regulation is fully
consistent with Article 5.1.2 and 5.2.1 of the TBT Agreement.
3.4.1. Article 5.1.2
89. The procedure put in place by the Implemen ting Regulation cannot be claimed to have
been prepared, adopted or applied with a view to or with the effect of creating
unnecessary obstacles to international trade. The procedure established under the
Implementing Regulation is not a goal in itself. As reflected in the preamble of the
Implementing Regulation, it serves the purp ose of providing adequate assurance to the
European Union, its Member States and citizens that the only seal products placed on the
market in the European Union are those that comply with the exceptions established under
the seals regime.
90. The European Union submits that its Implementing Regulation does not violate
Article 5.1.2; on the opposite, it falls within the scope of regulatory autonomy that the
TBT Agreement permits. The procedure that the Implementing Regulation introduced takes
into account the particularities that the certification of conformity with the Indigenous
Communities and Marine Resources Management exceptions entails. The TBT Agreement
not only allows such a regime, but indeed encourages a number of the features that the
Implementing Regulation adopts.
91. Both complaining parties seem to direct their claim under Article 5.1.2 against the fact
that the Implementing Regulation establishes a third party conformity assessment
mechanism, whereby the conformity assessmen t bodies need to be recognised by the
European Commission before they can issue certificates of conformity.
 However, while
acknowledging the need to show that a less trade-restrictive alternative is reasonably
available to make a prima facie case under Article 5.1.2. Canada's submission that a
supplier declaration would have constituted a less trade-restrictive measure fails to ensure
adequate confidence that products conform wi th the applicable regulation, while taking
into account the risks of non-conformity. Norway also fell short of making a prima facie
case for its alternative of designating a "d efault" recognised body, as it failed to
demonstrate why the proposed alternative would be equally effective in determining the
product's conformity with the regulation co ncerned, and less trade restrictive than the
conformity assessment procedure at issue.
92. Canada and Norway do not challenge the sp ecific requirements that a recognised body
needs to meet pursuant to Article 6(1)(a)-(h) of the Implementing Regulation in order to
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be included on the list of recognised bodies. Moreover, an entity applying for designation
from the European Commission is not subject to any substantive or procedural
requirement in addition to those set out in Article 6(1)(a)-(h) of the Implementing
Regulation in order to be included on the list.
93. The requirement to be included on the "lis t of recognised bodies" before a conformity
assessment body can issue certificates of conformity serves to ensure transparency as to
which conformity assessment bodies obtained recognition/designation from the European
Commission. Designation is the validation that a certification body has the infrastructure,
competencies and controls necessary to properly assess conformity and there is
verification that a certification body does indeed comply with its own processes. As such
the requirement to be included on the "list of recognised bodies" certainly does not pose
an obstacle, but rather facilitates international trade by providing an accessible
authoritative reference to all market operators. In the absence of these requirements for
recognition and in the absence of a list that confirms it, the capability and credibility of
certifying entities would be doubtful. The re quirement that only recognised bodies, which
meet the prerequisites for designation, may issue attesting documents is therefore
necessary to give the European Union and its Member States the adequate confidence that
the seal products imported under one of the exceptions to the Seals regime satisfy the
requirements of such exception.
94. A key feature of the procedure under the Implementing Regulation is that it makes
recognition available to public and private entities from both within and outside the
territory of the European Union. Article 8 of the TBT Agreement, which constitutes relevant
context for the interpretation of Article 5, makes it clear that WTO Members may confer
conformity assessment procedures to non-governmental (i.e. private) bodies, provided
that they take with respect to such bodies "such reasonable measures as may be available
to them" to ensure that these non-governmental bodies comply with the obligations under
Articles 5 and 6 of the TBT Agreement.
95. In the view of the European Union there is no basis in the text Article 5.1.2 of the
TBT Agreement to argue that WTO Members should not allow government and non-
governmental bodies from other WTO Members to apply for designation and subsequently
act as recognised conformity assessment bodies. To interpret Article 5.1.2 in such manner
would go against the ordinary rules of treaty interpretation, as it would ignore the
obligations that bind WTO Members pursuant to Article 6 of the TBT Agreement. The
European Union submits that it would not be tenable to interpret Article 5.1.2 in a manner
whereby complying with Articles 6.2 and 6.3 could amount to a violation of Article 5.1.2.
96. The fact that the Implementing Regulation requires an application before conformity
assessment bodies located in the territories of other Members can be recognised as
conformity assessment bodies under Article 6 of the Implementing Regulation does not
alter this conclusion. Without an application procedure it would have been impossible to
verify compliance with the requirements that are in place to ensure the capability and
impartiality of recognised conformity assessment bodies
5. By applying a candidate
conformity assessment body also gives its consent to being subject to a review of
compliance with the criteria during the application process and being audited
subsequently; an agreement which could – especially with respect to entities located in
third countries – not have been simply presumed.
97. Finally, there is no basis in the text of Article 5.1.2 to argue that a WTO Member is
required to designate a "back-up" or "default" public body in all cases where it decides to
put in place a system of designated confor mity assessment bodies. While the European
Union does not exclude the possibility that th e designation of one (or more public bodies)
may be a desirable approach in certain cases, it calls on this Panel to reject a reading of
the TBT Agreement whereby doing so would be a generalised obligation applicable to all
conformity assessment procedures. The Explanat ory note to point 3 of Annex 1 clarifies
that conformity assessment procedures within the meaning of the TBT Agreement, include,
inter alia, "procedures for sampling, testing and inspection; evaluation, verification and

5 Pursuant to the Implementing Regulation the same substantive and procedural requirements apply to
bodies located within and outside the territory of the European Union.
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assurance of conformity; registration, accreditation and approval as well as their
combinations" (emphasis added). It follows that the necessity of any system for
accreditation/designation of certifying bodies put in place by a WTO Member must also be
assessed based on its own merits. This interpretation is further supported by subsequent
practice of WTO Members.
98. With regard to Norway's assertion that the designation of a public entity within the EU
would have been less trade restrictive than the system in place under the Implementing
Regulation, the European Union submits that such unsupported allegation is disingenuous.
In a context, like the one at issue, where ce rtification can entail inspections of compliance
with the requirements of the IC or MRM exceptions at the place of origin of the product,
the designation of a default public authority in the European Union could be a less efficient
and considerable costlier certification mechanism, and thus could have greater trade
distortive effect than the system that the European Union put in place through the
Implementing Regulation. The raise in costs for certain operators by such alternative is
also indicated by Article 5.2.5 of the TBT Agreement, according to which conformity
assessment authorities are entitled to charge for "communication, transportation and
other costs arising from differences between loca tion of facilities of the applicant and the
conformity assessment body". Given these considerations, what Norway describes as an
"institutional lacuna" is rather a mechanism to try and 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.
3.4.2. Article 5.2.1
99. With regard to the claims against the Implementing Regulation as such, the EU notes that
Article 5.2.1 requires Members to ensure that conformity assessment procedures,
including the stage of accreditation/designation of conformity, are undertaken and
completed as quickly as possible. The phrase "undertake and complete" covers all stages
of the conformity assessment procedure an d has been interpreted by the panel in EC –
Approval and Marketing of Biotech Products as meaning that, once an application has been
received, procedures must be started and then carried out from beginning to end. Like
Annex C.1(a) of the SPS—the jurisprudence on which is relevant in interpreting the
obligation under Article 5.2.1 of the TBT Agreement—Article 5.2.1 is a good faith obligation
requiring Members to proceed with their conformity assessment procedures as promptly as
possible.
100. As explained in the context of the Article 5.1.2 claim, the European Union acted in good
faith when it adopted the Implementing regu lation and put in place all the necessary
elements to ensure that conformity assessment procedures pursuant to the Regulation can
be conducted in accordance with the TBT Agreement disciplines (notably, Articles 5, 6, 7, 8
thereof). While unfortunate, the relatively low interest by public authorities from other
WTO Members (including by the authorities in Canada and Norway) and the absence of
interest in obtaining accreditation by private entities operating on the market cannot be
attributed to the European Union.
 As Canada and Norway acknowledge, some entities have
taken the decision not to submit a request. It seems clear that the reason why more
requests had not been submitted is 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.
101. With regard to Canada's "as applied" claim under Article 5.2.1, the European Union
submits that such a claim falls outside the Panel's terms of reference and should be
rejected on those grounds. In the alternativ e, the European Union submits that the delay
in processing Greenland's application can in any event not be considered as a violation of
Article 5.2.1 imputable to the European Unio n, because the alleged delay is due to a
deficiency in the application. As the panel in EC – Approval and Marketing of Biotech
Products noted, "delays attributable to action, or inaction, of an applicant must not be held
against a Member maintaining the approval procedure".
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4. THE GATT
4.1. ARTICLE XI:1 OF THE GATT 1994
102. The European Union disagrees with the qualif ication by Canada and Norway of the EU Seal
Regime as falling under Article XI:1 of the GATT 1994. A measure does not automatically
fall under the scope of Article XI:1 just because it is enforced at the border. The relevant
WTO case-law, on the basis of the Ad Note to Article III of the GATT 1994, has clarified
that, when a measure of the kind referred in Article III:1 of the GATT 1994 applies to an
imported product and the like domestic product and is collected or enforced in the case of
the imported product at the time or point of importation, such a measure falls under the
scope of Article III of the GATT. Consequently, in cases where a measure amounts to an
internal regulation affecting both domestic and imported product, the mere fact that the
measure is enforced at the border does not make it fall within the scope of Article XI of the
GATT 1994. Rather, by virtue of the Ad Note to Article III of the GATT 1994, such measure
should be examined under the prism of Article III of the GATT 1994.
103. The European Union submits that the EU Seal Regime does not fall under Article XI of the
GATT 1994 because it is not a border measure (in the sense of affecting the importation of
products). Rather, the EU Seal Regime should properly be characterised as an internal
measure (affecting both domestic and imported products), and thus be examined under
Articles I:I and III:4 and not Article XI of the GATT 1994.
104. Indeed, as stated in Article 1 of the Basic Regulation, the EU Seal Regime concerns "the
placing on the market of seal products". Arti cle 3.1 of the Basic Regulation further states
that the conditions for placing on the EU market "shall apply at the time or point of import
for imported products". As explained in Recital (10) of the Basic Regulation, this is made
"in order to ensure effective enforcement" with respect to imported products. Thus, it is
clear that the EU Seal Regime applies indistinctly to both domestic and imported products
and that it concerns the placing on the market of seal products (i.e., as a regulatory
internal measure as opposed to a border measure). What is more, the three exceptions it
provides for are not trade restrictive and, therefore, cannot amount to import restrictions
under Article XI of the GATT 1994. Furthermore, the EU Seal Regime permits the further
processing of seal products by operators in the EU market. Thus, it does not operate
"effectively" as a border measure. In any event, were the Panel nevertheless to find that
Article XI of the GATT 1994 is applicable in this case, the European Union has showed that
the EU Seal Regime is justified under the General Exceptions of Article XX of the
GATT 1994.
4.2. ARTICLES III:4 and I:1 OF THE GATT 1994
105. The European Union has demonstrated that Canada's and Norway's claims under
Article III:4 of the GATT 1994 are without merit. In essence, the European Union considers
that the same legal standard with respect to the national treatment obligation under
Article 2.1 of the TBT Agreement equally applies to claims under Article III:4 of the
GATT 1994. Indeed, in US – Clove Cigarettes , the Appellate Body examined Article 2.1 of
the TBT Agreement "in context" with Article III:4 of the GATT 1994. Thus, all the
considerations made by the European Union with respect to Canada's claim under
Article 2.1 of the TBT Agreement apply mutatis mutandis to Canada's and Norway's claims
under Articles I:1 and III:4 of the GATT 1994. In any event, the European Union
addressed the specific arguments raised by Canada and Norway with respect to this claim.
106. To begin with, the first element that need s to be examined under Article III:4 of the
GATT 1994 is whether the EU Seal Regime is a law, regulation or requirement affecting the
internal sale, offering for sale, purchase, transportation, distribution or use of seal
products. The European Union does not dispute that the EU Seal Regime amounts to a
"law" "affecting the internal sa le" of seal products within the EU. Second, like in the
context of Article 2.1 of the TBT Agreement, when examining the Complaining Parties'
claim under Article III:4 of the GATT 1994, the Panel is called upon to determine the group
of domestic products that are "like" the group of products imported from the complaining
Members. For the same reasons as those mentioned before, the European Union considers
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that the relevant group of products with respect to the Complaining Parties' claim under
Article III:4 of the GATT 1994 includes those seal products conforming and non-
conforming with the EU Seal Regime.
107. The European Union submits that, for the sa me reasons as those mentioned in the context
of Canada's claim under Article 2.1 of the TBT Agreement, the EU Seal Regime, through
the MRM exception, does not provide for le ss favourable treatment to the group of
imported products. In addition, the European Union has addressed the following specific
arguments made by the Parties in the context of their claim under Article III:4 of the
GATT 1994. First, the EU has rebutted Canada's claim that EU domestic seal products will
benefit greatly from the Marine Management category, while Canadian seal products will
not. The EU has showed that this is not the case. Any country in the world carrying out the
type of hunts described in the MRM exception could fall under such exception. Second, the
European Union has pointed that the fact that Canadian products may not fall under the
MRM exception does not imply that there is de facto discrimination. The fact that Canada
does not follow an ecosystem approach, whereas other countries do, does not make such
a condition discriminatory. Those conditions do not mean to de facto discriminate between
imported and domestic like products, but rather to state the situation where the placing of
seal products on the EU market is morally acceptable. Third, contrary to Norway's
allegations, the EU has showed that the conditions under the MRM exception target distinct
elements which not only look into controlling seal population to limit the damage to the
ecosystem, but also other elements in line with what is morally acceptable in those
situations (e.g., not to obtain profit out of killing a seal, and limit the number and intensity
of the killing). Fourth, the EU has argued that the fact that Norway does not meet the
conditions of "non-systematic way" and "non-profit basis" does not imply that the measure
is de facto discriminatory. Any country in the world, including Norway, could meet all the
conditions set out in the MRM exception.
108. Similarly to the analysis under Article III: 4 of the GATT 1994, the European Union submits
that the Panel should dismiss these claims. In essence, the European Union considers that
the same legal standard with respect to the MFN obligation under Article 2.1 of the
TBT Agreement equally applies to claims under Article I:1 of the GATT 1994. Like the test
of Article III:4 of the GATT 1994, the test of Article I is about discrimination, not about
deregulation. Thus, for the same reasons as those mentioned above, the European Union
considers that there is no de jure or de facto discrimination between the group of imported
products and the group of like products from other origin (in particular Greenland). In any
event, the European Union has also addressed the specific arguments raised by Canada
and Norway in the context of this claim.
109. More specifically, the EU has showed that, contrary to Canada's claims, the advantage
conferred upon by the IC exception does not grant market access to "products originating
in Greenland". It does grant market access to products that meet certain origin-neutral
conditions in connection to the type and purpose of the hunt, which is considered as
morally acceptable in the European Union, including products resulting from hunts
conducted by Inuit and other indigenous communities for the purpose of their subsistence
in Canada and Norway. Thus, the advantage included in the Inuit exception has been
extended, in the European Union's view, "immediately and unconditionally" to Canada and
Norway.
110. Moreover, the EU has noted that, unlike Norw ay's contentions, the Basic Regulation does
not contain a "closed list" of countries where seal hunting by Inuit or other indigenous
communities may take place, but clearly an illustrative list. Besides, the EU has observed
that like Canada, Norway provides government support to its commercial seal hunting.
Further, no public or private entity in Norw ay has requested to become a recognised body
either. Again, this is a matter of choi ce and judgement by Norway, despite the
uncontested fact that Norway has seal hunts potentially falling under the IC exception.
Norway’s actions (omissions) and choices are, therefore, relevant in the examination of
whether the EU Seal Regime, through the IC exception, modifies the conditions of
competition to the detriment of Norway's imports (which is not the case, as the European
Union pleads).
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4.3. ARTICLES XX(a) and XX(b) OF THE GATT 1994
111. Should the Panel find that the EU Seal Regime is inconsistent with any of the provisions of
the GATT invoked by the complainants, the European Union submits, in the alternative,
that any such inconsistency would be justified under Article XX(a) of the GATT. More
specifically, in accordance with the "weigh ing and balancing" test developed by the
Appellate Body for assessing the "necessity " of a measure, the European Union has
showed that the EU Seals Regime is "necessary" to achieve the policy objective of
protecting the public morals of the EU citizens. This objective has been recognized by the
panel in China-Publications and AV products as ranking among the most important values
or interests pursued by members as a matter of public policy. Although the EU Seals
Regime is indeed very trade-restrictive (consistently with the high level of fulfilment of the
policy objective sought by the EU legislator), it makes a material contribution to its
objective, while none of the alternatives proposed by the Complaining Parties would make
an equivalent contribution to protecting public morals at the high level that the EU has
chosen to protect them. Last, the EU Seals Regime also complies with the chapeau of
Article XX of the GATT 1994, because it is not applied in a manner that constitutes
"arbitrary or unjustifiable discrimination between countries where the same conditions
prevail".
112. As regards Article XX(b), the European Union has shown that, even if the Panel were to
decide that the EU Seal Regime does not seek to address the moral concerns of the EU
public, but exclusively the concerns on seal welfare as such, the General Ban would be
necessary in order to achieve the latter objective. Prohibiting the placing on the market of
products falling within the IC exception an d the MRM exception would not be necessary
because those products result from hunts which take place under different conditions.
Moreover, prohibiting the placing on the market of products within the scope of the MRM
exception would not prevent the killing of the seals concerned, which are hunted
exclusively for management purposes, and could be counterproductive from an animal
welfare point of view.
4.4. ARTICLE XIII(b) OF THE GATT 1994
113. The European Union submits that the complaining parties have failed to establish that the
tariff benefits cited by them have been nullified or impaired as a result of the application of
the EU Seal Regime. First, the complaining parties have not shown that the EC Seal
Regime upsets the competitive relationship between the seal products of the complainants'
origin covered by the relevant tariff concessions and other products of domestic origin,
because, as shown in the response to the complaining parties' claims under Articles I:1
and III:4, the EU Seal Regime does not discriminate, either de jure or de facto, between
domestic and imported like products.
114. Second, the complaining parties have not shown that the measure in dispute could not
have been reasonably anticipated by them. Among others, Canada adopted in 1964 the
first Seal Protection Regulations, which prohibited the skinning of live animals, in response
to growing public moral concerns. Moreover, public pressure led to the adoption of various
r e s t r i c t i o n s o n t r a d e i n s e a l p r o d u c t s b y several countries (among others, France, the
Netherlands, Italy, the United Kingdom, and Germany) during the 1970s and early 1980s.
Furthermore, in 1986 the Canadian Royal Commission on Seals and Sealing issued a very
comprehensive report which examined inter alia the public moral concerns about sealing in
view of what the Royal Commission termed the "Campaign against sealing" and the 1983
EC ban. In response to that report the Canadian government banned the killing of
whitecoats and bluebacks in 1987. Given the longstanding public moral concerns with
regard to the killing of seals, including in both Canada and Norway, the complaining
parties cannot pretend now that they could not have reasonably anticipated the measure
at issue. The governments of Canada and Norway could not have ignored those public
moral concerns at the time when the relevant concessions were negotiated. Nor could
those governments have ignored that the most obvious way to address such public moral
concerns was by restricting or prohibiting the marketing of seal products, a measure which
had been strongly advocated by some experts and animal rights activists since the 1960s.
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115. In sum, the European Union has shown that the complaining parties have failed to meet
their burden of proof under GATT Article XXIII(b). Accordingly, the European Union
requests the Panel to reject this claim.
5. THE AGREEMENT ON AGRICULTURE
116. Article 4.2 of the AoA deals with border measures. As explained above, the EU Seal
Regime is not a border measure but an internal regulatory measure applied to both
domestic and imported seal products. Thus, Article 4.2 of the AoA does not apply to the EU
Seal Regime. In addition, the European Union observes that Footnote 1 of the AoA
excludes from the scope of "measures of th e kind which have been required to be
converted into ordinary customs duties" "measures maintained under balance-of-payments
provisions or under other general, non-agriculture-specific provisions of GATT 1994 or of
the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement". Since the
EU Seal Regime is a measure "maintained … under other general…provisions of the GATT
[i.e., Articles I, III and XX] or of the other Multilateral Trade Agreements in Annex 1A to
the WTO Agreements [i.e., Articles 2.1 and 2.2 of the TBT Agreement]", Article 4.2 of the
Agreement on Agriculture does not apply. Co nsequently, the European Union submits that
Article 4.2 of the AoA is not applicable in the present dispute.

WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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ANNEX C
ARGUMENTS OF 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/Add.1 • WT/DS401/R/Add.1

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ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF COLOMBIA
1. Mr. Chairman, Members of the Panel, Parties to the dispute and Third Parties, on behalf of
the Government of Colombia, I appreciate the opportunity that the Panel gives us to express our
views.
2. While not taking a final position about the specific merits of this case, Colombia will provide
its views on some of the legal claims advanced by the Parties to the dispute. In particular,
Colombia will make submissions with respect to the following issues presented by the
complainants, Canada and Norway, and the respondent, the European Union in its first written
submission:
1. The identification of the policy objectives of the measures at issue;
2. Whether TBT Article 2.2 has been breached when there are several policy
objectives at issue.
3. Moving on to the first issue , Colombia observes that the present case poses a difficult
challenge to the Panel when analyzing the policy objective pursued by the EU when implementing
Regulation EC No. 1007/2009 and Regulation EC No. 737/2010, jointly referred to as the "EU Seals
Regime".
4. Apart from the obvious disagreement betw een the EU and the complainants of the
objectives actually pursued by the EU Seal Regime, its desi gn, structure and architecture makes it
a difficult task for any impartial observer to assess the policy concerns the EU had in mind when
enacting such a measure and, in particular, how the different concerns interact.
5. Colombia recognizes that the protection of animal welfare, the protection of indigenous
communities and the protection of marine resources conservation, among others, are objectives
that every Member should be allowed to pursue by means of a technical regulation.
6. However, Members must be careful when do ing so, particularly when trying to address
multiple policy concerns in a technical regulation. This may in some cases lead to situations where
the manner by which the policy objectives are implemented may create a conflict between them.
7. In Colombia’s view, this is precisely the case: the EU has drafted the EU Seals Regime in a
way where pursuing some objectives materially undermines others. This conflict between the
policy objectives raises several doubts about the consistency of the EU Seals Regime with the TBT.
8. Colombia will not enter into the debate of how many policy objectives are pursued by the EU
when enacting the measure at issue. In Colombia’s view, the important legal issue in this matter is
not determining the number of different policy object ives pursued but the relationship that exists
between them.
9. In the present case, Colombia considers that the way in which the EU Seal Regime is drafted
causes a potential conflict between, on the one hand , the objective of ensuring animal welfare and
on the other hand, the protection of the fundamen tal economic and social interests of indigenous
communities and the encouragement of the sustainable management of marine resources.
10. As stated by the EU, the quintessential motivation behind the EU Seal Regime is addressing
the moral concerns raised by the "excessive pain, distress, fear or other forms of suffering"1. Thus,
although it would not be appropriate to establis h a hierarchy among the several policy objectives,
it is possible to state that this objective is the most important of all and that it should permeate

 Colombia requested that its oral statement serve as the integrated executive summary.
1 EU's FWS, para. 33.
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the entire EU Seal Regime in a manner that it en sured that each and every part of the measure,
including its exceptions, directly contribute to the achievement of this end or at least do not
undermine it.
11. However, the way the EU drafted the measure, in particular, the indigenous communities
and marine resources management exceptions, goes directly against the objective of protecting
the welfare of seals. Both exceptions are designed in a way that allow the access of seal products
into the EU market without any consideration whatsoever as to the welfare of seals.
12. In Colombia’s view, the above mentioned exceptions bear no connection with the moral
impact that hunting seals in a manner that does not take into account their welfare has on
consumers. It does not seem possible to argue that consumers would be more willing to accept
such types of cruel practices for the sake of the conservation of marine resources conservation or
for taking into account the interests of indigenous communities. If a seal is drowned or killed in
any manner that causes excessive suffering, Colombia believes that the fact that this was done by
hunters belonging to the Inuit community or as a part of a marine resources conservation plan
does not make the practice any less morally reprehensible.
13. Colombia recognizes that, in general, these types of contradictions or conflicts between
opposing policy objectives may arise in several situations.
14. However, it is difficult to understand the double moral standard that the EU is introducing by
means of the exceptions. As way of example. and recognizing that there are important differences,
what the EU is suggesting would imply that in cases such as EC-Asbestos, where a total ban on the
importation on some products was enacted due to concerns of negative effects to the welfare of
human beings, it would be possible to allow the entr ance of some of the banned products in order
to fulfill other objectives, irrespectively of the negative impact on the protection of human health.
15. Although it is difficult to assess such hypothetical situation without understanding the exact
nature of the other policy objectives that would justify undermining such an important objective as
the protection of human health –in this cases the protection of seal’s welfare- what Colombia is
trying to highlight is that 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 completely
pierce and undermine the principal policy objective.
16. It does not seem logical to enact a ban on asbestos-containing products, due to its
carcinogenic effects, but at the same time allow the entrance of these products regardless of the
adverse health effects to human beings. In the same manner, it does not seem logical to enact a
ban on seal products to protect them from excessive suffering but allow the entrance of these
products, regardless of whether they were hunted using methods that prevented such excessive
suffering.
17. With regards to the second issue, Colombia will provide its comments on whether there is
a possible breach of TBT Article 2.2. Although it will not perform a complete assessment of this
provision, nor conclude on whether this provision has been actually breached, it will lay out some
concerns that may guide the Panel in assessing this matter.
18. To start with, Colombia notes that there is no fundamental disagreement among the parties
on the legal standard that should be followed in order to assess a breach of this provision. Thus, it
will not make any submissions in this respect.
19. Colombia will focus its comments on the necessity test established in this Article. In
particular, Colombia will comment on the elemen t of the degree of contribution made by the
measure to the legitimate objective at issue.
20. As stated in the first submission of this Oral Statement, the EU Seal Regime was designed in
a way to address several policy objectives that in some cases are conflictive with each other
because of the manner in which they were addressed. In particular, the conflict arises with regards
to, on one hand, assurance of animal welfare and, on the other hand, the protection of the
fundamental economic and social interests of in digenous communities and the encouragement of
the sustainable management of marine resources.
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21. Since the main objective of the EU Seal Regime is to ensure animal welfare, Colombia
believes the Panel should focus its analysis mainly on the contribution of the measure to this policy
objective, but also taking into account the other objectives pursued.
22. Colombia agrees with Norway and Canada that the indigenous communities and marine
resources management exceptions are rationally disconnected
2 from the main objective of the EU
Seal Regime: it is clear that these exceptions undermine, or "run counter" 3 the "overreaching
objective"4 of the measure since they allow the access of seal products regardless of whether they
were hunted in a manner that avoided excessive pain, distress, fear or other forms of suffering.
23. Thus, if the contribution were to be assessed by only taking into account the main objective,
Colombia would be of the view that the rational disconnection mentioned by the complainants
would mean that there is no contribution of the EU Seal Regime to this policy objective.
24. But this would be an incomplete analysis since it only took into account one policy objective
pursued, but neglected to assess whether the measure contributed to the other objectives.
Complainants expressly recognize this fact by making a contribution analysis of four different
policy objectives
5.
25. However, Colombia believes that the question still remains on how to assess a situation
where the measure contributes to some policy objectives but not to others. In addressing this
challenge, Colombia suggests that the Panel should perform a weighing and balancing process of
the different objectives, where the contribution to the most important one should be the guiding
element in deciding whether this element of TBT Article 2.2 is fulfilled.
26. In this case, the undermining of animal welf are by means of the aforementioned exceptions
should be heavily weighted.
27. Mr. Chairman, Distinguished Members of the Pa nel, Parties to the dispute and Third Parties,
on behalf of my Government appreciates this opportunity to express our systemic views with
respect to this case and hopes to contribute to th e legal debate and analysis. With this, I conclude
our Oral Statement.

2 Norway's FWS, para. 678.
3 Ibid, para.677.
4 Ibid.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF ICELAND
1. Sealing has a long tradition in Iceland and the rational utilization of seals is part and parcel
of Iceland's policy of sustainable utilization of all its living marine resources. In view of this,
Iceland’s Written Submission and Oral Statement highlighted the fundamental difference in
justifying trade restrictions by relying on conservation concerns on the one hand, and public
morals concerns on the other. The former allows for a scientific and facts-based assessment
on the merits of the arguments put forward for justifying the measure in question, while the
latter is bound to be based on more subjective and less tangible arguments.

2. Iceland has therefore argued that the "public morals" exception of Article XX(a) should not
be relevant in deciding this case. Iceland has argued that the European Union has not
provided satisfactory evidence for its claim that there exists a public morals concern in this
case and that the EU has sought to rely on an overly broad and elastic interpretation of
Article XX(a).

3. Furthermore, Iceland has argued that even if there was an actual public moral concern
justifying trade restrictions on seal products, the many and broad exceptions contained in
the EU’s Seal Regime means that neither the "necessity test" of Article XX(a) nor the
requirements of the chapeau of Article XX's are met in this case.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
Third Party Submission

1. Justification invoked under Article XX(a) of the GATT 1994

1.1 "Public Morals"

1. Japan would like to raise two points in connection with the justification provided by the EU
as to the protection of "public morals" by the EU Seal Regime.

2. First, although the concept of "public mora ls" may vary from one WTO Member to another,
its nature of a moral norm of conduct shared by a community or nation implies that the
norm is applied internally in a consistent manner. If, as the EU argues, the EU Seal Regime
addresses the moral concerns of the EU public with regard to the presence on the EU market
of seal products arising from the fact that they may have been obtained from animals killed
in an inhumane way, this concern should logically apply to all seal products. Since the EU
Seal Regime provides for broad exceptions in which the prohibition does not apply, it is
questionable whether the Regime can be said to protect "public morals". In Japan's view, it
appears to be contradictory to argue, on the one hand, that it is "morally" unacceptable to
tolerate on the market seal products because they may have been obtained from animals
killed in an inhumane way and, on the other hand, that it is "morally" acceptable that
identical products obtained under certain broadly phrased exceptions are placed on the EU
market. In Japan's view, the concept of "public morals" is a horizontal one and once a moral
norm has been defined, its application must be internally consistent.

3. The EU argues that a distinction should be made between hunts conducted primarily for
commercial purposes and other seal hunts with an allegedly non-commercial purpose, such
as the subsistence of indigenous communities or the sustainable management of natural
resources. According to the EU, in the first case, "it is warranted to adopt a high level of
protection against the risk that seals will experience excessive suffering when they are
killed" while in the second case "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."
1

4. The EU claims that "the IC exception and the MRM exception are based on moral grounds"
as well and that "[i]f the EU legislators have authorized the placing on the market of seal
products under the IC exception and the MRM exception it is because they consider that the
marketing of products complying with those exceptions does not raise the same moral
concerns among the EU public." 2 The EU therefore seems to define the moral value it wants
to protect as the moral concerns of EU citizens about the presence of seal products on the
EU market that are the result of commercial hunts by non-indigenous communities. It is not
clear why seal hunts with non-commercial purposes do not generate any animal welfare
concerns.

5. Second, the Panel should carefully scrutinize the objective pursued by the EU Seal Regime.
In that respect, Japan notes that the EU describes the EU Seal Regime as addressing the
" m o r a l c o n c e r n s o f t h e E U p u b l i c w i t h r e g a r d to the presence on the EU market of seal
products" due to "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."
3 The EU
however considers also that "[t]hose concerns, nevertheless, vary according to the purpose
of each type of hunt."
4

2 Id. para. 363.
3 Id. para. 33.
4 Id.
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6. The above statements suggest that the objectiv e of the EU Seal Regime is not to prevent the
presence "as such" of seal products on the EU market. The moral objections of the EU
citizens are caused by concerns regarding the manner in which the animals may have been
killed. But, these concerns are not absolute since, under certain conditions, the EU public is
willing to accept the presence of seal products on the EU market without any guarantees
that these seal products have not been obtained from animals killed in a way that causes
them excessive pain, distress, fear or other forms of suffering.

1.2 The Necessity Requirement

7. The EU argues that through the General Ban, the EU Seal Regime makes a very substantial
contribution to its policy objective in two ways. But the EU only refers to the "General Ban",
not to the exceptions which are an integral part of the EU Seal Regime. In assessing
whether the EU Seal Regime makes a substantial contribution to its objective, the Panel will
have to examine the exceptions under the EU Seal Regime as well. It is relevant for this
analysis that the exceptions do not require that the seal products have been obtained from
animals that have been killed in a way that does not cause them excessive pain, distress,
fear or other forms of suffering.

8. Japan notes that the EU argues that "the ex ceptions do not undermine the objective of the
EU Seal Regime which, to repeat, seeks to address the moral concerns of the EU public."
5
According to the EU, "[if] the EU legislators ha ve authorized the placing on the market of
seal products under the IC exception and the MRM exception it is because they consider that
the marketing of products complying with those exceptions does not raise the same moral
concerns among the EU public." 6 This appears to be a circular reasoning under which the
scope of the "moral concerns" has been defined on the basis of the existing measures.

9. Moreover, the EU Seal Regime provides for a general prohibition of seal products on the EU
market and thereby, as the EU itself acknowledged, "aims at being very trade-restrictive." 7
In fact, a prohibition is the most trade-restrictive approach possible. 8 The EU justifies this
highly trade-restrictive measure by invoking a moral value that it qualifies to be of "high
importance."9 The fact, however, that the EU Seal Regime tolerates a number of broad
exceptions seems to undermine the justification invoked by the EU. In light of the foregoing,
the Panel will have to carefully assess to which extent a measure which is of "the most
trade-restrictive" type may be regarded as "contributing" to "protect public morals" in a
situation where the same public morals do not appear to object to the placing on the market
of seal products falling within the scope of the IC exception, the MRM exception and the
Travellers exception.

1.3 The Chapeau Requirement

10. Japan notes that the rationale invoked by the EU is to address the moral concerns of the EU
p u b l i c w i t h r e g a r d t o t h e p r e s e n c e o n t h e E U m a r k e t o f s e a l p r o d u c t s . T h e r e s t r i c t i o n s
imposed in order to achieve this objective ar e, however, subject to broad exceptions. The
analysis to be carried out under the chapeau of Article XX will therefore necessarily involve
an examination of how these exceptions can be reconciled with the stated objective.
Depending on the outcome of such analysis, it could be concluded that the scope and effect
of the exceptions result in arbitrary or unjustifiable discrimination or in a disguised
restriction on international trade.

2. Certain aspects of the claims made under Articles 5.1.2 and 5.2.1 of the
TBT Agreement

2.1 Claim under Article 5.1. 2 of the TBT Agreement

11. Article 5.1.2 itself has not yet been the subjec t to panel or the Appellate Body interpretation.
The concept of "unnecessary obstacles to intern ational trade" has, however, been discussed

5 Id. para. 363.
6 Id.
7 Id. para. 586.
8 Appellate Body Report, China – Publications and Audiovisual Products, footnote 567.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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and examined in the context of other provisions under the TBT Agreement and, in particular,
under Article 2.2 of the TBT Agreement whic h has a structure similar to the one of
Article 5.1.2.

12. Both Articles 5.1.2 and 2.2 of the TBT Agreem ent refer in their first sentence to the concept
of "unnecessary obstacles to international trade" and in their second sentence elaborate on
that concept. While both provisions elaborate on the obligation contained in their first
sentence, the wording is different in both provisions. Article 5.1.2 second sentence includes
the words " inter alia " indicating that the description contained therein is not exhaustive.
Article 2.2 does not contain the same terms. Thus, the case-law developed by the Appellate
Body in US – Tuna II concerning Article 2.2
10 may provide useful guidance for the
interpretation of Article 5.1.2.

13. In particular, it seems that the assessment of the consistency of the conformity assessment
procedures with Article 5.1.2 implies the weighing and balancing of a number of different
factors, including the trade-restrictiveness of the procedures, the contribution made by the
procedures concerned to give the importing Member adequate confidence that products
conform with the applicable technical regulations or standards and also the gravity of the
consequences that would arise in case of non-conformity. As emphasised by the Appellate
Body, in most cases, a comparison of the challenged measures and possible alternative
measures should be undertaken.

14. Regarding the trade-restrictiveness of the measure, Japan notes that the EU acknowledges
that the requirement to obtain a certificate under the EU Seal Regime constitutes an
obstacle to trade. The EU, however, considers that the procedure put in place by the
Implementing Regulation cannot be claimed to have been prepared, adopted or applied with
a view to or with the effect of creating unnecessary obstacles to international trade.
11

2.2 Claim under Article 5. 2.1 of the TBT Agreement

15. There seems to be a discrepancy as to what is covered by the terms "conformity assessment
procedures" between the EU and Canada. Canada claims that "a conformity assessment
procedure that cannot function due to the absence of a body to undertake or complete it –
and that absence that can be directly attribut ed to the European Union – can by definition
not be undertaken or completed as expeditiously as possible."
12 Contrary, the EU argues
that "Article 5.2.1 requires Members to ensure that conformity assessment procedures,
including the stage of accreditation/designation of conformity, are undertaken and
completed as quickly as possible."
13

16. In Japan's view, it appears necessary for the Panel to examine in the first place what is
covered by "conformity assessment procedures" in the present case. In particular, it appears
important to clarify at the outset whether, as the EU claims, the conformity assessment
procedures which must be undertaken and completed as quickly as possible include "the
stage of accreditation/designation of conformity."

17. The EU claims that "[t]he phrase "undertake and complete" covers all stages of the
conformity assessment procedure and ha s been interpreted by the panel in EC – Approval
and Marketing of Biotech Products as meaning that, once an application has been received ,
procedures must be started and then carried out from beginning to end."
14 The
circumstances and facts of that case were, howe ver, different from the present case. In the
EC – Approval and Marketing of Biotech Products case, the issue did not relate to the
designation of the certifying body but rather to a de facto moratorium on approvals.

18. In Japan's view, one central issue is therefore likely to be for the Panel whether a system
whereby the accreditation/designation of the certifying body(ies) is dependent on
applications being made by third party entities is consistent with the obligation that

10 See Appellate Body Report, US – Tuna II (Mexico), paras. 318-322.
12 Id. para. 730.
13 Id. para. 481.
14 Id.
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"conformity assessment procedures are undertaken and completed as expeditiously as
possible."

Third Party Oral Statement

1. Article 2.2 of the TBT Agreement

1.1 The objectives pursued by the EU Seal Regime

1. In its First Written Submission, the EU claims that the policy objective pursued by the
measure at issue is to address the moral conc e r n s o f t h e E U p u b l i c w i t h r e g a r d t o t h e
presence of seal products on the EU market. These concerns arise from the fact that these
products may have been obtained from animals killed in a way that causes them excessive
pain, distress, fear or other forms of suffering. The EU, however, states that these concerns
may vary depending on the type of hunt.
15 In Japan's view, the EU's description of the policy
objective it pursues is not so sufficiently detailed as to enable the panel to assess whether
the measure at issue is unnecessary trade restriction to achieve the objective.

2. If, as the EU claims, the objective of the measure is to address the moral concerns of the EU
public arising from the fact that seal products may have been obtained from animals killed in
an inhumane way, this concern should logically apply to all seal products. In Japan's view,
as already explained in its Third Party Written Submission when discussing the concept of
"public morals" under Article XX(a) of the GATT, "public morality" must be defined in an
internally consistent manner. In fact, the EU, when examining the legitimacy of the policy
objective of the measure, only focuses on the treatment of animals, and claims that "the
way in which humans treat animals is a matter of public morals."
16 However, it appears that
the objective of the measure at issue involves a single element (the treatment of animals)
as claimed by the EU but other different elements (such as type of hunts) as explained by
Norway and Canada. The EU fails to justify the legitimacy of an objective in which the
treatment of animals is not the sole element but other elements are also taken into account.

3. In Japan's view, it is crucial that the Pane l examines in detail the measure at issue to
precisely identify the objective(s) pursued by the measure and assess whether all such
objective(s) are legitimate before examining whether the trade-restrictiveness of the
measure is necessary to fulfil such legitimate objectives.

1.2 The EU Seal Regime needs to be examined as a whole

4. The measure at issue is the EU Seal Regime. Although the EU Seal Regime include different
elements, namely the General Ban, the IC exce ption, the MRM exception and the Travellers
exception, Japan believes that the EU Seal Regime should, for the purposes of Article 2.2 of
the TBT Agreement, be examined as a whole.
17

5. In Japan's view, a similar integrated approach should be followed in the present case. For
instance, when examining the trade-restrictive character of the measure at issue, the EU
distinguishes between, on the one hand, the General Ban which "restricts trade" since it
provides for a prohibition and, on the other hand, the exceptions which are not trade-
restrictive because, according to the EU, "they allow trade which would otherwise be
prohibited by the General Ban".
18 However, this approach does not make sense. The EU Seal
Regime should be viewed as a whole since the exceptions exist only because of the General
Ban. In Japan's view, the EU Seal Regime as a whole has a limiting effect on trade since seal
products may be placed on the EU market only if the conditions to benefit from one of the
three exceptions are fulfilled.

6. The same integrated approach is also import ant when examining the degree of contribution
to the legitimate objective. In its First Written Submission, the EU claims that "through the
General Ban the EU Seal Regime makes a very substantial contribution to its policy

15 Id. para. 33.
16 Id. para. 61.
17 See Appellate Body Report, EC – Asbestos, para. 64.
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objective."19 As Japan noted in its Third Party Written Submission, this justification only
refers to the General Ban but not to the exceptions. In this context, the Panel has to
examine not only the General Ban but also the exceptions.

2. De Facto Discrimination under Articles I:1 and III:4 of the GATT 1994, and
Article 2.1 of the TBT Agreement

7. In the context of the Article 2.1 of the TB T Agreement claim, the EU states that Canada
takes an improper shortcut to argue that a particular category of its imports (i.e., seal
products derived from non-Inuit commercial hunts) are "like" a particular category of
imports of Greenlandic seal products (i.e., those derived from Inuit hunts) and thus both
should be treated equally. The EU then submit s that "in order to examine whether there is
less favourable treatment, the group of imported products (in particular, from Canada) and
the group of products from other origin chosen (in particular, Greenland) must take into
account the existence of the regulatory differentiation made in the Basic Regulation."
20
According to the EU, there is no discrimination since "the Canadian seal products in similar
situation to those of Greenland (i.e., those derive d or obtained from tradition hunts by Inuit
and other indigenous communities for the purpose of their subsistence) receive identical
treatment."21

8. Likewise, in the context of the Article I:1 of the GATT 1994 claim, the EU argues that there
is no discrimination because "a sub-category of like products (i.e. those obtained from Inuit
and other indigenous communities for the purpose of their subsistence) is treated in the
same manner by the EU Seal Regime regardless of whether those products originate in
Canada, Norway or Greenland".
22

9. Through these statements, the EU appe ars to argue that there will be no de facto
discrimination, when all products within a sub- category of like products are treated in the
same manner regardless of the origin of the products. This may amount to rejecting the
possibility that measures which are an origin-neutral on its face may be de facto inconsistent
with Article 2.1 of the TBT Agreement or Article I:1 of the GATT 1994.

10. Japan wishes to recall in this respect that as the Appellate Body explained in the previous
dispute, a panel, after ascertaining the detrimental effects on a group of imports, must then
determine whether such detrimental impact stems exclusively from a legitimate regulatory
distinction rather than reflecting discrimination against the group of imported products under
Article 2.1 of the TBT Agreement.
23 This EU's position may be justified in so far as it is also
demonstrated that the different sub-category of like products, which detrimental impact on
imports exclusively stems from, is legitimate under Article 2.1 of the TBT Agreement.

11. Thus, it cannot be concluded that there is no violation of Article I:1 of the GATT 1994 or
Article 2.1 of the TBT Agreement merely becaus e the measure at issue treats identically all
products of each of the sub-categories of the like product on the basis of regulatory
distinctions that are, on their face, origin-neutral.

12. Finally, the EU appears to argue that the same legal standard under Article 2.1 of the
TBT Agreement applies to claims under Article III:4 of the GATT 1994.
24 Japan wishes to
note that the test developed by the Appellate Body "in the context of Article III:4 of the
GATT 1994 [is] instructive in assessing the meaning of "treatment no less favourable." 25
However, this is so "provided that the specific context in which the term appears in
Article 2.1 of the TBT Agreement is taken into account",
26 and such context includes
Article 2.2 and the preamble of the TBT Agreement. Thus, although these two provisions are

19 Id. para. 359.
20 Id. paras. 292-293.
21 Id. para. 294.
22 Id. para. 547.
23 Appellate Body Report, US – Clove Cigarettes, para. 182.
24 EU First Written Submission, paras. 502, 505. The EU also claims that the legal standard under
Article 2.1 of the TBT Agreement applies to Article I:1 of the GATT 1994. Id. paras. 528, 539.
25 Appellate Body Report, US – Clove Cigarettes, paras. 180, 215.
26 Id.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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similar, they are situated in a different context and "the scope and content of these
provisions" is not identical.27

27 Appellate Body Report, US – Tuna, para. 405.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS MEXICO*
I. INTRODUCTION

1. Mexico expressed its intention to participate as a third party in these proceedings because they
involve systemic issues relating to the proper and coherent interpretation and application of the
provisions at issue in this dispute.
II. THE MEASURE AT ISSUE

2. Mexico considers that the interests or concerns pursued by the European Union through the
various exceptions should be considered part of the main objective pursued via the measure in
question. Consequently, the Panel must consider the measure as a whole, considering the
three exceptions as part of the measure. The foregoing is in line with what was stated by the
Appellate Body in EC – Asbestos.
1
3. The Panel in US – 1916 Act (EC) noted that panels are not bound by a Member's
characterization of its measure. 2 In this case, the Panel will need to analyse the regulatory
framework of the European Union in relation to trade in seal products.
III. LEGAL ARGUMENTS

A. Interpretation of most-favoured-na tion treatment and national treatment
obligations

4. Mexico observes that both the General Agr eement on Tariffs and Trade of 1994 (GATT 1994)
and the Agreement on Technical Barriers to Trade (TBT Agreement) contain
most-favoured-nation (MFN) and national treatment (NT) obligations; however, the scope and
application of those obligations and their review is different in each of the agreements mentioned.
The different obligations under the WTO Agreements must be interpreted in a harmonious manner
that gives meaning to the relevant provisions, since they are applied cumulatively. This cannot be
taken to imply that the obligations of one agreem ent can be replaced, excluded or subsumed by
the obligations of another.
3 Mexico therefore disagrees with the European Union's arguments for
transposing an analysis under Article 2.1 of the TBT Agreement to the GATT 1994.
1. Legal examination of Article I:1 of the GATT 1994

5. In order to establish a violation of Article I:1 of the GATT 1994, three elements need to be
demonstrated: (i) that the imported products at issue are like products; (ii) that the measure at
issue accords an advantage, favour, privilege or immunity to products originating in or destined for
any country; and (iii) that this advantage, favour, privilege or immunity is not accorded
immediately and unconditionally to the like product originating in or destined for the territories of
other Members.
6. As regards the third element, the European Union states that the observations made by the
Appellate Body in the context of Article 2.1 of the TBT Agreement with respect to the term
"treatment no less favourable" must apply mutatis mutandis in the context of Article I:1 of
the GATT 1994, particularly in relation to the phrase "any advantage … shall be accorded …
unconditionally".
4

* This text was originally submitted in Spanish by Mexico.
1 Report of the Appellate Body, EC – Asbestos, paragraph 64.
2 Report of the Panel, US – 1916 Act (EC), paragraph 6.51.
3 Report of the Panel, US – Upland Cotton, paragraph 7.1003.
4 First written submission by the European Union, paragraph 539.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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7. Mexico does not agree with this interpretation. By bringing the examination of
the MFN obligation provided for in the TBT Ag reement into the context of the GATT 1994, the
scope and application of that obligation in th e GATT 1994 are impaired, since Article 2.1 of the
TBT Agreement is limited to a single type of measure (i.e. technical regulations as defined
in Annex 1.1 of the TBT Agreement). Mexico cons iders that, in interpreting Article I:1 of the
GATT 1994, the Panel must focus on the text of th at article within the context of the GATT 1994,
including the general exceptions clause in Article XX.
2. Legal examination of Ar ticle III:4 of the GATT 1994

8. For a violation of Article III:4 of the GATT 1994 to be established, the Appellate Body in Korea –
Various Measures on Beef
5 stated that three elements must be satisfied, namely: (i) that the
imported and domestic products at issue are like products; (ii) that the measure at issue is a law,
regulation or requirement affecting their internal sale, offering for sale, purchase, transportation,
distribution or use; and (iii) that the imported products are accorded less favourable treatment
than that accorded to like domestic products.
9. For the examination of the third element, it is necessary to analyse whether the measure in
question modifies the conditions of competition in the relevant market to the detriment of
imported products.
6 In this connection, Mexico does not agree with the European Union's position
that the legal parameters for the purpose of analysing the NT obligation in Article III:4 of
the GATT 1994 and Article 2.1 of the TBT Agreement should be the same.
7 Mexico considers that,
in interpreting Article III:4 of the GATT 1994, the Panel should focus on the text of that article
within the context of the GATT 1994, including the general exceptions clause in Article XX.
 3. Legal examination of Arti cle 2.1 of the TBT Agreement

10. Regarding MFN treatment and national trea tment obligations under Article 2.1 of the
TBT Agreement, Mexico notes that their scope and application are more restricted in that they
refer only to technical regulations and not to any "measure" as provided for in the GATT 1994.
However, as in the case of the GATT 1994, these obligations under the TBT Agreement prohibit
de jure and de facto discrimination.
11. The Appellate Body in US – Clove Cigarettes determined the elements that must be satisfied
for a violation of the NT obligation in Article 2.1 to be established 8: (i) the measure at issue must
be a technical regulation; (ii) the imported and domestic products at issue must be like products;
and (iii) the treatment accorded to imported produc ts must be less favourable than that accorded
to like domestic products.
12. The first element must be assessed in the light of the definition of "technical regulation" in
Annex 1.1 of the TBT Agreement. In the context of Article 2.1, the measure in question can only
be of one type in order to satisfy that definition.
13. Regarding the likeness examination, the Appellate Body in US – Clove Cigarettes rejected the
Panel's interpretation according to which that examination must focus on the legitimate objectives
and purposes of the technical regulation, and reverted to the analysis of Article III:4 of
the GATT 1994 which takes account of the competitive relationship between products. However, it
pointed out that the regulatory purposes of technical regulations could be evaluated under
traditional criteria to the extent that they have an impact on the competitive relationship between
the products concerned.
9
14. Regarding the likeness element, the European Union considers that the relevant group of
products comprises those that comply with the measure as opposed to those that do not comply. 10
If the Panel were to accept the European Union's approach involving the creation of subcategories
in the group of like domestic and imported produc ts based on the regulatory distinction of the

5 Report of the Appellate Body, Korea – Various Measures on Beef, paragraph 133.
6 Report of the Appellate Body, Korea – Various Measures on Beef, paragraph 137.
7 First written submission by the European Union, paragraph 505.
8 Report of the Appellate Body, US – Clove Cigarettes, paragraph 87.
9 Report of the Appellate Body, US – Clove Cigarettes, paragraphs 117-120.
10 First written submission by the European Union, paragraph 254.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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measure in question, the discrimination provis ions of Article 2.1 of the TBT Agreement
and Articles I:1 and III:4 of the GATT 1994 would be deprived of all meaning when it comes to
their application in de facto discrimination cases.
15. The European Union also appears to be alte ring the likeness element of the discrimination
obligation by adding a "similar situation" requirement. Under this interpretation, the analysis of
"treatment no less favourable" would not merely co ncern like products, but like products that are
also in a similar situation. There is no legal basis for including this requirement in the
discrimination analysis. If the negotiators of the WTO Agreement had intended to include
additional requirements such as this one, they would have done so explicitly. The "similar
situation" requirement is clearly a deviation from the already well-established approach used by
panels and the Appellate Body for determining de facto discrimination.
16. Finally, let us turn to the third element, wher e, in the matter of technical regulations, another
examination is required in the case of de facto discrimination. In other words, it is not enough to
establish that the technical regulation in question modifies the conditions of competition in the
relevant market to the detriment of the imported products, but an analysis also has to be made to
determine whether this de facto detrimental impact derives from a legitimate regulatory distinction
and does not reflect discrimination, and whether the technical regulation is impartial.
17. The concept of "legitimate regulatory distin ction" was introduced by the Appellate Body
in US - Clove Cigarettes .
11 This analysis was based on the difference between the GATT 1994,
which strikes a balance between Article III:4 and the general exceptions contained in Article XX,
and the TBT Agreement which does not contain a general exceptions clause. In other words, the
genesis and basis of the concept of "legitimate re gulatory distinction" and hence the concept of
"impartiality" reflects the absence in the TBT Agre ement of a general exceptions clause equivalent
to Article XX. Consequently, there is no basis for importing these two concepts into Articles I:1
and III:4 of the GATT 1994.
18. Mexico notes, therefore, that these addition al particularities (i.e. legitimate regulatory
distinction and impartiality) cannot simply be transposed to the Article III:4 examination, since
they arise from a context, object and purpose specific to the TBT Agreement, and from the
difference between the GATT 1994 and that agreement.
19. Mexico further notes that the European Union appears to believe that, in addition to the
above-mentioned examination, there is also a requirement to demonstrate that the objective
pursued by the technical regulation is legitimate . In the European Union's view, if the objective
pursued is legitimate, then so is the regulatory distinction.
12 In other words, the European Union
justifies the legitimate objectives pursued by the exceptions to the measure and argues that, if the
objectives pursued by the exceptions are legitimate, the regulatory distinction must also be
considered legitimate. 13 The European Union's argument creates a relationship between the
concept of "legitimate objective" and that of "legitimate regulatory distinction".
20. In this connection, Mexico considers that the European Union's interpretation of Article 2.1 of
the TBT Agreement is incorrect. The analysis of "treatment no less favourable" is independent from
the determination of the legitimacy of the objective pursued by the Member adopting the technical
regulation. The fact that an objective is legitimate within the meaning of Article 2.2 of
the TBT Agreement does not mean that the technical regulation is being applied in an impartial
manner or that the distinction it makes between the products is legitimate.
21. The concept of "legitimate regulatory distinct ion" was developed by the Appellate Body when
interpreting the concept of "treatment no less favourable" in Article 2.1 of the TBT Agreement.
The concept of "legitimate objective" can be found in Article 2.2 of the TBT Agreement, and was
expressly omitted from Article 2.1 of the TBT Ag reement. This omission is important and must
have some meaning
14 because the two provisions deal with different aspects of the same measure
(discrimination on the one hand and trade restriction on the other). It would therefore be incorrect
to read the concept of "legitimate objective" into Article 2.1.

11 Report of the Appellate Body, US – Clove Cigarettes, paragraph 181.
12 First written submission by the European Union, paragraph 261.
13 First written submission by the European Union, paragraph 261.
14 Report of the Appellate Body, Japan – Alcoholic Beverages II, paragraph 111.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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B. Article 2.2 of the TBT Agreem ent: Objective of the measure

22. The European Union argues that its measure a ddresses moral concerns of its population with
respect to seal hunting, which vary according to the purpose of each type of hunting.
15 It would
appear that the moral concerns alleged by the European Union in fact run counter to the animal
welfare concerns reflected in its measure.
23. The Panel should therefore first analyse the legitimacy of the principal objective of the
measure. The list of legitimate objectives referred to in Article 2.2 of the TBT Agreement may
serve to provide a benchmark when considering other objectives not listed in that article as
legitimate; likewise, the objectives referred to in the sixth and seventh recitals of the preamble to
the Agreement, and the objectives recognized in other covered agreements may also serve to
provide guidance and to inform the Panel's analysis.
16
24. Although the TBT Agreement recognizes the right of WTO Members to establish for themselves
the objectives of their technical regulations, the Appellate Body has indicated that panels are not
bound by a Member's characterization of the objectives it pursues through its measure, but must
objectively and independently analyse the measure and what the WTO Member seeks to achieve
thereby, taking into account the text of the meas ure, and its legislative history, design, structure
and application. In this case in particular, Mexico considers that an important issue to be taken
into account in the above-mentioned assessment will be the relationship of the principal objective
of the measure and its interaction and consistency with the aims pursued by each
of the exceptions.
C. Relationship between GATT Ar ticle III:4 and GATT Article 11

25. Mexico notes that both complainants argue that the measure at issue is inconsistent with both
Article III:4 of the GATT 1994 and Article XI of th e GATT 1994. Mexico calls on the Panel to be
mindful of the possibility that a measure may contain certain elements that violate Article III:4 of
the GATT 1994 and others that violate Article XI:1 of the GATT 1994, since these provisions have
different fields of application. This possibility was recognized by the Panel in India - Autos.
17
D. The debate over unilateralism and multila teralism in the analysis of the preamble
to Article XX of the GATT

26. Mexico notes that the European Union justifies its measure as a public morals issue
under Article XX(a) of the GATT 1994, but that justification essentially derives from a concern over
animal welfare in relation to seals (i.e. over the manner and purpose of slaughtering seals).
27. In this case it appears that the European Union has decided to deal unilaterally with issues
relating to seal hunting in the territory of other Members instead of joining in a multilateral effort
to address those issues. That being the case, it would be relevant for the Panel to take into
consideration the points noted by the Appellate Body in US - Shrimp, in its analysis of the concept
of "unjustifiable discrimination" referred to in the chapeau of Article XX of the GATT 1994, where it
emphasized the importance of participating in a multilateral effort instead of unilaterally
developing and imposing internal policies that affect international trade.
18
E. Analysis of Article XX(a) of the GATT 1994

28. The Panel should recognize the difference in the language used in relation to the different
categories of exceptions contained in Article XX of the GATT 1994.
19 Mexico notes that
paragraph (a) of Article XX has similarities with paragraphs (b) and (d) of the same article, for
which a review of necessity is required. Therefore, the determinations made in relation to the
exceptions under paragraphs (b) and (d) of Arti cle XX of the GATT 1994 are of illustrative import
for the Panel.

15 First written submission by the European Union, paragraph 33.
16 Report of the Appellate Body, US – Tuna II (Mexico), paragraph 313. See also the Report of the
Appellate Body, US – COOL, paragraph 370.
17 Report of the Panel, India - Autos, paragraphs 7.223, 7.224 and 7.296.
18 Report of the Appellate Body, US - Shrimp, paragraphs 161 to 176.
19 Report of the Appellate Body, US - Gasoline, paragraphs 44 and 45.
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29. Notwithstanding the foregoing, there is an important difference in the interpretation and
application of Article XX(a) of the GATT 1994, which gives rise to systemic concerns.
This difference relates to the nature of the su bject of the exception concerned: public morals.
In this case, Mexico considers that the Panel must take account of the singular nature of the
concept of public morals in the context of the general exception. At the same time,
Mexico considers that the Panel should take care to ensure that its interpretation of Article XX(a)
of the GATT 1994 does not give rise to any abuse in the use of that exception to justify any
kind of measure.
30. Paragraph (a) must make an exception for meas ures necessary to protect the public morals of
a Member from the disciplines of the GATT 1994, an d at the same time recognize that the public
morals of that Member may not be the same as those of other Members.
31. Mexico notes that the term "public morals" has not been interpreted by the Appellate Body but
has been addressed by the panels in China - Publications and Audiovisual Products
and US - Gambling.
20 Taking account of the matters noted in those disputes, it would appear that
the singular nature of the term "public morals" in the exception under Article XX(a) of
the GATT 1994 supports an interpretation limiting th e scope of that exception to the protection of
public morals within the territory of each Member.

20 Report of the Panel, China - Publications and Audiovisual Products, paragraph 7.759 (footnotes
omitted).
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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ANNEX C-5
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NAMIBIA
Introduction

1. Namibia demonstrated in the first written submission (Nam-2) and in the oral statement
(Nam-3) that the EU has violated its obligations under the Agreement on Technical Barriers to
Trade (TBT), and more specifically the obligation embedded in Articles 2.1, 2.2 and 5.1 of TBT
and its obligations under Articles I, III, and XI of the GATT.

2. Namibia has a long history of harvesting Cape fur seals ( Arctocephalus pusillus pusillus) that
spans from the 17
th century. The 1893 Act stipulated that no seals might be taken without a
permit. In 1909 a limit was placed on the harvesting season. Legislative framework was
further put in place with the enactment of th e Sealing and Fisheries Proclamation in 1922 and
the Sealing and Fisheries Ordinance in 1949. The Sea Birds and Seals Protection Act, No 46 of
1973 repealed the previous legislation to include specific regulations on age, size, sex and
location of seals.1

3. With the Independence of Namibia in 1990, the Sea Fisheries Act, No 29 of 1992 was
promulgated but it was repealed together with the Sea Birds and Seal Protection Act and was
replaced by the Marine Resources Act, 2000 (Act No. 27 of 2000) which draw on modern
instruments and best practices. This Act brought the date of commencement of the harvesting
season forward from the 1st of August in earlier years to the 1st of July to 15 November. The
harvesting of seals is conducted in terms of th e Regulations related to exploitation of Marine
Resources made under the Marine Resources Act, 2000. The Marine Resources Act 2000,
complies with the provisions of the United Nations Convention in the Law of the Sea of 1982.
2

4. Presently, harvesting is only permitted until mid-November when the breeding season
commences. In terms of the Marine Resources Act 2000, harvesting is controlled through
Total Allowable Catches ("TAC") from the best sci entific evidence available. Namibia ascribes
to the implementation of ecosystem based management and this is taken into account in the
conservation and management of all commercially harvested living marine resources,
including seals. Namibia is the only developing country where commercial seal harvesting is
taking place. Globally, Namibia ranks 3
rd behind Denmark and Canada.3

Seal Stock Status

5. Cape fur seals are distributed along the southern and western coasts of Southern Africa. They
aggregate at 42 colonies extending from Baia dos Tigres in southern Angola to Black Rocks
near Port Elizabeth in South Africa. In Namibia, seals occupy twenty six colonies along the
coast. Colonies are located either on the mainland or on small, rocky islands and are either
breeding or non-breeding sites.
4

6. The Namibian Cape fur seal population wa s estimated for the year 2011 at 1.2 million.
Scientists have estimated the food consumption rate for the Cape fur seal at 1.4 to 6.8 kg per
day per animal, depending on the age, the sex and reproductive status. Using the best
available information, scientists have estimated the annual consumption at around 1.68
million ton of food per year. Their diet compositions mainly consist of commercial important
fish stock such as Hake, Horse Mackerel and Pilchard. This figure (1.68 million tons of food) is
three (3) times more than all TAC issued to the Namibian fishing industry of commercial
important stock added together.
5

1 NAM-2, pg 4 and pg 10, footnote 10; NAM-3, pg 1, para 1.4
2 Regulation 20 is discussed in NAM-2, pg 9; NAM-3, pg 1, para 1.5
5 NAM-2, pg6; NAM-3, pg 2, para 2.2
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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7. Namibia's management decisions are based on the best available scientific advice and
precautionary principle as stipulated in section 38 (2) of the Marine Resources Act 2000.6

Legislative framework: Sustainable Management

8. Namibia has comprehensive legislation on fishing, including seal harvesting. Article 95(l) of
the Namibian Constitution, the Supreme Law of Namibia, provides that the State shall actively
promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the
"maintenance of ecosystems, essential ecological processes and biological diversity of Namibia
and utilization of living natural resources on a sustainable basis for the benefit of all
Namibians, both present and future…. " Further, Namibia has the Marine Resource Act, 2000
(Act No. 27 of 2000) and the Marine Fisherie s Regulations (Government Notice No. 241,
Regulations relating to the exploitation of marine resources, 2001).
7

9. In 2012, the Marine Resources Act won Kungsfen an (Swedish Sea Food Award) as the world's
most inspiring, innovative and influential instrument on the protection of oceans and coasts
that allowed Namibia to successfully manage its marine resources and instituted a more
ecologically and economically sustainable fishing industry.
8

Monitoring of Seals in Namibia

10. Namibia ensures that TAC's are set for the purpose of ensuring that the harvest is conducted
sustainably with effective monitoring and enforcement mechanisms. The Cabinet (the
Executive branch of the State) is required to endorse TAC for each year to ensure
sustainability. Seal harvesting is monitored by Fisheries Inspectors to ensure that it is carried
out in accordance with the Marine Resources Act 2000. In its management of the seals,
Namibia is also guided by policies, best practices, standards and other instruments such as
the FAO Code of Conduct for Responsible Fisheries.
9

Markets: Exportation of Namibian Seal Products

11. Exportation of seal products goes back to the 19
th century with respect to the United Kingdom
and Germany. In addition, before the EU seal regime, Namibia used to export substantial
volumes to Greece, Italy, Germany and Sweden amongst others. The fishing sector is the
second highest contributor to the GDP from 2 008 to 2011 ranges from 3.7% to 5.3%. In
addition, employment in the seal sector is an important element especially to coastal
communities (Henties Bay and Luderitz). Due to the EU prohibition these markets are lost,
resulting in severe loss of income and unemployment. This has increased poverty levels in the
country.
10

12. Seals are considered as a natural resource from which Namibia can derive consumptive and
non-consumptive benefits. The seal products derived from the commercial seal harvesting are
pelts of pups (exported and used locally), genitalia of seal bulls (for export to Asia), omega 3
oils and capsule, and by-products which include oil (medicinal value), meat, meat-meal, bone-
meal and leather products such as shoes, purses and jackets.
11

13. Namibia's statistics recorded that the dependen cy ratio in the above coastal towns is 1:6 on
average. In the town of Henties Bay, during th e harvesting season, the sealing industry is the
biggest employer. In the leather industry, seal products sustains a substantial number of
communities and in the tanning industry, a sign ificant portion of employment opportunity is
supported by seal skins. The EU ban undermi nes the expansion in growth of the sealing
industry, thereby exacerbating the high unemp loyment rate in Namibia, which currently
stands at 51%.
12

9 NAM-2, pp 8-9
12 NAM-2, pg 12
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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14. Unlike the entirety of the Northern hemisphere , in Namibia – the only sealing nations south of
the equator – seals are NOT hunted, they are harvested. As such, certain misgivings are not
applicable to Namibia. Namibia has always been cooperative and welcoming of views and
suggestions on how to improve animal welfare during the harvesting process. It is admitted
that, even in the EU, addressing such conc erns does not guarantee establishment of a
hundred percent fool-proof system, not even in slaughter houses.
13

15. Namibia endeavours to maximize animal welfare between the brief period when a pup become
conscious of human presence and its death. Being systematic is a pre-requisite in any
conservation. Namibia harvests from three out of twenty six colonies, unlike elsewhere, where
hunting accesses the entire seal population at once.14

16. Employees in the seal industry are all indi genous Namibians and have acquired harvesting
skills as per the Marine Resource Act, 2000. Taken together, the economic ripple effect
derived from the exportation of seal products is of great benefit to the Namibian employment
figures.15

The Discriminatory Nature of the EU Seal Regime

17. The EU Seal Regime states, in its preamble, the reasons for its existence, necessity and
presumably its goals and objectives. Yet, its design, structure, and operations amount at the
same time to: (a) unfair economic restrictions; (b) violations of WTO Agreements; (c)
violations of TBT Agreement and (d) contradicting and undermining own goals and
objectives.16

VIOLATION OF TBT and GATT

(a) TBT and GATT

18. Namibia respectfully requests the Panel to find that the EU, by adopting a series of measures
described below as ‘the EU Seal Regime', has violated its obligations under the TBT, and more
specifically the obligations contained in Articles 2.1 (by discriminating across like products
based solely on their origin), Article 2.2 (by adopting unnecessary measure), and Article 5.1
of TBT (by failing to provide a conformity assessment-procedure). Were the Panel to take the
view that the measures described as ‘the EU Seal Regime' do not properly come under the
disciplines of the TBT Agreement, then Namibi a submits that they should be understood as
internal measures, and the EU has anyway, violated its obligations under Articles I, III and XI
of GATT.
17

19. Namibia respectfully submits that the EU me asures cannot be justified through recourse to
Article XX of GATT. The Panel, following its case law in this respect so far, should first review
the consistency of the challenged measures with the TBT Agreement, and revert to an
examination under the GATT only if it feels that the challenged measure does not come under
the purview of the TBT. The challenged measur e constitutes a ‘technical regulation' in the
sense of Annex 1 to the TBT Agreement since (a) it applies to an identifiable group of
products (seal products), (b) it explains the product characteristics that should not be present
for products to circulate in the EU market (all seal products are, in principle, banned), and (c)
compliance with the product characteristics is a necessary pre-condition for market access.
18

(b) The Reasons Why the EU Violates the TBT

20. Namibia is in agreement with the EU in respect of protection of animal welfare. The purpose of
the WTO, with the exception of TRIPs that call for common policies in specific areas, is to
harmonize conditions of competition within and not across markets. The key obligation in the
TBT-context (and the GATT-context as well) is that, once the EU has revealed its preference
to pursue a legitimate objective, products of WTO Members and products originating in the EU

13 NAM-2, pg 13, para 7
14 NAM-2, pg 9, para 4
15 NAM-3, pg 5, para 6.4
16 NAM-2, pp 14-18
17 NAM-2, pg 19, para 11
18 NAM-2, pg 20
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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will be placed in equal footing: those that respect the EU measure will be allowed to circulate
in the EU market, and those that do not, will be denied market access. Further, the EU must
choose a measure that is necessary to achieve its social preference, that is, the measure that
constitutes the least restrictive option for international trade. The EU has failed to live up to
this test.
19

21. The EU does not prohibit sales of seal products from its market, it prohibits some sales only.
Three exceptions have been included in the EU relevant Regulations which allow seal products
bought for personal use, produced by indigeno us communities, as well as conforming with
marine resources management to be traded inside the EU. These three exceptions have
nothing to do with animal welfare. Significantly, the Preamble states that the objective of the
EU measure is protection of animal welfare.

22. The EU does not prescribe a particular produc tion method that must be followed for seals
products to be legally sold in its market. It is a fact that indigenous communities kill seals in
rather brutal ways, and Canada's submission to this effect is quite telling. Seals products
bought for personal use could be seals products from seals that have been hunted in equally
brutal ways.

23. The exception in favour of indigenous communities is limitless: the Inuit communities can
produce and sell in the EU market without any hunting method being prescribed. Rationally,
the Inuit communities will hunt more than before, since the EU market will be left to their
mercy, since their only competition will come from goods imported for personal use as well as
the marine resource management-related production, and we all agree that these two sources
of supply are limited in volume. Thus, assuming demand remains constant, production by the
Inuit communities will rise to fill the gap.

24. All of the above considerations suggest that: (a) the EU measure in name aims to protect
animal welfare, but in practice does not, since there is no guarantee that fewer seal products
will circulate in the EU market, and there is no guarantee as to the hunting method; (b) the
measure is discriminatory since the Inuit communities of Greenland are accorded a trade
advantage (sale of seals products) that other WTO Members (including Namibia) are not. The
EU has conceded that the seals products produc ed by the Inuit communities and elsewhere in
the world are ‘like' goods.

25. The ‘EU Seal Regime' fails the necessity-requirement, as stipulated in the GATT, for one
simple reason: if the regulatory objective pursued is protection of animal welfare, then the
measure that meets the requirement must at the very least distinguish between methods that
meet and methods that do not meet this object ive. The ‘EU Seal Regime' imposes an outright
ban on sales of seal products produced outside the EU, and this a disproportionate cost on
international trade flows, even though some or many of them might genuinely meet the
regulatory objective pursued by the EU. The ‘EU Seal Regime' does not even provide for
conformity assessment, so there is no way th e EU can ever know whether seal products
originating in other WTO Members do or do not protect animal welfare.

(c) The ‘EU Seal Regime' Violates the GATT
26. Seal products originating in countries other than the defined indigenous communities in the
sense of the challenged measure (Regulation 737/2010), cannot be marketed in the EU. Since
the EU has conceded that products originating in the Inuit communities and elsewhere are
‘like', the only reason why some products will and some will not be marketed in the EU is the
origin of the products. This is a clear violation of Article I of the GATT.
20

27. Seal products produced by the Inuit communities can be sold in the EU market. Seal products
originating in Namibia cannot be sold in the EU market, since Namibia does not include any
indigenous communities in the sense of Regula tion 737/2010. By allowing domestic products
to be marketed, and simultaneously denying the same opportunity to imported goods, the EU
is according less favourable treatment to imported like goods. This is so because the only

19 NAM-2, pg 22, para 12
20 NAM-2, para 20
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

- C-21 -

reason why the EU is distinguishing say between Inuit and Namibian seals is their origin. This
is a clear violation of Article III of the GATT.21

28. With respect to the personal use, we observe that the measure amounts to an import
restriction: only those travelling abroad (Article 4 of Regulation 737/2010) can benefit from
this exception when re-entering the EU market. The measure then is an import quantitative
restriction since travelers cannot import as many seal products as they wish but only those
that are destined for personal use. The EU is thus, with respect to the personal use-condition
only, acting in violation of Article XI of the GATT.22

29. If the objective of the EU is animal welfare, EU would have to invoke Article XX (b) of the
GATT. Article XX (g) of the GATT does not even come into the frame, because seals are not an
exhaustible natural resource. Further, Article XX (b) of the GATT would require from the EU to
demonstrate that its measures are necessary to protect animal life or health. The EU does not
prescribe any method for hunting seals. It does not even limit the amount of seals killed
through its measures. The measure is thus, unnece ssary to reach the stated objective, since
neither the amount of seals sold in the EU will be limited, nor the hunting method will change.
Further, the EU fails the chapeau-test since pr oducers producing like goods (and thus finding
themselves in ‘similar conditions' with the Inuit communities) cannot market their goods in
the EU market.
23

30. Were the EU to invoke that its measure aims at protecting the manner in which seals are
being hunted by indigenous communities like the Inuit, it would have to, at the very least,
describe first this method and then explain which provision of Article XX of the GATT is
relevant. It did not prescribe any production process. Moreover, Article XX of the GATT
includes an exhaustive list and none of the sub-paragraphs of this provision could be
construed as adequate to entertain similar claims.
24

Conclusions

31. Namibia demonstrated in the first written submission and in the oral statement that the
design, structure and operations of the EU measures prohibiting the importation of seal
products- (a) constitute unfair economic restrictions; (b) are in in violations of the WTO
Agreements; (c) are in violations of TBT Agreement and (d) contradicts and undermines the
goals and objectives of those measures.

32. Namibia respectfully submits that Canada and Norway have made out a case for the relief
sought in their application.

33. In view of the above, Namibia respectfully requests the Panel to consider the first written
submission and the oral submission of Namibia favourably.

21 NAM-2, para 20
22 NAM-2, para 20
23 NAM-2, pg 33, para 20.4
24 NAM-2, pg 33, para 20.4
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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ANNEX C-6
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
I. GATT 1994: Article XX(a)

1. With respect to considering whether a measure meets paragraph (a) of Article XX of the
GATT 1994, the proper elements to consider are whether the measure protects public morals and
whether the measure is "necessary" to do so. This calls for determining whether the measure in
question has the objective of protecting a value that is a public moral in the respondent's
community or nation. When considering a respondent's claim that the measure is designed to
protect a value that is a public moral, one must consider the concept of "public morals" as defined
and applied by the responding Member accordin g to their own systems and scales of values. A
panel is not to substitute its own judgment as to what a "public moral" is, but rather is to
determine what a public moral is in the responding Member's system. Nevertheless, 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.

2. Next, it is necessary to consider whether the measures are "necessary" to protect public
morals. To do so, the Appellate Body has set forth a process consisting of a number of possible
lines of inquiry – the relative importance of the values furthered by the measure, the contribution
of the measure to the objective, the restrictive impact of the measure – and the consideration of
alternative measures. The Appellate Body has stated that "[i]t is on the basis of this ‘weighing and
balancing' and comparison of measures, taking into account the interests or values at stake, that a
panel determines whether a measure is ‘necessary' or, alternatively, whether another,
WTO-consistent measure is ‘reasonably available'."

3. Under Article XX, Members have agreed that the objectives listed justify providing for
exceptions from the other provisions of the GATT 1994, subject to certain conditions. This means
that it is not required, nor is it appropriate, to determine whether the trade-restrictiveness of the
measure is justified by the importance of the objective. The text does not require a panel to assign
some sort of quantitative or qualitative value to the trade-restrictiveness of the measure and the
importance of the objective, and then compar e those two values; such an inquiry would be
extraordinarily difficult, if not impossible. Nor is there any support in the text of Article XX for a
view that a measure that has been found to be de signed to achieve one of the exceptions set out
in Article XX can be found to be unnecessary (if a WTO-consistent alternative is not available)
simply because a panel may find the objective of the measure insufficiently important to justify the
measure's trade- restrictiveness.

4. With respect to the contribution of the measure to its objective, it is for the Member, in
designing its measure, to select the level at which the objective will be achieved. It is well
established that the determination of what is the respondent Member's actual desired level is
based on the design of the measure and the evidence provided.

5. Finally, if presented with an alternative meas ure by Canada or Norway, the inquiry then will
be whether the alternative measure is WTO-consistent, is "reasonably available," and will achieve
the EU's objective at the level chosen by the EU . The EU incorrectly states that the alternative
measure must be "less trade restrictive" than the EU measure. This implies that the alternative
measure could be WTO-inconsistent, but so long as it is less trade restrictive than the EU measure,
the EU measure will be deemed unnecessary. The United States disagrees: in determining
"necessity" the comparison is between the GA TT 1994-inconsistent measure and an alternative
measure that is GATT 1994-consistent.

6. A "less trade restrictive" standard is not supported by the text of Article XX(a), which
requires that the measure be "necessary." The ordinary meaning of the term "necessary," in
context and in light of the object and purpose of the GATT 1994, does not encompass a "least
trade restrictive" test. Rather, the trade-restrictiveness of a measure is one of the factors that
may be helpful in evaluating the "necessity" of the measure, as the Appellate Body has recognized.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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According to the Appellate Body, the ordinary meaning of the term necessary as used in Article XX
is "located significantly closer to the pole of ‘indispensable' than to the opposite pole of ‘making a
contribution to'." In this regard, the Appellate Body's interpretation of the ordinary meaning of the
term "necessary" is clearly related to the degree of contribution the measure makes to an
objective set out in Article XX (a), (b), or (d). Additionally, context provided by the Agreement on
Technical Barriers to Trade ("TBT Agreement") and the Agreement on the application of Sanitary
and Phytosanitary Measures ("SPS Agreement") demonstrates that where Members sought to
provide an obligation that a measure is required to be no more trade restrictive than required or
necessary, the WTO Agreement sets out that standard clearly. As the US – Tuna-Dolphin panel
noted when comparing the text of TBT Article 2.2 to GATT Article XX, under Article XX the "trade
restrictiveness" of the measure as compared to an alternative is not relevant; what must be
considered is the necessity of relying on a measure inconsistent with the GATT 1994 to achieve an
objective listed in Article XX.

7. The United States also finds instructive the Appellate Body's discussion in US – Tuna-Dolphin
of the circumstances in which, when considering a claim under TBT Article 2.2, a panel may not
need to consider an alternative measure. The Appellate Body stated that, if a measure is not trade
restrictive, then it would not be inconsistent with Article 2.2. Article XX of the GATT 1994,
however, does not operate in this manner. Articl e XX is an affirmative defense. One conducts an
analysis under Article XX because of a finding of inconsistency with another provision of the
GATT 1994. One is not excused from a breach by sh owing lack of trade restrictiveness. Rather, a
measure qualifies for an exception under Article XX by meeting the conditions of Article XX. In
other words, a measure found to be GATT 1994-inconsistent is not excepted from that finding
under Article XX on the basis that it has no or limited trade effect. Similarly, a GATT 1994-
inconsistent measure otherwise excepted from the obligations of the GATT 1994 does not become
"unnecessary" simply because it is highly trade restrictive.

II. TBT Agreement

8. With respect to the TBT Agreement, the Un ited States presents its views on: (1) the
definition of "technical regulation," and in pa rticular, the meaning and relevance of product
characteristics in that definition under Annex 1.1; (2) the concept of "less favorable treatment"
under Article 2.1 and the related approach recently utilized by the Appellate Body regarding
"legitimate regulatory distinction"; and (3) the definition of the term "conformity assessment
procedures" under Annex 1.3 and the implications for the scope of Articles 5.1 and 5.2.

9. First, Annex 1.1 of the TBT Agreement defines a "technical regulation" as a "document which
lays down product characteristics or their relate d processes and production methods ... ." Stated
differently, to be a technical regulation, a document must either set out that a product possess or
not possess a particular characteristic, or it must prescribe certain processes or production
methods related to a product characteristic. In this regard, the United States observes that a
measure that simply prohibits the sale of a product does not prescribe a product characteristic. For
example, a measure that prohibits the sale of as bestos does not prescribe any characteristics of
that product. Such a ban would not operate by allowing asbestos with certain intrinsic
characteristics to be sold while restricting the sale of asbestos with other intrinsic characteristics;
that measure would simply ban the sale of asbestos per se.

10. It is also useful to note that Annex 1 relies on the sixth edition of the ISO/IEC Guide 2:
1991, General Terms and Their Definitions Concerning Standardization and Related Activities
("Guide"). In particular, the Guide notes that: "Important benefits of standardization are
improvement of the suitability of products, proces ses, and services for their intended purposes,
prevention of barriers to trade and facilitation of technological cooperation." Similarly, the Guide
states that: "Standardization may have one or more specific aims, to make a product, process or
service fit for its purpose . Such aims can be, but are not restricted to, variety control, usability,
compatibility, interchangeability, health, safety, protection of the environment, product protection,
mutual understanding, economic performance, trade. They can be overlapping." It is also helpful
t o c o n s i d e r d e f i n i t i o n 5 . 4 i n t h e G u i d e o f a " p r o d u c t s t a n d a r d " : "Standard that specifies
requirements to be fulfilled by a product or a group of products, to establish its fitness for
purpose."

11. These statements in the Guide show that the focus of standards, and by extension technical
regulations (certain types of standards with which compliance is mandatory), is on ensuring that a
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

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product is fit for its purpose or aim. However, the purpose or aim of a sales ban is not to ensure
that a product is fit for its purpose, but to prohibit the sale of the product entirely. The purpose of
technical regulation, on the other hand, is to set out product characteristics (or their related
processes or production methods), which if met, allows the product to be marketed. In other
words, a technical regulation's aim is not to ban a product but to ensure that the product
possesses or does not possess a product characteristic that makes it usable, compatible, safe,
protective of the environment or health, etc.

12. While the result of a technical regulation may be that a form of a product that possesses (or
does not possess) a particular characteristic may not be sold, this result alone is not what makes a
measure a technical regulation. Rather, for a measure to constitute a technical regulation, it must
be a "document which lays down product characteristics or their related processes and production
methods ...." and compliance with the document must be mandatory. A prohibition on the sale of a
product that possesses (or does not possess) a particular characteristic is the mechanism through
which compliance with the "document which lays down product characteristics...." is made
mandatory. However, unlike a per se ban on the product, a technical regulation sets out product
characteristics that, if met, do allow the product to be marketed.

13. For example, consider a measure that (1) bans asbestos and (2) requires that any cement
sold not contain asbestos. One aspect of the measure bans a product per se, asbestos. Another
aspect of the measure allows cement to be sold if it does not possess a particular characteristic –
namely, if the cement does not contain asbestos. In this example, the ban on asbestos per se is
not a technical regulation and would not be subject to the TBT Agreement; it is simply a ban on
the sale of asbestos. However, the aspect of the measure that sets out that any cement marketed
must not contain asbestos, is a technical regulation for cement. The same cannot be said for the
aspect of the measure that simply bans the sale of asbestos, as there are no product
characteristics that asbestos could possess or not possess that would allow it to be sold under the
measure. Thus, to the extent a measure bans the sa le of a product, rather than prescribing that
the product possess or not possess a certain product characteristic, the measure is not a technical
regulation.

14. Second, with respect to TBT Article 2.1, when considering whether a measure applies less
favorable treatment to like products, it is necessary to consider the proper scope for the
comparison between products. As the Appellate Body stated in US – Clove Cigarettes, a panel is to
"compare, on the one hand, the treatment accorded under the technical regulation at issue to all
like products imported from the complaining Member with, on the other hand, that accorded to all
like domestic products." Though the Appellate Body in that dispute was addressing a national
treatment claim under Article 2.1, the United Stat es believes the scope of comparison is similar
when considering a most favored nation claim under the same article; that is, the proper scope of
comparison is between the treatment accorded to all like products from one Member to all like
products "originating in any other country."

15. The United States notes, however, that within the scope of the products being compared,
Article 2.1 does not require Members to accord no less favorable treatment to each and every
imported product as compared with each and every like domestic product or like product
originating in any other country. Technical regulations, "by their very nature," establish
distinctions between products. Such distinctions between groups of like products do not breach
Article 2.1 so long as the distinction is based on a legitimate regulatory distinction, and not on
some impermissible basis, such as the origin of a product. Moreover, when considering whether a
distinction drawn between like products is legitimate, a panel may consider the objective behind
the distinction being drawn. In making that consideration, a panel should not just consider the
"central" or overarching objective of the measure. Measures often have multiple objectives. And in
the case of exceptions to a measure, the objectives of the measure may even be competing with
each other. Indeed, it is difficult to conceive of another reason why a measure would make
exceptions in the first place. It is natural for governments to need to balance competing legitimate
objectives. Thus, to suggest that an exception to a measure is not based on a legitimate
regulatory distinction because it does not contribute – or may even detract – from the "central"
objective of the measure is incorrect. Rather, the proper question for the panel to consider is
whether that distinction reflects discrimination. That test can only be satisfied while taking into
account all objectives of the measure.
WT/DS400/R/Add.1 • WT/DS401/R/Add.1

- C-25 -

16. Third, with respect to the claims under Arti cles 5.1 and 5.2 of the TBT Agreement, it is
useful to recall that those Articles provide obligations with respect to "conformity assessment
procedures." Accordingly, another important threshold question under the TBT Agreement is what
is a "conformity assessment procedure."

17. "Conformity assessment procedures" are defined in Annex 1.3 as: "Any procedure used,
directly or indirectly, to determine that relevant requirements in technical regulations or standards
are fulfilled." While Canada and Norway allege, and the EU appears to accept, that the
determination as to whether a product falls within the marine resource management or indigenous
communities exceptions are conformity assessmen t procedures, the United States believes the
Panel should consider whether these exceptions are technical regulations, and thus, whether any
determination concerning eligibility for these exceptions is subject to Articles 5.1 and 5.2.

18. The United States recalls that when a measure is alleged to be a technical regulation within
the meaning of the first sentence of Annex 1.1, that measure must set out "product characteristics
or their related processes and production methods...." The meaning of product characteristics was
just discussed in our statement. With respect to the rest of the sentence, the words "their" and
"related" refer to the term "product characteristics," and indicate that the processes and
production methods addressed by the first sentence of the definition of a technical regulation are
those that relate to product characteristics. Proc esses or production methods unrelated to product
characteristics are not covered by the first sentence of the definition of a technical regulation.

19. Therefore, if an exception does not concern a requirement in a technical regulation (and by
definition those requirements would concern product characteristics or processes or production
methods related to product characteristics), then a determination as to whether a particular
product was eligible for the exception would not be the type of determination specified in the
definition. That is, it would not involve a determination as to whether relevant requirements in
technical regulations are fulfilled. If an exception does not depend on or prescribe any
characteristic of the product or a process or produc tion method related to the characteristic of the
product, then it would appear that the exceptio n is not a technical regulation. Accordingly, any
procedure for determining eligibility with the exception would not be a procedure for "a positive
assurance of conformity with" a technical regulation.

20. Therefore, where a determination is required with respect to whether a product satisfies a
measure (or an aspect of a measure) that is not a technical regulation, that requirement does not
come under Article 5.1. Since Article 5.2 applies to situations in which a Member is implementing
the provisions of Article 5.1, Article 5.2 also would not apply to measures or aspects of measures
that are not technical regulations or standards.

21. Thus, to the extent that a determination of eligibility for an exception that sets out non-
product characteristics is required, that determination is not within the scope of Article 5.1 or 5.2.
However, a determination procedure may of course still be amenable to challenge under other
WTO agreements, including Article III:4 of the GATT 1994 as a measure that accords less
favorable treatment to like products.