EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE PANEL
Document: COMMUNICATION FROM
Date: 5 February 2013
Document codes: WT/DS400/6; WT/DS401/7
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
COMMUNICATION FROM THE PANEL
 The following communication, dated 1 February 2013, was received from the Chairperson of
the Panel with the request that it be circulated to the Dispute Settlement Body (DSB).

 On 19 December 2012, the European Union submitted to the Panel a request for a
preliminary ruling concerning removal of certain exhibits from the record of the proceedings.

 On 29 January 2013, the Panel issued the attached preliminary ruling to the parties and
third parties.

 After consulting the parties to the dispute, the Panel decided to inform the Dispute
Settlement Body (DSB) of the content of its prelimin ary ruling. Therefore, I would be grateful if
you would circulate this letter and the attached preliminary ruling to the Members of the DSB.
 •

PRELIMINARY RULING OF THE PANEL

1 PROCEDURAL BACKGROUND
1.1. On 11 December 2012, Canada submitted a letter seeking leave to withdraw Exhibit JE-13
and all references to it in its first written submission. Canada explains that the European Union
requested Canada to take such an action because, according to the European Union, the document
in question was released without authorization.
1.2. On 13 December 2012, Norway submitted a letter addressing the same matter. Norway
indicates that it received a similar request from the European Union with respect to
Exhibits JE-13 and NOR-75 1. Norway is seeking leave not only to withdraw Exhibits JE-13 and
NOR-75, but also to re-file an amended first written submission, together with new exhibits to
replace those it will withdraw.
1.3. On the same day, the European Union su bmitted a letter in response to Canada's and
Norway's letters of 11 and 13 December 2012, respectively. The European Union states that
Exhibits JE-13 and NOR-75 contain classified documents under the EU regulations, which have not
been authorized for disclosure to the public. The Eu ropean Union explains that, as it is confident
that Canada and Norway have acted in good faith, it has invited them informally to withdraw the
documents from the record. Regarding Norway's request to re-file an amended first written
submission, however, the European Union considers it unnecessary. In its view, if Norway wishes
to submit new exhibits and argument in place of the withdrawn exhibits, it should do so at the first
substantive meeting.
1.4. Following the European Union's letter, Norway submitted a letter on 14 December 2012 to
withdraw its "conditional request to withdr aw" Exhibits JE-13 and NOR-75, submitted on
13 December 2012. Norway explains that its init ial request to withdraw these exhibits was
expressly made "conditional" upon an understanding that the European Union would not object to
Norway's filing of an amended first written subm ission, including replacement exhibits. As the
European Union objects to Norway's request in this regard, it withdraws its conditional request to
withdraw Exhibits JE-13 and NOR-75.
1.5. On 19 December 2012, pursuant to paragraph 6 of the Panel's Working Procedures
2, the
European Union submitted a request that the Panel "issue a preliminary ruling removing from the
file Exhibit JE-13 and Exhibit NOR-75"
3.
1.6. Following the Panel's invitation of 20 December 2012, the complainants submitted their
responses to the European Union's request on 16 January 2013.
2 MAIN ARGUMENTS OF THE PARTIES AND THE THIRD PARTIES
2.1 Main arguments of the parties
2.1. Exhibit JE-13 is titled "Legal Serv ice of the Council of the European Union, Opinion on the
proposal for a Regulation of the European Parliament and of the Council concerning trade in seal

1 Canada and Norway are the complainants in DS400 and 401, respectively. In addition to their own
sets of exhibits (i.e. CDA and NOR), the complainants have also agreed to submit Joint Exhibits (JE) in these
proceedings pursuant to paragraph 11 of the Panel's Working Procedures.
2 Paragraph 6 of the Panel's Working Procedures provides:
A party shall submit any request for a preliminary ruling at the earliest possible opportunity and
in any event no later than in its first written 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.
3 European Union's request of 19 December 2012, para. 1.
WT/DS400/6 • WT/DS401/7

products – Compatibility with WTO , 7691/09 (17 March 2009)" 4. Exhibit NOR-75 is titled " Opinion
on the proposal for a Regulation of the European Parliament and of the Council concerning trade in
seal products – Legal Basis, 6623/09 (18 February 2009)"
5.
2.2. The European Union argues that both legal opinions are classified documents under the
applicable regulations of the European Union and have not been authorized by the EU Council for
public disclosure6. At the same time, the European Union does not dispute that both Canada and
Norway had acted in good faith when providing copies of them to the Panel7.
2.3. The European Union further argues that "in many jurisdictions … evidence obtained illegally
cannot be relied upon in judicial proceedings" and opines that "this principle should also be upheld
in WTO dispute settlement proceedings"
8. The European Union acknowledges that the WTO
Agreement does not contain any provision addressing specifically the situation where a WTO
Member seeks to rely on evidence obtained in breach of the laws of another WTO Member, but
argues that "[t]his does not mean, however, th at WTO Members are free to submit such illicit
evidence"9. The European Union also recalls that Arti cle 3.10 of the DSU enjoins WTO Members to
engage in dispute settlement in good faith 10. Finally, the European Union argues that the exhibits
in question are "not relevant, let alone necessary, in order to prove Norway's claims"11.
2.4. In response to the European Union's reques t, Canada recalls that it has already agreed to
withdraw Exhibit JE-13 as communicated in its request for leave dated 11 December 2012 12, and
observes that such removal also entails the removal of certain paragraphs from its first written
submission
13. Canada states further that the removal of those paragraphs will not require it to
make additional revisions to its first written submission 14. Norway submits that it has no objection
in principle to withdrawing the concerned exhibits as reflected in its conditional application for
leave dated 13 December 2012 15. Norway also submits that the facts revealed by the relevant
exhibits can also be demonstrated, "albeit in a less direct and immediate manner, by other
evidence"16.
2.5. Further, Canada requests the Panel to provid e guidance on how to proceed as a result of the
removal of the exhibits and argues that the co mplainants' due process rights be protected by
providing them with "an opportunity to remedy the impact that such removal might have on the
coherence and completeness of the legal arguments" 17 presented in their first submissions.
Norway argues that it "would not be consistent with due process and orderly procedure for [the
exhibits] to be withdrawn without giving Norway an opportunity to replace that evidence"
18. It also
seeks an opportunity to address resulting incomplete sentences and paragraphs in its submission
should it be instructed to expunge therefrom any references to the exhibits 19. In this regard, the
European Union states that like Canada, it defers to the Panel on the most appropriate mechanism

4 List of Joint Exhibits to the first written submissions of Canada and Norway (9 November 2012),
Exhibit JE-13.
5 List of Exhibits to the first written submission of Norway (9 November 2012), Exhibit NOR-75.
6 European Union's request of 19 December 2012, paras. 6-9.
7 European Union's request of 19 December 2012, para. 12. The European Union explains that the EU
Council received a request from some individuals under Regulation (EC) No 1049/2011, but refused to grant
full access and allowed partial access to the legal opinions at issue in accordance with Article 4.2 of the same
EU regulation, and expunged all traces of legal advice. The European Union submits that whoever provided the
documents submitted as Exhibits JE-13 and NOR-75 to Canada and Norway did so in flagrant violation of the
applicable EU regulations. (European Union's request of 19 December, para. 10)
8 European Union's request of 19 December 2012, para. 17.
9 European Union's request of 19 December 2012, para. 26.
10 European Union's request of 19 December 2012, para. 27.
11 European Union's request of 19 December 2012, para. 22.
12 Canada's response of 16 January 2013, p.1.
13 Canada's response of 16 January 2013, p. 1.
14 Canada's response of 16 January 2013, p. 2.
15 As described above in paragraph 1.3, on 14 December 2012, Norway withdrew its conditional
application for leave filed on 13 December 2012. We understand that Norway's agreement to withdraw the
exhibits in its communication of 16 January 2013 supersedes its withdrawal of the application for leave
submitted on 14 December 2012.
16 Norway's response of 16 January 2013, p. 2.
17 Canada's response of 16 January 2013, p. 2.
18 Norway's response of 16 January 2013, p. 2.
19 Norway's response of 16 January 2013, p. 2.
WT/DS400/6 • WT/DS401/7

to modify the record20. The European Union nevertheless considers it unnecessary for Canada and
Norway to re-file their first written submissions. It argues that it would be sufficient if the Panel
instructed the parties to refrain from submitting any further argument based on Exhibits JE-13 and
NOR-75, and if the Panel disregarded those two exhibits, as well as any arguments included in
Norway's and Canada's first written submission referring to them, when deliberating and making
its findings.
2.2 Main arguments of the third parties
21
2.6. The United States opines that the legal opin ions of an agency of a Member would appear to
be of limited relevance to both the factual and legal matter before the Panel 22. Further, the United
States argues that the Panel should refrain from rejecting evidence without a basis in the DSU for
doing so
23. The United States asserts that the European Union has not provided any basis in the
DSU for a panel to reject a piece of evidence prov ided by a party. Based on the European Union's
arguments on this matter, therefore, the United States does not see a basis in the DSU for the
Panel to reject Exhibits JE-13 and NOR-75
24.
3 RULING OF THE PANEL
3.1. As a preliminary matter, we observe that, as expressed in their respective communications
on this matter25, including their latest responses of 16 January 2013, both Canada and Norway are
in principle willing to withdraw the exhibits in question. Under these circumstances, we consider
that it is not necessary for us to pronounce on the legal status of the documents or the relevance
thereof. Moreover, given the complainants' willin gness to remove the documents and our decision
set out below, it is not necessary for us to determine whether the European Union would suffer
any impairment in its ability to defend itself in these proceedings were the documents to remain in
the record.
3.2. Second, as acknowledged by the European Union, we are mindful of the fact that Canada and
Norway have acted in good faith in submitting these exhibits to the Panel.
3.3. We further consider that, in light of the complainants' agreement to withdraw the documents
from the record and their undertaking to refrain from making any reference thereto in these
proceedings, the complainants' due process rights would not be affected by the removal of the two
exhibits from the record in the present proceedi ngs. Commensurate with this determination, we
consider that the complainants should have an op portunity to file replacement evidence together
with explanations demonstrating how such new documents relate to the relevant arguments made
in their first written submissions. The European Union will be given an opportunity to respond to
any replacement exhibits and explanations submitte d by the complainants at the first substantive
meeting.
3.4. For these reasons, therefore, and without pr ejudice to our decision on Norway's request for
the Panel to exercise its power under Article 13 of the DSU
26, we grant the European Union's
request to remove Exhibits JE-13 and NOR-75 fr om the record of the proceedings in DS400 and
DS401.
3.5. In deciding to rule on the European Union' s request, we are aware of the complainants' view
that, in light of their willingness to withdraw these exhibits, the Panel does not need to make a
formal ruling. However, under the circumstances of the present disputes, we consider it in the
interest of procedural clarity to issue this ruling and explain the reasons therefor. We also find it
useful to set out procedural directions for giving effect to this ruling.

20 European Union's request of 19 December 2012, para. 30.
21 The United States submitted, in its third party written submission dated 25 January 2013, its
comments on the European Union's preliminary ruling request. The United States is the only third party to
have done so in these proceedings.
22 United States' third party written submission, paras. 14-15.
23 United States' third party written submission, paras. 16-17.
24 United States' third party written submission, para. 20.
25 See paras. 1.1. and 1.2.
26 On 16 January 2013, together with its response to the European Union's request for a preliminary
ruling, Norway submitted a separate request for the Panel to exercise its power under Article 13 of the DSU to
seek certain documents.
WT/DS400/6 • WT/DS401/7

3.6. The record in these proceedings shall therefore be modified in the following manner:
 The members of the Panel and those members of the Secretariat assisting the Panel,
including the DS Registrar, shall destroy the or iginals and all copies of Exhibits JE-13 and
NOR-75, be they in electronic or paper form;

 The Chairman of the Panel through the DS Re gistrar shall place on the record a note
indicating that Exhibits JE-13 and NOR-75 ha ve been destroyed pursuant to the Panel's
preliminary ruling dated Tuesday, 29 January 2013;

 The complainants shall destroy all copies (electronic and paper) of Exhibits JE-13 and
NOR-75 and shall refrain from making any further references to Exhibits JE-13 and NOR-75
in these proceedings;

 The third parties shall destroy all copies (electronic and paper) of Exhibits JE-13 and
NOR-75; and

 The Panel shall disregard, in its deliberations and in its reports, Exhibits JE-13 and NOR-75,
as well as any references to such exhibits.

3.7. We thus invite the complainants to submit any replacement exhibits, along with a brief
explanation of their relevance to the complainants' arguments, referring to relevant paragraphs in
their respective first written submissions. We underline that any such explanations should be
strictly limited to the specific arguments that have already been presented in the first written
submissions in relation to Exhibits JE-13 and NOR-75 and should not raise new legal claims or
arguments. Nor should the parties submit amended versions of their entire first written
submissions.
3.8. We do not consider it necessary, however, to redact specific paragraphs in the complainants'
first written submissions in which the two exhibits are referenced
27.
3.9. The complainants shall submit such replac ement exhibits and any brief explanation thereof
no later than 5 pm, Friday, 8 February 2013, follo wing the procedures prescribed in paragraph 25
of the Panel's Working Procedures regarding se rvice of documents. As mentioned above, the
European Union will have the opportunity to respond to any replacement exhibits and explanations
submitted by the complainants at the first substantive meeting.
3.10. Finally, we reserve the right to modify this ruling and observe that this ruling, in its modified
form if any modifications are made, will be incorporated as an integral part of the Panel's findings.