EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS NOTIFICATION OF AN APPEAL BY CANADA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 29 January 2014
Document codes: WT/DS400/8
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
NOTIFICATION OF AN APPEAL BY CANADA
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
 The following notification, dated 24 January 2014, from the Delegation of Canada, is being
circulated to Members.

 Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate
Review, Canada notifies its appeal of certain issues of law in the Report of the Panel in European
Communities – Measures Prohibiting the Importation and Marketing of Seal Products
() and certain legal interpretations developed by the Panel in this Report.
First, Canada seeks review by the Appellate Body of the Panel's findings and conclusions
with respect to the legitimate regulatory distinction test in Article 2.1 of the Agreement on
Technical Barriers to Trade (TBT Agreement). Specifically, the Panel erred in its intermediate
finding that the distinction between commercial and IC
1 hunts based on the purpose of the hunt is
justifiable.2 The Panel erred by formulating and applyi ng the wrong legal test, and in doing so,
failed to take into account relevant information about the negative impact of the IC exception on
the identified objective of the EU Seal Regime.3
Canada also requests the Appellate Body to find that the Panel acted inconsistently with
Article 11 of the DSU by failing to make an objective assessment of the facts pertinent to its
findings under Article 2.1 of the TBT Agreement with respect to the distinctions between
commercial and IC hunts.4
Second, Canada seeks review by the Appellate Body of the Panel's findings and conclusion
that the EU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement. This conclusion
is incorrect as a matter of law, and is based on erroneous intermediate findings on issues of law
and legal interpretation including the Panel's reasoning and findings with respect to whether the
EU Seal Regime contributes to the identified objective,
5 the relational analysis under the "weighing
and balancing" exercise, and its reasoning and findings as to whether the alternative measure
proposed by Canada is reasonably available.6 Specifically, in relation to the "contribution" element,
the Panel erred in finding that the EU Seal Regime as a whole contributes to the identified
objective by applying the wrong legal test and failing to articulate with sufficient specificity the
extent of the contribution. 7 The Panel also failed to properly assess the risks non-fulfilment would

1 IC refers to "Inuit or other indigenous communities".
2 See e.g. Panel Report, EC – Seal Products, paras. 7.283-7.300.
3 The EU Seal Regime includes the Basic Regulation and the Implementing Regulation as set out in
ibid. paras. 7.7-7.24.
4 See e.g. ibid. paras. 7.227-7.245 and 7.261-7.271.
5 See e.g. ibid. paras. 7.446-7.460.
6 See e.g. Panel Report, EC – Seal Products, paras. 7.496-7.504.
7 See e.g. ibid. paras. 7.441-7.461.

create, or to conduct a relational analysis.8 In relation to its reasoning and findings with respect to
the reasonable availability of the alternative measure advanced by Canada, the Panel erred by
comparing the wrong aspects of the EU Seal Regime with the alternative measure,
9 by
disregarding measures applied by the European Union in comparable situations or similar product
areas,10 and by mis-interpreting and mis-applying Appellate Body jurisprudence.11
Canada also requests the Appellate Body to find that the Panel acted inconsistently with
Article 11 of the DSU by failing to make an objective assessment of the facts pertinent to the
above-referenced intermediate findings with respect to Article 2.2 of the TBT Agreement, including
its consideration and assessment of facts and evidence pertinent to the question of whether the EU
Seal Regime contributes to the identified objective, and has negatively impacted demand in the
European Union.
 Third, Canada seeks review by the Appellate Body of the Panel's findings and conclusion with
respect to Article XX of the GATT 1994. Canada subm its that the Panel erred in finding that the EU
Seal Regime is provisionally justified under Article XX(a). Specifically, the Panel failed to interpret
and apply the first element
12 of Article XX(a) correctly, by ignoring the words "to protect", and
thereby omitting to determine whether the sale in the European Union of products derived from
commercial seal hunts created a risk to an EU public moral.
13 It also erred in its interpretation and
application of the necessity test under Article XX(a) with respect to the issues of the contribution
of the EU Seal Regime to the identified objective, and with respect to the reasonable availability of
the alternative measure advanced by Canada already noted above in the context of Canada's
request for review under Article 2.2 of the TBT Agreement.
14 In addition, although it came to the
correct conclusion that the EU Seal Regime is no t consistent with the requirements of the chapeau
of Article XX, the Panel erred in its reasoning in coming to this conclusion.15
 Canada also requests the Appellate Body to find that the Panel acted inconsistently with
Article 11 of the DSU in relation to its findings under Article XX(a) by failing to make an objective
assessment of the facts by not taking into account evidence relating to animal welfare standards in
the European Union, including standards applied to other wild animal hunts and commercial
abattoirs.
16