EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS NOTIFICATION OF AN APPEAL BY NORWAY 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/DS401/9
Complainant: Norway
Respondent: EU
Third parties: Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia, Russia, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. I:1, III:4, XI:1  GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5  Technical Barriers to Trade (TBT)Art. 4.2  Agriculture

EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
NOTIFICATION OF AN APPEAL BY NORWAY
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 Norway, is being
circulated to Members.

Settlement Body (“DSB”) of its decision to appeal certain issues of law and legal interpretations in
the Panel Report in European Communities – Measures Prohibiting the Importation and Marketing
of Seal Products (WT/DS401) (“Panel Report”).
2. Pursuant to Rules 20(1) and 21(1) of the Working Procedures, Norway files this Notice of
Appeal together with its Appellant’s Submission with the Appellate Body Secretariat.
3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal includes an
indicative list of the paragraphs of the Panel Report containing the alleged errors, without
prejudice to Norway’s ability to rely on other paragraphs of the Panel Report in its appeal.

4. Norway seeks review by the Appellate Body of the following errors of law and legal
interpretation by the Panel in its Report, and requests the following findings by the Appellate Body.
I. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE 2.2 OF THE TBT AGREEMENT
1. With respect to the Panel’s identification of the objective of the EU Seal
Regime:1
5. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to
make an objective assessment of the facts as requ ired under Article 11 of the DSU, when it found
that the objectives of the EU Seal Regime do not include protecting the interests of indigenous
communities (“IC”), as reflected in the “IC requirements”2 under the measure, and promoting the
sustainable management of marine resources (“SR M”), as reflected in the “SRM requirements” 3
under the measure; and rather found that the EU Seal Regime pursues a sole “objective” of

1 Panel Report, paras. 7.410 and 8.2(b).
2 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(1); Implementing Regulation, Exhibit JE-2,
Article 3(1).
3 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2,
Article 5(1).

a d d r e s s i n g “ t h e 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 t o t h e w e l f a r e o f s e a l s ” .4 I n
particular, the Panel erred because:
 it failed properly to consider the text, legislat ive history, structure, design and operation of
the EU Seal Regime in identifying the objectiv es of the EU Seal Regime, as required under
Article 2.2;5
 in its assessment of the evidence regarding the objectives of the EU Seal Regime, the Panel
failed to make an objective assessment of th e facts, as required under Article 11 of the
DSU;6 and
 assuming it did properly assess the text, legisl ative history, structure, design and operation
of the EU Seal Regime ( quod non), the Panel erred under Article 2.2 in finding that the IC
and SRM interests reflected in the IC and SRM requirements do not qualify as objectives.7
6. For the reasons provided in paragraph 5 above, Norway requests that the Appellate Body
reverse the Panel’s finding that the objectives of the EU do not include protecting IC interests and
promoting SRM interests, and that the EU Seal Regime’s sole objective is to address “the moral
concerns of the EU public with regard to the welfare of seals”. As a result, the Appellate Body
should also reverse the Panel’s ultimate finding, in paragraph 8.2(b) of the Panel Report, that the
EU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement.
2. With respect to the Panel’s finding the E U S e a l R e g i m e i s “ n o t m o r e t r a d e
restrictive than necessary to fulfil” its objective:8
7. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to
make an objective assessment of the facts as requ ired under Article 11 of the DSU, in finding that
the EU Seal Regime is capable of making, and do es make, some contribution to the identified
objective of addressing EU public moral concerns.9 In particular, the Panel erred because:
 it failed properly to interpret and apply Article 2.2, by failing to articulate with sufficient
clarity and precision the degree or extent of the contribution made by the EU Seal Regime to
its objective, and by concluding that the EU Seal Regime is capable of making, and does
make, some contribution to EU public moral concerns;
10 and
 it failed to make an objective assessment of the facts, as required under Article 11 of the
DSU, in finding that the EU Seal Regime is capable of making, and does make, some
contribution to the identified objective of addressing EU public moral concerns;
11 and
 the Panel also failed to make an objective assessment of the matter under Article 11 of the
DSU by failing to address Norway’s claim and argument that three contested conditions
under the SRM requirement – that is, the “s ole purpose”, “not-for-profit”, and “non-
systematic” requirements12 (the “three contested conditions”) – make no contribution to the
measure’s objectives.
8. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to
make an objective assessment of the matter, as required under Article 11 of the DSU, by failing to
establish whether the EU Seal Regime gives rise to “arbitrary and unjustifiable discrimination”, as
required by Article 2.2, read in light of the sixth recital of the preamble of the TBT Agreement;

4 Panel Report, para. 7.410.
5 Panel Report, paras. 7.372-7.411.
6 Panel Report, paras. 7.372-7.411.
7 Panel Report, para. 7.402. See also Panel Report, paras. 7.399 and 7.401.
8 Panel Report, paras. 7.505 and 8.2(b).
9 Panel Report, para. 7.460.
10 Panel Report, paras. 7.441-7.461.
11 Panel Report, paras. 7.441-7.461.
12 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2,
Articles 5(1) and 5(1)(c).

9. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to
make an objective assessment of the matter as re quired under Article 11 of the DSU, in finding
that one of the less trade-restrictive alternative measures proposed by Norway was not reasonably
available to the European Union, having regard to the level of contribution of the alternative. 13 In
particular, the Panel erred because:
 it held the alternative measure up to a benchmark level of contribution that was much
higher than the degree of contribution it ha d found was achieved by the EU Seal Regime,
contrary to Article 2.2;14 and
 it failed to make an objective assessment of the facts under Article 11 of the DSU, by not
addressing or making any findings with respect to other less trade-restrictive alternatives
put forward by Norway.
10. For the reasons provided in paragraphs 7, 8, and 9 above, Norway requests that the
Appellate Body reverse the Panel’s finding that the EU Seal Regime is not more trade-restrictive
than necessary to fulfil the legitimate objective. 15 As a result, the Appellate Body should also
reverse the Panel’s ultimate finding, in paragrap h 8.2(b) of the Panel Report, that the EU Seal
Regime is not inconsistent with Article 2.2 of the TBT Agreement.
II. REQUEST FOR LIMITED COMPLETION OF THE ANALYSIS UNDER ARTICLE 2.2 OF
THE TBT AGREEMENT
11. If, as requested by Norway above, the Appella te Body reverses, for any reason, the Panel’s
findings under Article 2.2 of the TBT Agreement, Norway requests the Appellate Body to complete
the legal analysis under Article 2.2 of the TBT Agreement and make the following limited findings:
 that, in addition to pursuing the EU public morals objective, the objectives of the EU Seal
Regime also include protecting the interests of indigenous communities and promoting
sustainable marine resource management;
 that promoting sustainable marine resource management is a legitimate objective; and
 that, by virtue of the three contested SRM conditions, the EU Seal Regime is more trade-
restrictive than necessary to fulfil its legitimate objectives.
III. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE XX OF THE GENERAL
AGREEMENT ON TARIFFS AND TRADE (“GATT 1994”) AND REQUEST FOR
COMPLETION OF THE ANALYSIS UNDER ARTICLE XX OF THE GATT 1994
1. With respect to the Panel’s finding that the EU Seal Regime is provisionally
justified under sub-paragraph (a) of Article XX of the GATT 1994:16
12. The Panel erred in interpreting and applying sub-paragraph (a) of Article XX because it
examined whether the EU Seal Regime as a whole was provisionally justified under that provision,
whereas it was required, but failed, to consider whether the specific aspects of the measure that
give rise to violations of substantive provis ions of the GATT 1994 could fall under, and be
provisionally justified by, sub-paragraph (a).
17 Norway, therefore, requests that the Appellate
Body reverse the Panel’s findings at paragraphs 7.639 and 8.3(d) that the EU Seal Regime falls
under, and is provisionally justified by, sub-paragraph (a).

13 Panel Report, para. 7.504.
14 Panel Report, paras. 7.467, 7.478-7.485 and 7.493-7.505.
15 Panel Report, para. 7.505.
16 Panel Report, paras. 7.639 and 8.3(d).
17 Panel Report, paras. 7.618-7.624.

13. Norway also requests that the Appellate Body complete the analysis and find that the
specific aspects of the measure that give rise to violations of the GATT 1994 do not fall under, and
are not provisionally justified by, sub-paragraph (a) of Article XX.
14. If the Appellate Body disagrees with Norway’s requests under paragraphs 12 and 13 above,
Norway further considers that the Panel erred in interpreting and applying sub-paragraph (a) of
Article XX, and failed to make an objective asse ssment of the matter, as required under Article 11
of the DSU. In particular, the Panel erred because:
 it failed properly to interpret and apply subparagraph (a) of Article XX by finding that the EU
Seal Regime as a whole contributes “to a certain extent” to the measure’s objective;18
 it failed to make an objective assessment of the facts, as required under Article 11 of the
DSU, in finding that the EU Seal Regime as a whole contributes “to a certain extent” to the
measure’s objective;19
 it failed to apply the proper legal standard under sub-paragraph (a) of Article XX as regards
a less trade-restrictive alternative measure because it held the alternative measure up to a
benchmark level of contribution that was much higher than the degree of contribution it had
found was achieved by the EU Seal Regime;
20 and
 it failed to make an objective assessment of the facts, as required under Article 11 of the
DSU, by not addressing or making any findings with respect to other less trade-restrictive
alternatives put forward by Norway.
15. As a result of the errors identified in paragraph 14 above, Norway requests that the
Appellate Body reverse the Panel’s ultimate finding at paragraphs 7.639 and 8.3(d).
2. With respect to the Panel’s finding that the EU Seal Regime reflects arbitrary
and unjustifiable discrimination under the chapeau of Article XX of the GATT
1994:21
16. The Panel erred in interpreting and applying the chapeau of Article XX because, in
determining whether the IC and SRM requirements are applied in a manner that reflect “arbitrary
or unjustifiable discrimination”, it failed to end its analysis upon finding that the IC and SRM
requirements are not “rationally connected” to the EU public moral concerns.22
17. If the Appellate Body disagrees with Norway’s requests under paragraphs 12 and 13 above,
Norway requests that the Appellate Body modify the reasoning underpinning the Panel’s finding at
paragraphs 7.651 and 8.3(d) that the measure is not consistent with the requirements of the
chapeau to Article XX, and uphold that finding, albeit for reasons different than those given by the
Panel.