in the world trade organizationtrade.ec.europa.eu/doclib/docs/2012/december/tradoc... · 2019. 4....

In the World Trade Organization

European Communities – Measures Prohibiting the Importation and Marketing of Seal Products

(DS400, DS401)

First Written Submission by the European Union

Geneva, 21 December 2012

EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________

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TABLE OF CONTENTS

1. INTRODUCTION.................................................................................................. 1

2. BACKGROUND .................................................................................................... 4

2.1. DESCRIPTION OF THE MEASURE ........................................................... 4

2.1.1. The General Ban............................................................................... 5 2.1.2. The Indigenous Communities exception .......................................... 5 2.1.3. The Travellers exception .................................................................. 7 2.1.4. The Marine Resources Management exception ............................... 8 2.1.5. Mechanism for attesting compliance with the IC and the MRM

exceptions ......................................................................................... 9

2.2. IDENTIFICATION OF THE POLICY OBJECTIVE OF THE MEASURE 10

2.2.1. Overview ........................................................................................ 10 2.2.2. The structure and design of the Basic Regulation.......................... 11 2.2.3. The Preamble to the Basic Regulation ........................................... 14 2.2.4. The legislative history of the Basic Regulation.............................. 17

2.2.4.1 The European Commission proposal.................................. 17 2.2.4.2 The European Parliament's amendments to the European

Commission proposal ......................................................... 18

2.3. LEGITIMACY OF THE POLICY OBJECTIVE.......................................... 21

2.4. SCIENTIFIC GROUNDS FOR THE PUBLIC MORAL CONCERNS ....... 28

2.4.1. EFSA's opinion............................................................................... 29 2.4.2. Other veterinary reports.................................................................. 34

2.4.2.1 The Richardson (2007) report ............................................ 35 2.4.2.2 The Butterworth (2012) report ........................................... 35

2.4.3. Recommended killing methods ...................................................... 37 2.4.4. Canada's commercial hunt.............................................................. 42

2.4.4.1 Deficiencies of Canada's hunting regulations ................... 42 2.4.4.1.1 Method of stunning.............................................................................43 2.4.4.1.2 Confirmation of unconsciousness.......................................................44 2.4.4.1.3 Bleeding .............................................................................................46

2.4.4.2 Inherent obstacles to the effective implementation of humane killing methods ..................................................... 46 2.4.4.2.1 Physical environment .........................................................................47 2.4.4.2.2 Competitive pressure and other time constraints ................................54 2.4.4.2.3 Inability of the authorities to monitor the hunt and enforce the

regulations ..........................................................................................56 2.4.4.3 In practice, the prescribed killing method is not effectively

and consistently applied ..................................................... 58 2.4.4.3.1 Clubbing .............................................................................................59 2.4.4.3.2 Shooting .............................................................................................60 2.4.4.3.3 Checking for consciousness and bleeding ..........................................61

2.4.5. Norway's commercial hunt ............................................................. 63 2.4.5.1 Norway's hunting regulations............................................. 63 2.4.5.2 Inherent obstacles to the effective implementation of a

humane killing method....................................................... 67 2.4.5.2.1 Obstacles resulting from the physical environment ............................68 2.4.5.2.2 Monitoring difficulties........................................................................69


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2.4.5.3 In practice, the prescribed killing method is not effectively and consistently applied ..................................................... 70

2.5. EVIDENCE OF THE PUBLIC MORAL CONCERNS ............................... 72

3. THE TBT AGREEMENT.................................................................................... 75

3.1. APPLICABILITY OF THE TBT AGREEMENT ......................................... 75

3.1.1. The legal test .................................................................................. 76 3.1.2. The EU seals regime....................................................................... 79

3.1.2.1 The EU seals regime does not lay down "product characteristics".................................................................... 79

3.1.2.2 The EU seals regime does not lay down "related processes and production methods".................................................... 84

3.1.2.3 The EU seals regime does not lay down "applicable administrative provisions".................................................. 84

3.1.3. Conclusion...................................................................................... 87

3.2. ARTICLE 2.1 OF THE TBT AGREEMENT ............................................... 87

3.2.1. Legal standard ................................................................................ 88 3.2.2. Likeness.......................................................................................... 93 3.2.3. Less Favourable Treatment - IC exception .................................... 96

3.2.3.1 Legitimate objective behind the IC exception.................... 98 3.2.3.2 The IC exception – no de jure discrimination .................. 102 3.2.3.3 The IC exception – no de facto discrimination ................ 108

3.2.4. Less Favourable Treatment – MRM exception ............................ 113 3.2.4.1 Legitimate objective behind the MRM exception ............ 115 3.2.4.2 The MRM exception – no de jure discrimination ............ 119 3.2.4.3 The MRM exception – no de facto discrimination........... 120

3.2.5. Conclusion.................................................................................... 125

3.3. ARTICLE 2.2 OF THE TBT AGREEMENT ............................................. 125

3.3.1. The legal test ................................................................................ 126 3.3.1.1 Legitimate objective ......................................................... 127 3.3.1.2 No more trade-restrictive than necessary ......................... 128

3.3.2. Burden of proof ............................................................................ 129 3.3.3. The measure pursues a legitimate objective................................. 130 3.3.4. The measure is not more trade-restrictive than necessary............ 131

3.3.4.1 The trade restrictiveness of the measure .......................... 131 3.3.4.2 Degree of contribution to the legitimate objective ........... 131 3.3.4.3 The nature of the risks concerned and the gravity of the

consequences of non-fulfilment ....................................... 134 3.3.4.4 Alternative measures ........................................................ 135

3.3.4.4.1 First alternative: conditioning market access on compliance with animal welfare standards combined with a labelling requirement ....136

3.3.4.4.2 Second alternative: removing the "three sets of requirements".........152 3.3.4.4.3 Third alternative: removal from the MRM exception of the

requirements that the product be placed on the market "in a non-systematic way" and "on a non-profit basis" ....................................153

3.3.5. Conclusion.................................................................................... 153

3.4. ARTICLES 5.1.2 AND 5.2.1 OF THE TBT AGREEMENT ...................... 153


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3.4.1. Article 5.1.2 .................................................................................. 154 3.4.1.1 The legal test .................................................................... 154 3.4.1.2 The procedure under the Implementing Regulation meets the

requirements of the TBT Agreement................................ 157 3.4.1.2.1 The substantive and procedural requirements for designation of a

conformity assessment body under the Implementing Regulation....159 3.4.1.2.2 Eligibility of private/non-governmental bodies ................................161 3.4.1.2.3 Eligibility of public and private bodies from within and outside the

territory of the European Union........................................................163 3.4.1.2.4 There is no obligation under Article 5.1.2 of the TBT Agreement to

always designate a "default" public (central or local government) body 164

3.4.1.3 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 ....... 166

3.4.1.4 Conclusion........................................................................ 167 3.4.2. Article 5.2.1 .................................................................................. 168

3.4.2.1 The legal standard............................................................. 168 3.4.2.2 The claim against the Implementing Regulation as such . 171 3.4.2.3 The claim against the Implementing regulation as applied

173 3.4.2.4 Conclusion........................................................................ 173

4. THE GATT ......................................................................................................... 174

4.1. ARTICLE XI:1 OF THE GATT 1994 ....................................................... 174

4.1.1. Legal standard .............................................................................. 174 4.1.2. The EU Seal Regime does not fall under Article XI of the GATT

1994 176 4.1.3. Conclusion.................................................................................... 177

4.2. ARTICLE III:4 OF THE GATT 1994 ....................................................... 177

4.2.1. Legal standard .............................................................................. 178 4.2.2. The EU Seal Regime as a law, regulation or requirement affecting

the internal sale, offering for sale, purchase and distribution of seal products in the EU........................................................................ 181

4.2.3. Likeness........................................................................................ 181 4.2.4. Less Favourable Treatment – MRM exception ............................ 182 4.2.5. Conclusion.................................................................................... 185

4.3. ARTICLE I:1 OF THE GATT 1994 .......................................................... 186

4.3.1. Legal standard .............................................................................. 186 4.3.2. Whether the EU Seal Regime, through the IC exception provides an

"advantage"................................................................................... 192 4.3.3. Likeness........................................................................................ 192 4.3.4. Whether the advantage granted to the group of products from other

origin is granted "unconditionally" to the group of like imported products (less favourable treatment) ............................................ 193

4.3.5. Conclusion.................................................................................... 198

4.4. ARTICLE XX(a) OF THE GATT 1994 ..................................................... 199

4.4.1. Legal standard under Article XX(a) ............................................. 199


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4.4.1.1 The first step ..................................................................... 199 4.4.1.1.1 The meaning of "public morals" .......................................................199 4.4.1.1.2 The definition of policy objectives and the choice of a level of

protection..........................................................................................200 4.4.1.1.3 The meaning of "necessary" .............................................................201

4.4.1.2 The second step ................................................................ 201 4.4.1.3 Burden of proof ................................................................ 202

4.4.2. The measure is necessary to protect public morals ...................... 202 4.4.2.1 The policy objective of the measure falls within the scope of

Article XX(a).................................................................... 202 4.4.2.2 The measure is 'necessary' to achieve its policy objective203

4.4.2.2.1 The importance of the values or interest furthered by the measure...203 4.4.2.2.2 Restrictive effect on international trade............................................204 4.4.2.2.3 Contribution of the measure to the achievement of the policy objective

204 4.4.2.2.4 Alternative measures ........................................................................204

4.4.3. The measure is applied in accordance with the chapeau of Article XX 205

4.5. ARTICLE XX(b) OF THE GATT 1994 ..................................................... 205

4.6. ARTICLE XXIII(b) OF THE GATT 1994 ................................................. 205

4.6.1. Legal Standard.............................................................................. 205 4.6.1.1 The test for the application of Article XXIII(b) ............... 205 4.6.1.2 Burden of proof ................................................................ 208

4.6.2. Legal argument............................................................................. 210 4.6.2.1 The measure does not upset the competitive relationship

between the imported products covered by the concessions and domestic products ...................................................... 210

4.6.2.2 Norway and Canada could have reasonably anticipated the measure............................................................................. 211

4.6.3. Conclusion.................................................................................... 214

5. THE AGREEMENT ON AGRICULTURE.................................................................. 214

6. CONCLUSION ........................................................................................................ 216


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TABLE OF CASES CITED

Short Title Full Case Title and Citation

Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010, DSR 2010:V, 2175

Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, 1527

Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI, 2985

Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043

Canada – FIRA GATT Panel Report, Canada – Administration of the Foreign Investment Review Act, L/5504, adopted 7 February 1984, BISD 30S/140

Canada – Periodicals Panel Report, Canada – Certain Measures Concerning Periodicals, WT/DS31/R and Corr.1, adopted 30 July 1997, as modified by Appellate Body Report WT/DS31/AB/R, DSR 1997:I, 481

Canada – Wheat Exports and Grain Imports

Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004, DSR 2004:VI, 2739

Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, 3127

China – Publications and Audiovisual Products

Panel Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010:II, 261

Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry, WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, 2535

Dominican Republic – Import and Sale of Cigarettes

Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May 2005, DSR 2005:XV, 7367

EC – Approval and Marketing of Biotech Products

Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III-VIII, 847

EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243

EC – Asbestos Panel Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR 2001:VIII, 3305

EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591


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EC – Bananas III (Guatemala and Honduras)

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Guatemala and Honduras, WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 695

EC – Bananas III (Article 21.5 – US)

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United States, WT/DS27/RW/USA and Corr.1, adopted 22 December 2008, upheld by Appellate Body Report WT/DS27/AB/RW/USA, DSR 2008:XIX, 7761

EC – Sardines Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359

EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004, DSR 2004:III, 925

EEC – Imports of Beef GATT Panel Report, European Economic Community – Imports of Beef from Canada, L/5099, adopted 10 March 1981, BISD 28S/92

Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 and 2, adopted 23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201

Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179

Korea – Various Measures on Beef

Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, 5

Philippines – Distilled Spirits Panel Reports, Philippines – Taxes on Distilled Spirits, WT/DS396/R / WT/DS403/R, adopted 20 January 2012, as modified by Appellate Body Reports WT/DS396/AB/R / WT/DS403/AB/R

US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012

US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by Appellate Body Report WT/DS406/AB/R

US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012

US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R

US – FSC (Article 21.5 – EC)

Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55

US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475)

US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, adopted 20 April 2005, as modified by Appellate Body Report WT/DS285/AB/R, DSR 2005:XII, 5797

US – Gasoline Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3


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US – MFN Footwear GATT Panel Report, United States – Denial of Most-Favoured-Nation Treatment as to Non-Rubber Footwear from Brazil, DS18/R, adopted 19 June 1992, BISD 39S/128

US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, 1909

US – Shrimp (Thailand) / US – Customs Bond Directive

Appellate Body Report, United States – Measures Relating to Shrimp from Thailand / United States – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties, WT/DS343/AB/R / WT/DS345/AB/R, adopted 1 August 2008, DSR 2008:VII, 2385 / DSR 2008:VIII, 2773

US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012

US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, adopted 13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R

US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, 323


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TABLE OF EXHIBITS

Exhibit Title

EU-1 Peter Sandøe and Stine B. Christiansen, Ethics of Animal Use, 2008

EU-2 Austria's Federal Act on the Protection of Animals

EU-3 United Kingdom's Animal Welfare Act, 2006

EU-4 Animal welfare main EU legislative references

EU-5 Council Regulation (EU) No 3254/91, of 4 November 1991, prohibiting the use of leghold traps, OJ L 308, 9.11.1991

EU-6 Regulation (EC) No 1523/2007 of the European Parliament and the Council, of 11 December 2007, banning the placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur, OJ L 343/1 of 27.12.2007

EU-7 Croatia's Animal Welfare Act of 1999

EU-8 Letter from Minister L.P. Brekk to WSPA, dated 1.12.2008

EU-9 Presentation of Norway's Animal Welfare Act in the website of Norway's Ministry of Agriculture and Food

EU-10 Arluke A. and Sanders, C.R., Regarding Animals, 1996, pp. 167-186

EU-11 New York Times, World Briefing, Asia, Taiwan, Parliament Takes Dog off the Menu, (December 18, 2003) available at: http://www.nytimes.com/2003/12/18/world/world-briefing-asia-taiwan-parliament-takes-dog-off-the-menu.html?fta=y

EU-12 Website of the Israeli Ministry of Industry Trade and Labour, restrictions on imports of non-kosher products, available at: http://www.tamas.gov.il/NR/exeres/5EA6B0B6-D877-48D7-A21F-BE9337BFA06A.htm

EU-13 United States' Dog and Cat Protection Act of 2000

EU-14 Australia's Customs (Prohibited Imports) Regulations 1956, Reg 4 W, Importation of Cat or Dog Fur

EU-15 The Canadian Press, Ottawa won't ban fur imports because of seal ban, 23 September 2009, available at: http://www.thestar.com/news/canada/article/699762

EU-16 United States' Shark Conservation Act of 2010

EU-17 United States' Shark Finning Prohibition Act of 2000

EU-18 Export Control (Export of live-stock to the republic of Indonesia) Order 2011

EU-19 Press release of Australia's Department of Agriculture, Fisheries and Forestry, available at http://www.daff.gov.au/animal-plant-health/welfare/export-trade/gov-response-to-cattle-mistreatment-in-indonesia.

EU-20 CA Health & Safety Code §25982 - Products resulting from force-feeding of birds to enlarge the liver; prohibition on sale in California

http://www.nytimes.com/2003/12/18/world/world-briefing-asia-taiwan-parliament-takes-dog-off-the-menu.html?fta=y


http://www.tamas.gov.il/NR/exeres/5EA6B0B6-D877-48D7-A21F-BE9337BFA06A.htm


http://www.thestar.com/news/canada/article/699762

http://www.daff.gov.au/animal-plant-health/welfare/export-trade/gov-response-to-cattle-mistreatment-in-indonesia



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Exhibit Title

EU-21 Illinois Horse Meat Act, 225 ILCS 635.1/1.5 - Slaughter for human consumption unlawful

EU-22 New Jersey's act banning marketing of horse meat for human consumption, available at http://www.njleg.state.nj.us/2012/Bills/A2500/2023_R2.HTM

EU-23 64 Okl. St. Ann. §1-1136 - Prohibition of Sale of Horsemeat

EU-24 TX AGRIC §149.001—007 – Sale or Possession of Horsemeat

EU-25 Ynet news.com, New Bill seeks to ban fur sales in Israel, 31 July 2012, available at http://www.ynetnews.com/articles/0,7340,L-4261479,00.html

EU-26 The Guardian, Russia bans hunting of baby harp seals, 19 March 2009.

EU-27 Decision No. 120 of the Board of the Eurasian Commission of 26 July 2012

EU-28 U.S. Senate Resolution of May 7, 2009, condemning the commercial seal hunt on animal welfare grounds and expressing support for an EU prohibition on seal trade

EU-29 Mexico's Ley General de Vida Silvestre

EU-30 Scientific Opinion of the Panel on Animal Health and Welfare on a request from the Commission on the Animal Welfare aspects of the killing and skinning of seals. The EFSA Journal (2007) 610, 1-122

EU-31 Burdon, R.L., Gripper, J., Longair, J.A., Robinson, I. and Tuehlmann D., 2001, Veterinary report, Canadian commercial seal hunt, Prince Edward Island, March 2001

EU-32 Daoust, P.-Y., Crook, A., Bollinger, T.K., Campbell, K.G. and Wong G., 2002, Animal Welfare and the harp seal hunt in Atlantic Canada, Canadian Veterinary Journal, 43, 687-694

EU-33 Smith, B., Caraguel, C., Crook, A., Daoust, P.-Y., Dunn, J.L., Lair, S., Longair, A., Philippa, J. Routh, A. and Tuttle, A., 2005, Improving humane practice in the Canadian harp seal hunt

EU-34 Butterworth, D.S., Gallego, P., Gregory, N., Harris, S. and Soulsbury, C., 2007, Welfare aspects of the Canadian seal hunt

EU-35 Linzey A., 2005, Public Morality and the Canadian Hunt

EU-36 Richardson, M., 2007, Inherently Inhumane

EU-37 Butterworth A., Richardson M., A Review of animal welfare implications of the commercial Canadian seal hunt, Marine Policy (2012), http:/dx.doi./10.101016/j.marpol.2012.07.006.

EU-38 DVD containing the video footage cited in the appendixes to Butterworth (2012)

EU-39 2011 – 2012 Seal License Conditions for Newfoundland and Labrador

EU-40 Canada's Department of Fisheries and Oceans, Overview of the Atlantic Seals Hunt, 2006-2010

EU-41 Johnston et al., Variation in sea ice cover on the east coast of Canada from 1969 to 2002: climate variability and implications for harp and hooded seals, Climate research, Vol. 29:209-222

EU-42 Canada's Department of Fisheries and Oceans, 2011-2015 Integrated Fisheries Management Plan for Atlantic Seals

http://www.njleg.state.nj.us/2012/Bills/A2500/2023_R2.HTM

http://www.ynetnews.com/articles/0,7340,L-4261479,00.html


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Exhibit Title

EU-43 Martinsen, S., Sealing in Norway – Welfare Aspects, report for NOAH, 6 December 2012

EU-44

Comments submitted by the Norwegian Fishermen's Association, Norway's Fishing Vessel Owners Association, Mr Bjørne Kverno, owner of a vessel, and Mr Karl Kr Angelsen, former skipper of a vessel, and a document of Norway's Fisheries Directorate, of 14.02.2011, recommending changes to the draft proposal published on 16 November 2010Norway's Fisheries Directorate

EU-45 Norway's Fisheries Directorate, Proposal to amend the rules on seal hunting, 16 November 2010

EU-46 Notification by the Director of Fisheries, 23 March 2011, regulations amending the regulations on seal hunting in Vesterisen and Østisen

EU-47 Judgement of 10 June 2001 of the Halogaland Court of Appeal in case No 11-011706AST-HALO (Polardrift and Angelsen)

EU-48 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 11, "Public Opinion on Sealing"

EU-49 Public opinion survey by Orb for Respect for Animals, 16 December 2008 (United Kingdom)

EU-50 Public opinion survey by TNSInfratest for IFAW, February 2009 (Germany)

EU-51 Public opinion survey by TNO NIPP, July 2006 (the Netherlands)

EU-52 Public opinion survey by Ipsos-MORI for IFAW, 11 October 2007 (Portugal and Slovenia)

EU-53 Public opinion survey by Dedicated Research for IFAW, May 2006 (Belgium)

EU-54 Public opinion survey by IPSOS for IFAW, 18 October 2007 (France)

EU-55 Public opinion survey by TNSInfratest for IFAW, August 2007 (Austria)

EU-56 Public opinion survey by IPSOS-Mori for IFAW, January 2008 (Sweden)

EU-57 Public opinion survey by TNSAisa for IFAW, February 2008 (Czech Republic)

EU-58 A summary of the results of various public opinion surveys compiled by IFAW

EU-59 Public opinion survey by IPSO-Mori for IFAW and HSI, June 2011 (Belgium, France, Germany, United Kingdom, Italy, Lithuania, Netherlands, Poland, Romania, Spain and Sweden)

EU-60 Canada's Department of Fisheries and Oceans, Facts about seals 2008

EU-61 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 9, "The Campaign against sealing "

EU-62 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The Importation ban of the European Communities"

EU-63

Information on charges and convictions for violations of Canada's sealing regulations available at DFO's website: http://www.dfo-mpo.gc.ca/media/archive/charges-inculpations2009-eng.htm. http://www.dfo-mpo.gc.ca/media/archive/charges-inculpations2010-eng.htm. http://www.dfo-mpo.gc.ca/media/archive/charges-inculpations2011-eng.htm; http://www.dfo-mpo.gc.ca/media/charges-inculpations-eng.htm.

http://www.dfo-mpo.gc.ca/media/archive/charges-inculpations2009-eng.htm




http://www.dfo-mpo.gc.ca/media/charges-inculpations-eng.htm



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Exhibit Title

EU-64 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

EU-65 Order of 30 April 2010 of the General Court in Case T-18/10, Inuit Tapiriit Kanatami v Parliament and Council.

EU-66 Order of the Court of Justice of the European Communities of 29 January 2009, in Case C-9/08, Dominici v Parliament.

EU-67 Technical comments provided by the European Commission's Directorate General for Health Consumers with regard to some of the allegations made by the complaining parties in respect of the welfare requirements applicable to other animal species

EU-68 ISO/IEC: 67:2004(E): Conformity assessment – Fundamentals of product certification, Geneva, 2004.

EU-69 ISO/IEC 17020:2012, Conformity assessment – Requirements for the operation of various types of bodies performing inspection. Geneva, 2012.

EU-70 OSHA: NRTL Program Policies, Procedures, and Guidelines

EU-71 Standards Council of Canada: Certification Body Accreditation Program Handbook: Conditions and procedures for the accreditation of bodies certifying products, processes and services, Ottawa, 2009.

EU-72 Standards Council of Canada: Policy for the Suspension and Withdrawal of Accreditation and the Resolution of Complaints, Disputes and Appeals, Ottawa, 2012.

EU-73 Norwegian Accreditation: Quality Management - Because Safety and International Trade demand it

EU-74 ISO Central Secretariat: Building Trust: The conformity assessment toolbox, Geneva 2012

EU-75 The list of the current membership of the International Accreditation Forum

EU-76 Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 886

EU-77 List of Recognised Bodies pursuant to Article 6 of Commission Regulation (EU) No 737/2010).

EC – Seal Products First Written Submission (DS400, DS401) by the European Union _________________________________________________________________________

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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 Travellers exception.

2. The EU Seal Regime seeks to address deep and longstanding moral concerns of

the EU public with regard to the presence on 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 ensuring a sustainable management of marine resources


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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.

6. This submission is structured as follows:

• In Section 2, the European Union addresses, by way of background, a series

of horizontal questions relevant to all claims. Section 2.1 describes the

measure at issue. Section 2.2 identifies its objective. Section 2.3 expounds

the legitimacy of that objective. Section 2.4 sets out the scientific

justification for the moral concerns of the EU public. Last, Section 2.5

provides evidence of those concerns.

• In Sections 3 to 5 the European Union provides its rebuttal to the claims

submitted by the complaining parties. As the Agreement on Technical

Barriers to Trade (the "TBT Agreement") is more specific, the European

Union addresses first the various claims under that agreement, followed by

the claims under the General Agreement on Tariffs and Trade 1994 (the

"GATT") and the sole claim under the Agreement on Agriculture (the

"AoA").

• In Section 3.1 the European Union shows that the TBT Agreement is not

applicable with regard to the EU Seal Regime. In Section 3.2, the European

Union demonstrates that the IC exception and the MRM exception are not

inconsistent with Article 2.1 TBT, because they do not discriminate,

respectively, between imports from Canada or Norway and imports from

other sources or between domestic and imported products. In Section 3.3 the


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European Union rebuts the claim under Article 2.2 TBT that the EU Seal

Regime is more trade restrictive than necessary in order to achieve its policy

objective. In Sections 3.4 and 3.5 In Section 3.4 the European Union

demonstrates that the procedures to determine whether the conditions of the

IC and MRM exceptions are met as set out in the Implementing Regulation

do not violate Articles 5.1.2 and 5.2.1 TBT.

• In Section 4.1 the European Union shows that Article XI:1 of the GATT

1994 is not applicable in the present case by means of the operation of the

Ad Note to Article III of the GATT 1994, since the EU Seal Regime is not a

border measure but an internal regulatory measure. In Sections 4.2 and 4.3

the European Union shows that the complaining parties' claims under

Articles III:4 and I:1 of the GATT 1994 should be rejected for the same

reasons as Canada's claim under Article 2.1 of the TBT Agreement. In

addition, the European Union rebuts the specific arguments raised by the

complaining parties on these claims. In Sections 4.4 and 4.5 the European

Union demonstrates that, in so far as the EU Seal Regime was found to be

inconsistent with any of the GATT provisions cited by the complaining

parties, it would be justified under GATT Article XX(a) and/or XX(b). In

Section 4.6 the European Union shows that the complaining parties have

failed to substantiate their claim under GATT Article XXIII:I(b) because

they have not demonstrated that the competitive relationship between the

products covered by the relevant tariff concessions and the like domestic

products has been upset or that the complaining parties could not have

reasonably anticipated the measure at issue.

• In Section 5 the European Union demonstrates that the EU Seal Regime is

not inconsistent with Article 4.2 AoA.

• Section 6 concludes that, for the above reasons, the Panel should reject all

the claims submitted by the complaining parties.

7. Since each of the complaining parties has submitted different claims and

arguments, the European Union requests, pursuant to Article 9.2 DSU, that the


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Panel make separate findings and recommendations in each of the two disputes

covered by these proceedings.

2. BACKGROUND

2.1. DESCRIPTION OF THE MEASURE

8. The EU Seal Regime includes the following legal instruments:

• Regulation (EC) No 1007/2009 of the European Parliament and of the

Council, of 16 September 2009, on trade in seal products (the "Basic

Regulation")1; and

• Commission Regulation (EU) No 737/2010, of 10 August 2010, laying

down detailed rules for the implementation of the Basic Regulation (the

"Implementing Regulation")2.

9. The Basic Regulation imposes a general prohibition on the "placing on the market"

of seal products (the "General Ban"). This prohibition is subject to three

exceptions allowing, under certain conditions:

• the placing on the market of seal products resulting from hunts traditionally

conducted by Inuit or other indigenous communities (the "Indigenous

Communities" or "IC" exception) ;

• the placing on the market, on a non-profit basis and in a non-systematic

way, of seal products resulting from hunts conducted for the sole purpose

of the sustainable management of marine resources (the "Marine Resources

Management" or "MRM" exception); and

• the import of seal products for personal use by travellers or their families

(the "Travellers" exception).

1 (Exhibit JE – 1). 2 (Exhibit JE – 2).


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10. The Implementing Regulation lays down more specific conditions in relation to

each of the above three exceptions and sets up a mechanism for attesting

compliance with the conditions relating to the IC exception and the MRM

exception.

2.1.1. The General Ban

11. The General Ban on the placing on the market of seal products results from Article

3.1 of the Basic Regulation, which states that:

The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. […].

12. The terms "placing on the market" are defined by the Basic Regulation as

"introducing onto the Community market, thereby making available to third

parties, in exchange for payment".3

13. The term "seal" is defined as including "specimens of all species of seals

(Phocidae, Otariidae and Odobenidae)"4. In turn, the terms "seal products" mean:

all products, either processed or unprocessed derived or obtained from seals, including meat, oil, blubber, organs, raw fur skins, tanned or dressed, including fur skins assembled in plates, crosses and similar forms, and articles made from skins.5

14. The General Ban applies indistinctly with regard to both domestic seal products

and imported seal products. In the case of imported products, the prohibition

applies "at the time or point of import."6

2.1.2. The Indigenous Communities exception

15. In addition to providing for the General Ban, Article 3.1 of the Basic Regulation

also stipulates the main exception to that ban: the Indigenous Communities

exception. That exception covers the placing on the market of seal products that

3 Article 2.3 of the Basic Regulation. 4 Article 2.1 of the Basic Regulation. 5 Article 2.2 of the Basic Regulation. Pursuant to Article 3.3 of the Basic Regulation the Commission

has issued technical guidance notes setting out an indicative list of the codes of the Combined Nomenclature which may cover seal products subject to the Basic Regulation (Exhibit JE – 3).

6 Article 3.1 of the Basic Regulation.


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result from "hunts traditionally conducted by Inuit and other indigenous

communities and contributing to their subsistence".

16. The conditions for qualifying for the IC exception are further specified in Article 3

of the Implementing Regulation, which provides that:

1. Seal products resulting from hunts by Inuit or other indigenous communities may only be placed on the market where it can be established that they originate from seal hunts which satisfy all of the following conditions:

(a) seal hunts conducted by Inuit or other indigenous communities which have a tradition of seal hunting in the community and in the geographical region;

(b) seal hunts the products of which are at least partly used, consumed or processed within the communities according to their traditions;

(c) seal hunts which contribute to the subsistence of the community.

2. At the time of the placing on the market, the seal product shall be accompanied by the attesting document referred to in Article 7(1).

17. The Basic Regulation defines the term "Inuit" as:

indigenous members of the Inuit homeland, namely those arctic and subarctic areas where, presently or traditionally, Inuit have aboriginal rights and interests, recognised by Inuit as being members of their people and includes Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), Kalaallit (Greenland) and Yupik (Russia);7

18. In turn, according to the Implementing Regulation, the terms "other indigenous

communities" mean:

communities in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.8

7 Article 2.4 of the Basic Regulation. 8 Article 2.1 of the Implementing Regulation.


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2.1.3. The Travellers exception

19. The Travellers exception is provided in Article 3.1(a) of the Basic Regulation,

which states that, "by way of derogation" from the general prohibition stipulated in

Article 3.1, the import of seal products

[…] shall also be allowed where it is of an occasional nature and consists exclusively of goods for the personal use of travellers or their families. The nature and quantity of such goods shall not be such as to indicate that they are being imported for commercial reasons;

20. Article 3.1 of the Basic Regulation further provides that the application of this

exception "shall not undermine the achievement of the objective of this

Regulation."

21. The conditions for the application of the Travellers exception are detailed in

Article 3 of the Implementing Regulation:

Seal products for the personal use of travellers or their families may only be imported where one of the following requirements is fulfilled:

1. the seal products are either worn by the travellers, or carried or contained in their personal luggage;

2. the seal products are contained in the personal property of a natural person transferring his normal place of residence from a third country to the Union;

3. the seal products are acquired on site in a third country by travellers and imported by those travellers at a later date, provided that, upon arrival in the Union territory, those travellers present to the customs authorities of the Member State concerned the following documents:

(a) a written notification of import;

(b) a document giving evidence that the products were acquired in the third country concerned.

For the purposes of point 3, the written notification and the document shall be endorsed by the customs authorities and returned to the travellers. On import, the notification and document shall be presented to the customs authorities together with the customs declaration for the products concerned.


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2.1.4. The Marine Resources Management exception

22. The Marine Resources Management exception is provided in Article 3.2 (b) of the

Basic Regulation, which states that, "by way of derogation" from the general

prohibition stipulated in Article 3.1, the placing of seal products on the market:

[…] shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons.

23. Article 3.2 further provides that the application of this exception "shall not

undermine the achievement of the objective of this Regulation".

24. The conditions for the application of this exception are specified in Article 4 of the

Implementing Regulation:

1. Seal products resulting from marine resources management may only be placed on the market where it can be established that they originate from seal hunts which satisfy all of the following conditions:

(a) seal hunts conducted under a national or regional natural resources management plan which uses scientific population models of marine resources and applies the ecosystem-based approach;

(b) seal hunts which does not exceed the total allowable catch quota established in accordance with the plan referred to in point (a);

(c) seal hunts the by-products of which are placed on the market in a non-systematic way on a non-profit basis.


25. For the purposes of this exception, the Implementing Regulation defines "placing

on the market on a non-profit basis" as:


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placing on the market for a price less than or equal to the recovery of the costs borne by the hunter reduced by the amount of any subsidies received in relation to the hunt.9

2.1.5. Mechanism for attesting compliance with the IC and the MRM exceptions

26. Conformity with the Indigenous Communities and Marine Resources Management

exceptions is determined on the basis of an "attesting document". In accordance

with Article 7.1 of the Implementing Regulation such documents can only be

issued by entities included on the list of "recognised bodies".

27. Article 6 of the Implementing Regulation mandates the inclusion on the list of

recognised bodies of any entity that can demonstrate to the European Commission

that it meets the following requirements:

a) it has legal personality;

(b) it has the capacity to ascertain that the requirements of Article 3 or 5 are met;

(c) it has the capacity to issue and manage attesting documents referred to in Article 7(1), as well as process and archive records;

(d) it has the ability to carry out its functions in a manner that avoids conflict of interest;

(e) it has the ability to monitor compliance with the requirements set out in Articles 3 and 5;

(f) it has the capacity to withdraw attesting documents referred to in Article 7(1) or suspend their validity in case of non- compliance with the requirements of this Regulation, and to take measures to inform competent authorities and customs authorities of Member States thereof;

(g) it is subject to an independent third party audit;

(h) it operates at national or regional level.

28. Recognised bodies issue attesting documents upon request and after having

determined that the requirements set out in Article 3.1 or 5.1 of the Implementing

Regulation have been met. Attesting documents can be paper based or in electronic

format (Article 8.1).

9 Article 2.2 of the Implementing Regulation.


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29. Article 7.7 of the Implementing Regulation provides for the possibility of

verification of "attesting documents". Verification is not a mandatory step under

the Implementing Regulation; it is foreseen only for cases where customs

authorities and other enforcement authorities have doubts regarding the

authenticity or correctness of an attesting document or where they require

additional information. In such cases customs authorities and other enforcement

authorities are required to contact "competent authorities" in the Member State

concerned, which decide on the measures to be taken.

30. Pursuant to Article 9.1 of the Implementing Regulation each Member State is

required to designate one or several "competent authorities", which are responsible

for the following tasks:

(a) verification upon request of the customs authorities pursuant to Article 7(7) of attesting documents for imported seal products;

(b) control of the issuing of attesting documents by recognized bodies established and active in that Member State;

(c) preservation of a copy of attesting documents issued for seal products originating from seal hunts in that Member State.

31. A list of all competent authorities is made available on the European Commission's

website.

2.2. IDENTIFICATION OF THE POLICY OBJECTIVE OF THE MEASURE

2.2.1. Overview

32. The immediate objective of the EU Seal Regime 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.

33. By selecting the measures contained in the EU Seal Regime, the EU legislators

sought to address the moral concerns of the EU public with regard to the presence

on 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


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excessive pain, distress, fear or other forms of suffering. Those concerns,

nevertheless, vary according to the purpose of each type of hunt.

34. The objective of the EU Seal Regime is clearly reflected in the structure and

design of the Basic Regulation, in its preamble and in its legislative history.

2.2.2. The structure and design of the Basic Regulation

35. As explained in Section 2.1, the Basic Regulation imposes a General Ban on the

"placing on the market" of seal products. This general prohibition is subject to

three exceptions: the IC exception, the MRM exception and the Travellers

exception.

36. The General Ban responds 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 seal products, so that the

members of 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. By

doing so the General Ban contributes to limit the overall number of seals which are

killed every year and, consequently, also the number of seals which are killed in a

manner that causes them excessive suffering. Thus, while the EU Seal Regime

prescribes no killing methods, it does make a substantial contribution to the

welfare of seals.

37. 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. This level is higher than that envisaged

in the measure originally proposed by the European Commission. Whereas the

European Commission proposal sought to address only the "avoidable" risks to the

welfare of seals, the European Parliament and the EU Council came to the

conclusion that the degree of suffering resulting from the risks inherent in the


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unique conditions in which seal hunting takes place, and the ensuing difficulties of

enforcement, is excessive and morally unacceptable.

38. Contrary to the complaining parties' assertions, 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.

39. 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 of 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

have 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.

40. The Inuit and other indigenous communities have a long tradition of hunting,

which continues to make an important 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".10 The same could be said of other

indigenous communities. The EU legislators concluded that 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. Hence the IC exception.

41. Compliance with a resources management plan is one of the conditions for

qualifying for the MRM exception. But that exception is not designed to promote a

better management of marine resources, contrary to the complaining parties'

mistaken assumption.11 The laws of the European Union and its Member States

already have specific and adequate instruments for that purpose. Rather, the MRM

10 Canada's first written submission, para. 40. 11 See e.g. Norway's first written submission, para. 609.


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exception takes into account that, alongside the large scale hunts carried out

mainly for commercial purposes, there exist also small hunts conducted

occasionally with the sole purpose of ensuring a sustainable management of

marine resources. Prohibiting the placing on the market of the seal products

resulting from the latter category of hunts would not prevent the killing of seals, as

those hunts are not conducted for commercial purposes. Moreover, such

prohibition could be counterproductive in the light of the public moral objective of

the EU Seal Regime. If the hunters were not permitted to recoup their costs by

placing on the market the seal products, they would be more likely to resort to

more expeditious, but inappropriate killing methods (such as e.g. shooting seals in

situations where they cannot be easily retrieved, thereby increasing the likelihood

of "struck-and-loss"). In addition, applying the General Ban to this type of hunts

would produce a wasteful result in the form of abandoned carcasses, an outcome

which is morally undesirable.

42. The complaining parties have also misunderstood the objective of the Travellers

exception. This exception is not intended to "promote the personal choice"12 of the

EU consumers. The EU Seal Regime seeks to uphold a rule of public morality,

equally applicable with regard to all members of the EU public, irrespective of

their personal beliefs. The Travellers exception has a very limited purpose. It takes

into account that prohibiting the importation of seal products by travellers could

sometimes produce inequitable results. For example, when the products have been

acquired abroad without the travellers being aware of their origin or composition;

or when they are carried back from a third country by returning EU travellers who

had purchased them on the EU market prior to the date of application of the

measure in dispute. Yet, in practice, it could be difficult and disproportionately

costly to distinguish between such situations and other situations where it could be

reasonable to apply the prohibition. The Travellers condition is subject to strict

conditions, which limit considerably its scope. As a result, as recognized by

Canada, the volume of imports under this exception is likely to be "minuscule".13

12 See e.g. Norway's first written submission para. 607. 13 Canada's first written submission, para. 286.


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43. Last, contrary to the complaining parties' assumption, the EU Seal Regime does

not seek to provide additional information to consumers.14 As explained, the IC

exception and the MRM exception are based on moral grounds rationally

connected to the objective of the EU Seal Regime. If the EC 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.

2.2.3. The Preamble to the Basic Regulation

44. The Basic Regulation is based on Article 95(1) of the EC Treaty, which provides

that the EU Council shall:

[…] adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.15

45. The EU legislators deemed necessary to harmonise the rules concerning the

placing on the EU market of seal products because several EU Member States had

adopted, or intended to adopt, measures prohibiting or restricting the marketing of

those products, while no such restrictions existed in other EU Member States. As

set out in recitals 6 to 8 to the Basic Regulation, the EU legislators considered that

those regulatory differences could create barriers to trade in both seal products and

other products:

(6) There are therefore differences between national provisions governing the trade, import, production and marketing of seal products. Those differences adversely affect the operation of the internal market in products which contain or may contain seal products, and constitute barriers to trade in such products.

14 See e.g. Norway's first written submission, para. 600. 15 Upon the entry into force of the Treaty of Lisbon, Article 95(1) of the EC Treaty has been replaced by

Article 114(1) of the Treaty on the Functioning of the European Union.


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(7) The existence of such diverse provisions may further discourage consumers from buying products not made from seals, but which may not be easily distinguishable from similar goods made from seals, or products which may include elements or ingredients obtained from seals without this being clearly recognisable, such as furs, Omega-3 capsules and oils and leather goods.

(8) The measures provided for in this Regulation should therefore harmonise the rules across the Community as regards commercial activities concerning seal products, and thereby prevent the disturbance of the internal market in the products concerned, including products equivalent to, or substitutable, for seal products.

46. The above quoted recitals set out the justification under EU law for adopting

harmonised rules with regard to the placing on the market of seal products. Such

justification was necessary in order to establish the European Union's legislative

competence pursuant to Article 95 of the EC Treaty. That justification, however,

should not be confused with the policy objective of the rules of the EU Member

States that are harmonised by virtue of the Basic Regulation. As explained in

recitals 4 and 5, those rules were based on public moral concerns relating to animal

welfare:

(4) The hunting of seals has led to expressions of serious concerns by members of the public and governments sensitive to animal welfare considerations due to the pain, distress, fear and other forms of suffering which the killing and skinning of seals, as they are most frequently performed, cause to those animals.

(5) In response to concerns of citizens and consumers about the animal welfare aspects of the killing and skinning of seals and the possible presence on the market of products obtained from animals killed and skinned in a way that causes pain, distress, fear and other forms of suffering, several Member States have adopted or intend to adopt legislation regulating trade in seal products by prohibiting the import and production of such products, while no restrictions are placed on trade in these products in other Member States.

47. The immediate objective of the Basic Regulation is to facilitate the functioning of

the EU internal market by preventing the emergence of unnecessary trade barriers

resulting from the disparity of rules among the EU Member States. It is obvious,

however, that this objective could have been achieved in different ways. In

selecting the content of the harmonising rules provided in the Basic Regulation the

EU legislator took into account, as a decisive factor, the same type of public moral


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concerns which had motivated the measures previously adopted by some EU

Member States. This is made clear by recitals 9 and 10 to the Basic Regulation:

(9) In accordance with the Protocol on protection and welfare of animals annexed to the Treaty, the Community is to pay full regard to the welfare requirements of animals when formulating and implementing, inter alia, its internal market policy. The harmonised rules provided for in this Regulation should accordingly take fully into account considerations of the welfare of animals.

(10) To eliminate the present fragmentation of the internal market, it is necessary to provide for harmonised rules while taking into account animal welfare considerations. In order to counter barriers to the free movement of products concerned in an effective and proportionate fashion, the placing on the market of seal products should, as a general rule, not be allowed in order to restore consumer confidence while, at the same time, ensuring that animal welfare concerns are fully met. Since the concerns of citizens and consumers extend to the killing and skinning of seals as such, it is also necessary to take action to reduce the demand leading to the marketing of seal products and, hence, the economic demand driving the commercial hunting of seals. In order to ensure effective enforcement, the harmonised rules should be enforced at the time or point of import for imported products.

48. More specifically, the prohibition, as a general rule, of the placing on the market of

seal products is motivated in recitals 11 and 12 to the Basic Regulation in the

following terms:

(11) Although it might be possible to kill and skin seals in such a way as to avoid unnecessary pain, distress, fear or other forms of suffering, given the conditions in which seal hunting occurs, consistent verification and control of hunters’ compliance with animal welfare requirements is not feasible in practice or, at least, is very difficult to achieve in an effective way, as concluded by the European Food Safety Authority on 6 December 2007.

(12) It is also clear that other forms of harmonised rules, such as labelling requirements, would not achieve the same result.[…]

49. In turn, the IC exception is justified as follows in recital 14:


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(14) The fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence should not be adversely affected. The hunt is an integral part of the culture and identity of the members of the Inuit society, and as such is recognized by the United Nations Declaration on the Rights of Indigenous Peoples. Therefore, the placing on the market of seal products which result from hunts traditionally conducted by Inuit and other indigenous communities and which contribute to their subsistence should be allowed.

50. The Basic Regulation does not include any recital addressing the MRM exception.

Nevertheless, as discussed below, the justification for that exception may be

inferred from the legislative history.

2.2.4. The legislative history of the Basic Regulation

51. The Basic Regulation was adopted by the European Parliament and the EU

Council on the basis of a proposal submitted by the European Commission and in

accordance with the legislative procedure set out in Article 251 of the EC Treaty

(the so-called 'co-decision' procedure).16

2.2.4.1 The European Commission proposal

52. The European Commission proposal17 envisaged a prohibition, as a general rule,

of the placing on the market of all seal products.18 This prohibition was subject to a

derogation (set out in Article 4 of the proposal), whereby the placing on the market

of seal products could have been authorized under certain conditions, aimed at

ensuring that the seals from which the products were obtained had been killed

"without causing avoidable pain, distress and any other form of suffering". As will

be explained below, however, this derogation was eventually deleted, as a result of

an amendment requested by the European Parliament.

16 Following the entry into force of the Treaty of Lisbon, the co-decision procedure provided in Article

251 of the EC treaty has been replaced by the 'ordinary legislative procedure' laid down in Article 294 of the Treaty on the Functioning of the European Union.

17 Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products, COM (2008) 469 final, 23 July 2008 (Exhibit JE – 9).

18 Article 3 of the European Commission proposal (Exhibit JE - 9).


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53. The recitals included in the European Commission proposal made it clear that both

the prohibition, as a general rule, of the placing on the market of seal products and

the derogation from that prohibition stipulated in Article 4 were based on public

moral concerns relating to the welfare of seals:

(10)The various prohibitions provided for by this Regulation should respond to the animal welfare concerns expressed by members of the public as to the placing on the Community market, including further to imports from third countries, of seal products obtained from seals that might not have been killed and skinned without causing avoidable pain, distress and other forms of suffering.

(11)It is appropriate, however, to provide for the possibility of derogations from the general ban on the placing on the market and the import in, or export from, the Community of seal products insofar as the appropriate conditions based on animal welfare considerations are met. To that effect, criteria should be provided for the compliance with which should ensure that seals are killed and skinned without causing avoidable pain, distress and other forms of suffering. […]

2.2.4.2 The European Parliament's amendments to the European Commission proposal

54. The European Parliament requested various amendments to the European

Commission proposal. The most important of those amendments, which was

eventually accepted by the EU Council, was the deletion of the derogation

provided in Article 4 of the proposal. The European Parliament motivated this

amendment in the following terms:

Commercial seal hunts are inherently inhumane because humane killing methods cannot be effectively and consistently applied in the field environments in which they operate. Moreover, seal hunts occur in remote locations, and are conducted by thousands of individuals over large, inaccessible areas, making effective monitoring of seal hunting impossible. As such only a comprehensive ban without the derogation drafted by the Commission would meet the citizen's demands to see an end to the trade in seal products.19

55. The justification advanced by the European Parliament for a related amendment to

recital 3 reiterated the same preoccupation:

19 European Parliament, session document A6-0118/2009, 5 March 2009, p. 22, justification under

Amendment 28 (Exhibit JE - 4).


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The concern of European citizens is about a trade involving suffering wild animals, not only suffering which is unavoidable. Unavoidable suffering may be very considerable. The question is that, regardless of whether some seals can be killed humanely or not, seals cannot be consistently killed humanely in the field environments in which commercial seal hunts occur.20

56. The above amendments very closely follow the opinion of the European

Parliament's Committee on Environment, Public Health and Food Safety, which

had justified the deletion of the derogation provided in Article 4 of the proposal as

follows:

Seal hunts occur in remote, widespread and poorly accessible areas, under extreme weather conditions and unstable ice. Each year independent observers witness that the specific conditions form a severe obstacle to comply with the so-called three-step procedure (stunning, checking, bleeding). The EFSA opinion confirms this. Moreover, the same unverifiable conditions make effective monitoring and enforcement by the responsible authorities virtually impossible. The fact that those same authorities should provide certificates and labels would raise a lot of practical problems and would fail to meet the requirements asked for by European citizens and the European Parliament. The rapporteur therefore considers the Commission's proposal unenforceable and argues that the European public moral can only be sufficiently protected with a limited exemption for inuit communities, in line with the Parliament's request of 2006. Therefore, the provisions for derogations are deleted.21

57. The justification invoked by the European Parliament, and accepted by the EU

Council, for deleting Article 4 of the proposal shows that, contrary to the

complaining parties' allegations, the EU legislators did not seek a different policy

objective from that pursued by the European Commission's proposal. The

objective remained the same, but the EU legislators were of the view that the

European Commission's proposal failed to ensure a sufficiently high level of

fulfilment of that objective.

58. The grounds for the MRM exception are reflected in the opinion of the European

Parliament's Committee on Agriculture and Rural Development, which noted that:

20 European Parliament, session document A6-0118/2009, 5 March 2009, p. 8, justification under

Amendment 4 (Exhibit JE - 4). 21 European Parliament, session document A6-0118/2009, 5 March 2009, p. 46, justification under

Amendment 21 (Exhibit JE - 4).


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By not applying the blanket ban solely to commercial hunting and by not providing a definition of commercial hunting, the Commission proposal is, in some instances, liable to have the opposite effect to the one sought, which is to reduce animal suffering.

Indeed, in some cases, seals are not hunted for commercial purposes but simply to eliminate them, since they are viewed as pests that endanger fish stocks. In such cases, even direct consumption is a secondary consideration. If the regulation were to be applied in its current form, hunters would therefore no longer be able to derive any financial benefit, no matter how small, from their activities. That ban on trade would be liable to lead to an increase in poaching and to hunters shooting seals without caring which part of the body had been hit or checking whether the animal was dead or not.

(..)

It would therefore be appropriate to draw a distinction between large-scale commercial hunting and occasional hunting which, by definition, can only involve a limited number of animals.22

59. As observed by the complaining parties, this opinion was echoed by some EU

Member States during the debates within the EU Council.23 But from this it does

not follow that this exception benefits exclusively those Member States.

60. The European Union notes that, in their account of the legislative history of the

Basic Regulation, both Canada and Norway rely to a very large extent on the

personal views expressed by MEP Ms Diana Wallis, who acted as rapporteur for

the IMCO Committee, in her draft report.24 Those views, however, were

overwhelmingly rejected by the IMCO Committee and, therefore, remain her

personal views.25 For that reason, they are of little relevance in order to identify the

policy objectives pursued by the European Parliament. Instead, it is far more

pertinent to consider, as the European Union has done above, the justifications for

the amendments approved by the IMCO Committee and, eventually, by both co-

legislators.

22 European Parliament, Session Document A6-0118/2009, 5 March 2009, p. 57 (Exhibit JE - 4). 23 See e.g. Norway's first written submission, paras. 620-623. 24 Exhibit JE – 13. 25 Sometimes, the complaining parties make the mistake of attributing to the IMCO Committee the

personal views expressed by MEP Ms Diana Wallis in her draft report (See e.g. Canada's first written submission, paras. 568, 573, 681 and 682).


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2.3. LEGITIMACY OF THE POLICY OBJECTIVE

61. According to the prevailing view in the European 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 certain 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.

62. The first law on animal protection was enacted as early as 1822 in the United

Kingdom.26 Currently all EU Member States have in place animal protection laws

based on public moral considerations. Whereas until the 1960s animal protection

laws were focused on the prohibition of deliberate acts of cruelty, more recent

laws usually place upon humans a positive duty of care aimed at ensuring a

minimum level of "animal welfare".27

63. Animal welfare is 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, which provides

that:

In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.28

64. Consistently with that mandate, the European Union has adopted a comprehensive

body of legislation on the welfare of farm animals within the framework of its

Common Agricultural Policy,29 including in particular Council Directive

26 See Peter Sandøe and Stine B. Christiansen, Ethics of Animal Use, 2008, p. 3 (Exhibit EU – 1). 27 See e.g. Austria's Federal Act on the Protection of Animals (Exhibit EU - 2); and the United

Kingdom's Animal Welfare Act, 2006 (Exhibit EU - 3). 28 Article 13 of the TFEU replaces and reproduces, with some slight changes, the content of the Protocol

on Animal Welfare annexed to the Treaty Establishing the European Community by the Treaty of Amsterdam, which entered into force on 1 January 1999.

29 See the legislative references provided in Exhibit EU - 4.


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93/119/EC on the protection of animals at the time of slaughter or killing.30 This

directive has been repealed by Council Regulation (EC) No 1099/2009 of 24

September 2009 on the protection of animals at the time of killing, which will

become applicable as from 1 January 2013.31

65. The protection of the welfare of wild animals and pets falls, in principle, within the

scope of the competence of the EU Member States. Nevertheless, the EU

legislators have in certain cases deemed necessary to take protective action also

with regard to such animals. Prominent examples include, in addition to the

measure at issue in this dispute, Directive 83/129/EEC prohibiting the importation

of skins of seal pups;32Regulation (EEC) 3254/91, prohibiting the use of leghold

traps33; and Regulation (EC) No 1523/2007 banning the placing on the market of

cat and dog fur.34

66. EU legislation on animal welfare, like the legislation of other European

countries35, is based to a large extent on a series of Conventions elaborated since

the 1960s at the Council of Europe, a regional international organisation gathering

47 European states. Those Conventions were the first international instruments

laying down comprehensive ethical rules for the use of animals.36

30 Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of

slaughter and killing (OJ L 340 of 31.12.1993, p. 21-34) (Exhibit JE – 7). 31 Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time

of killing (OJ L 303, 18.11.2009, p. 1-30) (Exhibit CDA – 31). 32 Council Directive 83/129/EEC of 28 March 1983 concerning the importation into Member States of

skins of certain seal pups and products derived therefrom, OJ L 91, 9.4.1983 (Exhibit CND – 12). 33 Council Regulation (EEC) No 3254/91 of 4 November 1991 prohibiting the use of leghold traps in the

Community and the introduction into the Community of pelts and manufactured goods of certain wild animals species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards, OJ L 308, 9.11.1991 (Exhibit EU – 5).

34 Regulation (EC) No 1523/2007 of the European Parliament and the Council, of 11 December 2007, banning the placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur, OJ L 343/1 of 27.12.2007 (Exhibit EU – 6).

35 See e.g. Croatia's Animal Welfare Act of 1999 (Exhibit EU -7). 36 The Council of Europe has drawn up five conventions for the protection of animals: European

Convention for the protection of animals during transport, Paris, 13 December 1968, E.T.S. No 65; European Convention for the protection of animals kept for farming purposes, Strasbourg, 10 March, 1976, E.T.S. No 87; European Convention for the protection of animals for slaughter, Strasbourg, 10 May 1979, E.T.S. No 102; European Convention for the protection of vertebrate animals used for experimental and other scientific purposes, Strasbourg, 18 March, 1986, E.T.S. No 123; European Convention for the protection of pet animals, Strasbourg, 13 November 1986, E.T.S. No 125. All the conventions are available at http://conventions.coe.int.

http://conventions.coe.int/

http://conventions.coe.int/


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67. Like the European Union, Norway attaches great importance to the protection of

animal welfare37. Indeed, pursuant to the Agreement on the European Economic

Area38, Norway has agreed to apply most of the EU legislative acquis in the field

of animal welfare.

68. Norway's own new Animal Welfare Act of 2009 is among the most progressive in

the world.39 According to Norway's Ministry of Agriculture and Food's website40,

its adoption was inspired by the consideration that "the way we treat our animals

reflects the ethical standard of the society". § 1 of the Act states that "the intention

of this Act is to promote good animal welfare and respect for animals". The Act

further recognises that:

Animals have an intrinsic value which is irrespective of the usable value they may have for man. Animals shall be treated well and be protected from danger of unnecessary stress and strains.41

69. Norway's new Animal Welfare Act of 2009 provides expressly for the possibility

to issue regulations banning imports and exports of animal products based on

animal welfare considerations:

The King may in regulations limit, establish requirements for or ban, production, trading, import and export of products from animals which are covered by this Act. This applies subject to the limitations of agreement with a foreign nation or international organisation or public international law in general.42

70. Of course, the European public is not alone in being concerned, for moral reasons,

with the treatment of animals by humans. Many non-European countries, including

Canada, have enacted their own animal protection laws out of moral concerns.43

37 For example, Norway's Government has expressed public support for the Universal Declaration on

Animal Welfare (Exhibit EU - 8). 38 The Agreement on the European Economic Area, which entered into force on 1 January 1994, brings

together the 27 EU Member States and the three EEA EFTA States — Iceland, Liechtenstein and Norway — in a single market, referred to as the "Internal Market". The EEA Agreement provides for the inclusion of EU legislation covering the four freedoms — the free movement of goods, services, persons and capital — throughout the 30 EEA States.

39 Exhibit NOR – 42. 40 Exhibit EU – 9. 41 Norway's Animal Welfare Act of 2009, § 3 (Exhibit NOR - 42). 42 Norway's Animal Welfare Act of 2009, § 17 (Exhibit NOR - 42). 43 See e.g. New Zealand's Animal Welfare Act of 1999, available at

http://www.biosecurity.govt.nz/legislation/animal-welfare-act/guide/index.htm; Taiwan's Animal Protection Law, available at http://www.animallaw.info/nonus/statutes/sttwapl1998.htm; Australia's

http://www.efta.int/~/media/Documents/legal-texts/eea/the-eea-agreement/Main Text of the Agreement/EEAagreement.pdf

http://www.biosecurity.govt.nz/legislation/animal-welfare-act/guide/index.htm

http://www.animallaw.info/nonus/statutes/sttwapl1998.htm

http://www.animallaw.info/nonus/statutes/sttwapl1998.htm

http://www.animallaw.info/nonus/statutes/staupreventionofcruelty1979NSW.htm

http://www.animallaw.info/nonus/statutes/stat_pdf/AnimalsProtectionAct71-62.pdf

http://www.animallaw.info/nonus/statutes/stjp1973law105.htm

http://www.animallaw.info/nonus/statutes/stkranimal_protection_act.htm


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71. In recent years the Office International des Epizooties (OIE) has issued

recommendations in the field of animal welfare.44 Neither the above mentioned

Council of Europe Conventions nor the OIE recommendations address the killing

of seals. Nonetheless, the existence of those international instruments confirms

that preoccupation with the welfare of animals is a widely shared moral concern.

72. While, as shown above, moral concern with regard to the protection of animals

from human behaviour may be said to be a universal value, the level of protection

which is deemed adequate may, in practice, vary considerably from one country to

another due, to a large extent, to the different cultural, religious and ethical values

which prevail in each of them.

73. Furthermore, it is a fact that, in practice, humans do not regard all animals as equal

from a moral point of view. Animal ethicists have spoken of a "socio-zoological

scale".45 For example, P. Sandøe & S.B. Christiansen note that:

[…] there clearly is a hierarchy of animals — a moral ordering that has been called the sociozoological scale […]. The point of the scale is, that people rate animals as morally more or less important, and therefore more or less worth protecting, according to a number of factors. These include how useful the animal is, how closely one collaborates with the individual animal, how cute and cuddly the animal is, how harmful the animal can be, and how ‘demonic’ it is perceived to be. […]

Whether an animal belongs to a species at the top or at the bottom of the sociozoological scale has clear implications for the view and treatment of the individual animal. […]

Prevention of Cruelty to Animal's Act of 1977, available at http://www.animallaw.info/nonus/statutes/staupreventionofcruelty1979NSW.htm; South Africa's Animal Protection Act No 71 of 1961, available at http://www.animallaw.info/nonus/statutes/stat_pdf/AnimalsProtectionAct71-62.pdf ; Japan's Law No 105, October 1, 1973, concerning the Protection and Control of Animals, available at http://www.animallaw.info/nonus/statutes/stjp1973law105.htm; and Korea's Animal Protection Act of 2004, available at http://www.animallaw.info/nonus/statutes/stkranimal_protection_act.htm .

44 The OIE Animal Welfare Working Group was inaugurated at the 70th General Session of the OIE in May 2002 and the first recommendations of the Working Group were adopted one year later. The OIE Guiding principles on Animal Welfare were included in the OIE Terrestrial Animal Code in 2004.

45 The concept of a sociozoological scale was introduced by Arluke, A. and Sanders, C.R., Regarding Animals, 1996, pp. 167-186 (Exhibit EU – 10).


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The sociozoological scale is in many ways based on traditions and prejudices and its use as a basis for animal protection can be criticized on both scientific and ethical grounds. The point being made here is just that the scale is part of social reality. This reality is, among other things, reflected in the legislation that has been introduced to protect animals.46

74. As observed in the above quoted excerpt, the place occupied by each species

within the socio-zoological scale is related to objective factors, such as its

similarity to humans, its usefulness and friendliness or its perceived intelligence

and sensibility, but also to social, cultural or religious values which are peculiar to

certain countries or communities. For instance, in some Asian countries dogs are

killed for food and fur, a practice which is perceived as morally abhorrent by the

EU public. Conversely, to mention but another well-known example, a large

majority of the Indian population is morally repelled, for religious reasons, by the

European practice of using cows as a source of meat.

75. Despite the above differences, a significant number of 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. For example:

• many Islamic countries ban trade in meat products from animals which have

not been killed according to the Halal rules. Those rules are based, at least

partly, on moral concern for the animals;

• in 2004, Chinese Taipei imposed a ban on the sale of dog meat;47

• Israel bans the importation of non-kosher products, including non-kosher

meat, on public moral grounds, which are partly related to the welfare of

animals;48

46 P. Sandøe & S.B. Christiansen, (2009), Ethics of Animal Use, 2008, p. 5 (Exhibit EU – 1). 47 See WTO Trade Policy Review, WT/TPR/S/165/Rev.1 at Table AIII.2, p. 96 (Prohibited Imports)

(10 October 2006); see also New York Times, World Briefing, Asia, Taiwan, Parliament Takes Dog off the Menu, (December 18, 2003) available at: http://www.nytimes.com/2003/12/18/world/world-briefing-asia-taiwan-parliament-takes-dog-off-the-menu.html?fta=y (Exhibit EU - 11).

48 Information available at the website of the Israeli Ministry of Industry Trade and Labour, http://www.tamas.gov.il/NR/exeres/5EA6B0B6-D877-48D7-A21F-BE9337BFA06A.htm (Exhibit EU - 12).





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• the United States49, Australia50 and the European Union51 ban the trade of cat

and dog fur products;52

• the United States bans imports of fins of sharks, on the grounds i.a. that it is a

"wasteful and unsportsmanlike practice"; 53

• in 2011 Australia temporarily banned exports of live animals to Indonesia

citing evidence of animal welfare abuses;54

49 Dog and Cat Protection Act of 2000, available at:

http://www.globallabourrights.org/admin/documents/files/Dog_and_Cat_Act.pdf. The preamble to the law states “trade of dog and cat fur products is ethically and aesthetically abhorrent to United States citizens.” (Exhibit EU – 13). One of the stated purposes of the law is to “prohibit imports, exports, sale, manufacture, offer for sale, transportation, and distribution in the United States of dog and cat fur products, in order to ensure that United States market demand does not provide an incentive to slaughter dogs or cats for their fur…”

50 Under the Customs (Prohibited Imports) Regulations 1956, the importation of cat fur and dog fur or a cat or dog fur product into Australia is prohibited unless approval has been granted by the Minister for Home Affairs; available at: file:///C:/Documents%20and%20Settings/sstewart/Desktop/Australia%20Cat%20and%20Dog%20Fur.htm (Exhibit EU – 14).

51 Regulation (EC) No 1523/2007 of the European Parliament and the Council, of 11 December 2007, banning the placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur, OJ L 343/1 of 27.12.2007 (Exhibit EU - 5).

52 According to press reports, the adoption of a similar measure by Canada has been prevented only by the Canadian's government concern that it could undermine Canada's position in the present dispute See The Canadian Press, Ottawa won't ban fur imports because of seal ban: Memo, 23 September 2009, available at: http://www.thestar.com/news/canada/article/699762 (Exhibit EU - 15)(“The federal government won't ban imports of cat and dog fur because doing so might undermine Canada's support for the seal hunt, says a newly released document. An internal memo shows government officials urged Agriculture Minister Gerry Ritz not to follow the United States and Europe in barring cat and dog fur from entering the country. Officials worried a ban would weaken Canada's argument against other countries closing their borders to its seal products. ‘A ban could have implications for the farmed fur industry in Canada and for Canada's position against the banning of Canadian seal products by other countries,’ the memo says.”).

53 Shark Conservation Act of 2010, available at: http://www.gpo.gov/fdsys/pkg/BILLS-111hr81enr/pdf/BILLS-111hr81enr.pdf. (Exhibit EU - 16). The purpose is to improve shark conservation by, inter alia, requiring that all sharks be landed with fins naturally attached. The Act amends the Shark Finning Prohibition Act of 2000 (which amended the Magnuson-Stevens Fishery Conservation and Management Act), the stated purpose of which is to prevent “wasteful and unsportsmanlike practice of shark finning.” Available at: http://www.govtrack.us/congress/bill.xpd?bill=h106-5461 (Exhibit EU - 17). Thus, the Act appears to be rooted in both conservation and animal protection concerns.

54 Export Control (Export of live-stock to the Republic of Indonesia) Order 2011, available at: http://www.comlaw.gov.au/Details/F2011L00969. (Exhibit EU - 18). The Department of Agriculture, Fisheries and Forestry stated: “The Australian Government condemns the mistreatment of animals and is working to introduce new measures to ensure appropriate animal welfare standards are met across all live export markets right through to point of slaughter.” Press release available at: http://www.daff.gov.au/animal-plant-health/welfare/export-trade/gov-response-to-cattle-mistreatment-in-indonesia (Exhibit EU -19).

http://www.globallabourrights.org/admin/documents/files/Dog_and_Cat_Act.pdf

http://www.thestar.com/news/canada/article/699762

http://www.gpo.gov/fdsys/pkg/BILLS-111hr81enr/pdf/BILLS-111hr81enr.pdf

http://www.gpo.gov/fdsys/pkg/BILLS-111hr81enr/pdf/BILLS-111hr81enr.pdf

http://www.govtrack.us/congress/bill.xpd?bill=h106-5461

http://www.comlaw.gov.au/Details/F2011L00969.




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• in the United States, the state of California bans the sale of foie gras on animal

welfare grounds55, whereas the states of Illinois56, New Jersey57, Oklahoma58

and Texas59 prohibit the marketing of horse meat for human consumption;

• the Israeli parliament is considering to ban the import and export of furs of all

kinds, except for those designated for religious or traditional use.60

76. Nor is the European Union alone in restricting the trade of seal products:

• Slovenia banned trade in seal products in 2003, prior to its accession to the

European Union61;

• Croatia has banned imports of seal products since 2006;62

• in March 2009 Russia prohibited the hunting of seals under one year old,

thereby effectively putting an end to one of the largest commercial seal hunts

in the world. Prime Minister Putin was cited as saying that this “bloody

industry” should have been banned years ago.63 In June 2011, a decision of

the Customs Union among Belarus, Kazakhstan and Russia prohibited the

import of raw, tanned and dressed fur skin of harp seal and harp seal pups

55 CA Health & Safety Code §25982 - Products resulting from force-feeding of birds to enlarge the liver;

prohibition on sale in California (Exhibit EU - 20). 56 Illinois Horse Meat Act, 225 ILCS 635.1/1.5 - Slaughter for human consumption unlawful (Exhibit

EU - 21). 57 New Jersey's Governor signed bill into law on September 21, 2012:

http://www.nj.com/cumberland/index.ssf/2012/09/gov_chris_christie_signs_bill.html. The law has not yet been published, but the text of the bill can be found at http://www.njleg.state.nj.us/2012/Bills/A2500/2023_R2.HTM (Exhibit EU 22).

58 64 Okl. St. Ann. §1-1136 - Prohibition of Sale of Horsemeat (Exhibit EU – 23). 59 TX AGRIC §149.001—007 – Sale or Possession of Horsemeat (Exhibit EU – 24). 60 See the press report at http://www.ynetnews.com/articles/0,7340,L-4261479,00.html (Exhibit EU –

25). 61 Regulation on management and protection of trade in fauna and flora, adopted on 16/2003, published

on 27.10.2003, Official Gazette of RS, no. 104/203, available at http://www.uradni- list.si/1/objava.jsp?urlid=2003104&stevilka=4611.

62 The ban targets Cystophora cristata - hooded seals and Phoca groenlandica - harp seals, the species of seals that are hunted commercially on the east coast of Canada. The ban is regulated by the Rule Book of Transboundary Transport and Trade of Protected Species, which is implemented by the Nature Protection Law (Article 101, item 6). Croatian title: Pravilnik o prekograničnom prometu i trgovini zaštićenim vrstama (English: Regulation on the transboundary movement and trade in protected species). Official Gazette No. 34/2006 (March 27, 2006).

63 The Guardian, Russia bans hunting of baby harp seals, 19 March 2009 (Exhibit EU - 26).

http://www.nj.com/cumberland/index.ssf/2012/09/gov_chris_christie_signs_bill.html

http://www.njleg.state.nj.us/2012/Bills/A2500/2023_R2.HTM

http://www.ynetnews.com/articles/0,7340,L-4261479,00.html


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into the territories of the constituent members.64 In July 2012 this ban was

amended in order to provide an exception for the products from seals hunted

by Inuit.65

• the United States (since 1972)66 and Mexico (since 2006)67 also ban trade in

seal products, even if they purport to do so on conservation grounds.

2.4. SCIENTIFIC GROUNDS FOR THE PUBLIC MORAL CONCERNS

77. In this section the European Union will summarise the scientific evidence

providing the grounds for the EU public's moral concerns. The European Union

will first introduce the relevant scientific reports and describe the killing methods

recommended by various veterinary experts. Against this background, the

European Union will show 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 killing methods prescribed by Canada's and Norway's regulations

are not effectively and consistently applied in practice.

78. At the outset, it must be emphasised that, when considering the scientific reports

discussed below, it is essential to keep in mind that it is not the Panel's task to

64 Customs Union Decision No. 696 adding Section 1.8 “Pelts of Harp Seal and of Harp Seal Pups

Forbidden for Importation onto the Customs Territory of the Customs Union” to the Harmonized List of Goods Covered by Prohibitions or Restrictions on Importation or Exportation by the Member Countries of the Customs Union within the framework of the EurAsEC when trading with third countries.

65 Decision No 120 of the Board of the Eurasian Commission of 26 July 2012 (Exhibit EU – 26). 66 Marine Mammal Protection Act of 1972, as amended (Exhibit JE – 15). On May 7, 2009, Senate

Resolution 84 condemned the commercial seal hunt on animal welfare grounds and expressed strong support for an EU prohibition on seal trade (unanimously passed) (Exhibit EU - 27).

67 Ley General de Vida Silvestre, Article 55 bis, last amendment published in DOF, 1.2.2007 ("Queda prohibida la importación, exportación y reexportación de ejemplares de cualquier especie de mamífero marino y primate, así como de sus partes y derivados, con excepción de aquéllos destinados a la investigación científica, previa autorización de la Secretaría.” (Exhibit EU – 28).


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choose one among 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. 68

2.4.1. EFSA's opinion

79. 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.69 EFSA's terms of reference were to issue a scientific opinion on:

1. The animal welfare aspects of the methods currently being used, particularly non-traditional methods, for killing and skinning seals in respective range states; and

2. In addition, to assess, on the basis of current scientific knowledge including other available information on different killing and skinning practices, the most appropriate/suitable killing methods for seals which reduce as much as possible unnecessary pain, distress and suffering.70

80. EFSA's mandate was thus limited. EFSA was not asked to give an opinion on

whether seal hunting should be banned or on whether the marketing of seal

products should be permitted in the European Union. Instead, EFSA was asked to

examine the existing methods of killing seals and to assess the most

appropriate/suitable methods in order to "reduce as much as possible" the risks to

the welfare of seals.

81. EFSA's opinion offers some recommendations. However, when considering those

recommendations, it is essential to keep in mind that, in conformity with its limited

mandate, EFSA deliberately omitted to take into account the "ethical aspects" of

killing seals.71 In other words, EFSA assumed that seal hunting would be allowed

68 Cfr. Appellate Body Report, EC – Asbestos, para. 178. 69 Scientific Opinion of the Panel on Animal Health and Welfare on a request from the Commission on

the Animal Welfare aspects of the killing and skinning of seals. The EFSA Journal (2007) 610, 1-122 ("EFSA's opinion") (Exhibit EU - 30).

70 EFSA Opinion, p. 10 (Exhibit EU – 30). Emphasis supplied. 71 EFSA Opinion, Approach, p. 12 (Exhibit EU - 30).


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to continue. On this premise, EFSA's recommendations sought to minimise the

suffering experienced by seals.

82. Unlike EFSA, the EU legislators could and did take into account the moral

concerns of the EU public in order to select a level of protection that addressed

those concerns. 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 present case, was the exclusive

prerogative of the EU legislators.

83. EFSA did not conduct its own research, but rather made a critical evaluation of

existing scientific evidence. EFSA noted that there was "very little robust

information" available72 and, for this reason, its assessment had to take a

"qualitative approach".73

84. Most of the information available relates to Canada's commercial hunt, which is by

far the largest in the world. EFSA's opinion, therefore, focused on that hunt.74

EFSA paid particular attention to four of the most recent studies by veterinarians:75

• Burdon et al. (2001) – produced by an international panel of six veterinarians

with expertise in a variety of specialties. The panel conducted post mortems

on 76 seal carcasses abandoned on the ice floes during the 2001 commercial

seal hunt. The panel also observed firsthand 127 seals killed during the

72 EFSA Opinion, Conclusions and Recommendations, section 1.1.4, at p. 87 (Exhibit EU - 30). 73 EFSA Opinion, General Conclusions, point 2, at p. 94 (Exhibit EU – 30). 74 EFSA Opinion, section 4, at p. 50 (Exhibit EU- 30). 75 EFSA Opinion, section 4.2.1, at p. 53 (Exhibit EU-30).


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commercial seal hunt in 2001, and viewed video evidence of 179 seal kills

during three commercial seal hunts (1998-2000 inclusive).76

• Daoust et al. (2002) – produced by a panel of five veterinarians with a variety

of specialties. Two members of the panel examined carcasses of 225 beaters

killed (predominately using a hakapik), in the Gulf of St. Lawrence during

1999. Two other panel members provided data on 47 shot seals taken at the

Front in the same year. One panel member provides data on 167 seals shot or

killed by hakapik “in roughly equal proportions” in the Gulf in 2001. The panel

reviewed video evidence of 116 “interactions between harp seals and sealers”

from the 2001 seal hunt.77

• Smith et al. (2005) – produced by a panel of nine veterinarians with a variety

of specialties. The panel reviewed available information and made a number of

recommendations regarding animal welfare at the commercial seal hunt. This

group included at least one participant from the Burdon et al. (2001) and

Daoust et al. (2002) groups.78

• Butterworth et al. (2007) – produced by a panel of veterinary and zoological

experts with a variety of specialties. The panel carried out post-mortem

examinations on 17 clubbed seals collected in 2007 in the northern Gulf of St.

Lawrence. They also examined video evidence of 169 seal kills from four seal

hunts (2003-2007 inclusive) in the Gulf of St. Lawrence and the Front. The

report presents data on an Expert Opinion Analysis where 133 experts were

sent 30 randomly-selected timelines in which each example showed the

sequence of events extracted from the videos for a single seal kill and asked

76 Burdon, R.L., Gripper, J., Longair, J.A., Robinson, I. and Tuehlmann D., 2001, Veterinary report,

Canadian commercial seal hunt, Prince Edward Island, March 2001 ("Burdon (2001)") (Exhibit EU – 31).

77 Daoust, P.-Y., Crook, A., Bollinger, T.K., Campbell, K.G. and Wong G., 2002, Animal Welfare and the harp seal hunt in Atlantic Canada, Canadian Veterinary Journal, 43, 687-694 ("Daoust (2002)") (Exhibit EU – 32).

78 Smith, B., Caraguel, C., Crook, A., Daoust, P.-Y., Dunn, J.L., Lair, S., Longair, A., Philippa, J. Routh, A. and Tuttle, A., 2005, Improving humane practice in the Canadian harp seal hunt ("Smith")(Exhibit EU – 33).


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"How do you rate the overall welfare of this animal during the processes which

resulted in its death?"79

85. As reported by EFSA, "the conclusions of the various independent reports are

conflicting, and different observers come to different conclusions based on the

same data, i.e. uncertainty is high in data interpretation"80. More specifically:

• Burdon concluded that the Canadian seal hunt "is resulting in considerable and

unacceptable suffering"81;

• Butterworth (2007) concluded that the methods of hunting seals in Canada

were "inherently inhumane".82

• in contrast, Daoust (2002) concluded that "the large majority of seals taken

during this hunt (at best, 98 % in the work reported here) are killed in an

acceptably humane manner".83 This conclusion, however, has been heavily

criticised by some commentators as being based on a flawed methodology and,

furthermore, contradicted by Daoust's own findings.84

• Smith expressed the view that "the Canadian harp seal hunt has the potential to

be a humane hunt".85 It must be noted, nevertheless, that the self-avowed

objective of this report was merely "to produce recommendations that are 79 Butterworth, D.S., Gallego, P., Gregory, N., Harris, S. and Soulsbury, C., 2007, Welfare aspects of the

Candian seal hunt ("Butterworth (2007)") (Exhibit EU – 34). 80 EFSA Opinion, Conclusions and Recommendations, Section 4.1.1., point 5, at p. 91 (Exhibit EU -

30). 81 Burdon, pp. 1 and 13 (Exhibit EU 31). 82 Butterworth (2007), p. 42 (Exhibit EU - 34). 83 Daoust (2002), Abstract, at p. 687 (Exhibit EU - 32). This conclusion has been invoked by some

defenders of the seal hunt, including the Canadian government, as authority for the assertion that 98 % of seals are killed humanely during the Canadian commercial hunt. As noted by EFSA (section 4.2.2.2, at p. 122, (Exhibit EU - 30), such interpretation is plainly incorrect:

"Such an interpretation does not represent what Daoust et al. (2002) actually wrote. It is scientifically incorrect to conclude that 98 % of the seals in either sample were killed humanely […] Based on the available data, it can only be concluded that, in these two cases, a minimum of 2 % of the animals may have experienced avoidable pain and suffering. It does not automatically follow, however, that the remaining 98 % of the animals in these samples were humanely killed. Again, some of these animals were likely to have been killed humanely, while other may not have been."

84 See e.g. A. Linzey, Public Morality and the Canadian Hunt, 2005, pp. 3-8 (Exhibit EU - 35); and Richardson (2007), p. 6 (Exhibit EU - 36).

85 Smith, p. 5 (Exhibit EU - 33).


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realistic in the context of the hunt, so that sealers will accept and implement

them"86 and that "it [was] not the Group's intent to enter into the discussion

about whether or not there should be a hunt".87

86. Having considered the above studies, and other reviewed evidence, EFSA's

opinion concluded that:

Many seals can be, and are, killed rapidly and effectively without causing avoidable pain, distress, fear and other forms of suffering, using a variety of methods that aim to destroy sensory brain functions.88

87. More specifically, EFSA endorsed the so-called "three-step" method of "effective

stunning, effective monitoring and effective bleeding out"89, albeit with some

important qualifications. This method is described in more detail in the next

section.

88. At the same time, however, EFSA's opinion cautioned that:

There is strong evidence that, in practice, effective killing does not always occur but the degree to which it does not happen has been difficult to assess, partly because of a lack of objective data and partly because of the genuine differences in interpretation of the available data.90

89. More precisely, according to EFSA:

There is evidence that, during Canada's seal hunt, some animals do, and other may, suffer pain and distress at different stages of the killing process. 91

90. In particular, EFSA's opinion identified the following risks:92

• "If seals are hit or shot but are not dead, they may be hit or shot again or may

be moved or skinned whilst conscious, resulting in avoidable pain, distress,

fear and other forms of suffering". 86 Smith, p. 7 (Exhibit EU - 33). 87 Smith, p. 6 (Exhibit EU - 33). See also A. Linzey, at footnote 38, who identifies a number of

"disquieting aspects" in this report (Exhibit EU - 35). 88 EFSA Opinion, General Conclusions, point 3, at p. 94 (Exhibit EU - 30). 89 EFSA Opinion, General Recommendations, point 2, at p. 94 (Exhibit EU - 30). 90 EFSA Opinion, General Conclusions, point 4, at p. 94 (Exhibit EU - 30). 91 EFSA Opinion, Conclusions and Recommendations, section 4.1.1, point 3, at p. 91 (Exhibit EU - 30). 92 EFSA Opinion, General Conclusions, points 5 to 9, at p. 94 (Exhibit EU - 30).


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• "Seals may be struck and lost with injuries that may cause avoidable pain,

distress and suffering that may affect their survival in the wild".

• "If seals are dead, or have been bled out after adequate stunning from which

they do not recover consciousness, then skinning is not a welfare problem".

• "Monitoring each seal to ensure death or unconsciousness before bleeding-out

is not always carried out effectively, and this will lead to seals feeling the

skinning cuts before loss of consciousness and death due to bleeding-out".

• "Bleeding-out stunned seals to ensure death is frequently not carried out in

some hunts".

91. As discussed below in Sections 2.4.4.1 and 2.4.5.1, although Canada's and

Norway's hunting regulations purport to prescribe humane slaughter methods, they

fail to do so. The above risks, however, are largely inherent in the conditions in

which commercial seal hunting takes place in both Canada and Norway and would

persist even if Canada's and Norway's regulations were improved. As shown below

in Sections 2.4.4.2 and 2.4.5.2, those conditions render impossible to effectively

apply humane killing methods in a consistent manner. This is confirmed by the

evidence discussed in sections 2.4.4.3 and 2.4.5.3, which shows that, in practice,

the killing methods prescribed by existing hunting regulations, inadequate as they

are, are frequently disregarded or ineffectively applied.

2.4.2. Other veterinary reports

92. 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.93

93 The available scientific evidence pertaining to the Canadian seal hunt has also been examined from an

ethical point of view by Prof. A. Linzey, in his 2005 report Public Morality and the Canadian Hunt (Exhibit EU - 35). Linzey concludes (at p. 19) that:

Because of the physical environment in which it operates, and the way in which it must be conducted in order to be commercially viable, Canada's seal hunt is –and must always be – inhumane.


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2.4.2.1 The Richardson (2007) report

93. In 2007, Dr. Mary Richardson, a veterinary expert in humane slaughter methods,

produced a comprehensive review of 50 years of veterinary evidence, entitled

Inherently Inhumane.94

94. Richardson concludes that while it might be possible to prescribe "a killing

technique that would fit within accepted guidelines of humane slaughter"95

Canada’s commercial seal hunt can never be made acceptably humane because of

the conditions in which the hunt takes place:

However, the physical environment in which the seal hunt occurs and the speed at which it must be conducted prevents this humane killing technique from being employed effectively and consistently by sealers. Deteriorating ice conditions, extreme and unpredictable weather, high winds and ocean swells are all deterrents to humane killing and accuracy in clubbing and shooting, and in timely retrieval of animals in the case of shooting. In these conditions, shooting seals by rifle or shotgun from sealing vessels can never be considered to be acceptably humane. Even in the case of clubbing it is unlikely the four step killing process can consistently be effectively implemented. Veterinary studies conducted over the past half century confirm this is the case. 96

2.4.2.2 The Butterworth (2012) report

95. In 2012 Butterworth and Richardson published in the journal Marine Policy a

paper reviewing the findings from a number of veterinary studies on the Canadian

commercial seal hunt.97 The paper compares the methods and regulations currently

used in Canada’s commercial seal hunt with generally accepted principles of

humane slaughter. It also examines the intrinsic elements of the killing process to

determine if sealers ever could effectively and consistently carry out humane

slaughter in the context of commercial sealing. The report contains abundant video

94 Richardson (2007) (Exhibit EU - 36) 95 Richardson (2007), p. 52 (Exhibit EU - 36). 96 Richardson (2007), p. 52 (Exhibit EU - 36). 97 Butterworth A, Richardson M, A Review of animal welfare implications of the commercial Canadian

seal hunt, Marine Policy (2012), http:/dx.doi./10.101016/j.marpol.2012.07.006. ("Butterworth(2012)") (Exhibit EU - 37).


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evidence (accessible as links in the Appendices) collected by observers licensed by

the Canadian government.98

96. The findings reported by Butterworth (2012) include the following:

• "Seals have a number of physiological and anatomical adaptations that bring

into question whether 'conventional' thinking on slaughter can be applied to

these unusual animals".99

• "[B]oth shooting and clubbing of seals in the context of commercial sealing

should be viewed as inherently inhumane".100

• "There are a number of factors that affect the capacity of sealers to carry out

the seal hunt to a high level of 'care'. These include the time and economic

pressures which result from the speed at which the hunt must be conducted, the

climate and the ice conditions in which sealers work and the changes in the ice

state which have come with climate change".101

• "Canada’s Marine Mammal Regulations and Conditions of Sealing licenses fail

to prescribe [generally accepted principles of humane slaughter]".102

• "It is clear from observation based reports that the three step process is rarely

applied, and the extent of 'meaningful' checking of the animals state of

sensibility is low despite this being a legal requirement."103

• "Close monitoring of the commercial sea hunt by authorities is a practical

impossibility."104

• "Diminishing sea ice and the increased number of extreme weather events are

compromising animal welfare by changing the way hunters interact with seals

98 The video evidence cited in Butterworth (2012) is provided also in DVD format as Exhibit EU – 38. 99 Buttertworth (2012), p. 10 (Exhibit EU - 37). 100 Buttertworth (2012), p. 10 (Exhibit EU - 37). 101 Buttertworth (2012), p. 10 (Exhibit EU - 37). 102 Buttertworth (2012), p. 5 (Exhibit EU - 37). 103 Buttertworth (2012), p. 10 (Exhibit EU - 37). 104 Buttertworth (2012), p. 9 (Exhibit EU - 37).


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As sea ice continues to decrease, the related negative welfare impacts are likely

to be more frequently observed."105

97. Butterworth (2012) concludes that:

The evidence, which continues to be available year on year, through observer data, video material and veterinary study is clear: Canada's commercial seal hunt adopts procedures, and has measurable outcomes that do not meet internationally recognized standards 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. 106

2.4.3. Recommended killing methods

98. Various veterinary reports, including Burdon and Smith,107 have recommended a

killing method involving a "three-step" process. As mentioned above, this method

was endorsed by EFSA's opinion, albeit with some important cautions.108

99. The basic elements of the three-step method are the following:

• 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 restunned;

• third, the seal must be bled out to confirm or achieve death by terminating

blood flow to the brainstem.

100. All the veterinary experts who have recommended the three-step method have

been careful to stress that it is essential that each of the three steps be carried out

effectively. Those experts, nevertheless, may sometimes hold different views on

what constitutes in practice a sufficient level of effectiveness or on the best

105 Buttertworth (2012), p. 9 (Exhibit EU - 37). 106 Buttertworth (2012), p. 10 (Exhibit EU - 37). 107 See Burdon, who recommend the procedure of "rapid stunning, checking corneal reflexes and

bleeding" (at p. 13) (Exhibit EU - 31); and Smith, who recommend a "process of stunning, checking (palpation of the skull) and bleeding" (at p. 21) (Exhibit EU - 33).

108 EFSA Opinion, General Recommendations, point 2, at p. 94 (Exhibit EU - 30).


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technique to achieve such level. By way of example, whereas Burdon recommends

checking unconsciousness by testing the bilateral corneal (blinking eye) reflex109,

Smith regards that test as unreliable and recommends instead the palpation of the

skull to ensure that the skull and both cerebral hemispheres are crushed.110

101. The same veterinary experts also agree that the three steps must be performed in

rapid succession and that any undue delay in completing the second or third steps

may result in a situation in which the animal experiences severe suffering. Again,

however, these experts may disagree on what amounts to excessive delay.

102. Thus, Burdon recommends that:

• "[ …] a process of rapid stunning (resulting in a rapid loss of consciousness),

followed immediately by bleeding out to ensure death occurs, are followed

[...]".111

• "Once a corneal reflex has been performed and the unconscious state has been

confirmed, the sealer must immediately and as the very next action taken,

move to exsanguinate (or bleed out) the seal, in order to avoid the animal

regaining consciousness."112

• "The process of rendering the seal unconscious, assessing the corneal reflex,

taking further action where necessary to ensure loss of consciousness, and

effective exsanguination, must all be performed before the hunter is able to

move on to the next seal."113

• "Any method for killing a seal which does not allow for the above process of

stunning, checking and bleeding to be performed, has an enormous potential to

create suffering and is therefore unacceptable."114

109 Burdon, pp. 11-12 (Exhibit EU - 31). 110 Smith, p. 21 (Exhibit EU - 33). 111 Burdon, p. 1 (Exhibit EU - 31). 112 Burdon, p. 4 (Exhibit EU - 31). 113 Burdon, p. 5 (Exhibit EU - 31). 114 Burdon, p. 5 (Exhibit EU - 31).


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• "As [the three-step process] cannot be consistently followed in open water, we

consider that shooting seals in the water can never be humane."115

• "Any method of taking a seal which requires the seal to be recovered by

gaffing or hooking before the process can be followed can never be

humane."116

• "[After shooting a seal], the sealer should then proceed to directly approach

the shot seal, as the very next action, in order to assess the corneal reflex and

then immediately perform exsanguination. We recommend that there should

exist a time limit from the time the seal is hit and performing exsanguination

once a corneal reflex has been performed, in order to prevent unnecessary

suffering."117

103. As mentioned above, Smith sought to achieve a "realistic balance"118 which could

be acceptable to sealers. Nonetheless, this report recognised that:

• "[the three steps] should follow each other in rapid succession, and are all

essential to ensuring a humane killing process".119

• "While the three steps of the process carried out in rapid succession should

result in a humane seal hunt, it should be noted that failure to correctly carry

out any one of the three steps, or undue delay in completing the second or third

steps, can result in a situation in which a seal may not be killed in a humane

manner."120

• "Seals should not be shot in the water, or in any circumstance when it is

possible the carcass cannot be recovered."121

104. Drawing on the above opinions, EFSA recommended that:

115 Burdon, p. 5 (Exhibit EU - 31). 116 Burdon, p. 5 (Exhibit EU - 31). 117 Burdon, p. 12 (Exhibit EU - 31). 118 Smith, p. 7 (Exhibit EU - 33). 119 Smith, p. 7 (Exhibit EU - 33). 120 Smith, p. 9 (Exhibit EU - 33). 121 Smith, p. 2 (Exhibit EU - 33).


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• "The time between shooting and monitoring of the state of the shot animal

should be short."122

• "Seals should be bled out as soon as possible and, preferably immediately, after

the effectiveness of the stunning process has been verified (which in turn

should be as soon as possible after stunning)."123

• "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."124

• "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."125

• "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."126

105. When considering the above recommendations it must be recalled, once again, that

EFSA deliberately omitted to take into account the "ethical aspects" of killing

seals127 and that its recommendations only sought to minimise the suffering

experienced by seals by addressing the avoidable risks.

106. The three-step method has been expanded upon by some veterinary experts.128

Thus, according to Richardson, any killing technique "that would fit within

accepted guidelines of humane slaughter" would have to include the following

four steps, rather than three:129

122 EFSA Opinion, Conclusions and recommendations, section 3.3.2, point 4 (Exhibit EU - 30). 123 EFSA opinion, Conclusions and recommendations, section 3.6.2 (Exhibit EU - 30). 124 EFSA opinion, Conclusions and recommendations, section 3.6.2, point 2 (Exhibit EU - 30). 125 EFSA opinion, Conclusions and recommendations, section 3.6.2, point 3 (Exhibit EU - 30). 126 EFSA opinion, Conclusions and recommendations, section 3.6.1, point 5 (Exhibit EU - 30). 127 EFSA Opinion, Approach, p. 12 (Exhibit EU - 30). 128 EFSA recommended a "fourth step of effective implementation". EFSA Opinion, p. 4 (Exhibit EU –

30). 129 Richardson (2007), p. 52 (Exhibit EU - 36).


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• "stunning the seal with one blow or shot to the head, without causing distress

or pain to the seal";

• "immediately checking for unconsciousness through a corneal reflex test";

• "immediate exsanguination of the seal through cutting of axillary arteries"; and

• "the sealer remaining with the seal through the bleeding process to re-stun the

seal if needed."

107. As mentioned above, however, Richardson went on to conclude that, in practice, a

method meeting the above requirements could not be effectively implemented in

the physical environment in which Canada's commercial hunt takes place.130

108. 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 killing131:

[…] most existing veterinary advice on commercial sealing has sought to achieve a compromise between methods that could constitute humane slaughter and the measures sealers can practically take in the challenging environment in which the commercial seal hunt operates. […] Veterinary advice and the regulations that result from it have thus not solely focused on how to ensure that the killing is humane (as required in established commercial slaughter), but rather how to make it less inhumane by adopting methods that are practical on the ice (but which would be considered primitive in a slaughterhouse on land).

109. According to Butterworth (2012), in order to qualify as humane a method for

killing seals would have to comply with the following generally accepted

principles of humane slaughter: 132

• "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";

130 Richardson (2007), p.52 (Exhibit EU - 36). 131 Butterworth (2012), p. 5 (Exhibit EU - 37). 132 Butterworth (2012), p. 5 (Exhibit EU - 37).


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• "Confirming unconsciousness by monitoring for multiple indicators of

consciousness";

• "Delivering death without delay through an accepted euthanasia method"; and,

• "Ensuring unconsciousness persists until death occurs".

110. Butterworth (2012), nevertheless, concludes that the review of available data

indicates that the above generally accepted principles of humane slaughter cannot

be carried out effectively and consistently in the commercial seal hunt. 133

2.4.4. Canada's commercial hunt

111. Canada's seal hunt is, by far, the world's largest commercial slaughter of marine

mammals and, as such, it has been the subject of veterinary scrutiny for half a

century. In this section, the European Union will show, on the basis of the

veterinary studies and reports cited above, that according to qualified scientific

opinions:

• Canada's hunting regulations exhibit significant deficiencies and fail to

prescribe a humane killing method;

• there are inherent obstacles resulting from the unique environment and

circumstances in which Canada's commercial hunt takes place which make it

impossible the application of humane killing methods in an effective and

consistent manner; and

• there is evidence that, largely as a result of those inherent obstacles, the

killing's methods prescribed by Canada's hunting regulation are not effectively

and consistently applied in practice.

2.4.4.1 Deficiencies of Canada's hunting regulations

112. The method for killing seals during the Canadian commercial hunt is prescribed in

the Marine Mammal Regulations ("MMR")134, as supplemented by the Conditions

of Licence issued every year.

133 Butterworth (2012), abstract (Exhibit EU - 37).


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113. 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. As explained below, 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.

2.4.4.1.1 Method of stunning

114. Veterinary experts have expressed inter alia the following concerns with regard to

the provisions of the Canadian regulations concerning the method of stunning:

• stunning via delivery of a manual percussive blow with a club or a hakapik

may not be a suitable method for killing seals which have reached the "beater"

stage of development;135

• unlike previous regulations, the current MMR do not prohibit to strike a seal

with a club or a hapakapik "on any part of its body except its forehead". This

change of wording may indicate awareness on the part of the authorities that

consistent accuracy is not achievable;136

• the MMR do not specify which end of the hakapik should be used. In practice,

sealers have been observed stabbing seals in the skull with the metal spike,

rather than clubbing them with the hammer end. This act equates to pithing,

which is not considered a humane method of slaughtering prior to stunning;137

• the MMR do not prohibit shooting a seal on any part of its body other than the

head;138

134 Marine Mammals Regulations, SOR/93/56 (Exhibit CDA - 21). 135 Butterworth (2012), p. 5 (Exhibit EU - 37). 136 Butterworth (2012), p. 5 (Exhibit EU - 37). 137 Butterworth (2012), p. 5 (Exhibit EU - 37). 138 Butterworth (2012), p. 5 (Exhibit EU - 37).


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• the MMR allow inflicting multiple blows with a club or hakapik and/or

shooting repeatedly a seal, a practice which is regarded as unacceptable from

an animal welfare point of view by some experts;139

• the MMR place no restriction whatsoever on the shooting of seals in or near

open water. Yet, most veterinaries agree that shooting seals in those

circumstances presents serious welfare concerns, since the three-step process

cannot be completed before an animal is impaled on a hook. Moreover,

shooting seals in or near the water considerably increases the risk of "struck

and lost";140

• the MMR allow practices that may cause fear and stress, such as herding seal

pups prior to clubbing them or killing seal pups close to and within view of

other seal pups.141

2.4.4.1.2 Confirmation of unconsciousness

115. The MMR require that sealers palpate the seal's cranium to confirm that it has been

crushed following clubbing and/or shooting. Yet some experts have argued that, in

the context of the commercial seal hunt, skull palpation is not a reliable test for

unconsciousness.142 Burdon states:143

A large blow to the cerebral cortex is unlikely to result in immediate brain stem herniation. Cerebral oedema can elicit herniation but only after a considerable time period (potentially hours). Massive cerebral haemorrhage associated with a blunt external trauma would be unlikely to occur and result in immediate death. Therefore, skull palpation is not the most reliable as a means of interpreting death or level of consciousness. The location and severity of crush injuries involving the CNS will affect the possible outcome; it is therefore open to misinterpretation.

139 See e.g. Burdon, pp. 1 and 13 (Exhibit EU - 31); Butterworth (2012), p. 6 (Exhibit EU - 37). 140 See e.g. Burdon, p. 5 (Exhibit EU - 31) ; Smith, p. 10 (Exhibit EU - 33); Butterworth (2012), p. 6

(Exhibit EU - 37); and EFSA Opinion, section 3.6.1, point 5 (Exhibit EU – 30). 141 Butterworth (2012), p. 5 (Exhibit EU - 37). 142 Burdon, p. 4 (Exhibit EU - 31); Butterworth (2012), p. 5 (Exhibit EU - 37); EFSA, Conclusions and

recommendations, point 5.7.1 (Exhibit EU - 30). 143 Burdon, p. 4 (Exhibit EU - 31).


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116. Butterworth (2012) concurs that a partially crushed skull can be compatible with

consciousness and notes that:144

That interpretation of the severity of the crush injury rests solely with a sealer working in extreme conditions, often beset by fatigue and with a rushed work schedule and usually wearing thick work gloves, makes skull palpation likely to be a less than reliable method for confirming unconsciousness.

117. Moreover, while the MMR require that "every person who strikes a seal with a

club or a hakapik […] shall immediately palpate the cranium to confirm that the

skull has been crushed”145, the same is not mandated in the case of shooting.

Instead, the MMR state that, after shooting a seal, sealers must palpate the skull

“as soon as possible”.146 The MMR do not prescribe any time-limit for doing so or

give any indication of the circumstances that may justify deferring the palpation of

the skull.

118. In the circumstances in which Canada's commercial seal hunt takes place, wording

such "as soon as possible" leaves open the door to excessive delays. In practice,

that wording allows sealers to continue the standard practice of shooting several

seals in succession from a boat and only then maneuvering the boat slowly through

the ice to retrieve each seal. This may result in wounded seals left to suffer on the

ice floes for extended periods of time.147

119. In an attempt to mitigate some of the above flaws of the MMR, in recent years the

Conditions of Licence148 have required that when, as is increasingly the case, seals

are shot from a boat, the sealer must observe the seal for so-called “directed

movements”, and shot it again as necessary, before hauling that seal onto the boat

or shooting other seals. But this surrogate method of checking if a seal is

irreversibly unconscious is manifestly unreliable. A wounded but immobile seal

could well be conscious and simply not moving for a variety of reasons. In

particular, it could be exhibiting a “dive reflex” or “possum reaction”, in response

to being hit by a bullet. This sort of behaviour is well documented in harp seals,

144 Butterworth (2012), p. 6 (Exhibit EU - 37). 145 Subsection 28(2) of the MMR. Emphasis added (Exhibit CDA – 21). 146 Subsection 28(3) of the MMR (Exhibit CDA – 21). 147 Butterworth (2012), p. 6 (Exhibit EU - 37). 148 See e.g. the 2011 – 2012 Seal License Conditions for Newfoundland and Labrador (Exhibit EU - 39).


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especially pups. It is also possible that an immobile seal could be reversibly

unconscious because of the original trauma.149

2.4.4.1.3 Bleeding

120. Regardless of whether seals are stunned with a club, hakapik, or bullet, there is no

requirement under the MMR that the animals be bled out immediately following

the check for irreversible unconsciousness. In fact, no elapsed time between

checking and bleeding out is specified in the MMR.150 The Conditions of License

include the additional requirement that the seal must be bled "as soon as possible

after palpation of the cranium has confirmed that the cranium has been

crushed"151. But this requirement is still far from satisfactory because of the wide

discretion left by the wording "as soon as possible".152

121. Neither the MMR nor the Conditions of License include any requirement that the

animal be monitored throughout the bleeding process, so that it can be

immediately re-stunned in case it exhibits signs of regaining consciousness.153

2.4.4.2 Inherent obstacles to the effective implementation of humane killing methods

122. Even if Canada's regulations were amended in order to address the deficiencies

identified in the preceding section, there are, according to qualified scientific

opinions, a number of inherent obstacles that would still make it 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 obstacles are, essentially, of three types:

• obstacles resulting from the unique physical environment in which commercial

seal hunting occurs;

149 See EFSA's opinion, section 5.4.2, pp. 71-72 (Exhibit EU - 30). See also Smith, p. 17 (Exhibit EU -

33); Daoust (2002), p. 692 (Exhibit EU - 32); and Burdon, p. 4 (Exhibit EU - 31). The latter concludes that "a loss of movement cannot be viewed as an effective means of indicating either death or loss of consciousness". See also Butterworth (2012) p. 6 (Exhibit EU - 37).

150 Section 29 of the MMR (Exhibit CDA – 21). 151 See e.g. the 2011 – 2012 Seal License Conditions for Newfoundland and Labrador (Exhibit EU - 39). 152 Butterworth (2012), p. 4 (Exhibit EU - 37). 153 Butterworth (2012), p. 5 (Exhibit EU - 37).


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• 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.

123. Here below, each of these three types of obstacles will be examined in turn.

2.4.4.2.1 Physical environment

124. Canada’s commercial seal hunt occurs in the spring154, up to 170 miles off the

Canada's east coast in the northwest Atlantic Ocean.155 In this ocean environment,

and at that time of the year, strong winds, high waves, extreme cold and low

visibility are all common elements.156

125. Depending on the ice conditions, sealers either shoot the seals with rifles from

moving vessels or go down on the ice and strike the animals with a hakapik or a

club.157 Traditionally most seals were hunted on solid sea ice. By regulation, the

present day hunt targets pups slightly older and begins weeks later in the spring.158

Moreover, in recent years, climate change has caused the ice floes to diminish

dramatically.159 As a result, sealers work on increasingly broken and unstable ice

floes.

126. As will be explained below, 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 method, let alone a genuinely humane method.

154 EFSA Opinion, section 1.3.1.1., pp. 24-25 (Exhibit EU - 30); DFO, Overview of the Atlantic Seals

Hunt, 2006-2010, at. 3.4. (Exhibit EU - 40). 155 EFSA Opinion, section 1.3.1.1, p. 25; DFO, Overview of the Atlantic Seals Hunt, 2006-2010, at. 3.3

(Exhibit EU - 40). 156 See the evidence cited in Richardson (2007), pp. 40-43 (Exhibit EU - 36); and in Butterworth (2012),

pp. 7-8 (Exhibit EU - 37). 157 EFSA Opinion, section 1.3.1.1., p. 25 (Exhibit EU - 30). 158 Butterworth (2012), p. 2 (Exhibit EU - 37); Richardson (2007), p. 38 (Exhibit EU - 36). 159 Johnston, D.W. et al., Variation in sea ice cover on the east coast of Canada from 1969 to 2002:

climate variability and implications for harp and hooded seals, Climate research, Vol. 29:209-222, 2005 (Exhibit EU - 41); See also DFO, Overview of the Atlantic Seals Hunt, 2006-2010, at. 3.3., (Exhibit EU - 40), where Canada's DFO notes that "there has been an increased frequency of poor ice cover in recent years". The negative animal welfare impacts of climate change on the Canadian hunt have been examined in Butterworth (2012), pp. 9-10 (Exhibit EU - 37).


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♦ Inaccurate clubbing

127. Clubbing can only be a humane means of stunning if the blows are struck with

precision and accuracy. Unlike the animals stunned in a slaughterhouse, which are

restrained and immobile, seals are freely moving targets and can react in

unpredictable ways when alarmed by an approaching a seal hunter.160

128. 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.161 The accuracy of clubbing may be

further compromised by the cumulative effects of low visibility (snow, freezing

rain, fog)162, extreme cold163 and the fatigue experienced by the sealer in such a

challenging environment.164

129. Already in 1986 a report by the Canadian government appointed Royal

Commission on Seals and Sealing noted that:

Clubbing is a physical act, and the clubber must strike every blow with precision to ensure humane clubbing. It is probably impossible to invariably achieve this precision, given the cold and slippery conditions on the ice, the long hours, the pressure to work fast, and the possibility of a moving target.165

130. Similarly, EFSA concluded that:

If the first blow from the hakapik does not hit the calvarium but hits another part of the body, the animal may not be immediately stunned and this will then cause pain in conscious animals, and they may also escape with such injuries.

The accuracy of the strike may be compromised if the seal moves its head, or moves away and this depends very much on the behaviour of the seal species, the skill of the hunter and the environmental conditions in which the hunt takes place.166

160 Butterworth (2012), p. 33 (Exhibit EU - 37); Richardson (2007), pp. 21-22 (Exhibit EU - 36). 161 Richardson (2007), p. 39 (Exhibit EU - 36); Butterworth (2007), p. 27 (Exhibit EU - 34);

Butterworth (2012), p. 9 (Exhibit EU – 37). 162 Richardson (2007), p. 41 (Exhibit EU - 36); Butterworth (2012), pp. 7-8 (Exhibit EU - 37). 163 Butterworth (2012), p. 7 (Exhibit EU - 37). 164 Butterworth (2012), p. 9 (Exhibit EU - 37). 165 Cited in Richardson (2007), p. 22 (Exhibit EU - 36). 166 EFSA Opinion, Conclusions and Recommendations, Section 3.1.1, points 3 and 4, at p. 88. See also

EFSA Opinion, Section 3.1.5, pp. 39-40 (Exhibit EU - 30).


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131. According to Butterworth (2012), the impacts of climate change have rendered it

even more difficult to accurately club seals:

It is difficult for sealers to accurately club seals on the ice given the slippery conditions and the possibility of a moving target, and these challenges are compounded by the impacts of climate change. In the present day seal hunt, sealers are attempting to club seals on fragile, broken ice floes that move quickly in the water and unstable platform to operate on.167

♦ Inaccurate shooting

132. Sealers are increasingly resorting to shooting at seals from moving boats because

the ice floes are not solid enough to walk on.168 Seals are usually shot from

distances of approximately 40-50 metres.169 Even in good weather conditions the

accurate placement of a shot in the relatively small brain areas is difficult given

that the boat is moving, the ice is moving and the seal may also be moving.170

133. In practice, extreme weather conditions, including strong winds171, high ocean

swells and waves172, extreme cold173 and low visibility (snow, freezing rain,

fog)174 make accurate shooting even more difficult.175 Butterworth (2012) observes

the following with regard to each of those factors176:

• "High winds, at times gale force (>34 knots/h), have been regularly recorded

on the opening days of the commercial seal hunt in the front throughout the

past 10 years […] Wind is responsible for more missed shots than any other

167 Butterworth (2012), p. 9 (Exhibit EU – 37). 168 EFSA Opinion, Conclusions, Section 1.1, point 5; and Section 3.3.1, point 7 (Exhibit EU - 30);

Butterworth (2012),pp. 3 and 9 (Exhibit EU - 37). 169 Smith, p. 9 (Exhibit EU - 33). This estimate refers to the Front, an area off the North and east coast of

Newfoundland and off southern Labrador where 70 per cent of the hunt occurs. See DFO, Overview of the Atlantic Seals Hunt, 2006-2010, at. 3.3. (Exhibit EU - 41).

170 Butterworth (2007) p. 3 and pp. 40-41 (Exhibit EU - 34); Richardson (2007), p. 39 (Exhibit EU - 36); Butterworth (2012) pp. 5-6 (Exhibit EU - 37).

171 Butterworth (2012), p. 7 (Exhibit EU - 37). 172 Butterworth (2012), p. 7 (Exhibit EU - 37). 173 Butterworth (2012) p. 7 (Exhibit EU - 37). 174 Butterworth (2012), pp. 7-8 (Exhibit EU - 37). 175 Richardson (2007), pp . 40-43 (Exhibit EU - 36); Butterworth (2012) pp. 7-8 (Exhibit EU - 37). 176 Butterworth (2012), p. 4 (Exhibit EU - 37).


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single factor, and significant shooting inaccuracy has been observed in high

wind conditions at the seal hunt."177

• "Historic data show that high waves are an intrinsic element of sealing areas

[…] and, in the past, wave heights of up to 18 ft have been regularly recorded

on the opening days of the commercial seal hunt. High oceans swells/waves

cause the small vessels sealers operate from pitch and roll, creating an

unstable platform for sealers to shoot from. Aiming stability is an essential

determinant of shooting precision and there are significant relative relations

between sway and performance accuracy. Boat movements create significant

challenges to sealers delivering accurate head shots. Moreover, the small,

broken ice pans upon which seals are found move significantly in dynamic

sea conditions. Seals are already mobile on the ice floes, and the movement

of their sea ice platforms compounds the situation".178

• "Sealers work for extensive hours in extreme low temperatures and exposure

to cold reduces core body temperature. This induces shivering and muscle

stiffness and depresses the central nervous and respiratory systems, impairing

cognitive and manual dexterity. The effects of mild hypothermia have a

significant negative effect on cognitive processing speed and efficiency and

fine and gross manual dexterity. In cold temperatures, rifle chamber pressure

decreases and the bullet exits the muzzle at a lower velocity, impacting the

target below the point of aim. Moreover, cold air is dense, creating greater

resistance to the bullet, and this causes the bullet to travel slower and

experience greater deflection from wind. Extreme cold can affect a person’s

ability to concentrate and that if the shooter’s hands are numb, he may have

difficulty holding a cold rifle and executing effective trigger control. Grebot

and Burtheret reported shooting accuracy impairment in negative temperature

shooting conditions. It would be logical to conclude that prolonged exposure

to cold reduces the proportion of accurate headshots delivered in the

commercial seal hunt."179

177 Butterworth (2012), p. 7 (Exhibit EU - 37). Footnotes omitted. 178 Butterworth (2012), p. 7 (Exhibit EU – 37). Footnotes omitted. 179 Butterworth (2012) p. 7 (Exhibit EU – 37). Footnotes omitted.


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• "Sea fog is common in locations where boundaries with cold ocean currents

can be found. The Grand Banks, located off the coast of Newfoundland, is

considered the foggiest region in the world. In focus groups conducted with

Newfoundland fishermen, ‘‘sealing in fog’’ was identified as a key element

that causes risk to crews and vessels. The presence of sea ice along the coast

of Newfoundland generates surface conditions that produce freezing drizzle.

Newfoundland receives the most freezing precipitation annually in North

America, with an annual frequency that is almost twice the highest frequency

observed elsewhere. Notably, northeastern Newfoundland (where two thirds

of commercial sealing occurs) has the highest number of hours of freezing

drizzle. The human visual system becomes less efficient when the amount of

visual information is low. Fog, rain, or any element that obscures vision will

make targets appear farther away, and the farther away an object appears to

be, the less brightness and contrast occurs, and the less clearly the human eye

can see it. Fog also distorts and reduces visual information including

appearance of size of targets. Decreases in visual acuity negatively affect

marksmanship performance. In these conditions of low visibility, it is

reasonable to assume that shooters are more susceptible to errors in targeting.

This, in turn, helps to explain the high wounding rates evidenced at the

commercial seal hunt."180

134. The adverse weather conditions described above make the sealers even more

susceptible to operator's fatigue, which further diminishes the accuracy of

shooting.181

135. 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 proportion of kills with head shots …The causes include long range shooting, shooting from moving boats and shooting at seals in the water.182

136. Butterworth (2007) concluded that:

180 Butterworth (2012), pp. 9-10 (Exhibit EU - 37). Footnotes omitted. 181 Butterworth (2012), p. 9. (Exhibit EU - 37). 182 Cited in Richardson (2007), p. 27 (Exhibit EU - 36).


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Even with relatively calm sea conditions, accurate placement of a shot, in the relatively small brain area, is difficult, because the boat is moving, the ice is moving, and the seal may also be moving. The problems were exacerbated when sea and/or wind conditions were not calm, and when the seals were lying on their back or sides, or were obscured by ice. 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.183

137. EFSA observed that:

The main disadvantage with firearms is the risk of the targeted animal being hit with insufficient force and/or accuracy to cause instantaneous death or unconsciousness, and possibly escaping wounded. This may be caused by one or more of the following: poor marksmanship, excessive distance (e.g. shots fired over ranges > 50 m), unstable platforms (e.g. a boat or ice floe in rough weather conditions), unanticipated movement by the animal (e.g. a sudden movement of the head just before the hit) or inadequate firearms / ammunition. In any seal hunt, it is likely that a certain proportion of the animals will be only wounded, regardless of the power of the ammunition. Wounded seals may escape before they are re-shot, as there is no guarantee that the rifleman will be able to inflict a successful repeat shot immediately. This is especially true for animals which are shot while in water […]

The distance between hunter and seal implies a necessary delay in verifying the results of the shot, unless the behaviour of the animal, such as vocalization or erratic movements of its head, clearly demonstrates visually to the hunter that an animal is only wounded. Moreover, in the case of seals shot on ice floes, the need for the vessel to perform difficult manoeuvres among ice floes may prolong the time between the shot and someone reaching the animal to monitor its condition.184

138. EFSA concluded from the above 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.

Missed shots may be caused by one or more of the following: poor marksmanship, excessive distance, unstable platforms (e.g. a boat or ice floe in rough weather conditions), unanticipated movement by the animal or inappropriate firearms or ammunition.

183 Butterworth (2007), pp. 34 (Exhibit EU - 34); Butterworth (2012) p. 6 (Exhibit EU - 37). 184 EFSA Opinion, Section 3.3.4, p. 44 (Exhibit EU - 30).


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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.

In any seal hunt, it is likely that an unknown proportion of the animals will be only wounded, regardless of the power of the ammunition.185

♦ Delay in approaching the seal after shooting and impossibility to check for unconsciousness and bleeding the seal on the ice

139. As seals are usually shot from distances of 40-50 metres, amidst sea ice, it may

take extended periods of time for sealers to manoeuvre their vessels into place to

retrieve the animals.186

140. Moreover, because of deteriorating ice conditions, the sealers are often unable to

disembark to retrieve the seals. They are therefore physically unable to perform a

skull palpation or blink reflex test on the ice, let alone to complete the bleeding

process. In these cases the seal is stabbed with a metal boat hook, dragged across

the ice floe, and hoisted aboard the sealing boat before performing those tests.187

141. According to EFSA:

Considering the safety issues associated with the difficult working conditions often encountered during certain seal hunts (e. g. the small size of some of the ice floes on which seals may be stunned), and that animals may be shot from a distance, a regulation requiring the animal to be bled immediately after stunning may not always be practicable, depending on the hunt.188

142. Smith recognised that:

Because of ice, sea and weather conditions there are greater challenges for hunters to carry out all three steps of stunning, checking by palpation of the skull, and bleeding.189

185 EFSA Opinion, Conclusions and Recommendations, Section 3.3.1., points 3-6, at p. 89. Underlining

supplied. (Exhibit EU – 30). 186 EFSA Opinion, Section 3.3.4, p. 44 (Exhibit EU - 30); Butterworth (2012), p. 9 (Exhibit EU - 37). 187 Richardson (2007), p. 39 (Exhibit EU - 36); Butterworth (2012), pp. 4 and 9-10 (Exhibit EU - 37). 188 EFSA Opinion, Section 3.6.2, p. 49 (Exhibit EU - 30). 189 Smith, pp. 8-9 (Exhibit EU - 33).


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143. Tellingly, Smith also admitted that:

Some members of the Working Group feel that bleeding should be a requirement of the Marine Mammal Regulations (2003), making it an offence not to bleed a seal before hooking or skinning. Other members of the Group feel that worker safety and the difficulties presented by the natural environment in which the hunt takes place were considerations that could make such a regulation difficult to apply, specifically in relation to hooking a seal.190

144. Needless to say, the European Union agrees 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.

♦ "Struck and lost"

145. Due to the ice conditions, seals are often shot at, in or near open water. Sometimes,

wounded seals slip into the water and dive beneath the surface (“struck and lost”).

These animals are rarely recovered and their fate is unknown. They can die shortly

after escaping or survive with injuries that can profoundly affect their continued

survival in the wild.191 The Canadian government estimates that no less than 5 %

of young seals struck with a club or hakapik or shot die in this way.192 However,

data for Greenland, where similar environmental conditions prevail, indicate that

the "struck and loss rate" may be as high as 50 %.193

2.4.4.2.2 Competitive pressure and other time constraints

146. 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.

While the official hunting season spans over six months (November-May), the

190 Smith, p. 10 (Exhibit EU - 33). 191 Butterworth (2012), pp. 3-4 (Exhibit EU - 37). 192 EFSA Opinion, section 4.2.2.4, p. 58 (Exhibit EU - 30). 193 EFSA Opinion, section 4.4.2, pp. 66-67 (Exhibit EU - 30).


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bulk of the killing occurs over just a few days.194 In some years, as many as

145,000 seals have been killed in less than two days. 195

147. Every year Canada's DFO sets a quota for harp seals and allocates it according to

region and vessel size. In some regions, the Conditions of Licence prevent

individual boats from landing more than 400 animals per day. In others, no such

restriction exists. 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.196

148. 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 costs197; the high costs of operating a

vessel (such as fuel or maintenance items)198; and the fact that most vessels are

licensed for other, more lucrative fisheries, with overlapping seasons.199

149. Smith observed that:

The competitive nature of the hunt (in recent years as short as two days) creates an environment in which speed is the rule, and hunters may be encouraged to take shortcuts.200

150. Similarly, Butterworth (2007) found that:

194 DFO, Overview of the Atlantic Seals Hunt 2006-2010, at. 3.4. (Exhibit EU - 41). 195 Richardson (2007), p. 43 (Exhibit EU - 36). 196 Butterworth (2007) pp. 12-13 (Exhibit EU - 34) ; Richardson (2007), pp. 43-44 (Exhibit EU - 36);

Butterworth (2012), p. 8 (Exhibit EU - 37). 197 Richardson (2007), p. 44 (Exhibit EU - 36); Butterworth (2012) pp. 8-9 (Exhibit EU – 37). 198 Richardson, p. 44 (Exhibit EU - 36). 199 Richardson, p. 44 (Exhibit EU - 36); Butterworth (2012), p. 8 (Exhibit EU - 37). 200 Smith, p. 11 (Exhibit EU - 31).


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Large numbers of seals are killed in a few days, and there is competition between sealers to collect as many skins as possible before the hunt is closed. Effectively, it is a 'gold rush'. Bearing in mind that guidelines on how to kill seals have been issued by the Canadian authorities, and that the conditions under which the sealers operate are difficult, it is concluded that the commercial and practical pressures that the sealers are under make clubbing of seals inherently inhumane. We do not believe that it would be possible to improve practices such that this method of killing would reach internationally acceptable standards.201

[…]

When sealers move onto the ice, there is considerable pressure to prevent seals escaping, and so their normal practice is to club as many seals as possible, as quickly as possible before they escape into the sea, without checking whether each seal is actually dead. We never observed the three-step process of stunning, checking (palpation of the skull) and bleeding, carried out in sequence as rapidly as possible, that is recommended by the Independent Veterinarians' Working Group (Smith, 2005). This is inevitable: since the hunt involves killing large numbers of seals in just a few days, the pressure is on sealers to minimise the time spent processing each seal. These commercial and practical considerations conspire to make the clubbing of seals inherently inhumane and we believe that it is unlikely to be possible to improve standards such that this method of killing would reach internationally acceptable standards of welfare.202

151. 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.203

2.4.4.2.3 Inability of the authorities to monitor the hunt and enforce the regulations

152. According to DOF, there are approximately 6,400 active commercial licenses in

Atlantic Canada.204 In some years, up to 2,200205 sealing vessels less than 65 feet

in length206 have participated in Canada's commercial hunt. The vessels spread out

over thousands of square miles of ocean, as far as 170 miles offshore. Moreover,

201 Butterworth (2007), p. 4 (Exhibit EU - 34). 202 Butterworth (2007), p. 41 (Exhibit EU - 34). 203 Butterworth (2012), p. 9 (Exhibit EU - 37). 204 DFO, 2011-2015 Integrated Fisheries Management Plan for Atlantic Seals, at section 3.3 (Exhibit EU

- 42). 205 EFSA Opinion, section 1.3.1, p. 25 (Exhibit EU - 30). 206 DFO, 2011-2015 Integrated Fisheries Management Plan for Atlantic Seals, at section 3.1.1 (Exhibit

EU - 42).


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individual seal hunters move far away from their vessels in all directions with the

use of skiffs (small boats) or on foot.207

153. 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

[T]he 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.208

154. Smith observed that:

The physical realities of the Canadian harp seal hunt present a significant set of challenges for observation, supervision, monitoring and enforcement. 209

The Front currently accounts for two-thirds of the seals killed during the annual Canadian harp seal hunt. Because of its remoteness and difficult environmental conditions, it is generally considered not to be well observed or monitored.210

DFO appears to lack sufficient dedicated capacity to monitor and enforce regulation of the hunt, especially at the Front.211

155. Smith also drew attention to the limitations of aerial surveillance:

A video camera mounted on a helicopter can serve as a useful method of observation. Its limitations should be noted with regard to distinguishing conscious and unconscious seal reflexes, identities of individual hunters and vessels, and use of tools such as hakapiks, clubs and hooks.212

156. Furthermore, Smith identified conflicts of interest, which could affect the

willingness of the authorities to effectively monitor and enforce compliance with

the sealing regulations:

207 Butterworth (2012), p. 9 (Exhibit EU - 37). 208 Cited in Richardson (2007), p. 45 (Exhibit EU - 36). See also the other evidence on the inability of

the Canadian authorities to monitor the hunt and enforce the regulations cited in Richardson (2007), pp.44-46 (Exhibit EU - 36); and in Butterworth (2012) p. 9 (Exhibit EU - 37).

209 Smith, p. 12 (Exhibit EU - 33). 210 Smith, p. 12 (Exhibit EU - 33). 211 Smith, p. 14 (Exhibit EU - 33). 212 Smith, p 12 (Exhibit EU - 33).


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DFO officers are often resident in the small communities that have social and economic links to the seal hunt. The Working Group believes that DFO should consider bringing in officers from outside communities who are not faced with monitoring and potentially laying charges against friends and neighbours.213

The Group further notes that there may be an element of conflict of interest in DFO being both an advocate for the seal hunt and its regulator.214

2.4.4.3 In practice, the prescribed killing method is not effectively and consistently applied

157. 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.

158. 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".215

159. Thus, Burdon concluded that:

Based on our observations there is a tremendous lack of consistency in the treatment of each seal and the existing regulations are neither respected nor enforced.216

160. Similarly, Butterworth (2007) stated that:

There was a widespread disregard for the Marine Mammal Regulations and non-statutory regulations from the sealers' professional bodies. A maximum of only 15% of seals we observed on the videos were killed in a manner that conformed to the Marine Mammal Regulations.217

161. EFSA also found that "there is strong evidence that in practice, effective killing

does not always occur".218 Nevertheless, according to EFSA, the precise degree to

which effective killing does not happen "is difficult to assess, partly because of a

213 Smith, p. 14 (Exhibit EU - 33). 214 Smith p. 14 (Exhibit EU - 33). 215 EFSA Opinion, p. 77 (Exhibit EU - 30). 216 Burdon, p. 12 (Exhibit EU - 31). 217 Butterworth (2007), p. 5 (Exhibit EU - 34). 218 EFSA Opinion, General Conclusions, point 4, at p. 94 (Exhibit EU - 30).


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lack of objective data and partly because of the genuine differences in

interpretation of the available data".219

2.4.4.3.1 Clubbing

162. The veterinary reports examined by EFSA include evidence showing that clubbing

is not always performed effectively.220 In particular, when skulls have been

checked by veterinarians, a large, albeit variable, percentage has been found not to

have been adequately crushed. For example:

• Burdon found that 42 % of the 79 skulls examined were not completely

crushed.221 This led Burdon to conclude that clubbing was "significantly

inaccurate in location, resulting in severe and unacceptable suffering";222

• Daoust (2002) reported that 86 % of the 100 skulls examined had been

completely crushed.223 Nevertheless, Dr. Daoust conceded that his presence

on board of sealing vessels may have incited sealers to hit the seals' skulls

more vigorously."224

• Butterworth (2007) observed that whilst 88 % of the 17 carcasses examined

had fractured skulls, clubbing sites were frequently reported on other parts of

the head or body and 44 % had damage to the face or neck.225

219 EFSA Opinion, General Conclusions, point 4, at p. 94 (Exhibit EU - 30). 220 EFSA Opinion, point 4.2.2.2, pp. 56-57 (Exhibit EU - 30). See also the evidence summarised in

Richardson (2007), pp. 21-27 (Exhibit EU – 36) and Butterworth (2012), pp. 2-3 (EU - 37). See also the following video evidence mentioned in the appendix to Butterworth (2012), p. 10 and provided separately in DVD format as Exhibit EU - 38:

Clip 4: March 2005, Gulf of St. Lawrence »»» Clip 5: March 2005, Gulf of St. Lawrence »»» Clip 6: March 2005, Gulf of St. Lawrence »»» Clip 7: March 2005, Gulf of St. Lawrence »»» Clip 8: March 2005, Gulf of St. Lawrence »»» Clip 9: March 2005, Gulf of St. Lawrence »»» Clip 10: March 2005, Gulf of St. Lawrence »»» Clip 11: April 2008, Newfoundland Front »»»

221 Burdon, p. 7 (Exhibit EU - 31). 222 Burdon, p. 8 (Exhibit EU - 31). 223 Daoust (2002), p. 689 (Exhibit EU - 32). 224 Daoust (2002), p. 692 (Exhibit EU – 32). 225 Butterworth (2007), pp. 20-25 (Exhibit EU - 34).

http://video.humanesociety.org/downloads/hsicanada/VetReport/hsi-vetreport-hd.html?bclid=1176217592001&bctid=1215361891001









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2.4.4.3.2 Shooting

163. The veterinary reports examined by EFSA also provide clear evidence of

inaccurate and ineffective shooting, even if the degree to which this happens may

vary largely from one observation to another. 226 For example:

• Butterworth (2007) reported that only 41 % of the 169 seals examined on video

had been shot in the head and that "82 % of seals were not killed by the first

shot, thus indicating that this was not an efficient method of killing";227

• Daoust (2002) reported that, of the 47 carcasses examined, 75 % had been shot

in the head;228

• Burdon noted that 92 % of the observed seals that were shot had been struck

for a second time. The authors stated that "[we] assume that the reason for this

action is that the hunter believed that the seal was still conscious. This is

clearly unacceptable."229

226 EFSA Opinion , section 4.2.2.1 (Exhibit EU - 30). See also the evidence summarised in Richardson

(2007), pp. 27-31 (Exhibit EU - 36) and Butterworth (2012) p. 3 (Exhibit EU - 37). See also the following video evidence mentioned in Butterworth (2012) p. 11 and provided separately in DVD format as Exhibit EU - 38:

Clip 1: April 2010, Newfoundland Front »»» Clip 2: April 2010, Newfoundland Front »»» Clip 3: April 2009, Gulf of St. Lawrence »»» Clip 4: April 2011, Northern Gulf of St. Lawrence »»» Clip 5: April 2008, Gulf of St. Lawrence »»» Clip 6: April 2008, Gulf of St. Lawrence »»» Clip 7: April 2010, Newfoundland Front »»» Clip 8: April 2008, Gulf of St. Lawrence »»» Clip 9: April 2007, Gulf of St. Lawrence »»» Clip 10: April 2011, Northern Gulf of St. Lawrence »»» Clip 11: April 2011, Northern Gulf of St. Lawrence »»» Clip 12: April 2011, Northern Gulf of St. Lawrence »»» Clip 13: April 2011, Northern Gulf of St. Lawrence »»» Clip 14: April 2011, Northern Gulf of St. Lawrence »»» Clip 15: April 2011, Newfoundland Front »»» Clip 16: April 2011, Newfoundland Front »»»

227 Butterworth (2007), p. 3 (Exhibit EU - 34). 228 Daoust (2002), p. 691 (Exhibit EU - 32).. 229 Burdon , p. 9 (Exhibit EU - 31).


















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2.4.4.3.3 Checking for consciousness and bleeding

164. 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.230

230 EFSA Opinion, section 4.2.2.3 (Exhibit EU - 30). See also Richardson (2007), pp. 31-32 (Exhibit EU

- 36); and Butterworth (2012), p. 4 (Exhibit EU - 37). See also the following video evidence mentioned in Butterworth (2012), p.11 and provided also separately in DVD format as Exhibit EU - 38, which illustrates:

a) failure to monitor for unconsciousness: Clip 1: April 2010, Newfoundland Front »»» Clip 2: April 2007, Gulf of St. Lawrence »»» Clip 3: April 2010, Newfoundland Front »»» Clip 4: April 2010, Newfoundland Front »»» Clip 5: April 2010, Newfoundland Front »»» Clip 6: April 2010, Newfoundland Front »»» Clip 7: April 2010, Newfoundland Front »»» Clip 8: March 2010, Gulf of St. Lawrence »»» Clip 9: April 2011, Northern Gulf of St. Lawrence »»» Clip 10: April 2011, Northern Gulf of St. Lawrence »»» Clip 11: February 2011, Hay Island »»» b) Examples of long intervals between impact and bled out: Clip 1: April 2010, Newfoundland Front »»» Clip 2: April 2010, Newfoundland Front »»» Clip 3: April 2010, Newfoundland Front »»» Clip 4: April 2010, Newfoundland Front »»» Clip 5: April 2010, Newfoundland Front »»» Clip 6: April 2011, Northern Gulf of St. Lawrence »»» Clip 7: April 2010, Newfoundland Front »»» Clip 8: April 2010, Newfoundland Front »»» Clip 9: April 2011, Northern Gulf of St. Lawrence »»» c) Failure to bled out: Clip 1: April 2010, Newfoundland Front »»» Clip 2: April 2010, Newfoundland Front »»» Clip 3: April 2010, Newfoundland Front »»» Clip 4: April 2010, Newfoundland Front »»» Clip 5: April 2010, Newfoundland Front »»» Clip 6: April 2011, Northern Gulf of St. Lawrence »»» Clip 7: April 2010, Newfoundland Front »»» Clip 8: April 2010, Newfoundland Front »»» Clip 9: April 2011, Northern Gulf of St. Lawrence »»» d) Hooking, gaffing, dragging: Clip 1: April 2010, Newfoundland Front »»» Clip 2: April 2010, Newfoundland Front »»» Clip 3: April 2010, Newfoundland Front »»» Clip 4: March 2005, Gulf of St. Lawrence »»» Clip 5: March 2005, Gulf of St. Lawrence »»» Clip 6: April 2011, Northern Gulf of St. Lawrence »»» Clip 7: April 2011, Northern Gulf of St. Lawrence »»»












http://video.humanesociety.org/downloads/hsicanada/VetReport/hsi-vetreport-hd.html?bclid=1176217587001%20&bctid=1178208099001





































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165. Thus, Burdon observed that:

Assessing level of consciousness was not being performed by the majority of seal hunters; 79% did not check a corneal reflex, indicating that many of these seals could potentially have been skinned or hooked alive.231

Only 6% of seals were bled immediately, where struck.232

166. Daoust (2002) reported that:

A large proportion (87 %) of the sealers recorded on the 4 videotapes failed to palpate the skull or check the corneal reflex before proceeding to hook or bleed the seal or go to another seal.233

167. Smith noted that:

[…] videos also shows numerous examples of striking with a hakapik that are not followed by checking, either palpation or observation of absence of corneal reflex.234

[…] many of the IFAW video clips show hunters who did not bleed animals after stunning and before hooking and skinning.235

168. Butterworth (2007) found that:

[…] a blinking reflex test and/or cranial palpation was only undertaken in 33% of cases, and these often appeared to be performed in a superficial manner which cast doubts on the adequacy of the way the tests were performed.236

Clip 8: April 2011, Northern Gulf of St. Lawrence »»» Clip 9: April 2011, Northern Gulf of St. Lawrence »»» Clip 10: April 2011, Northern Gulf of St. Lawrence »»» Clip 11: April 2011, Northern Gulf of St. Lawrence »»» Clip 12: April 2011, Northern Gulf of St. Lawrence »»» Clip 13: April 2011, Newfoundland Front »»» Clip 14: April 2011, Newfoundland Front »»» Clip 15: April 2011, Newfoundland Front »»» Clip 16: April 2010, Newfoundland Front »»» Clip 17: April 2011, Northern Gulf of St. Lawrence »»»

231 Burdon, p. 7 (Exhibit EU - 31). 232 Burdon, p. 7 (Exhibit EU - 31). 233 Daoust (2002), p. 691 (Exhibit EU - 32). 234 Smith, p. 8 (Exhibit EU - 32). 235 Smith, p. 10 (Exhibit EU - 32). 236 Butterworth, (2007), p. 3(Exhibit EU - 34).


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[…]no blinking reflex test or cranial palpation was performed on 79 % of the seals prior to gaffing, and 44 % responded to stimuli after being gaffed.237

We never observed the three-step process of stunning, checking (palpation of the skull) and bleeding, carried out in sequence as rapidly as possible238

169. EFSA concluded on the basis of the above evidence that:

Monitoring each seal to ensure death or unconsciousness before bleeding-out is not always carried out effectively, and this will lead to seals feeling the skinning cuts before loss of consciousness and death due to bleeding-out.

Bleeding-out stunned seals to ensure death is frequently not carried out in some hunts. 239

2.4.5. Norway's commercial hunt

170. Norway's commercial hunt is a much smaller operation than Canada's.

Furthermore, there is hardly any independent evidence available concerning

Norway's commercial hunt.240 For these reasons, this submission has focused so

far on Canada's commercial hunt. But, as discussed below, many of the

observations made in the preceding sections are equally pertinent with regard to

Norway's commercial hunt.

2.4.5.1 Norway's hunting regulations

171. The relevant rules are contained in the Regulations of 11 February 2003 on Seal

Hunting241 in Vesterisen242 and Østisen.243

172. 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.244 But

they are deficient in other respects. The following concerns have been identified:

237 Butterworth (2007), p. 28 (Exhibit EU - 34). 238 Butterworth (2007) p. 41 (Exhibit EU - 34). 239 EFSA Opinion, General Conclusions, points 8 and 9, at p. 94 (Exhibit EU - 30). 240 EFSA Opinion, section 1.3.2.2 (Exhibit EU –30). 241 Regulations relating to the conduct of the seal hunt in the West Ice and East Ice, laid down by the

Ministry of Fisheries on 11 February 2003, pursuant to section 4, and section 24, second paragraph, of the Act of 3 June 1983 No. 40, relating to sea water fisheries (Exhibit NOR - 15)

242 Area between Greenland and Jan Mayen. 243 Area off the White Sea in Russia's economic zone.


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• Norway's regulations do not provide for the second component of the tree-step

process i.e. checking for irreversible unconsciousness. Instead, they stipulate

that sealers must strike twice the seal's skull with the hakapik: first, with the

blunt projection of the ferrule; and then with the spike, "so that it penetrates

deep into the brain".245 If the seal has been shot first, it is deemed sufficient to

strike once with the spike of the hakapik.246 Yet, as acknowledged by the

Norwegian authorities, data on the effectiveness of the use of the hakapik in

the manner prescribed by Norway's regulations is very limited.247 Moreover,

this act equates to pithing, which is not considered a humane method of

slaughtering unless the animal has been properly stunned first;248

• Norway's regulations do not prohibit shooting a seal on any part of its body

other than the head;249

• they allow inflicting multiple blows with a hakapik and/or shooting repeatedly

a seal, a practice which is regarded as unacceptable by some experts;250

• when a seal is shot first, as is generally the case nowadays, Norway's

regulations do not require to strike it with the spike of the hakapik

immediately after shooting, but only "as soon as possible";251

• Norway's regulations, place no restriction on the shooting of seals near open

water ("hunting of individual seals" or "sporadic" hunting);252

244 Section 6.1. c) of the Regulations relating to the conduct of the seal hunt in the West Ice and East Ice

(Exhibit NOR - 15). 245 Sections 6.2 and 7, fourth paragraph, of the Regulations relating to the conduct of the seal hunt in the

West Ice and East Ice (Exhibit NOR – 15). 246 Section 7, fourth paragraph, of the Regulations relating to the conduct of the seal hunt in the West Ice

and East Ice (Exhibit NOR - 15). 247 EFSA Opinion, section 4.4.1, p. 122 (Exhibit EU - 30). 248 See Butterworth (2012), p. 5 (Exhibit EU - 37). AVMA (2007), p. 17 (Exhibit NOR – 91). 249 See Butterworth (2012), p. 5 (Exhibit EU - 37). 250 See e.g. Burdon, pp. 1 and 13 (Exhibit EU - 31); Butterworth (2012), p. 6 (Exhibit EU - 37). 251 Section 7, third paragraph, of the Regulations relating to the conduct of the seal hunt in the West Ice

and East Ice (Exhibit NOR - 15). 252 The "hunting of individual seals" is defined as "hunting single animals from the ship while it is

moving forward in the ice". See section 2, second paragraph, of the Regulations relating to the conduct of the seal hunt in the West Ice and East Ice (Exhibit NOR - 15).


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• in the case of "sporadic hunting", it is permitted under certain conditions to

bleed the seals on board of the boat, rather than on the ice;253

• when the seals are shot from the ice, or from a catcher boat, sealers are

expressly allowed to delay the use of the hakapik and the bleeding of the

animal until "the ongoing hunt makes this possible";254

• when the seals are shot from the main boat and "the ice conditions make it

unadvisable to walk on the ice", it is expressly permitted to hook the seals and

lift them on board before they are struck with the hakapik and bled out, "if

there is no doubt that the seals are dead".255 Unsurprisingly, however, no

criteria are prescribed for ascertaining how the death of the seal is to be

established beyond doubt from the board of the boat;

• Norway's regulations allow practices that may cause fear and stress, such as

killing seal pups close to and within view of other seal pups. 256

173. Some of the above flaws 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.257 That proposal provided inter alia for

the repeal of those provisions that permit hooking and hoisting the seals on board

before bleeding them.258 The Fisheries Directorate motivated this proposal as

follows:

253 Section 7, fifth paragraph, of the Regulations relating to the conduct of the seal hunt in the West Ice

and East Ice (Exhibit NOR - 15). According to this provision, seals must be taken on board "immediately". However, this requirement appears to be interpreted very laxly. According to the inspection report by A. Moustgaard (2010), sealers are instructed during the training courses that "immediately" means “in any event not a half hour”. Inspector Moustgaard interpreted this as meaning that "if the animal(s) were on board and bled within 5-8 minutes that’s fine". Inspection Report by A. Moustgaard (2009), NOAH report, Appendix Q, p. 6 (Exhibit EU – 43).

254 Section 8, first paragraph, of the Regulations relating to the conduct of the seal hunt in the West Ice and East Ice (Exhibit NOR - 15).

255 Section 10 of the Regulations relating to the conduct of the seal hunt in the West Ice and East Ice (Exhibit NOR - 15).

256 See Butterworth (2012), p. 5 (Exhibit EU - 37). 257 Exhibit (EU – 45). 258 Specifically, the Fisheries Directorate proposed the repeal of the last sentence of Sections 7, fifth

paragraph; and of the second paragraph of Section 10 (Exhibit NOR - 15).


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As mentioned above, certain occurrences in the past seem to indicate that the above principles for conducting hunting activities are not sufficiently taken into account by the industry. In particular it appears to find it difficult to comply with the provisions which, under specific circumstances, allow bleeding to take place on board. It should be noted in this regard that the possibility of bleeding animals on board is based on the assumption that it is done as rapidly as if the bleeding had taken place on the ice.

Experience shows that once the animals have been shot it can often take some time before they are bled. The Fisheries Directorate does not have any reason to believe that these animals have been conscious, but indications are that the slaughtering method described above – the purpose of which is to ensure that animals that are unconscious but still alive do not regain consciousness – has not been duly adhered to.

In this regard it should be noted that the industry (i.e. the hunting crews) seem to apply a definition of sporadic hunting that differs from that of the Regulations, that is, as ‘all hunting outside areas where cows gather to give birth’. […]

The Fisheries Directorate also notes that the use of sporadic hunting has increased in scope, in particular due to worsening ice conditions over the past few years.

The use of hooks on seal pups has also increased, for similar reasons. However, the Fisheries Directorate has received indications that hooks are being used to a greater extent than the rules allow. As mentioned above, for the use of hooks to be permitted two conditions must be met: the animals must clearly be dead and the ice conditions must be too uncertain for the crews to descend on the ice to club and bleed the seals. It would seem that the rule requiring both conditions to be met has not been fully observed.259

174. The proposal was strongly opposed by both sealers and ship owners. They stressed

that, due to the worsening ice conditions, the proposed change in the rules would

greatly reduce the "effectiveness" of the hunt, compromise the safety of the sealers

and "affect the economic viability" of the hunt. 260 Thus, for example, the Fishing

Vessel Owners Association cautioned that:

259 Norway's Fisheries Directorate, Proposal to amend the rules on seal hunting, 16 November 2010

(emphasis supplied) (Exhibit EU – 45). 260 The comments submitted by the Norwegian Fishermen's Association, Norway's Fishing Vessel

Owners Association, Mr Bjørne Kverno, owner of a vessel, and Mr Karl Kr Angelsen, former skipper of a vessel, and a document of Norway's Fisheries Directorate, of 14.02.2011, recommending changes to the draft proposal in order to address those comments is provided as Exhibit EU - 44.


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[…] The cubs are staying longer and longer in open water throughout the season, but can only be hunted when they come onto an ice floe. In practice this means that the animals remain in herds along the ice edge in open water and a few tens of metres into the ice. Ice conditions will usually not permit hunting if hooking is prohibited. This is because there is open water right at the edge of the ice and no protective archipelago that prevents swell and waves putting the ice in motion.

The Association also points out that the alternative to hooking is that one of the hunters (the jumper) climbs down the ladder to the ice in front of the ship and turns the animal with the gaff before it is strapped and winched aboard. This is basically a risky operation from the safety perspective, because the man climbs down a slippery ladder which usually hangs loose in the air and will land on an ice floe that is often in motion and may be flooded with water. The ship is also in motion due to swell, waves and its own progress. The man must also, after the work is complete, immediately catch the ladder and climb up it, which is the only way in practice to get on board in safety. The way that such hunting is currently operated, safety is already stretched to the limit for jumpers, and any attempt to push further the boundaries of this risky operation should be strongly discouraged.

On the basis of the above, the Fishing Vessel Owners Association is strongly against the proposed change in the rules. […]The Association fears that the proposed tightening of the regulations could affect the economic viability of hunting.261

175. As a result of the strong opposition from sealers and vessel owners, 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 2011.262

2.4.5.2 Inherent obstacles to the effective implementation of a humane killing method

176. There is very little scientific evidence on the 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"263. More specifically, VKM recognised that:

261 Comments of the Fishing Vessel Owners Association, dated 10.01.2011, to the proposal for a change

to the sealing rules (included in Exhibit EU - 45). Underlining added. 262 Exhibit EU - 46. 263 VKM report, Summary, p. 3 (Exhibit JE -31).


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• "the scientific data on the efficiency of the Norwegian hakapik is limited"264;

• "only a limited number of studies is available from Norwegian seal hunts

which investigates how effective rifles are"265; and

• "there are no official statistics on numbers of percentages of seals struck and

lost, either alive or dead during Norwegian hunts".266

177. To some extent the lack of evidence can be filled by examining the reports drawn

by the inspectors on board the sealing vessels. Those reports cannot be regarded as

independent evidence, since the inspectors are government employees. Moreover,

the inspection reports are often very brief and uninformative. Some inspection

reports, nevertheless, provide useful insights into the actual performance of

Norway's commercial hunt. A comprehensive survey of the inspection reports filed

since 1990 prepared for NOAH, a Norwegian non-governmental organization, is

provided as Exhibit EU - 43.267

2.4.5.2.1 Obstacles resulting from the physical environment

178. Norway's commercial hunt takes place in the Greenland Sea ("West Ice") and in

the Barents Sea/White Sea ("East Ice")268, 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.

179. Some of the inspection reports provide a vivid illustration of the environmental

challenges faced by the Norwegian sealers:

264 VKM report, Summary, p. 2 (Exhibit JE – 31). 265 VKM report, Summary, p. 2 (Exhibit JE – 31). 266 VKM report, p. 32 (Exhibit JE – 31). 267 Martinsen, S. Sealing in Norway – Animal welfare aspects, a report for NOAH – For animal rights

(the "NOAH report")(Exhibit EU – 43). 268 EFSA Opinion, section 1.3.2., p. 26 (Exhibit EU - 30).


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Shooting takes place under what must be described as extremely difficult conditions; both the target and the marksman’s location are continually on the move and independent of each other, light and the weather conditions are often unfavourable and the shooting distance vis-à-vis the target’s size is considerable.269

Shooting conditions varied greatly during this period. In particular, the 4th of May should be mentioned, when hunting was done from the tenders in a very heavy swell out towards the edge of the ice field. The conditions were difficult and the wounding of animals increased markedly. […].There were also unfortunate moments such as on the 7th of May when the tenders got stuck, or on the 8th of May when both a marksman and a blademan fell through the ice. This led to a number of animals not being clubbed and bled by the huntsmen in the boat carrying the blademen […]270

Those instances of animals being wounded rather than killed were due in the main to a large sea swell, which during parts of the hunt made accurate shooting very difficult."271

180. As explained above, the changes proposed by the Norwegian authorities in order to

address some of the flaws of the existing hunting regulations was abandoned

because sealers and ship owners feared that, given the current ice conditions, they

would make sealing unsafe and uneconomically unviable.272

2.4.5.2.2 Monitoring difficulties

181. Unlike Canada's regulations, Norway's regulations 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 the activities of the hunt at all

times273:

269 Inspection report by Jon Arnemo (1991), NOAH Report, Appendix D, p. 4 (Exhibit EU - 43). 270 Inspection report by Lars Kleivane (1993), NOAH Report, Appendix L, pp. 3-4 (Exhibit EU - 43). 271 Inspection report by Jens Altern Wathne (2000), NOAH Report, Appendix I, p. 4 (Exhibit EU – 43). 272 Norway's Fisheries Directorate, Proposal to amend the rules on seal hunting, 16 November 2010

(Exhibit EU – 45). 273 See also the additional evidence cited in the NOAH Report, pp. 3-4 (Exhibit EU – 43).


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One man can of course not see all that is happening. What you see and report you have under control. But one cannot hide that of course there is a lot that you do not see. You have one inspector and several hunting teams, often the hunting teams go far away from the vessel on the ice. I went out with them to be able to see mistakes which you can only see when you are close up. Most inspectors don´t do that. The system is no guarantee that the regulations are followed.274

In the main, inspection work was carried out from the deck. That is, whilst hunting proceeded on the ice itself, or from hunting boats the inspection work also was carried out from the vantage point of the crow’s nest. My view would be that inspection work on the ice itself/boats in general gives a worse overview of how the hunt is proceeding. Of course, it is true that on the ice itself, or from a boat, it is possible to see the finer details of what is happening and where necessary to quickly intervene, but one can then only follow the work of those people one is accompanying, whilst following what others are doing at the same time is impossible.275

Around 250-300 young seals were hooked aboard. Two animals showed signs of life after being taken on board with an extended fishhook. It was not obvious that these animals were conscious prior to their being hooked. This shows that it is difficult to assess whether an animal is dead from the deck of a ship.276

182. 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.277

2.4.5.3 In practice, the prescribed killing method is not effectively and consistently applied

183. As mentioned above, in the justification for the proposed amendment of the

hunting regulations made public by the Norwegian authorities in 2010278, those

authorities admitted that the existing regulations, inadequate as they are, were not

fully observed.

274 Odd F. Lindberg, sealing inspector in 1988, in an interview with NOAH, cited in the NOAH Report,

p. 3 (Exhibit EU - 43). 275 Inspection report by Anne Moustgaard (2000), NOAH Report, Appendix B, p. 2 (Exhibit EU - 43). 276 Inspection report by Vibeke Kottker (2005), NOAH Report, Appendix R, p. 3 (Exhibit EU - 43). 277 NOAH Report, pp. 5-9 (Exhibit EU - 43). 278 Exhibit EU - 45.


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184. Inspection reports provide further evidence that, in practice, seals are not always

effectively killed in a humane manner. Thus, for example, according to one

inspector:

It happens quite frequently that a gunshot proves not to be lethal and nor is this a requirement. At the same time, a good number of hunters find it difficult to use the hakapik and fishhook effectively on every occasion. (...) I shall add that from an animal protection point of view, I do not like the practice of hooking aboard. As this year’s hunt also showed, there is a risk for that conscious animals are heaved on board, dangling from a hook that has been stuck into the animal some place or other and then slung down on the deck, and that is not a pretty sight.279

185. Another inspector notes that:

With regard to the hunting of Harp seal on the ice floes, there will always be a time lag from when animals are shot to their being clubbed and bled. In order to ensure that animals were killed as quickly as possible, the ideal situation would have been to club and bleed the seals directly after they were shot. However this can easily disrupt the overall progress of the hunt and would affect the hunting of those animals in the vicinity that were still alive as they would enter the water (...).280

186. To mention but another example, another inspector records that:

Hooking aboard was used to a great extent and in my opinion sailed close to the limits of the regulations as interpreted by the course that was given before departure. I stressed the circumstances that must be fulfilled before for hooking aboard can be used and took pictures of all the stages one afternoon so as to illustrate how the regulations are used and to assess whether this was what was intended. 2 young seals were brought on board still alive. These had been shot from across the bows. Furthermore, there would have been another one but for the fact that I noticed that it was not dead. It was therefore lowered to the ice again and shot once again. As well as this, there were 2 seals that had been shot through the neck and landed on the deck in tonic spasms, without my being able to say whether they were still “alive” (…)281.

187. The Norwegian sealers have repeatedly voiced discontent with the existing

regulations.282 The inspection reports provide evidence that those regulations are

279 Inspection report by Anne Moustgaard (2005), NOAH Report, Appendix T, pp. 3 and 5 (Exhibit EU -

43). 280 Inspection report by Snorre Stuen (1993), NOAH Report, Appendix N, pp. 6 and 7 (Exhibit EU - 43). 281 Inspection report by Anne Moustgaard (2009) NOAH Report, Appendix Q, p. 5 (Exhibit EU – 43). 282 NOAH Report, pp.12-15 (Exhibit EU - 43).


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often disregarded283, 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

the following284:

• careless and very inaccurate shooting;

• a high rate of 'struck and lost' animals (10 % during several periods and as

much as 50 % during one period);

• 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).

188. Unusually, this report resulted in the imposition of fines by the criminal courts.285

2.5. EVIDENCE OF THE PUBLIC MORAL CONCERNS

189. The EU Seal Regime was adopted in accordance with a democratic and open

legislative process by the European Parliament and the EU Council, two

representative political institutions. The European Parliament and the EU Council

are best placed, and uniquely legitimised, to recognise and interpret the moral

concerns of the European people that they represent. The adoption in good faith of

the measure at issue by those two institutions in order to address the moral

concerns invoked in this dispute is, in itself, sufficient evidence of such concerns;

all the more so in view of the fact that the measure was supported by a very large

283 NOAH Report, pp.9-12 and 25-27(Exhibit EU – 43). 284 Inspection report by Liv Greve-Isdahl (2009), NOAH Report, Appendix K (Exhibit EU - 43). 285 See the judgement of the court of first instance in NOAH Report, appendix H (Exhibit EU – 43); and

the judgement of 10 June 2001 of the Halogaland Court of Appeal (Exhibit EU – 47).


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majority of the members of both the European Parliament286 and the EU

Council.287

190. Without prejudice to the above, there is ample evidence that the moral concerns of

the EU public with regard to the killing of seals are both deep and longstanding.

As discussed in further detail in Section 4.6.2.1, those concerns emerged in the

1950s and had become widespread among the European population by the 1960s.

They led to the introduction of various import restrictions by EU Member States

already during the 1970s and 1980s, culminating with the adoption in 1983 of

Directive 83/129/EC.288

191. In 1986 the Royal Commission on Seals and Sealing reviewed the information

available concerning the state of public opinion with regard to sealing.289 For that

purpose, the Royal Commission took into account four pre-existing public opinion

polls. In addition, the Royal Commission commissioned its own poll, which

covered Canada, the United States, the United Kingdom, West Germany, France

and Norway. The Royal Commission reached inter alia the following

conclusions:290

• "the public is more concerned about the killing of seals than about the killing

of any other animals […]";

• "the principal cause of public concern is the cruelty believed to be involved

[…]";

• "only a very small proportion of the public views large-scale commercial seal

hunting as acceptable".

286 The European Parliament approved the Commission proposal, as amended, by 550 votes to 49, with

41 abstentions. 287 Within the EU Council, 24 EU Member States voted in favour of the proposal, as amended, and three

(Denmark, Romania and Austria) abstained. No EU Member State voted against. 288 Exhibit CDA- 12. 289 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 11, "Public Opinion

on Sealing" (Exhibit EU - 48). 290 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 11, "Public Opinion

on Sealing", p. 188 (Exhibit EU - 48).


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192. The moral concerns of the EU public are confirmed by a series of opinion polls

conducted between 2006 and 2008 in several EU Member States prior to the

enactment of the EU Seal Regime (United Kingdom291, Germany292, the

Netherlands293, Portugal294, Belgium295, France296, Slovenia297, Austria298,

Sweden299 and the Czech Republic300), all of which show broad support for

banning the marketing of seal products. 301

193. Furthermore, it should be recalled that, even before the EU Seal Regime was

enacted, the marketing of seal products had been banned by the parliaments of

Belgium, the Netherlands and Slovenia and similar measures were under

consideration by the parliaments of Italy, Germany and Austria.

194. Further confirmation of the public moral concerns at issue is provided by a multi-

country survey conducted after the adoption of the measure at issue by Ipsos-

MORI in 11 Member States of the European Union (Belgium, France, Germany,

United Kingdom, Italy, Lithuania, Netherlands, Poland, Romania, Spain and

Sweden.)302 The surveyor summarized the main findings as follows:

• "Over seven in ten adults (72 %) across the 11 European countries surveyed

say they support the EU's ban on the sale of seal products in Europe. The

overall ratio of support to opposition across the 11 countries is over 5:1. While

the results vary from country to country, they clearly show that the majority of

the general public in these European countries supports the EU ban."

• "At least four in five people in Germany (88 %), Belgium (84 %) and France

(81 %) say they support the ban. Around three in four people in Lithuania (75

291 Survey prepared by Orb for Respect for Animals, 16 December 2008 (Exhibit EU – 49). 292 Survey by TNSInfratest for IFAW, February 2009 (Exhibit EU - 50). 293 Survey by TNO NIPP, July 2006 (Exhibit EU - 51). 294 Survey by Ipsos-MORI for IFAW, 11 October 2007 (Exhibit EU - 52). 295 Survey by Dedicated Research for IFAW, May 2006 (Exhibit EU - 53). 296 Survey by IPSOS for IFAW, 18 October 2007 (Exhibit EU - 54). 297 Survey by Ipsos-MORI for IFAW, 11 October 2007 (Exhibit EU - 52). 298 Survey by TNSInfratest for IF|AW, August 2007 (Exhibit EU - 55). 299 Survey by IPSOS-Mori for IFAW, January 2008 (Exhibit EU - 56). 300 Survey by TNSAisa for IFAW, February 2008 (Exhibit EU - 57). 301 A summary of the results of the polls compiled by IFAW is provided as Exhibit EU - 58. 302 The survey results and the accompanying note by Ipsos MORI are provided as Exhibit EU - 59.


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%), Great Britain, Poland, Sweden (each 73 %) are in support of the EU's ban.

In the Netherlands (66 %), Spain (62 %) and Romania (61 %) more than three

in five support the ban. Support is lowest in Italy, where just over half support

the ban (52 %), while one in three oppose it (33 %)."

• "Support for the ban is highest among those people who say they have some

knowledge of commercial seal hunting. Four in five people (81 %) who say

they know at least a fair amount about commercial seal hunting support the EU

ban on the sale of seal products, while one in eight (12 %) oppose it. This

compares with 70 % support among those who say they know just a little or

nothing at all about commercial seal hunting (70 %)".

3. THE TBT AGREEMENT

3.1. APPLICABILITY OF THE TBT AGREEMENT

195. 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".

196. Article 1.2 of the TBT Agreement provides that for the purposes of the TBT

Agreement the meanings of the terms given in Annex 1 apply. Annex 1.1 of the

TBT Agreement defines a "technical regulation" as a:

Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

197. According to the interpretation which the Appellate Body developed in EC –

Asbestos303 and summarised in EC – Sardines, a document must meet three criteria

to fall within this definition:

303 Appellate Body Report, EC – Asbestos, paras. 66-70.


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First, the document must apply to an identifiable product or group of products. The identifiable product or group of products need not, however, be expressly identified in the document. Second, the document must lay down one or more characteristics of the product. These product characteristics may be intrinsic, or they may be related to the product. They may be prescribed or imposed in either a positive or a negative form. Third, compliance with the product characteristics must be mandatory.304

198. These three criteria apply cumulatively. This follows from the wording of Annex

1.1 of the TBT Agreement as interpreted by the Appellate Body305.

199. Contrary to the allegations of Canada306 and Norway307, 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.

3.1.1. The legal test

200. According to the first sentence of Annex 1.1 of the TBT Agreement, a "technical

regulation" requires that the relevant document:

lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, (…).

201. The second sentence of Annex 1.1 of the TBT Agreement gives "certain examples

of 'product characteristics'"308, i.e. "terminology, symbols, packaging, marking or

labelling requirements", which are not directly relevant for the present case.

202. The Appellate Body in EC – Asbestos interpreted the requirement that the

document lay down product characteristics as follows:

304 Appellate Body Report, EC – Sardines, para. 176 (emphasis in the original). 305 See Appellate Body Report, EC – Asbestos, paras. 66-70; Appellate Body Report, EC – Sardines,

para. 176 ("… we set out three criteria that a document must meet to fall with in the definition of 'technical regulation' in the TBT Agreement", emphasis in the original).

306 Canada's first written submission, paras. 360-366. 307 Norway's first written submission, paras. 499-505. 308 Appellate Body Report, EC – Asbestos, para. 67.


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The heart of the definition of a "technical regulation" is that a "document" must "lay down" – that is, set forth, stipulate or provide – "product characteristics". The word "characteristic" has a number of synonyms that are helpful in understanding the ordinary meaning of that word, in this context. Thus, the "characteristics" of a product include, in our view, any objectively definable "features", "qualities", "attributes", or other "distinguishing mark" of a product. Such "characteristics" might relate, inter alia, to a product's composition, size, shape, colour, texture, hardness, tensile strength, flammability, conductivity, density, or viscosity. In the definition of a "technical regulation" in Annex 1.1, the TBT Agreement itself gives certain examples of "product characteristics" – "terminology, symbols, packaging, marking or labelling requirements". These examples indicate that "product characteristics" include, not only features and qualities intrinsic to the product itself, but also related "characteristics", such as the means of identification, the presentation and the appearance of a product. In addition, according to the definition in Annex 1.1 of the TBT Agreement, a "technical regulation" may set forth the "applicable administrative provisions" for products which have certain "characteristics". Further, we note that the definition of a "technical regulation" provides that such a regulation "may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements". (emphasis added) The use here of the word "exclusively" and the disjunctive word "or" indicates that a "technical regulation" may be confined to laying down only one or a few "product characteristics".309

203. The Appellate Body, furthermore, set out that:

"[p]roduct characteristics" may, in our view, be prescribed or imposed with respect to products in either a positive or a negative form. That is, the document may provide, positively, that products must possess certain "characteristics", or the document may require, negatively, that products must not possess certain "characteristics". In both cases, the legal result is the same: the document "lays down" certain binding "characteristics" for products, in one case affirmatively, and in the other by negative implication.310

204. In US – Tuna, the Appellate Body added that:

[t]he verb "lay down" is defined as "establish, formulate definitely (a principle, a rule); prescribe (a course of action, limits, etc.)".311

205. Furthermore, the Appellate Body stressed in US – Tuna that:

309 Appellate Body Report, EC – Asbestos, para. 67. 310 Appellate Body Report, EC – Asbestos, para. 69. 311 Appellate Body Report, US – Tuna II (Mexico), para. 185 (footnote referring to the Shorter Oxford

English Dictionary omitted).


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[r]egarding the subject matter of a technical regulation, we note that the language in Annex 1.1 clarifies that a technical regulation may establish or prescribe "product characteristics or their related processes and production methods".312

206. With regard to the method of analysis, the Appellate Body held in EC – Asbestos

that:

the proper legal character of the measure at issue cannot be determined unless the measure is examined as a whole. (…) We, therefore, conclude that the measure at issue is to be examined as an integrated whole, taking into account, as appropriate, the prohibitive and the permissive elements [of the measure].313

207. In US – Tuna, the Appellate Body added that the

determination of whether a particular 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. In some cases, this may be a relatively straightforward exercise. In others, the task of the panel may be more complex.314

208. In sum, a document fulfilling the second criterion for a technical regulation needs

to prescribe ("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, such as a product's composition, size, shape, colour,

texture, hardness, tensile strength, flammability, conductivity, density, or viscosity,

and (b) related "characteristics", such as the means of identification, the

presentation and the appearance of a product315; (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 whether a document prescribes

such subject matter needs to examine the measure as an integrated whole, taking

into account, as appropriate, the prohibitive and the permissive elements.316 This

means that a measure cannot be characterized as laying down "product

characteristics" on the basis of its prohibitive elements alone. If that measure not

312 Appellate Body Report, US – Tuna II (Mexico), para. 186. 313 Appellate Body Report, EC – Asbestos, para. 64. 314 Appellate Body Report, US – Tuna II (Mexico), para. 188 (footnote omitted). 315 Appellate Body Report, EC – Asbestos, para. 67. 316 Appellate Body Report, EC – Asbestos, para. 64.


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only contains a ban but also exceptions, these permissive elements have to be

taken into account as well in order to determine whether the measure "as an

integrated whole" qualifies as a "technical regulation". 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.317

3.1.2. The EU seals regime

209. 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.

3.1.2.1 The EU seals regime does not lay down "product characteristics"

210. The EU seals regime does not lay down "product characteristics" within the

meaning of Annex 1.1 of the TBT Agreement, be it intrinsic or related

characteristics in either positive or negative form.

211. Article 3 of the Basic Regulation prohibits the placing on the market of seal

products unless an exception applies. Article 2.2 of the Basic Regulation defines

"seal product" as

all products, either processed or unprocessed, deriving or obtained from seals, including meat, oil, blubber, organs, raw fur skins and fur skins, tanned or dressed, including fur skins assembled in plates, crosses and similar forms, and articles made from fur skins.

212. In prohibiting the placing on the market of products which exclusively contain

seal, the EU seals regime does not prescribe any "characteristics" of such products.

This aspect of the measure is similar to the prohibition of asbestos fibres as such

which the Appellate Body in EC – Asbestos found would not constitute a technical

regulation:

317 Appellate Body Report, US – Tuna II, para. 188.


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This prohibition on these fibres does not, in itself, prescribe or impose any "characteristics" on asbestos fibres, but simply bans them in their natural state. Accordingly, if this measure consisted only of a prohibition on asbestos fibres, it might not constitute a "technical regulation".318

213. On the basis of this distinction, the EU seals regime is no technical regulation to

the extent that it prohibits products which exclusively consist of seal. They may be

derived or obtained from seals and can be processed or unprocessed. Thus, the

prohibition of "pure" seal meat, oil, blubber, organs and fur skins, whether

processed or not (see Article 2(2) of the Basic Regulation), would not fall within

the scope of the TBT Agreement.

214. With regard to products not only containing seal but also other ingredients, in

other words "mixed" products, the EU seals regime does not constitute a simple

ban of seal ingredients in their natural state. For example to the extent that the

prohibition concerns certain "articles made from fur skins" (see Article 2(2) in fine

of the Basic Regulation), it would not be automatically excluded from the scope of

"technical regulations" within the meaning of Annex 1.1 of the TBT Agreement.

215. Concerning such products containing seal (and other ingredients), 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.319 In doing so, they attempt to establish parallels between the EU seals regime

and the measure at issue in EC – Asbestos. In the latter case, the Appellate Body

found that the relevant measure included the regulation of products containing

asbestos fibres which

effectively prescribes or imposes certain objective features, qualities or "characteristics" on all products. That is, in effect, the measure provides that all products must not contain asbestos fibres.320

216. The complainants' argument ignores that the EU seals regime is not limited to

prohibiting the placing on the market of products containing seal (Article 3 of the

Basic Regulation), but that it also provides (in the same provision of the Basic

318 Appellate Body Report, EC – Asbestos, para. 71. 319 Canada's first written submission, para. 363; Norway's first written submission, para. 501. 320 Appellate Body Report, EC – Asbestos, para. 72.


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Regulation) for three exceptions under which products containing seal may be

placed on the EU market. These permissive elements supplement the

aforementioned prohibition and, thus, together with the prohibition determine the

situations in which seal products can be placed on the EU market. The

determination of whether the EU seals regime lays down product characteristics

must, therefore, take into account the three exceptions.

217. This follows from EC – Asbestos in which the Appellate Body held that "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"321. In that case, the

Appellate Body explicitly stated that "the scope and generality of those

prohibitions can only be understood in the light of the exceptions to it".322

218. In this case, 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, i.e. those under Articles

2.1, 5.1.2 and 5.2.1, actually focus on the exceptions.

219. Therefore, the EU seals regime must be examined as an integrated whole taking

into account the three exceptions. The prohibition that products containing seal

must not be placed on the EU market must be understood in the light of the three

exceptions which provide that products containing seal can be put on the EU

market under certain conditions. What is decisive for the characterization of the

EU seals regime is that none of the three exceptions lays down product

characteristics within the meaning of Annex 1.1 of the TBT Agreement.

220. The IC exception allows the placing on the market of seal products "where the seal

products result from hunts traditionally conducted by Inuit and other indigenous

communities and contribute to their subsistence" (Article 3(1) of the Basic

Regulation). Article 3(1) of the Implementing Regulation further sets out that the

hunts must be conducted by "communities which have a tradition of seal hunting

in the community and in the geographical region", that the products of the hunt

321 Appellate Body Report, EC – Asbestos, para. 64. 322 Appellate Body Report, EC – Asbestos, para. 64 (emphasis added).


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must be "at least partly used, consumed or processed within the communities

according to their traditions" and that the hunts must "contribute to the subsistence

of the community". These conditions concern the type of the hunters, the traditions

of their communities and the purpose of the hunt, but not the intrinsic or related

features of the products, such as their composition or presentation.

221. The MRM exception allows the placing on the market of seal products "where the

seal products result from by-products of hunting that is regulated by national law

and conducted for the sole purpose of the sustainable management of marine

resources" under the condition that it is "on a non-profit basis" and "[t]he 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" (Article 3(2)(b) of the Basic

Regulation). Article 5(1) of the Implementing Regulation further provides that the

seal products must result from hunts "conducted under a national or regional

natural resources management plan which uses scientific population models of

marine resources and applies the ecosystem-based approach", and which "do not

exceed the total allowable catch quota established in accordance with [such] plan"

and "the by-products of which are placed on the market in a non-systematic way

on a non-profit basis". These requirements concern the size, intensity and purpose

of the hunt and the marketing conditions (i.e. non-profit and non-systematic) of the

products. Similarly to the IC exception, these conditions do not set out any

intrinsic or related features of the products.

222. The same goes for the travellers exception which allows the importation of seal

products "where it is of an occasional nature and consists exclusively of goods for

the personal use of travellers or their families" provided that "[t]he nature and

quantity of such goods shall not be such as to indicate that they are being imported

for commercial reasons" (Article 3(2)(a) of the Basic Regulation). Article 4 of the

Implementing Regulation further specifies that the seals products must be "either

worn by the travellers, or carried in their personal luggage", "contained in the

personal property of a natural person transferring his normal place of residence

from a third country to the Union" or "acquired on site in a third country by

travellers and imported by those travellers at a later date, provided that, upon

arrival in the Union territory, those travellers present to the customs authorities of


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the Member State concerned [certain] documents". Here, the conditions concern

the use of the products and the circumstances of their importation, but none of

their intrinsic or related features.

223. In sum, none of the three exceptions lays down product characteristics within the

meaning of Annex 1.1 of the TBT Agreement.323 If the prohibition contained in the

EU seals regime is correctly examined in the light of these three exceptions, the

EU seals regime cannot be reduced to the simple negative intrinsic product

characteristic that products may not contain seal. Whether products may contain

seal rather depends on a nuanced set of conditions none of which relate to intrinsic

or related 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.

224. This situation is fundamentally different from the one in EC – Asbestos. In that

case, the exceptions permitted certain products which were identified according to

their intrinsic characteristics. Thus, Article 2(1) of the Decree exempted, under

certain additional conditions, from the ban "certain existing materials, products or

devices containing chrysotile fibre" whereas the ban in Article 1 concerned "all

varieties of asbestos fibres". The exceptions, thus, only concern products with a

particular composition, i.e. those containing one of several types of asbestos fibres.

Furthermore, Article 2(2) of the Decree provided that the scope of this exception

"shall cover only the material, products or devices falling within the categories

shown in an exhaustive list" decreed by the relevant French authorities.324 The

Appellate Body, therefore, rightly found in EC – Asbestos that "[t]he exceptions

apply to a narrowly defined group of products with particular 'characteristics'".325

Given that the exceptions of the Decree themselves referred to particular product

characteristics, the Appellate Body in EC – Asbestos had no reason to question that

the measure as an integrated whole, i.e. the prohibition and the exceptions taken

together, lay down "product characteristics" within the meaning of Annex 1.1 of

323 Therefore, Canada's and Norway's additional argument that the EU seals regime lays down positive

product characteristics through the three exceptions, see Canada's first written submission, para. 363 and Norway's first written submission, para. 500, is equally erroneous.

324 Articles 1 and 2 of the Decree are reproduced in Appellate Body Report, EC – Asbestos, para. 2. 325 Appellate Body Report, EC – Asbestos, para. 74 (emphasis added).


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the TBT Agreement. As shown above, the nature of the exceptions of the EU seals

regime require the opposite conclusion.

3.1.2.2 The EU seals regime does not lay down "related processes and production methods"

225. Neither Canada nor Norway argues that the EU seals regime lays down "related

processes and production methods".326

226. In the view of the European Union, this is correct. The EU seals regime does not

regulate any processes and productions methods. As shown above, the ban read

together with the exceptions allows the placing on the market of seals products

depending on factors such as the type of the hunters, the traditions of their

communities, the size, intensity and purpose of the hunt, the non-profit and non-

systematic marketing of the products or the circumstances of their importation.

The EU seals regime does not set out methods for the production of seals products

compliance with which would allow their placing of the market.

227. In this aspect, it fundamentally differs from the Commission proposal which

would have allowed the placing on the market of seals products if they were

obtained under conditions that ensure that the seals were killed and skinned

"without causing avoidable pain, distress and any other form of suffering".327

228. Given that the EU seals regime does not lay down any processes and productions

methods at all, the complex question under which circumstances such processes

and production methods can be considered to be "related" to product

characteristics (see the wording of Annex 1.1 of the TBT Agreement) is not

relevant for this case.

3.1.2.3 The EU seals regime does not lay down "applicable administrative provisions"

229. Canada and Norway argue that certain procedural provisions in the Implementing

Regulation relating to the operation of the three exceptions constitute "applicable

326 Their argumentation under Annex 1.1 of the TBT Agreement only addresses the first and third

possible subject matter of technical regulations, i.e. "product characteristics" and the "applicable administrative provisions", see Canada's first written submission, paras. 360-366, and Norway's first written submission, paras. 499-505.

327 See Article 4 of the proposal.


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administrative provisions" within the meaning of Annex 1.1 of the TBT

Agreement.328 With regard to the IC and the MRM exception, the complainants

refer, inter alia, to the requirement that attesting documents accompany products

(Articles 3(2) and 5(2) of the Implementing Regulation), the detailed specification

for such documents (Article 7(1) of the Implementing Regulation) and the rules

governing the recognized bodies issuing such documents (Article 6 of the

Implementing Regulation). The complainants also refer to administrative

provisions relating to the travellers exception, such as the requirement to present,

for products important after a return trip to the EU, a written notification of import

to customs authorities (Article 4(3) of the Implementing Regulation).

230. Whereas the procedural requirements set out in the Implementing Regulation may

be considered as administrative provisions, they do not constitute "applicable


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.

231. The complainants seem to assume that any document containing administrative

provisions relating to identifiable products constitutes a technical regulation.329 In

the view of the European Union, such an interpretation is not in accordance with

customary rules of treaty interpretation.

232. 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.

233. 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

328 Canada's first written submission, paras. 364-365; Norway's first written submission, paras. 502-504. 329 See Norway's first written submission, para. 504: "(…) the EU Seal Regime also establishes

administrative provisions that apply to products with objective characteristics".


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"including". Had the drafters of the TBT Agreement intended to qualify

documents laying down any administrative provision applying to products as

technical regulations, they could have chosen the following wording: "Document

which lays down product characteristics or their related processes and production

methods or administrative provisions relating to products …". The fact that they

did not indicates that Annex 1.1 of the TBT Agreement addresses only those

administrative provisions which apply to product characteristics or their related

processes and production methods.

234. The alternative interpretation that any administrative provisions relating to

products are covered would also appear to be over-inclusive and, thus, to go

against the object and purpose of the TBT Agreement. Documents laying down

administrative provisions relating to products would comprise laws and regulations

on issues as diverse as drivers' licences for cars or export controls for weapons. In

the view of the European Union, the legal regime for "technical regulations" set

out in the TBT Agreement is clearly not meant to deal with such types of

measures.

235. As set out above, the substantive provisions of the EU seals regime, i.e. the ban

together with the three exceptions, do not lay down product characteristics or their

related processes and production methods. Therefore, the procedural provisions of

the Implementing Regulation, which merely concern the operation of the three

exceptions, equally do not apply to any such subject matter. In this respect, they

differ from the procedural provisions relating to the exceptions of the asbestos

Decree in EC – Asbestos which the Appellate Body found to constitute "applicable


Agreement330. The difference in EC – Asbestos is that the relevant exceptions did

lay down product characteristics. In contrast to the present case, the Appellate

Body in EC – Asbestos could therefore conclude that the procedural provisions

applied to product characteristics.

330 Appellate Body Report, EC – Asbestos, para. 73.


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3.1.3. Conclusion 236. In sum, the EU seals regime therefore does not lay downs any of the subject matter

mentioned in Annex 1.1 of the TBT Agreement. It does not constitute a technical

regulation.

3.2. ARTICLE 2.1 OF THE TBT AGREEMENT

237. 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.

238. For the reasons explained above, the European Union considers 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 accordance

with Annex 1 of the TBT Agreement. In any event, assuming that the TBT

Agreement 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 European Union will show below that 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.

239. In the next Sections, the European Union will explain the relevant legal standard

against which the Panel should examine the conformity of the EU Seal Regime

with Article 2.1 of the TBT Agreement, as further clarified by the recent case-law

of the Appellate Body. Then, the European Union will apply the law to the facts of

this case in order to show that the EU Seal Regime, through its IC and MRM

exceptions, do not de jure or de facto violate the MFN and national treatment

obligations under Article 2.1 of the TBT Agreement.


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3.2.1. Legal standard

240. Article 2.1 of the TBT Agreement states that:

Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

241. The Appellate Body has recently clarified the constitutive elements of this

provision. In particular, in US – Tuna II (Mexico), the Appellate Body noted that:

Article 2.1 of the TBT Agreement consists of three elements that must be demonstrated in order to establish an inconsistency with this provision, namely: (i) that the measure at issue constitutes a "technical regulation" within the meaning of Annex 1.1; (ii) that the imported products must be like the domestic product and the products of other origins; and (iii) that the treatment accorded to imported products must be less favourable than that accorded to like domestic products and like products from other countries.331

242. With respect to (ii) (i.e., the issue of likeness), the Appellate Body has highlighted

the importance of defining the universe or "group" of products that a panel must

consider "like" in order to properly examine whether there is less favourable

treatment in a given case. In particular, in US – Clove Cigarettes, the Appellate

Body found that:

Article 2.1 provides that "products imported from the territory of any Member" shall be accorded treatment no less favourable than that accorded to "like products of national origin and like products originating in any other country". The text of Article 2.1 thus calls for a comparison of treatment accorded to, on the one hand, products imported from any Member alleging a violation of Article 2.1, and treatment accorded to, on the other hand, like products of domestic and any other origin. Therefore, for the purposes of the less favourable treatment analysis, treatment accorded to products imported from the complaining Member is to be compared with that accorded to like domestic products and like products of any other origin.

331 Appellate Body Report, US – Tuna II (Mexico), para. 202.


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In determining what are the "like products of national origin and like products originating in any other country", a panel must seek to establish, based on the nature and extent of the competitive relationship between the products in the market of the regulating Member, the products of domestic (and other) origin(s) that are like the products imported from the complaining Member. In determining what the like products at issue are, a panel is not bound by its terms of reference to limit its analysis to those products identified by the complaining Member in its panel request. Rather, Article 2.1 requires the panel to identify the domestic products that stand in a sufficiently close competitive relationship with the products imported from the complaining Member to be considered like products within the meaning of that provision.

(…) The products identified by the complaining Member are the starting point in a panel's likeness analysis. However, Article 2.1 requires panels to assess objectively, on the basis of the nature and extent of the competitive relationship between the products in the market of the regulating Member, the universe of domestic products that are like the products imported from the complaining Member.

Once the imported and domestic like products have been properly identified, Article 2.1 requires a panel dealing with a national treatment claim 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. However, the national treatment obligation of Article 2.1 does not require Members to accord no less favourable treatment to each and every imported product as compared to each and every domestic like product. Article 2.1 does not preclude any regulatory distinctions between products that are found to be like, as long as treatment accorded to the group of imported products is no less favourable than that accorded to the group of like domestic products. As noted by the Appellate Body in the context of Article III:4 of the GATT 1994:

[A] Member may draw distinctions between products which have been found to be "like", without, for this reason alone, according to the group of "like" imported products "less favourable treatment" than that accorded to the group of "like" domestic products. (original emphasis) [Appellate Body Report, EC – Asbestos, para. 100.]


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In sum, the national treatment obligation of Article 2.1 calls for a comparison of treatment accorded to, on the one hand, the group of products imported from the complaining Member and, on the other hand, the treatment accorded to the group of like domestic products. In determining what the scope of like imported and domestic products is, a panel is not limited to those products specifically identified by the complaining Member. Rather, a panel must objectively assess, based on the nature and extent of their competitive relationship, what are the domestic products that are like the products imported from the complaining Member. Once the universe of imported and domestic like products has been identified, the treatment accorded to all like products imported from the complaining Member must be compared to that accorded to all like domestic products. The "treatment no less favourable" standard of Article 2.1 does not prohibit regulatory distinctions between products found to be like, provided that the group of like products imported from the complaining Member is treated no less favourably than the group of domestic like products.332

243. Thus, either in the context of the national treatment or MFN obligation under

Article 2.1 of the TBT Agreement, a panel 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. Such determination should be based on

the nature and extent of the competitive relationship between the products in the

market of the regulating Member.

244. With respect to (iii) (i.e., less favourable treatment), referring to Article III:4 of the

GATT 1994 as context, the Appellate Body has noted that:

[A] panel examining a claim of violation under Article 2.1 should seek to ascertain whether the technical regulation at issue modifies the conditions of competition in the market of the regulating Member to the detriment of the group of imported products vis-à-vis the group of like domestic products.333

245. In making such analysis, panels must take into account that, under Article 2.1 of

the TBT Agreement, any distinctions, in particular those that are based exclusively

on specific product characteristics or on particular processes and production

methods, would not per se constitute "less favourable treatment" within the

meaning of Article 2.1.334 In this respect, the existence of any detrimental effect on

the group of the like imported products is not sufficient to demonstrate less 332 Appellate Body Report, US – Clove Cigarettes, paras. 190 – 194 (footnotes omitted). 333 Appellate Body Report, US – Clove Cigarettes, para. 180. 334 Appellate Body Report, US – Tuna II (Mexico), para. 211.


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favourable treatment under Article 2.1 of the TBT Agreement where the technical

regulation at issue does not de jure discriminate against imports. Instead:

[A] a panel must further analyze whether the detrimental impact on imports stems exclusively from a legitimate regulatory distinction rather than reflecting discrimination against the group of imported products. In making this determination, a panel must carefully scrutinize the particular circumstances of the case, that is, the design, architecture, revealing structure, operation, and application of the technical regulation at issue, and, in particular, whether that technical regulation is even-handed, in order to determine whether it discriminates against the group of imported products.335

246. In US – COOL, the Appellate Body similarly noted that:

The Appellate Body recognized in US – Clove Cigarettes and US – Tuna II (Mexico) that relevant guidance for interpreting the term "treatment no less favourable" in Article 2.1 may be found in the jurisprudence relating to Article III:4 of the GATT 1994. As under Article III:4, the national treatment obligation of Article 2.1 prohibits both de jure and de facto less favourable treatment. That is, "a measure may be de facto inconsistent with Article 2.1 even when it is origin-neutral on its face." In such a case, the panel must take into consideration "the totality of facts and circumstances before it", and assess any "implications" for competitive conditions "discernible from the design, structure, and expected operation of the measure". Such an examination must take account of all the relevant features of the market, which may include the particular characteristics of the industry at issue, the relative market shares in a given industry, consumer preferences, and historical trade patterns. That is, a panel must examine the operation of the particular technical regulation at issue in the particular market in which it is applied.

(…) In each case, the relevant question is whether it is the governmental measure at issue that "affects the conditions under which like goods, domestic and imported, compete in the market within a Member's territory". While a measure may not require certain treatment of imports, it may nevertheless create incentives for market participants to behave in certain ways, and thereby treat imported products less favourably. (…) In every case, it is the effect of the measure on the competitive opportunities in the market that is relevant to an assessment of whether a challenged measure has a detrimental impact on imported products.

335 Appellate Body Report, US – Clove Cigarettes, para. 182. See also Appellate Body Report, US – Tuna

II (Mexico), paras. 211, 215 and 231.


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If a panel determines that a measure has such an impact on imported products, however, this will not be dispositive of a violation of Article 2.1. This is because not every instance of a detrimental impact amounts to the less favourable treatment of imports that is prohibited under that provision. Rather, some technical regulations that have a de facto detrimental impact on imports may not be inconsistent with Article 2.1 when such impact stems exclusively from a legitimate regulatory distinction. In contrast, where a regulatory distinction is not designed and applied in an even-handed manner—because, for example, it is designed or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination—that distinction cannot be considered "legitimate", and thus the detrimental impact will reflect discrimination prohibited under Article 2.1. In assessing even-handedness, a panel must "carefully scrutinize the particular circumstances of the case, that is, the design, architecture, revealing structure, operation, and application of the technical regulation at issue".336

247. Thus, when assessing whether a technical regulation has any detrimental impact on

the group of imported products when compared to the group of domestic/other

origin "like" products, a panel must examine whether such impact stems

exclusively from a legitimate regulatory distinction. When a regulatory distinction

is designed and applied in an even-handed manner, any difference in treatment

between sub-categories of like products within those groups cannot be considered

as discriminatory.

248. Finally, with respect to the burden of proof when dealing with claims under Article

2.1 of the TBT Agreement, in US – Tuna II (Mexico) the Appellate Body observed

that:

In the context of Article 2.1 of the TBT Agreement, the complainant must prove its claim by showing that the treatment accorded to imported products is "less favourable" than that accorded to like domestic products or like products originating in any other country. If it has succeeded in doing so, for example, by adducing evidence and arguments sufficient to show that the measure is not even-handed, this would suggest that the measure is inconsistent with Article 2.1. If, however, the respondent shows that the detrimental impact on imported products stems exclusively from a legitimate regulatory distinction, it follows that the challenged measure is not inconsistent with Article 2.1.337

336 Appellate Body Report, US – COOL, paras. 267 – 271. 337 Appellate Body Report, US – Tuna II (Mexico), para. 216 (footnotes omitted); see also Appellate

Body Report, US – COOL, para. 272 ("If, for example, the complainant adduces evidence and arguments showing that the measure is designed and/or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination of the group of imported products and thus is not


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249. In sum, in order for a complaining Member to prevail in a de facto claim under

Article 2.1 of the TBT Agreement, like the one brought by Canada in the present

case,338 the following elements must be proven: (i) that the measure at issue

constitutes a "technical regulation" within the meaning 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.

250. It is against this legal standard that the European Union will examine the merits of

Canada's claim against the IC and MRM exceptions. The European Union will

start by analysing the universe of relevant "like" products in the present case.

Then, the European Union will show that there is no "less favourable treatment" in

the present case by establishing that the IC and MRM exceptions are in conformity

with the MFN and national treatment obligations under Article 2.1 of the TBT

Agreement.

3.2.2. Likeness

251. The European Union observes that, in its first written submission, Canada

identifies the relevant group of "like" products as follows. On the one hand,

Canada refers to seal products from Canada's non-Inuit east coast commercial

even-handed, this would suggest that the measure is inconsistent with Article 2.1. If, however, the respondent shows that the detrimental impact on imported products stems exclusively from a legitimate regulatory distinction, it follows that the challenged measure is not inconsistent with Article 2.1").

338 Canada's first written submission, para. 8.


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hunts (i.e. the group of imported products).339 On the other hand, Canada refers to

seal products from Inuit hunts in Greenland340and seal products obtained in small-

scale hunts for the purpose of managing marine resources (i.e., the group of other

origin/domestic products).341 The European Union submits that Canada's

identification of "like" products is partial and skewed towards finding

discrimination in the present case.

252. As mentioned before, the Panel is not bound to limit its analysis to those products

identified by Canada in its first written submission. The Panel 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 determination of

likeness "is, fundamentally, a determination about the nature and extent of a

competitive relationship between and among products"342 and thus should be

"based on the nature and extent of the competitive relationship between the

products in the market of the regulating Member".343 In this respect, the entire

universe of products affected by the regulatory scheme appears to be a relevant

starting point for the Panel's determination.344

253. In view of this, 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

339 Canada's first written submission, para. 311 and 394. 340 Canada's first written submission, para. 311. 341 Canada's first written submission, paras. 331, 333 and 393. 342 Appellate Body Report, EC – Asbestos, para. 99. 343 Appellate Body Report, US – Clove Cigarettes, para. 191. 344 Panel Report, Colombia – Ports of Entry, para. 7.355 ("In the Panel's view, it is not necessary to

determine through lengthy analysis whether textiles, apparel or footwear arriving from other countries are in fact like products to those goods originating in and arriving from Panama. Based on the design of the ports of entry measure, any textiles, apparel or footwear imported from territories other than Panama or the CFZ, are like products, and would necessarily be allowed entry at 11 ports of entry in Colombia without presenting an advance import declaration, as long as the product did not circulate through Panama or the CFZ prior to arrival in Colombia. The distinction between products, which determines whether or not an advance declaration is required (and hence whether customs duties and sales tax are assessed, and what rights are available to inspect merchandise and verify accuracy of the import declaration), is not based on the products per se, but rather on the territory from which the product arrives. In this sense, a product originating in, or arriving from Panama, or the CFZ identical in all respects to a product arriving into Colombia from any other territory (that did not circulate through Panama or the CFZ prior to arrival in Colombia), would be subject to the advance import declaration and other requirements at issue") (emphasis added).


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conforming and non-conforming with the EU Seal Regime.345 Indeed, the EU Seal

Regime distinguishes between seal products that can be placed on the EU market

(i.e., those falling under the IC and MRM exceptions)346 and those that cannot (i.e.,

subject to the General Ban).347 Seal products are "products, either processed or

unprocessed, deriving or obtained from seals, including meat, oil, blubber, organs,

raw fur skins and fur skins, tanned or dressed, including fur skins assembled in

plates, crosses and similar forms, and articles made from fur skins".348

254. The European Union considers that all seal products (either as inputs or as

finished/processed products) have identical product characteristics, i.e., they

derived or were obtained from seals. However, the Basic Regulation makes a

distinction between (i) seal products that conform to certain requirements by

referring to the type and purpose of the hunts (i.e., traditional hunts conducted by

Inuit and other indigenous communities for the purpose of their subsistence, and

small-scale hunts conducted for the purpose of managing marine resources), and

(ii) seal products that do not conform to those requirements (essentially, those

derived or obtained from commercial hunts).349

255. The European Union 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.350

345 The European Union observes that, in its first written submission, Norway has made such a distinction

in the context of its claim under Article I:1 of the GATT 1994 (Norway's first written submission, para. 288).

346 Articles 3.1 ("The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence") and 3.2(b) of the Basic Regulation ("By way of derogation from paragraph 1: the placing on the market of seal products shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons").

347 Article 3.1 of the Basic Regulation ("The placing on the market of seal products shall be allowed only…").

348 Article 2.2 of the Basic Regulation. 349 Recital (10) of the Basic Regulation ("Since the concerns of citizens and consumers extend to the

killing and skinning of seals as such, it is also necessary to take action to reduce the demand leading to the marketing of seal products and, hence, the economic demand driving the commercial hunting of seals") (emphasis added).

350 The European Union recalls that, even if the parties were to agree on any of the sub-elements examined under the likeness test or the likeness category as a whole, a panel is required to make an objective assessment of the matter under Article 11 of the DSU (see Panel Report, Colombia – Ports


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256. Consequently, the European Union considers that the group of products relevant in

this case are seal products that conform to the EU Seal Regime in view of the type

and purpose of hunt they were obtained from (i.e., Inuit/subsistence purpose and

small-scale/managing marine resources) and those that do not conform to the EU

Seals Regime in view of the commercial nature of the hunted they derived from.351

All those seal products belong to the same group of "like" products and conform

the universe of products affected by the EU Seal Regime.

3.2.3. Less Favourable Treatment - IC exception

257. Canada argues that the Indigenous Communities exception de facto352 violates

Article 2.1 of the TBT Agreement since such exception effectively 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

of Entry, para. 7.181 ("Notwithstanding the absence of disagreement between the parties, a panel is still bound by Article 11 of the DSU to make an 'objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements'. Therefore, the Panel considers it necessary to examine whether subject imports and domestic products are like products"); and Appellate Body Report, EC – Asbestos, para. 102 ("[T]he adoption of a particular framework to aid in the examination of evidence does not dissolve the duty or the need to examine, in each case, all of the pertinent evidence")). Likewise, the Panel is called upon to examine the likeness of those products identified by Canada (i.e., seal products as inputs or finished/processed products, and not products derived from e.g. other animals or synthetically) and in view of the specific evidence so provided (see Panel Report, US – Tuna II (Mexico), para. 7.234 ("We also observe that Mexico has explained that although its challenge applies in respect of all tuna products, for the purpose of demonstrating the violation, it would use the most common tuna product, which is tuna meat packaged in retail ready cans and pouches. Accordingly, we consider Mexico's analysis in respect of these specific tuna products and our findings relate to these products"); Panel Report, EC – Asbestos, para. 8.108 ("We note, that although friction products are mentioned, Canada does not include these in its comparisons relating to Article III:4. We therefore conclude that Canada does not intend the Panel to rule on the likeness of friction products containing chrysotile and other products. We shall therefore not examine these products in our findings relating to the provisions of the GATT 1994")). In this respect, the European Union observes that the evidence provided by Canada to show likeness is not appropriate, inter alia, because it is based on the statements by companies with minor presence in the EU market and with a main focus on other markets and, thus cannot be representative of the consumer preferences within the EU; and because the analysis is provided at the level of the manufacturer or processor of seal skins and seal oils, without providing any evidence on the final consumer (of e.g., seal oils in Omega-3 capsules).

351 To be clear, the European Union considers that the definition of like products by Canada, i.e., those resulting from non-Inuit commercial hunts, on the import side, and those resulting from Inuit and/or marine management resources, on the domestic/other origin side, is too narrow since it ignores that the group of imported products is wider (i.e., also including e.g. products derived from Inuit hunts).

352 The European Union understands that Canada does not argue that the Indigenous Communities exception is de jure inconsistent with Article 2.1 of the TBT Agreement (see Canada's first written submission, para. 8 ("The EU Seal Regime also constitutes a de facto violation of Article 2.1 of the [TBT Agreement]"). In any event, the European Union will show below that there is no de jure violation of Article 2.1 of the TBT Agreement (see paras. 275 – 290 below of this submission).


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inequality of competitive opportunities.353 Furthermore, Canada posits that the

detrimental impact on Canadian seal products does not stem exclusively from a

legitimate regulatory distinction, but simply on the ethnicity ("indigenous") of the

hunter.354

258. In particular, according to Canada, the regulatory distinction in no way contributes

to the advancement of EU's animal welfare objective since such a distinction does

not focus on the manner the seal is hunted. Since both Canadian non-Inuit

commercial hunts and Greenland Inuit hunts have the same characteristics, Canada

considers that both should receive the same treatment from a regulatory standpoint.

Canada further argues that the IC exception restricts the hunting of seals to a

narrow population of hunters based solely on their ethnic origin, while

disregarding the commercial nature of the Greenlandic seal hunt. As a result, the

IC exception disregards the fact that the historical and socio-economic context of

Canadian hunters participating in the seal hunt are virtually the same as indigenous

communities in Greenland. Thus, according to Canada, the regulatory distinction

under the EU Seal Regime is not even-handed and therefore not "legitimate".355

259. The European Union will show below that the IC exception does not provide for

less favourable treatment to the group of Canadian imported products. In so doing,

as Canada noted, the European Union is of the view that the same considerations

made by the Appellate Body when examining the national treatment obligation

under Article 2.1 of the TBT Agreement apply in cases where the claim relates to

the MFN aspect of that provision.356 Thus, the European Union will show that 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.

353 Canada's first written submission, paras. 323 and 394. 354 Canada's first written submission, para. 399. 355 Canada's first written submission, paras. 400 – 407. 356 Canada's first written submission, para. 398. See also Appellate Body Report, US – Tuna II (Mexico),

para. 299 ("For these reasons, we reverse the Panel's finding, in paragraphs 7.374 and 8.1(a) of the Panel Report, that the US 'dolphin-safe' labelling provisions are not inconsistent with Article 2.1 of the TBT Agreement. We find, instead, that the US 'dolphin-safe' labelling provisions provide 'less favourable treatment' to Mexican tuna products than that accorded to tuna products of the United States and tuna products originating in other countries and are therefore inconsistent with Article 2.1 of the TBT Agreement") (emphasis added).


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260. To recall, the Appellate Body has noted that any regulatory distinction which is

origin-neutral on its face would not per se constitute "less favourable treatment"

within the meaning of Article 2.1.357 A panel must further examine whether the

detrimental impact on imports stems exclusively from a legitimate regulatory

distinction rather than reflecting discrimination against the group of imported

products. In making this determination, a panel must carefully scrutinise the

particular circumstances of the case, that is, the design, architecture, revealing

structure, operation and application of the technical regulation at issue, and, in

particular, whether that technical regulation is even-handed, in order to determine

whether it discriminates against the group of imported products.358 Where a

regulatory distinction is not designed and applied in an even-handed manner

(because, for example, it is designed or applied in a manner that constitutes a

means of arbitrary or unjustifiable discrimination) that distinction cannot be

considered "legitimate".359

261. In the sections below, first, the European Union will demonstrate that the objective

pursued by the IC exception is "legitimate". A fortiori, the regulatory distinction

should also be considered "legitimate". Second, the European Union will establish

that the IC exception does not de jure discriminate by reasons of origin. Third, the

European Union will show 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

262. Contrary to what Canada suggests, the regulatory distinction made by the IC

exception does not pursue "the advancement of EU's animal welfare objective"

(i.e., humanly killing).360 Rather, as mentioned before, the IC exception is

"rationally connected" to the main objective of the EU Seal Regime, i.e.,

addressing the moral concerns of the EU public with respect to seal hunting. In

particular, Recital (14) of the Basic Regulation expresses the objective behind the

IC exception in the following terms:

357 Appellate Body Report, US – Tuna II (Mexico), para. 211. 358 Appellate Body Report, US – Clove Cigarettes, para. 182. See also Appellate Body Report, US – Tuna

II (Mexico), paras. 211, 215 and 231. 359 Appellate Body Report, US – COOL, para. 271. 360 Canada's first written submission, paras. 402 – 403.


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The fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence should not be adversely affected. The hunt is an integral part of the culture and identity of the members of the Inuit society, and as such is recognised by the United Nations Declaration on the Rights of Indigenous Peoples. Therefore, the placing on the market of seal products which result from hunts traditionally conducted by Inuit and other indigenous communities and which contribute to their subsistence should be allowed.

263. Thus, 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.

264. Indeed, it is widely recognised that the Inuit live under extremely harsh climatic

and ecological conditions hardly imaginable for people living in other parts of the

world. Their communities are remote and isolated, with the vast majority

accessible only by air or sea. Seals are an important and highly valued source of

economic sustenance and income, nutritional and physiological well-being, as well

as forming an important basis of Inuit cultural identity and social cohesion. Given

the limited options for food supply and the seasonal variations in this supply, the

main purpose of the Inuit seal hunt is subsistence. Thus, hunting is an essential

source of nutrition for Inuit families.

265. The social and cultural aspects of seal hunting are vital to Inuit health and well-

being. They embody since millennia the connectedness of Inuit to the land, sea and

ice, which traditionally has sustained and continues to sustain Inuit culture, identity

and self-reliance. Post-hunting sharing and use of seals, based on deeply embedded

kinship practices, are crucial to sustaining Inuit social familial and community

relationships. The meat, therefore, most often is shared in accordance with

century-old Inuit customs, and is rarely sold.

266. For decades, Inuit have been hunting seals with modern techniques: they use

motorboats, snow-mobiles, rifles and radio. These modem techniques are

nowadays a necessity for the Inuit people in order to make their living in the harsh

North viable, given an economic situation that is now heavily monetarised and

requires both the import and export of goods. Because of the heavy use of

snowmobiles and the extremely harsh climatic conditions, maintenance costs are


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very high and snowmobiles routinely need to be replaced within three years. In

addition, snowmobiles must be refuelled, rifles require bullets, and other such

costs are incurred. All these items must be paid for. As seal skins are an inevitable

by-product of hunting seals for meat, these skins are sold in order to cover an

important portion of hunting expenses.361

267. 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".362 The same could be said of

other indigenous communities in similar circumstances.

268. 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 (i.e., seal products derived from traditional hunts which

contribute to subsistence of Inuit and other indigenous communities). Indeed, the

moral perception of products from seals hunted by Inuit and other indigenous

communities are the result of a practice whose inherent legitimacy (subsistence of

indigenous people) overrides the general concerns over the killing methods for

purely commercial motives.363

269. The European Union observes that Canada does not dispute that "protecting the

interests of Inuit and other indigenous communities" is a "legitimate objective" for

the purpose of Article 2.2 of the TBT Agreement.364 Likewise, Norway does not

seem to contest that such an objective is equally "legitimate" in the context of

Article 2.2 of the TBT Agreement.365 In the European Union's view, in this

361 COWI Report (2010), pp. 21 – 33 (Exhibit JE-21). 362 Canada's first written submission, para. 40. 363 See Report of the Royal Commission on Seals and Sealing (1986), Volume 1, Chapter 11, "Public

Opinion on Sealing" (Exhibit EU-48), p. 169 (Table 11.6 Acceptability of Specified Hunts), where it can be seen the great levels of acceptability of hunts conducted by Inuit communities in stark comparison with large-scale commercial hunts. See also COWI Report (2008), pp. 125 and 126, showing that 84.7% of respondents indicated that hunting seals to use for fur and other non-essential products is not justified, and that there is a greater level of acceptance of the hunt if it is embedded in a traditional seal hunting culture.

364 Canada's first written submission, para. 463. 365 Indeed, Norway appears to argue that the protection of the Inuit interests "cannot be used to justify

trade restrictions for purposes of Article 2.2 of the TBT Agreement" (Norway's first written submission, para. 657, final sentence). However, Norway also notes that it "regards the protection of


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particular case, the same conclusion should be reached in the context of Canada's

claim under Article 2.1 of the TBT Agreement.

270. In any event, the European Union observes that there is a consistent body of public

international law (and to which the European Union is bound) echoing the

legitimacy of protecting the Inuit and indigenous communities' interest, such as the

United Nations Declaration on the Rights of Indigenous Peoples366 and the ILO

Convention concerning Indigenous and Tribal Peoples in Independent

Countries.367

271. In particular, the United Nations Declaration on the Rights of Indigenous Peoples

contains various rights, obligations and principles applicable to Indigenous

Peoples, which are relevant to this matter (see especially Articles 3 and 20: right to

self-determination; Articles 5, 26(2) and 31: right to maintain and strengthen

cultural heritage and to develop and control their resources; Article 19: obligation

for Members of United Nations to cooperate in good faith with indigenous peoples

and right of free, prior and informed consent before adopting and implementing

measures that may affect them; Article 25 right to maintain and strengthen their

distinctive spiritual relationship with their traditionally owned or otherwise

occupied land).

272. Similarly, the International Labour Organisation Convention No 169 concerning

Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989

broadly recognises, i.a., that "[g]overnments shall have the responsibility for

developing, with the participation of the peoples concerned, co-ordinated and

systematic action to protect the rights of these peoples and to guarantee respect for

their integrity" and that "the social, cultural, religious and spiritual values and

practices of these peoples shall be recognised and protected, and due account shall

be taken of the nature of the problems which face them both as groups and as

the 'fundamental economic and social interests' of indigenous communities as deserving, and Norway itself strongly promotes the interests of indigenous communities both in Norway and elsewhere" (Norway's first written submission, para. 641).

366 Resolution adopted by the General Assembly 61/295, United Nations Declaration on the Rights of Indigenous Peoples (2 October 2007), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement.

367 ILO Convention 169 Indigenous and Tribial Peoples Convention (1989) available at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_100897.pdf.

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement

http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_100897.pdf

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individuals".368 Likewise, the right to sustainable development is recognised: "The

rights of the peoples concerned to the natural resources pertaining to their lands

shall be specially safeguarded. These rights include the right of these peoples to

participate in the use, management and conservation of these resources".369

273. Therefore, the protection of the Inuit and indigenous communities has been widely

recognised in the international fora.370

274. In view of the foregoing, the European Union submits that the protection of the

Inuit and other indigenous communities' interests is a "legitimate" objective for the

purpose of Article 2.1 of the TBT Agreement. The IC exception addresses the

moral concerns of the EU public with respect to seal hunting and, accordingly,

permits the placing on the market of seal products resulting from hunts

traditionally conducted by those communities and which contribute to their

subsistence.

3.2.3.2 The IC exception – no de jure discrimination

275. The European Union observes that Canada challenges the IC exception as a de

facto discrimination.371 In other words, Canada does not dispute that the IC

exception (and in particular the conditions for seal products to fall within such

exception) is origin-neutral on its face. In any event, for the avoidance of any

doubt, the European Union will show below that the IC exception is origin-neutral

on its face and, thus, there is no de jure discrimination.

276. In order to find de jure discrimination, a panel needs to examine the terms of the

measure at issue and, more particularly, whether the measure is "origin-neutral on

its face". There is no de jure discrimination just simply because the measure at

issue –when looking beyond the terms of the measure, e.g. particular market

conditions– may provide for a different treatment in practice between imported and

368 See Articles 2 and 5(a) of the ILO Convention concerning Indigenous and Tribal Peoples in

Independent Countries. 369 Article 15.1 of the ILO Convention concerning Indigenous and Tribal Peoples in Independent

Countries. 370 Several international institutions regularly deal with the state of indigenous communities (see e.g., UN

Department of Economic and Social Affairs, "State of the World's Indigenous People", ST/ESA/328 (2009), p. 10, available at http://www.un.org/esa/socdev/unpfii/documents/SOWIP_web.pdf).


http://www.un.org/esa/socdev/unpfii/documents/SOWIP_web.pdf


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domestic/other origin like products. As the panel in US – COOL put it, "[t]he very

essence of the de jure/de facto dichotomy is that the first involves an analysis

focussing on the language of the measure at issue, whereas the second entails

assessing how a measure with language that is not discriminatory on its face plays

out in actual circumstances".372

277. For instance, in Canada – Autos, the Appellate Body found that the challenged

measure was de facto inconsistent with the MFN requirement in Article I:1 of the

GATT 1994.373 The measure afforded customs advantages to certain imported

vehicles. On its face, the measure did not limit this advantage to a particular subset

of WTO Members. However, the conditions attaching to the advantage were

satisfied predominantly by a few WTO Members, but not other Members

exporting like vehicles to Canada.374 Similarly, in Korea – Various Measures on

Beef, which involved different channels of distribution for imported and domestic

372 Panel Report, US – COOL, para. 7.397. See also Panel Report, Canada – Periodicals, paraa. 7.101 –

7.102 ("As noted above, de facto discrimination is a general term describing the legal conclusion that an ostensibly neutral measure transgresses a non-discrimination norm because its actual effect is to impose differentially disadvantageous consequences on certain parties, and because those differential effects are found to be wrong or unjustifiable. Two main issues figure in the application of that general concept in most legal systems. One is the question of de facto discriminatory effect – whether the actual effect of the measure is to impose differentially disadvantageous consequences on certain parties. The other, related to the justification for the disadvantageous effects, is the issue of purpose - not an inquiry into the subjective purposes of the officials responsible for the measure, but an inquiry into the objective characteristics of the measure from which one can infer the existence or nonexistence of discriminatory objectives. With regard to the first issue - the actual effects of the measure -, the EC had argued that, despite its potentially broad coverage of many industries, the exception created by Section 55.2(1) had 'in effect' applied only to pharmaceutical patents. The Panel received no systematic information on the range of industries that have actually made use of Section 55.2(1). In the absence of such information, the critical question was whether there was some practical reason why the regulatory review exception would in reality work only to the disadvantage of producers of patented pharmaceutical products. The Panel asked the parties for an explanation of any practical considerations that would limit the scope of application of Section 55.2(1) to pharmaceutical products, but no such explanation was provided. Nor was the Panel able to find such a practical reason from the information before it. The Panel concluded that the EC had not demonstrated that Section 55.2(1) had had a discriminatory effect limited to patented pharmaceutical products").

373 Appellate Body Report, Canada – Autos, paras. 81 and 85 – 86. 374 Appellate Body Report, Canada – Autos, para. 76 ("[S]ome, but not all, motor vehicles imported from

certain Members are accorded the import duty exemption, while some, but not all, like motor vehicles imported from certain other Members are not").


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products in the terms of the relevant law,375 the Appellate Body considered the

difference not to be sufficient to find a de jure breach.376

278. In contrast, when the measure explicitly discriminates exclusively based on origin

and that can be evidenced from the words of the measure, there is a de jure breach.

For example, in Colombia – Ports of Entry, Panama was the only country subject

to special customs requirements.377 Likewise, in Indonesia – Autos, the distinction

between the products, which results in different levels of taxation, was not based

on the products per se, but rather on such factors as the nationality of the producer

or the origin of the parts and components contained in the product.378

279. As will be explained below, the terms employed in either the Basic Regulation or

the Implementing Regulation with respect to the IC exception are origin-neutral.

280. First, Article 3.1 of the Basic Regulation, referring to the Indigenous Communities

exception, covers the placing on the market of seal product 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).

281. Second, the Basic Regulation defines the term "Inuit" as:

375 Appellate Body Report, Korea – Various Measures on Beef, para. 143 ("Korean law in effect requires

the existence of two distinct retail distribution systems so far as beef is concerned: one system for the retail sale of domestic beef and another system for the retail sale of imported beef").

376 Appellate Body Report, Korea – Various Measures on Beef, para. 144 ("[T]he Korean measure formally separates the selling of imported beef and domestic beef. However, that formal separation, in and of itself, does not necessarily compel the conclusion that the treatment thus accorded to imported beef is less favourable than the treatment accorded to domestic beef"). See also Panel Report, Philippines – Distilled Spirits, para. 7.89 ("De jure, the Philippines' excise tax is in principle origin-neutral as the lower tax for spirits made from designated raw materials (currently, PHP 14.68 ppl) and the much higher tax rates for spirits made from other raw materials (currently, from PHP 158.73 ppl to up to PHP 634.90 ppl) apply irrespective of where the spirits originate. De facto, however, as noted above, all distilled spirits produced in the Philippines enjoy the lower tax rate, while the vast majority of spirits imported into the Philippines are made from other raw materials and are thus subject to one of the three higher tax rates").

377 Panel Report, Colombia – Ports of Entry, paras. 7.362 – 7.367. 378 Panel Report, Indonesia – Autos, paras. 14.112 – 14.113.


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Inuit" means indigenous members of the Inuit homeland, namely those arctic and subarctic areas where, presently or traditionally, Inuit have aboriginal rights and interests, recognised by Inuit as being members of their people and includes Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), Kalaallit (Greenland) and Yupik (Russia);379

282. In turn, according to the Implementing Regulation, the terms "other indigenous

communities" mean:

[C]ommunities in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.380

283. Thus, the term "Inuit and other indigenous communities" is not indicative of a

particular origin. In fact, those communities are widely spread around the world.381

Just to take the example of the Inuit in the Artic countries, the picture below shows

they are widespread in countries such as Canada, Greenland, the US, Russia,

Norway and Finland.382

379 Article 2.4 of the Basic Regulation. 380 Article 2.1 of the Implementing Regulation. 381 Indigenous peoples number about 300 million. They live in more than 70 countries on all five

continents, from Arctic to the Amazon, from the Sahara to Australia. They include the Indians of the Americas, the Inuit of the circumpolar region, the Saami of Northern Europe and the Maori of Aoteoroa (New Zealand). The majority -more than 150 million- live in Asia, in countries such as Bangladesh, Burma, China, India, Indonesia, Japan, Malaysia, Pakistan, the Philippines, Sri Lanka and Thailand. Around 30 million indigenous peoples live in Latin America. In Bolivia, Guatemala and Peru, indigenous peoples make up over half the population (see http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf and http://eeas.europa.eu/human_rights/ip/index_en.htm).

382 See COWI Report (2010), p. 22.

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284. As can be seen, some of those communities do not live in one country.383 In that

respect, borders are irrelevant as Inuit and other indigenous communities may tend

to move to satisfy their food needs.

285. Third, the conditions for qualifying for the IC exception are further specified in

Article 3 of the Implementing Regulation, which provides that:

1. Seal products resulting from hunts by Inuit or other indigenous communities may only be placed on the market where it can be established that they originate from seal hunts which satisfy all of the following conditions:

383 E.g., Saami communities also live and hunt seals in Norway and Sweden (see COWI Report (2010), p.

33.


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(a) seal hunts conducted by Inuit or other indigenous communities which have a tradition of seal hunting in the community and in the geographical region;

(b) seal hunts the products of which are at least partly used, consumed or processed within the communities according to their traditions;

(c) seal hunts which contribute to the subsistence of the community.


286. Like the Basic 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 characteristics (i.e., type and purpose) of the seal hunts.

287. 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. Indeed, the IC exception was already there in the original

Commission Proposal,384 and the moral intention behind it was also manifest in the

European Parliament's debates.385 Going even further into the past, the IC

exception was already included in Directive 83/129/EEC prohibiting the

importation of skins of certain seal pups and products derived therefrom.386

288. Fifth, the European Union observes that other countries have likewise introduced

the same exception to the imports of seal products.387 This confirms that what is

behind the IC exception is an objective distinction, not a discriminatory one based

on origin.

289. Finally, the European Union considers that fact that some countries happen to have

–at a given moment– indigenous population and others do not may create an 384 Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal

products, COM (2008) 469 final, 23 July 2008 (Exhibit JE-9), Recital (13) and Article 3.2. 385 European Parliament, session document A6-0118/2009, 5 March 2009, p. 46, justification under

Amendment 21 (Exhibit JE-4) ("…the European public moral can only be sufficiently protected with a limited exemption for inuit communities, in line with the Parliament's request of 2006").

386 Council Directive 83/129 of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived therefrom (Exhibit CDA-12), Article 3 ("This Directive shall only apply to product~~ not resulting from traditional hunting by the Inuit people").

387 See e.g. Russia (Decision No 120 of the Board of the Eurasian Commission of 26 July 2012 (Exhibit EU – 26)).


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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. When the conditions under the IC exceptions are examined in practice,

i.e., in the actual circumstances of the market (as opposed to the mere terms in the

text of the EU Seal Regime),388 it can be observed that such type of hunt takes

places in many countries. Thus, the fact that hunts conducted by Inuit and other

indigenous communities in countries such as Canada and Norway represent a

lower percentage than in other countries, such as Greenland, cannot be found to be

discriminatory per se.

290. In sum, the European Union considers that there is no de jure discrimination in the

present case since the EU Seal Regime is origin-neutral on its face. The European

Union will show below that even when taking into account the circumstances in

which the EU Seal Regime is applied, there is no de facto discrimination in the

present case either.

3.2.3.3 The IC exception – no de facto discrimination

291. 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, because the east coast commercial harvest in Canada, from which the

products derived, does not meet the definition of 'indigenous' under the

[Indigenous Communities exception]",389 whereas "[s]eal products from

[Greenland] meet all the conditions set out in Article 3(1) of the Implementing

Regulation and are therefore entitled to be placed on the EU market".390

292. Canada's claim is entirely without merit. In fact, 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

388 Panel Report, US – COOL, para. 7.397 ("The very essence of the de jure / de facto dichotomy is that

the first involves an analysis focussing on the language of the measure at issue, whereas the second entails assessing how a measure with language that is not discriminatory on its face plays out in actual circumstances").

389 Canada's first written submission, paras. 323. 390 Canada's first written submission, paras. 306.


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both should be treated equally. However, 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.391 Indeed, it is not contested that around 5% of

Canadian seal products derived from Inuit hunts potentially fall within the IC

exception.392 Thus, comparing the treatment given to a sub-category of like

products (as opposed to the defined group) with another sub-category of the like

products from other origin is inappropriate to establish "less favourable treatment".

Simply put, such a narrow approach skews the analysis and makes the regulatory

distinction irrelevant (i.e., it fails to take into account that the regulatory

differentiation may pursue a legitimate objective). The Appellate Body has

recently cautioned against this type of shorthand analysis and, thus, the Panel

should reject it accordingly.393

293. 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 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.

294. Indeed, the Canadian seal products in similar situation to those of Greenland (i.e.,

those derived or obtained from traditional hunts by Inuit and other indigenous

communities for the purpose of their subsistence) receive identical treatment

pursuant to Article 3.1 of the Basic Regulation. Both can be placed on the EU

market. Canada does not appear to dispute that some of its seal products (i.e., those 391 As mentioned before, the relevant group of imported products also include seal products derived from

other types of hunts (see Canada's first written submission, para. 375, where Canada admits that between 5 and 10 per cent of its seal products can have access to the EU market).

392 See COWI Report (2010), para. 42 ("[A]pproximately 3 per cent of total catch in Canada derives from Inuit hunt, e.g. in the order of 10,000 skins a year (based on a 'normal' year)").

393 See Appellate Body Report, US – Clove Cigarettes, paras. 190 – 194, in particular para. 193 ("[T]he national treatment obligation of Article 2.1 does not require Members to accord no less favourable treatment to each and every imported product as compared to each and every domestic like product").


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hunted by Canadian Inuit) could be placed on the EU market in accordance to

Article 3.1 of the Basic Regulation.394

295. Nevertheless, the Canadian seal products that are in a different situation to those of

Greenland (i.e., those derived from commercial hunts versus those derived from

traditional hunts by Inuit and other indigenous communities for the purpose of

their subsistence) are treated differently by the EU Seal Regime. The same is

observed with respect to seal products from Greenland that are not derived from

hunts conducted by Inuit communities for the purpose of their subsistence.395

Contrary to what Canada (and Norway)396 suggests, not all seal products

originating in Greenland automatically fall under the IC exception.

296. It is undisputed that discrimination arises when two situations that are similar are

treated differently.397 In contrast, when two situations are different, there is no

discrimination if they are treated in a different manner.398 In the present case, as

394 See COWI Report (2008), pp. 25 and 26 (Inuit seal hunting in Canada) and COWI Report (2010), p.

27 ("The hunt and trading of seal products by Inuit communities in Canada is likely to be in line with all three above-mentioned steps as it is traditionally conducted in these communities and contributes to their subsistence") and Annex 5, p 7/30 ("The hunt and trading of seal products by Inuit communities in Canada thus complies with Article 3.1, as it is traditionally conducted in these communities and contributes to subsistence").

395 See e.g. COWI Report (2010), Annex 5, p. 17/30 ("It is unlikely that all of the Greenland harvest is eligible under Article 3.1"); 2012 Management and Utilization of seals in Greenland (Exhibit JE-26), p. 27 ("In 2008, with a service contract on 25,6 mill. DKKR between the Government of Greenland and Great Greenland A/S 20,5 mill. DKKR were paid directly to the commercial hunters in subsidies – corresponding to about 7,500 DKKR / 1,000 EURO to each and every commercial hunter in Greenland") (emphasis added); and Order of the General Court of 6 September 2011 (T-18/10), para. 81 (available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010TO0018%2804%29:EN:HTML), where it is stated that the Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK) (in English – the association of fishers and hunters in Greenland) "represents the Greenland Inuit and non-Inuit hunters and fishermen".

396 In this respect, the European Union observes that the references in footnotes 610 – 612 in Norway's first written submission do not support Norway's conclusion in Table 1 that 100% of catches in Greenland are derived from hunts conducted by Inuit communities.

397 See Appellate Body Report, Canada—Wheat Exports and Grain Imports, para. 87 ("When viewed in the abstract, the concept of discrimination may encompass both the making of distinctions between similar situations, as well as treating dissimilar situations in a formally identical manner"); and Appellate Body Report, EC – Tariff Preferences, paras. 152 – 156 ("It is clear from the ordinary meanings of 'nondiscriminatory', however, that preference-granting countries must make available identical tariff preferences to all similarly-situated beneficiaries. (…) It does not necessarily follow, however, that 'non-discriminatory' should be interpreted to require that preference-granting countries provide 'identical' tariff preferences under GSP schemes to 'all' developing countries").

398 The GATT panel in US – MFN Footwear also followed this approach in the contest of an MFN claim when stating that: "The Panel noted that Article I would in principle permit a contracting party to have different countervailing duty laws and procedures for different categories of products, or even to exempt one category of products from countervailing duty laws altogether. The mere fact that one

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will be shown below, the Canadian seal products derived from non-Inuit

commercial hunts are in a different situation to the Greenlandic seal products

obtained from Inuit hunts.

297. First, the Greenlandic seal products potentially399 covered by the IC exception

comprises traditional hunts by Inuit and other indigenous communities for the

purpose of their subsistence. As explained before, Inuit and other indigenous

communities need to hunt seals and market by-products in order to survive, either

by eating the seals they hunt or consuming their by-products themselves, or by

selling those by-products to pay for the expenses of their hunts and cover other

essential needs.400 In contrast, hunts carried out for commercial purposes are

different in nature. They are not to ensure the subsistence of the hunter, but to

ensure profit out of the marketing of inessential by-products. Thus, the purpose

behind the hunt is remarkably different in both situations.

298. Second, and equally important, the Greenlandic seal products potentially covered

by the IC exception relates to the intrinsic characteristic of the hunter, as Inuit or

other indigenous communities, which are broadly recognised as meriting a special

treatment,401 as well as traditionally and highly dependent on seal hunting. In

contrast, hunters engaged in commercial hunts do not pose such a relevant feature.

Contrary to what Canada suggests,402 the historical and socio-economic context of

Canadian hunters participating in the seal hunt are not by far the same as Inuit and

indigenous communities in Greenland. The indigenous status is an intrinsic and

relevant distinctive feature of the hunter that has widely recognition as meriting a

category of products is treated one way by the United States and another category of products is treated another is therefore in principle not inconsistent with the most-favoured-nation obligation of Article I:1" (GATT Panel Report, US – Denial of MFN Treatment as to Non-Rubber Footwear from Brazil (adopted on 19 June 1992), para. 6.11). Thus, the mere fact that one sub-category of products (i.e., Canadian seal products derived from non-Inuit commercial hunts) is treated one way (i.e., banning the placing on the EU market) and another sub-category of products (i.e., Greenlandic seal products obtained from Inuit hunts) is treated in another manner (i.e., by allowing access to the EU market) is in principle not inconsistent with the MFN obligation of Article I:1.

399 As mentioned below, currently there are no Greenlandic seal products placed on the EU market (see footnote 409 below of this submission).

400 See COWI Report (2010), pp. 28 – 30. 401 See paras 270 – 273 above about the recognition under public international law of that the interests of

Inuit and other indigenous communities must be protected. 402 Canada's first written submission, paras. 404 – 405.


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different treatment. Thus, the type of hunt, and in particular the nature of the

hunter involved in each situation, make them different.

299. Third, the intensity of the hunts conducted by Inuit and other indigenous

communities is lower than the intensity of commercial hunts. For instance, the

Greenlandic hunt is characterised by small boats and individual hunters, and it is

opportunistic rather than organised.403 In contrast, by comparison, while the

Canadian commercial seal hunting season is technically open for six months, the

majority of the killing spans just a few days or weeks, and is primarily focused on

killing the seal for fur.404 The total numbers of seals killed in the commercial seal

hunt also stands in stark contrast to indigenous hunts. Indeed, prior to the EU Seal

Regime, a single season of commercial seal hunting in Canada could involve over

300,000 seal deaths,405 as compared to 35,000 (Canadian Inuit hunt) and 180,000

(Greenland Inuit) for the entire year.406

300. Finally, as explained before,407 the moral perception of products from seals hunted

by Inuit and other indigenous communities as part of their traditional subsistence

practices is very different from products derived from seals hunted by a

commercial sealing industry. Indeed, the former are the result of a practice whose

inherent legitimacy (subsistence of indigenous people) overrides the concerns over

the killing methods for purely commercial motives.408 Therefore, both situations

are different.

301. The European Union observes that the IC exception is thus designed in an even-

handed manner. Indeed, Article 3.1 of the Basic Regulation, as elaborated by

Article 3.1 of the Implementing Regulation, specifies the requirements that seal

403 See COWI Report (2008), p. 44. 404 See Butterworth(2012) (Exhibit EU - 37), p. 8 ("3.6.4 Intensity of the Killing"). 405 See EFSA Opinion, p. 14. 406 See COWI Report (2010), p. 27; and COWI Report (2008), p. 46. 407 See paras. 262 – 268 above of this submission. 408 See Report of the Royal Commission on Seals and Sealing (1986), Volume 1, Chapter 11, "Public

Opinion on Sealing" (Exhibit EU-48), p. 169 (Table 11.6 Acceptability of Specified Hunts), where it can be seen the great levels of acceptability of hunts conducted by Inuit communities in stark comparison with large-scale commercial hunts. See also COWI Report (2008), pp. 125 and 126, showing that 84.7% of respondents indicated that hunting seals to use for fur and other non-essential products is not justified, and that there is a greater level of acceptance of the hunt if it is embedded in a traditional seal hunting culture.


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hunts carried out by Inuit and other indigenous communities must meet in order to

seal products be placed on the market: (i) it must be traditional hunting, in the

sense that there must be a tradition of seal hunting in the community and in the

geographical region; (ii) the products resulting from the hunting must be at least

partly used, consumed or processed within the communities according to their

tradition; and (iii) the seal hunt must contribute to the subsistence of the

community. As can be seen, those requirements are targeting strictu sensu the

situation of hunts by Inuit and indigenous communities that need hunting for the

purpose of their subsistence. None of the conditions mentioned above is designed

or applied in non-even handed manner as they clearly do not apply to situations

that are different in nature, such as commercial hunts by non-Inuit or non-

indigenous communities.

302. Consequently, the European Union submits that, contrary to what Canada asserts,

the IC exception does not result in "less favourable treatment" granted to the group

of Canadian seal products in comparison to the group of Greenlandic seal

products.409

3.2.4. Less Favourable Treatment – MRM exception

303. Canada argues that the EU Seal Regime is a de facto violation of the national

treatment obligation under Article 2.1 of the TBT Agreement 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.410

304. In particular, according to Canada, the EU Seal Regime, through the conditions

under the MRM exception, distinguishes between seal products derived or

manufactured from seals hunted as part of a marine management program with a

commercial element, and seal products derived or manufactured from seals hunted

as part of a marine management program with no commercial element. In Canada's

view, whether seals are hunted on a profit or non-profit basis is not relevant to the 409 In any event, the European Union also notes that in practice, since no entity in Greenland has yet been

recognised as a body entitled to issue the attesting documents required to place seal products under the IC exception on the EU market (see Articles 3.2, 6 and 7 of the Implementing Regulation), the treatment to Canadian seal products and Greenlandic seal products is the same (i.e., neither products can be placed on the EU market). Consequently, Canada's claim about less favourable treatment must also fail.



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efficacy of objectives relating to sustainable marine management and, thus,

distinguishing between seal products on this basis bears no rational connection to

the underlying objective.411 Similarly, Canada argues that the profitability element

of the hunts has no bearing on whether the seal is killed humanely and thus it is

unrelated to the central objective of the EU Seal Regime to address animal welfare

concerns.412 Moreover, Canada maintains that there is no rational connection

between the objective of promoting the sustainable management of seal

populations and restricting commerce in seal products. According to Canada, the

MRM exception arbitrarily favours marine management programs involving small

seal populations such as those in Finland, Sweden and the United Kingdom, whilst

discriminating against countries like Canada with larger number of seal population

to manage under those programs.413 Finally, Canada argues that the MRM

exception only eliminates profit-making at the hunt level, but allows profit-making

at the upstream level through the processing, manufacturing and retailing of seal

products. 414

305. As the European Union will show below, Canada's arguments should be

dismissed. The MRM exception does not provide for less favourable treatment to

the group of Canadian imported products.

306. As mentioned before, in the context of the national treatment obligation under

Article 2.1 of the TBT Agreement, the Appellate Body has noted that any

distinctions made by a regulatory scheme would not per se constitute "less

favourable treatment" within the meaning of Article 2.1.415 A panel must further

examine whether the detrimental impact on imports stems exclusively from a

legitimate regulatory distinction rather than reflecting discrimination against the

group of imported products. In making this determination, a panel must carefully

scrutinise the particular circumstances of the case, that is, the design, architecture,

revealing structure, operation, and application of the technical regulation at issue,

and, in particular, whether that technical regulation is even-handed, in order to

411 Canada's first written submission, para. 390. 412 Canada's first written submission, para. 391. 413 Canada's first written submission, para. 391 bis. 414 Canada's first written submission, para. 392. 415 Appellate Body Report, US – Tuna II (Mexico), para. 211.


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determine whether it discriminates against the group of imported products.416

Where a regulatory distinction is not designed and applied in an even-handed

manner (because, for example, it is designed or applied in a manner that constitutes

a means of arbitrary or unjustifiable discrimination) that distinction cannot be

considered "legitimate".417

307. In the sections below, first, the European Union will demonstrate that the objective

pursued by the MRM exception is "legitimate". Second, the European Union will

establish that the MRM exception does not de jure discriminate by reasons of

origin. Third, the European Union will show that any detrimental impact on

Canadian imports derived from the MRM exception stems exclusively from a

legitimate regulatory distinction rather than reflecting discrimination against the

group of imported products. Thus, the MRM exception does not de facto

discriminate against the group of Canadian imported products.

3.2.4.1 Legitimate objective behind the MRM exception

308. To begin with, the European Union observes that Canada wrongly identifies the

objective behind that MRM exception as "relating to sustainable marine

management".418 As explained before, the MRM exception takes into account that,

alongside large-scale seal hunts carried out mainly for commercial purposes, there

exist also small-scale hunts conducted occasionally with the sole purpose of

ensuring a sustainable management of marine resources. Thus, like the objective

behind the Inuit exception, it is the type and purpose behind the hunt in the case of

the MRM exception what is relevant and considered as morally acceptable (i.e.,

small-scale hunts for the purpose of managing marine resources). The size,

intensity and purpose of the hunts falling under the MRM exception overrides the

concerns over the killing methods for purely commercial motives.419

416 Appellate Body Report, US – Clove Cigarettes, para. 182. See also Appellate Body Report, US – Tuna

II (Mexico), paras. 211, 215 and 231. 417 Appellate Body Report, US – COOL, para. 271. 418 Canada's first written submission, para. 390. 419 See Management Plan for the Finnish Seal Population in the Baltic Sea (Exhibit CDA-51), pp. 45 - 47

("5.5. Local attitudes towards seals" " The replies suggested that efficient hunting was one of the main tools to reduce damage by seals"). See also Report of the Royal Commission on Seals and Sealing (1986), Volume 1, Chapter 11, "Public Opinion on Sealing" (Exhibit EU-48), p. 169 (Table 11.6 Acceptability of Specified Hunts), where it can be seen the high level of rejection of large-scale commercial hunts.


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309. The objective pursued by the MRM exception is reflected in the opinion of the

European Parliament's Committee on Agriculture and Rural Development as

follows:

By not applying the blanket ban solely to commercial hunting and by not providing a definition of commercial hunting, the Commission proposal is, in some instances, liable to have the opposite effect to the one sought, which is to reduce animal suffering.

Indeed, in some cases, seals are not hunted for commercial purposes but simply to eliminate them, since they are viewed as pests that endanger fish stocks. In such cases, even direct consumption is a secondary consideration. If the regulation were to be applied in its current form, hunters would therefore no longer be able to derive any financial benefit, no matter how small, from their activities. That ban on trade would be liable to lead to an increase in poaching and to hunters shooting seals without caring which part of the body had been hit or checking whether the animal was dead or not.

(..)

It would therefore be appropriate to draw a distinction between large-scale commercial hunting and occasional hunting which, by definition, can only involve a limited number of animals.420

310. This opinion was echoed by some EU Member States during the debates within the

EU Council. In particular, Finland noted that:

Finland is committed to the highest animal welfare standards and this objective of the proposal in this respect is most welcome. Seals cause problems to fisheries by damaging gears and catches. As a part of the comprehensive national Baltic seal management plan, measures to address this problem have been taken. Based on the management plan about 500 seals are hunted yearly. The seals are not hunted only as pests but they are used as a natural resource for livelyhood and also as a means to generate income. Prohibiting this possibility for income at the local level would lead to a waste of resources as the hunting would continue without the possibility to make proper use the seals. Finland sees the possibility for a derogation as an essential and integral part of the proposal.421

311. Similarly, Sweden stated that:

420 European Parliament, Session Document A6-0118/2009, 5 March 2009, p. 57 (Exhibit JE - 4). 421 Council of the European Union, Member States’ Comments on the Proposal for a Regulation

Concerning Trade in Seal Products, 5404/09 (19 January 2009) (Exhibit JE-10), p. 16.


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Our preference would be to introduce a second exemption possibility for seal products originating from states with small scale, statutory controlled hunting with the main purpose to reduce damages from fisheries and which is done in accordance with a management plan. The EP rapporteur from the AGRI Committee (Ms Mathieu) have suggested something along these lines in her draft report - AM 13, doc no 2008/0160 (COD).422

312. All these concerns crystallised in the MRM exception contained in Article 3.2 (b)

of the Basic Regulation, which states that, "by way of derogation" from the general

prohibition stipulated in Article 3.1, the placing of seal products on the market:

[…] shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons.

313. The conditions for the application of this exception are specified in Article 4 of the

Implementing Regulation:

1. Seal products resulting from marine resources management may only be placed on the market where it can be established that they originate from seal hunts which satisfy all of the following conditions:

(a) seal hunts conducted under a national or regional natural resources management plan which uses scientific population models of marine resources and applies the ecosystem-based approach;

(b) seal hunts which does not exceed the total allowable catch quota established in accordance with the plan referred to in point (a);

(c) seal hunts the by-products of which are placed on the market in a non-systematic way on a non-profit basis.


314. For the purposes of this exception, the Implementing Regulation defines "placing

on the market on a non-profit basis" as:

422 Council of the European Union, Member States’ Comments on the Proposal for a Regulation

Concerning Trade in Seal Products, 5404/09 (19 January 2009) (Exhibit JE-10), p. 18.


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placing on the market for a price less than or equal to the recovery of the costs borne by the hunter reduced by the amount of any subsidies received in relation to the hunt.423

315. 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". In this respect, the objective behind the MRM exception is "rationally

connected" to the main objective of the EU Seal Regime. Indeed, prohibiting the

placing on the market of the seal products resulting from the MRM exception

would not prevent the killing of seals, as those hunts are not conducted for

commercial purposes but rather to reduce damage to fisheries. In other words,

since the EU Seal Regime does not regulate "hunts" in general but the placing on

the market of seal products derived from certain types of hunts, seal hunts for the

purpose of managing marine resources could continue taking place.

316. In turn, the MRM exception permits hunters participating in those small-scale

hunts to recoup their costs by placing on the market the seal products, which

makes it more likely that they will not resort to inappropriate killing methods (such

as e.g. shooting seals in situations where they cannot be easily retrieved, thereby

increasing the likelihood of "struck-and-loss"). In addition, applying the General

Ban to this type of hunts would produce a wasteful result in the form of abandoned

carcasses, an outcome which is morally undesirable. Last but not least, this type of

hunt reduces the risk to seals being trapped and drowned by accident in fishing

gear, with the corresponding pain and suffering to the animal. Indeed, many

incidental catches cause damage to fishing gear because the animal is trapped

accidentally.424 Thus, contrary to what Canada suggests,425 the objective behind

the MRM exception is "rationally connected" to the main objective pursued by the

423 Article 2.2 of the Implementing Regulation. 424 See Swedish Environmental Protection Agency, HELCOM Baltic Seal Hunting (Exhibit CDA-54), p.

25 ("Incidental Catches. Fishing gear constitutes a risk to seals of being trapped and of drowning. The occurrence of incidental catches has been researched through interviewing 151 Swedish Baltic Sea coastal fishermen. The questions concerned the number of drowned grey seals in the fishing gear during the 1996 fishing season. By estimating the interviewed fishermen’s relative share of the total catch in the whole of Swedish fishing, an extrapolation is made to give the total number of seals drowned. The interviews showed 176 incidental catches of grey seal and their distribution between different types of fishing gear. Conversion for all fishing gives a total of approximately 400 drowned grey seals along the Swedish coast that year").



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General Ban and is not limited to pursue objectives relating to sustainable marine

management.

317. Consequently, the European Union maintains that the objective behind the MRM

exception (i.e., permitting seal products derived from small-scale hunts for the

purpose of managing marine resources) is "legitimate" in the context of Article 2.1

of the TBT Agreement. The MRM exception addresses the longstanding moral

concerns of the EU public with regard to the presence on the EU market of seal

products by permitting the placing of certain seal products on the EU market in

view of the morally acceptable type and purpose behind the hunt in the case of the

MRM exception (i.e., small-scale hunts for the purpose of managing marine

resources).

3.2.4.2 The MRM exception – no de jure discrimination

318. Even if Canada merely argues that the EU Seal Regime is a de facto violation of

the national treatment obligation under Article 2.1 of the TBT Agreement because

of the MRM exception,426 the European Union will show below that the MRM

exception is origin-neutral on its face and, thus, there is no de jure discrimination.

319. Indeed, under the MRM exception, seal products are allowed to be placed on the

EU market if the following origin-neutral conditions are met: (i) that the seal

products result from by-products of hunting that is regulated by national law and

conducted for the sole purpose of the sustainable management of marine resources;

(ii) that seal products originate from hunts conducted under a national or regional

natural resources management plan which uses scientific population models of

marine resources and applies the ecosystem-based approach; (iii) that seal products

originate from hunts which do not exceed the total allowable catch quota

established in accordance with the abovementioned natural resources management

plan; and (iv) that seal products originate from hunts the by-products of which are

placed on the market in a non-systematic way 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).427

426 Canada's first written submission, para. 375. 427 See Article 3.2(b) of the Basic Regulation and Article 5 of the Implementing Regulation.


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320. None of the above conditions explicitly refer to the origin of particular products;

rather, they refer to the type of hunt from which seal products are derived or

obtained from and its non-commercial nature. Thus, the terms of the MRM

exception do not refer to nationality or origin and, in principle, any hunt in the

world falling under the MRM exception can benefit from it.428 And indeed, the

European Union observes that small-scale hunts or hunts for the purpose of

managing marine resources are or may be conducted in some regions of several

countries within429 and outside the European Union.430

321. In sum, the conditions set out by the MRM exception do not relate to origin, but to

the type and purpose of the hunt.

3.2.4.3 The MRM exception – no de facto discrimination

322. Canada argues that 90-95% of its seal products, which derive from large-scale

commercial hunts, cannot be placed on the EU market whereas seal products of

certain EU Member States may potentially be placed on the market because they

fall within the scope of the MRM exception. In view of this, Canada submits that

the EU Seal Regime provides for less favourable treatment to imported products in

comparison to domestic like products.431

323. The European Union considers that, like in the case of the Inuit exception,

Canada's arguments should be rejected in full. Fundamentally, Canada ignores that

the relevant comparison for the purpose of determining whether there is less

favourable treatment in the context of Article 2.1 of the TBT Agreement should be

428 Of note, seal hunts take place in many countries in the world, including Finland, Canada, Greenland,

the United Kingdom (Scotland), Iceland, Russia, Sweden, the United States (Alaska), Namibia, Norway, Ireland, Australia, New Zealand, South Africa, Argentina, Brazil, Chile, Falkland Islands, Peru, Uruguay and Colombia (see EFSA Opinion (Exhibit EU-30), pp. 13 – 19); see also http://www.iucnredlist.org/details/2055/0).

429 E.g., Finland (COWI Report (2008), p. 35; COWI Report (2010), Annex 4, p. 2; and Management Plan for the Finnish Seal Population in the Baltic Sea (Exhibit CDA-51), pp. 37 – 43) and Sweden (COWI Report (2008), p. 78, and COWI Report (2010), Annex 4, p. 5).

430 E.g. Norway (COWI Report (2008), p. 61 ("Coastal hunt"); COWI Report (2010), Annex 4, p. 3; Norwegian Scientific Committee for Food Safety (“VKM”), Panel on Animal Health and Welfare, Scientific Opinion on Animal Welfare Aspects of the Killing and Skinning in the Norwegian Seal Hunt (8 October 2007) (Exhibit JE-31), p. 19 ("Coastal seal management"); and Norway's first written submission, paras. 52 – 55); Canada (Canada's first written submission, paras. 60 and 391 bis); and Iceland (EFSA Opinion (Exhibit EU - 30), p. 32 ("In recent years, approximately 200-400 harbour seals and somewhat fewer grey seals have been taken annually")).


http://www.iucnredlist.org/details/2055/0


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made between the group of Canadian imported products and the group of domestic

like products. As explained before, comparing the treatment given to a sub-

category of like products (as opposed to the defined group) with another sub-

category of the like domestic products is inappropriate to establish "less favourable

treatment". Such approach fails to take into account that the regulatory

differentiation between narrower sub-categories may pursue a legitimate

objective.432

324. When the treatment granted to the group of Canadian seal products (including both

seal products derived from Inuit and large-scale commercial hunts) is compared to

the treatment granted to the group of like products from domestic/other origin

covered by the EU Seal Regime (including seal products derived from Inuit and

small-scale/non-profit hunts), the result is that no discrimination arises.

325. Indeed, the Canadian seal products in similar situation to those of domestic or

other origin (i.e., those derived or obtained from Inuit hunts) receive identical

treatment pursuant to Article 3.1 of the Basic Regulation. However, Canadian seal

products derived or obtained from commercial hunts are in a different situation to

those of certain EU Member States (i.e., those derived from small-scale hunts for

the purpose of managing marine resources), and thus, when the EU Seal Regime

treats them differently, there is no discrimination.

326. First, commercial hunts are carried out with a commercial objective behind the

killing of the seal. In general terms, the more seals the commercial hunter kills, the

higher return the hunter will obtain. In cases where hunts are subject to maximum

TAC433 quotas, because the hunt is stopped when it becomes apparent the TAC

will be reached, participants also have an incentive to hunt as rapidly as possible to

maximise their share of the TAC. Thus, the commercial hunter seeks to kill a

maximum number of seals (large-scale) in the already reduced time-periods where

seal hunts take place and in the extreme conditions of those hunts. This increases

the changes of suffering by seals. In contrast, small-scale hunts for the purpose of

432 See Appellate Body Report, US – Clove Cigarettes, paras. 190 – 194, in particular para. 193 ("[T]he

national treatment obligation of Article 2.1 does not require Members to accord no less favourable treatment to each and every imported product as compared to each and every domestic like product").

433 "Total Allowable Catch".


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managing marine resources are carried out with the purpose of controlling seal

population and the damage seals may cause to fisheries and the eco-system in

certain regions of the world. The number of seals that need to be killed as well as

the periodicity of the hunts are much less intense (hundreds of seals occasionally)

in comparison to commercial hunts (thousands or hundreds of thousands every

year). Thus, the size, intensity and purpose behind the hunt makes commercial and

small-scale hunts a different situation.

327. Second, commercial hunts primarily are carried out in order to later obtain fur for

manufacturing inessential items. In contrast, small-scale hunts for the purpose of

managing marine resources do not aim at resulting into inessential by-products that

would maximise profits. Rather, they seek to ensure that the products derived from

those hunts are, simply, not wasted. Naturally, absent any incentive to make

products that maximise returns, by-products resulting from these hunts do not find

their ways in the traditional commercial channels.434

328. Third, commercial hunts are made to obtain profits. Contrary to what Canada

asserts,435 the fact that by-products can be sold on the market with profit creates a

natural incentive to the hunter to kill more seals and also disregard the manner in

which those seals are killed. In contrast, removing such an incentive permits the

hunter to reduce the scale of its hunts and focus on the primary objective of

reducing the seal population in the specific manner foreseen by the management

plan.

329. Fourth, as explained before,436 the moral perception of products from seals hunted

for managing marine resources is very different from products derived from seals

hunted for purely commercial purposes. The EU citizens and their elected

representatives' main concern has always been focused on commercial seal hunting

due to factors such as the intensity of the hunt, which contribute to making the 434 See e.g. Management Plan for the Finnish Seal Population in the Baltic Sea (Exhibit CDA-51), p. 44

("Grey seal products are made into end products on a small scale and at the local level"); COWI Report (2010), p. 67 ("Hunters process the seals themselves, there are no collecting stations. (…) By-products are mainly sold to local and regional markets; products rarely end up outside these markets"); and COWI Report (2008), p. 36 ("Products made of seals are exclusive and have coastal brands that attract tourists; the entire seal is used – meat for restaurants, fur details in souvenirs, leather, whole pelts, blubber for oil painting, bones for jewellery").

435 Canada's first written submission, para. 390. 436 See paras. 308 – 317 above of this submission.


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commercial seal hunt inherently inhumane, as well as the scale of the killing and

suffering. For example, the Basic Regulation talks about how citizens are

concerned about the suffering involved in the "killing and skinning of seals (…) as

they are most frequently performed".437 Thus, the size, intensity and purpose of the

hunts falling under the MRM exception overrides the concerns over the killing

methods for purely commercial motives.438 Therefore, both situations are different.

330. The European Union notes that the MRM exception is subject to very strict

conditions, which limit considerably its scope of application and ensures

conformity with the rationale behind the General Ban.439 In this sense, the MRM

exception is designed in an even-handed manner and does not go beyond what it is

necessary to achieve its purpose i.e., permitting seal products derived from small-

scale hunts for the purpose of managing marine resources.

331. Indeed, the MRM exception requires that seal hunts are regulated by national law,

conducted for the sole purpose of the sustainable management of marine resources

and in accordance with a national or regional natural resources management plan

which uses scientific population models of marine resources and applies the

ecosystem-based approach.440 This requirement ensures the by-products falling

under the MRM exception are strictu sensu the result of hunts conducted for the

sole purpose of managing marine resources taking into account the balance

between the seal population and the adequate level of fisheries to preserve the eco-

system of the region. It also ensures that the only reason for killing the animal is

for the management of marine resources.

332. Moreover, the MRM exception requires that seal products result from hunts which

do not exceed the total allowable catch (TAC) quota established in accordance

437 See Basic Regulation, Recital (4) (emphasis added). 438 See Management Plan for the Finnish Seal Population in the Baltic Sea (Exhibit CDA-51), pp. 45 - 47

("5.5. Local attitudes towards seals" " The replies suggested that efficient hunting was one of the main tools to reduce damage by seals"). See also Report of the Royal Commission on Seals and Sealing (1986), Volume 1, Chapter 11, "Public Opinion on Sealing" (Exhibit EU-48), p. 169 (Table 11.6 Acceptability of Specified Hunts), where it can be seen the high level of rejection of large-scale commercial hunts.

439 Article 3(2) of the Basic Regulation ("The application of this paragraph shall not undermine the achievement of the objective of this Regulation").

440 See Article 3.2(b) of the Basic Regulation and Article 5(a) of the Implementing Regulation.


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with the abovementioned natural resources management plan. 441 This looks into

the practical application of the management plan and ensures that by-products

falling within the MRM exception are indeed the results of those hunts. In other

words, it aims at excluding by-products in situations where there is a management

plan stating a TAC quota of 300 seals but, in practice, there is evidence that seals

are hunted well exceeding such quota (e.g., 10,000 seals).442

333. Finally, the MRM exception requires that seal products originate from hunts the

by-products of which are placed on the market in a non-systematic way and on a

non-profit basis, i.e., at a price not exceeding the recovery of the costs borne to kill

the seals.443 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.444 This

ensures the small-scale, low intensity and non-commercial purpose of the hunt

(i.e., that there is no commercial objective behind the killing of the seal). Indeed,

by-products resulting from commercial hunts are regularly and systematically

introduced into commerce through the well-established distribution channels and

in order to make profit. This multiplies the incentive of hunters to kill as many

seals as they can, disregarding the manner in which they are hunted. In contrast,

the sporadic nature of the seal hunts covered by the MRM exception ensures that

hunters would not be moved by commercial incentives, but rather by the main

purpose of the hunts, i.e., reduce the number of seals in order to protect the eco-

system. At the same time, the non-profitability of the placing on the market of by-

products resulting from those hunts eliminates any commercial incentive that the

hunter may have to kill a larger number of seals. The non-profitability condition

both allows hunters to recoup their costs (which otherwise would be lost) by

selling their products and reduces the chances that the animal will be wasted.

441 See Article 5(b) of the Implementing Regulation. 442 See e.g., Canadian Department of Fisheries and Oceans, Canadian Commercial Seal Harvest

Overview 2011, statistical and economic analysis series (October 2012) (Exhibit JE-27), p. 8 (Table 8: Harp Seal Stock, TAC and Total Harvests, 1990-2011p).

443 See Article 2(2) of the Implementing Regulation, where it is further specified that any subsidy provided by a government in connection with a sustainable management hunt would have to be added for purposes of the "non-profit" requirement.

444 See Article 3.2(b) of the Basic Regulation and Article 5(c) of the Implementing Regulation.


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334. Contrary to what Canada suggests,445 the fact that the MRM exception does not

address what happens when the by-product derived from those hunts are sold in the

EU market for further processing, and in particular, that the MRM exception

allows for profit-making at the downstream level, is irrelevant and does not show

lack of even-handedness. Indeed, the MRM exception i.a. aims at affecting the

conduct of the hunter by eliminating the incentives hunters may have to kill many

seals in an inhumane manner causing avoidable pain, distress and any other form

of suffering. The fact that other manufactures or processors down the line can

make profits when further processing those products does not affect the hunter's

behaviour when hunting those animals. Thus, Canada's observation does not show

lack of even-handedness.

335. Consequently, the European Union submits that, contrary to what Canada claims,

the MRM exception does not result in "less favourable treatment" to the group of

Canadian seal products in comparison to the group of domestic seal products.446

3.2.5. Conclusion

336. In light of the foregoing, the European Union submits that the EU Seal Regime,

and in particular the IC and MRM exceptions, is consistent with Article 2.1 of the

TBT Agreement.

3.3. ARTICLE 2.2 OF THE TBT AGREEMENT

337. 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.

338. More specifically, the European Union will show in this section that the measure

at issue has neither the purpose nor the effect of creating "unnecessary obstacles to

trade", given that:

445 Canada's first written submission, para. 392. 446 In any event, the European Union also notes that, since the MRM exception is origin neutral, Canada

and Norway could also carry out those hunts, which would ultimately allow them to place their by-products on the EU market. However, they have failed to do so and indeed they have not even requested any of its entities to be included in the list of recognised bodies that can issue attesting documents under Article 5.2 of the Implementing Regulation.


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• it pursues a legitimate objective; and

• it is not more trade-restrictive than necessary in order to fulfil that objective.

3.3.1. The legal test

339. Article 2.2 of the TBT Agreement provides that:

Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.

340. The first sentence and the second sentence of Article 2.2 of the TBT Agreement do

not create separate and distinct obligations.447 Rather, the first sentence sets out a

general principle, the meaning of which is explained and defined in the second

sentence. In the words of the Appellate Body, the second sentence "informs the

scope and meaning of the obligation contained in the first sentence".448

341. The terms of Article 2.2 of the TBT Agreement calls for a two-step analysis.449

More specifically, in order to establish a violation of Article 2.2 of the TBT

Agreement, the complaining party must show that:

• the objective pursued by the measure is not "legitimate"; or

• if the objective is legitimate, that the measure is more "trade restrictive than

necessary".

447 Panel report, US- Clove Cigarettes, para. 7.330; Panel report, US – Tuna II (Mexico), para. 7.387;

Panel report, US – COOL, para. 7.552. 448 Appellate Body Report, US – Tuna II (Mexico), para. 318; Appellate Body Report, US – COOL, para.

369. 449 Panel report, US – Clove Cigarettes, para. 7.133; Panel report, US – Tuna Dolphin II (Mexico), para.

7.387.


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3.3.1.1 Legitimate objective

342. As noted by the Appellate Body in EC - Sardines, the TBT Agreement

"acknowledges the right of every WTO Member to establish for itself the

objectives of its technical regulations".450

343. In identifying the objective pursued by a Member's measure, the panel must take

account of the objective declared by that Member, even if the panel is not bound

by such declaration.451 In making its own assessment, the panel must take account

of all the evidence put before it, "including the texts of statutes, legislative history,

and other evidence regarding the structure and operation" of the technical

regulation at issue.452

344. Once a panel has identified the objective of the measure at issue, it must determine

whether such objective is "legitimate". According to the Appellate Boy, the terms

"legitimate objective" refer to "an aim that is lawful, justifiable or proper."453

345. Article 2.2 TBT lists specific examples of "legitimate objectives". As confirmed

by the Appellate Body, however, the use of the words "inter alia" in Article 2.2

signify that the list of objectives is not a closed one.454 Therefore, other objectives

which are not explicitly mentioned in Article 2.2 may very well be equally

"legitimate" under the TBT Agreement. The Appellate Body has further indicated

that, in particular, the objectives recognized in the provisions of other covered

agreements may provide guidance for, or may inform, the analysis of what might

be considered to be a legitimate objective under Article 2.2.455

450 Appellate Body Report, EC – Sardines, para. 276. 451 Appellate Body Report, US – Tuna II (Mexico), para. 314; Appellate Body report, US – COOL, para.

371. 452 Appellate Body Report, US – Tuna II (Mexico), para. 314; Appellate Body report, US – COOL, para.

371. 453 Appellate Body Report, US – Tuna II (Mexico), para. 313; Appellate Body Report, US – COOL, para.



370.


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3.3.1.2 No more trade-restrictive than necessary

346. The Appellate Body has explained that the phrase "to fulfil a legitimate objective"

in Article 2.2 TBT is not to be understood as requiring that the measure at issue be

aimed at achieving completely the objective that it pursues.456

347. As recognised expressly in the sixth recital of the preamble to the TBT Agreement,

each Member is free to take measures in order to achieve its legitimate objectives

"at the level it considers appropriate". In other words, it is for each Member to

articulate its own 'level of protection', or 'level of fulfilment', of the legitimate

objective.

348. To the extent that scientific evidence is relevant for setting a Member's policy

objective or for selecting its level of fulfilment of that objective, that Member is

not required to follow the majority scientific opinion.457 A Member is also entitled

to rely, in good faith, on scientific sources which, at that time, may represent a

divergent, but qualified and respected opinion.458

349. The Appellate Body has further clarified that the intended level of fulfilment need

not be explicitly stated in the measure concerned.459 Nor is it for the panel to

discern, in the abstract, such level of fulfilment. Rather, the panel's task is to asses

the degree to which a technical regulation contributes to the legitimate objective

which it pursues.460

350. On the basis of the above considerations, the Appellate Body has explained that an

assessment of whether a technical regulation is "more trade-restrictive than

necessary" within the meaning of Article 2.2 TBT "involves an evaluation of a

number of factors"461. Specifically, according to the Appellate Body, a panel

should begin by considering factors that include:

456 Appellate Body Report, US – Tuna II (Mexico), para. 315; Appellate Body Report, US – COOL, para.

373. 457 See, by analogy, Appellate Body Report, EC – Asbestos, para. 178. 458 See, by analogy, Appellate Body Report, EC – Asbestos, para. 178. 459 Appellate Body Report, US – Tuna II (Mexico), para. 316; Appellate Body Report, US – COOL, para.

373. 460 Appellate Body Report, US – COOL, paras. 390 and 426. 461 Appellate Body Report, US – Tuna II (Mexico), para. 322; Appellate Body Report, US – COOL, para.

471.


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• "the degree of contribution made by the measure to the legitimate objective at

issue"462;

• "the trade-restrictiveness of the measure"463; and

• "the nature of the risks at issue and the gravity of consequences that would

arise from non-fulfilment of the objective(s) pursued by the Member through

the measure".464

351. Following an analysis of the above factors, the panel should, in most cases,

undertake "a comparison of the challenged measure and possible alternative

measures".465 According to the Appellate Body, for the purpose of this comparison

it may be relevant to consider

• "whether the proposed alternative is less trade restrictive"466;

• "whether it would make an equivalent contribution to the relevant legitimate

objective, taking account of the risks non-fulfilment would create"467; and

• "whether it is reasonably available"468.

3.3.2. Burden of proof

352. Under Article 2.2 TBT, the complainant bears the burden of proving that the

measure at issue creates an unnecessary obstacle to international trade, either

because it does not pursue a legitimate objective or because it is more trade-

restrictive than necessary.

462 Appellate Body Report, US – Tuna II (Mexico), para. 322; Appellate Body Report, US – COOL, para.







471.


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353. The Appellate Body has elaborated as follows on the burden of proof of the

complainant under Article 2.2 TBT:

With respect to the burden of proof in showing that a technical regulation is inconsistent with Article 2.2, the complainant must prove its claim that the challenged measure creates an unnecessary obstacle to international trade. In order to make a prima facie case, the complainant must present evidence and arguments sufficient to establish that the challenged measure is more trade restrictive than necessary to achieve the contribution it makes to the legitimate objectives, taking account of the risks non-fulfilment would create. In making its prima facie case, a complainant may also seek to identify a possible alternative measure that is less trade restrictive, makes an equivalent contribution to the relevant objective, and is reasonably available. It is then for the respondent to rebut the complainant's prima facie case, by presenting evidence and arguments showing that the challenged measure is not more trade restrictive than necessary to achieve the contribution it makes toward the objective pursued and by demonstrating, for example, that the alternative measure identified by the complainant is not, in fact, "reasonably available", is not less trade restrictive, or does not make an equivalent contribution to the achievement of the relevant legitimate objective.469

3.3.3. The measure pursues a legitimate objective

354. The European Union has identified the policy objective pursued by the EU Seal

Regime in Section 2.2 of this submission. The European Union submits that, for

the reasons set out in Section 2.3, that policy objective is a legitimate objective for

the purposes of Article 2.2 TBT.

355. Unlike Article XX GATT, Article 2.2 TBT does not mention explicitly the

protection of public morals as a legitimate objective. But, as recalled above, 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 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." 470

469 Appellate Body Report, US – Tuna II (Mexico), para. 322 (footnote omitted); Appellate Body Report,

US – COOL, para. 378. 470 Second paragraph of the preamble to the TBT Agreement.


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356. The European Union further notes that 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"471 to the protection of animal life or health, one of the

objectives expressly mentioned in Article 2.2 TBT, as well as in Article XX(b) of

the GATT.

3.3.4. The measure is not more trade-restrictive than necessary

3.3.4.1 The trade restrictiveness of the measure

357. 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

aims 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.

358. 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 trade-

restrictive if they discriminated in favour of domestic seal products or between

different sources of imports. But, as shown above in response to the claims under

Article 2.1 TBT, neither the IC nor the MRM exception are discriminatory. As

regards the Travellers exception, neither of the complaining parties has even

claimed that it is inconsistent with Article 2.1 TBT. Since the exceptions are not

trade-restrictive, they do not require justification under Article 2.2 TBT.

3.3.4.2 Degree of contribution to the legitimate objective

359. As explained above472, through the General Ban the EU Seal Regime makes a very

substantial contribution to its policy objective. 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 471 Norway's first written submission, para. 633. According to Canada, animal welfare "appears to fall

within the scope of the specified legitimate objective of animal health" (Canada's first written submission, para. 457).

472 See above Section 2.2.2.


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which are killed every year in a manner that may cause them excessive suffering,

thereby contributing to the welfare of seals.

360. In spite of this, the complaining parties contend that the EU Seal Regime makes no

contribution whatsoever to what they consider to be its main policy objective (i.e.

animal welfare) because none of the three exceptions is subject to any explicit

animal welfare requirements.473 As explained below, this allegation is misguided

for several reasons.

361. First, the EU Seal Regime seeks to address the moral concerns of the EU public.

Improving the welfare of seals is just one of the two ways in which the General

Ban contributes to this objective. 474

362. Second, the exceptions to the General Ban are not trade-restrictive and, therefore,

do not have to be justified under Article 2.2 TBT. Instead, it is the restrictive

effects of the General Ban which need to be justified under that provision. By

focusing exclusively on the conditions attached to the exceptions, the complaining

parties seek to draw the Panel's attention away from the obvious fact that the

General Ban does make a major contribution to the achievement of the objective

pursued by the EU Seal Regime.

363. Third, the exceptions do not undermine the objective of the EU Seal Regime,

which, to repeat, seeks to address the moral concerns of the EU public. As

explained in Section 2.2, the IC exception and the MRM exception are based on

moral grounds. If 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.

364. Fourth, while the contribution of the EU Seal Regime to the welfare of seals could

have been even greater in the absence of any exceptions475, this does not mean that

the General Ban makes no contribution at all to the welfare of seals. The aptitude

473 Canada's first written submission, paras. 480-496. Norway's first written submission, paras. 677-704. 474 See above Section 2.2.2. 475 As explained in Section 2.2, however, the absence of the MRM exception could have

counterproductive effects in terms of animal welfare.


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of the General Ban to significantly reduce the global demand for seal products, and

consequently the number of seals killed in a way which may cause them excessive

suffering, is beyond question and has been acknowledged elsewhere by the

complaining parties. Thus Canada laments that:476

While Canadian exports of raw seal skins, marine mammal fats and oils, and seal meat and offal sharply increased from 2001 to 2006-07, they dropped almost as drastically during the subsequent years. In 2010, the export value of those commodities combined dropped to CAD 2.2 million, a decrease of 88 percent compared to 2006 and of 83 percent compared to 2007.

While there may be other factors explaining the drastic decrease of Canadian exports of seal products in recent years, including ice conditions and the recent economic downturn, there can be little doubt that a key contributing factor is the restrictions on seal products in the European Union. The 2007 Belgian and the Dutch prohibitions and the 2009 EU Seal Regime have had significant negative impacts on the Canadian industry’s ability to export seal products by decreasing the demand for such products.

365. Fifth, both the Travellers exception and the MRM exception have been very

narrowly defined and apply to a very small volume of trade. The IC exception has,

potentially, a broader scope of application. But the complaining parties' allegation

that imports from Greenland under the IC exception will replace entirely imports

from other sources, so that global demand will remain unaffected is speculative

and implausible.477 That allegation relies on little else than an unsupported

assertion by an individual member of European Parliament.478 The complaining

parties overlook that a large part of the seals hunted in Greenland (in some years

more than 50 %) is used for subsistence purposes and not traded.479 Furthermore,

the complaining parties assume that any products obtained from seals hunted by

any member of an indigenous community will necessarily qualify for the IC

exception.480 Yet, by its own terms, the IC exception only applies with regard to

476 Canada's first written submission, paras. 80-81. 477 Canada's first written submission, paras. 487-488. Norway's first written submission, para. 683. 478 MEP Diana Wallis. As explained above, her views were overwhelmingly rejected by the IMCO

Committee and, eventually, by the European Parliament. 479 2012 Management and Utilization of Seals in Greenland, p. 27. (Exhibit JE – 26). 480 The complaining parties base this assumption on an opinion casually expressed in the 2010 COWI

Report (Exhibit JE – 21). However, COWI had neither the authority, nor the qualifications nor the mandate to engage in the legal interpretation of the Basic Regulation. It should be noted, furthermore, that the Implementing Regulation, which specifies the conditions for qualifying for the IC exception, had not even been adopted at the time when the COWI report was issued.


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seal products from hunts "traditionally conducted" by the indigenous communities

and which "contribute to their subsistence".481 These conditions have been further

specified in the Implementing Regulation.482 It will be for the recognised bodies

approved by the Commission pursuant to the Implementing Regulation to verify to

which extent each of the various hunts conducted in Greenland meets those

conditions.

366. The complaining parties also argue that the exceptions make no contribution, or

only a limited contribution, to what they assume to be the respective objective of

each of them.483 As explained above, however, the complaining parties have

misunderstood the relationship between the exceptions and the General Ban, as

well as the grounds for each of the exceptions.484 Moreover, since none of the

three exceptions is trade-restrictive, they do not have to be justified under Article

2.2 TBT. Therefore, the arguments submitted by the complaining parties in order

to deny or minimise the degree to which each of the exceptions contributes to the

objective which they mistakenly attribute to each of them are entirely irrelevant for

the purposes of the analysis under Article 2.2 TBT.

3.3.4.3 The nature of the risks concerned and the gravity of the consequences of non-fulfilment

367. As discussed above in Section 2.3, moral concern with regard to the protection of

animals is regarded as a value of high importance in the European Union, which is

now expressly enshrined in its constitutional treaties. Moreover, the EU Seal

Regime was adopted in response to longstanding public demands and with the

support of the vast majority of the members of both the European Parliament and

the EU Council. As shown by the evidence mentioned in Section 2.5 the EU Seal

Regime is supported by a very large majority of the EU population.

368. Both Canada and Norway have recognised the importance of the protection of

animal welfare and the gravity of the risks that would result from the non-

481 Article 3.1 of the Basic Regulation. 482 Article 3.1 of the Implementing Regulation. 483 Norway's first written submission, paras. 717-766; Canada's first written submission, paras. 504-532. 484 See Section 2.2.


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fulfilment of that objective.485 Nevertheless, they contend that since the EU Seal

Regime makes no contribution to that objective, the European Union "fully accepts

the consequences of non-fulfilment".486 As shown above, however, this argument

is based on a mistaken premise because the EU Seal Regime does make a

substantial contribution to the welfare of seals. Furthermore, as explained above,

improving animal welfare is just one of the ways in which the EU Seal Regime

contributes to its objective of addressing the moral concerns of the EU public.

3.3.4.4 Alternative measures

369. Canada has identified one alternative measure: the adoption of a "regime that

conditions market access on compliance with animal welfare standards combined

with a labelling requirement".487 In turn, Norway has identified three different

alternative measures:

• the removal of the "the three sets of requirements comprising the EU Seal

Regime";488

• the adoption of a system comprising three elements: "(1) the prescription of

animal welfare requirements; (2) the certification of compliance with animal

welfare requirements; and (3) product labelling";489and

• the removal from the MRM exception of the requirements that the product be

placed on the market "in a non-systematic way" and "on a non-profit basis".490

370. The second alternative measure identified by Norway appears to be the same as the

sole alternative measure identified by Canada. Accordingly, the European Union

will address them together.

371. Here below, the European Union will show that none of the measures cited by

Canada and Norway are genuine alternatives because they would not make an

equivalent contribution to the objective pursued by the EU Seal Regime. 485 Norway's first written submission, para. 771; Canada's first written submission, para. 540. 486 Canada's first written submission, para. 540; Norway's first written submission, para. 772. 487 Canada's first written submission, para. 556. 488 Norway's first written submission, para. 776. 489 Norway's first written submission, para. 796. 490 Norway's first written submission, paras. 912-917.


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3.3.4.4.1 First alternative: conditioning market access on compliance with animal welfare standards combined with a labelling requirement

372. This alternative measure is essentially the same measure which had been proposed

by the European Commission during the legislative process. As explained in

Section 2.2.3.1, that proposal envisaged the prohibition, as a general rule, of the

placing on the market of any seal products.491 This prohibition was subject to a

derogation (set out in Article 4 of the proposal), whereby the placing on the market

of seal products would have been authorized under certain conditions, aimed at

ensuring that the seals from which the products were obtained had been killed

"without causing avoidable pain, distress and any other form of suffering".

373. The EU legislators, nevertheless, 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. As a result, 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.

374. 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 prerogative of the EU legislators. As shown above in Section 2.4, the

moral judgement made by the EU legislators finds adequate support on qualified

scientific opinions.

375. Canada and Norway allege that this alternative measure would contribute to the

EU Seal Regime's objective "to a greater degree".492 But this contention is based,

once again, on the mistaken premise that the EU Seal Regime makes no

contribution at all to the achievement of its policy objective. Far from making a 491 Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal

products, COM (2008) 469 final, 23 July 2008, Article 3 (Exhibit JE – 9). 492 Canada's first written submission, paras. 564-569. Norway's first written submission, para. 885.


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greater contribution, this alternative measure would fail to make even 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, as shown in Section

2.4, 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.

376. Norway and Canada allege that, contrary to the conclusion reached by the EU

legislators, it may be feasible to prescribe animal welfare requirements493 and to

monitor and enforce such requirements494, and that the measures applied by the

European Union with regard to other animal species confirms that less trade

restrictive measures are available.495 Here below, the European Union will address

the argument and evidence submitted by the complaining parties in support of each

of those contentions. The EU rebuttal must be read together with the detailed

explanation of the scientific basis for the EU public's moral concerns set out in

Section 2.4 of this submission. Norway and Canada further allege that a system of

certification of conformity496 and labelling497 are both "feasible". However, given

that Norway's and Canada's preceding arguments are incorrect, it is unnecessary to

reach those issues.

♦ Possibility to prescribe humane killing methods

493 Canada's first written submission, paras. 582-623; Norway's first written submission, paras. 802-832. 494 Canada's first written submission, paras. 624-634; Norway's first written submission, paras. 833-841. 495 Norway's first written submission, paras. 878-883; Canada's first written submission, paras. 611-623

and 635-653. 496 Canada's first written submission, paras. 654-676; Norway's first submission, paras. 852-868. 497 Canada's first written submission, paras. 678-690; Norway's first written submission, paras. 869-877.


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377. The complaining parties contend that it is "perfectly feasible to prescribe animal

welfare requirements for hunting seals".498 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.

378. As explained in Section 2.4, most veterinary experts agree that it could be

possible, in theory, to define a humane method for killing seals. Nevertheless, they

disagree on the requirements that should be part of such method. While some

recommend a three-step method, others would add supplementary steps. Also,

while most experts stress that the prescribed killing method must be carried out

effectively, they disagree on what constitutes, in practice, an acceptable level of

effectiveness or on how to achieve it.

379. 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.499 More specifically, they cite the recommendations and

criteria set out in EFSA's opinion500, the IVWG report501, the NAMMCO report502

and the AVMA Guidelines.503

380. The European Union has already addressed at length the recommendations of

EFSA and the IVWG in Section 2.4. As explained there, both EFSA and the

498 Norway's first written submission, para. 802. For its part, Canada argues that "scientific evidence and

animal welfare standards exist and are feasible to derive a set of requirements from" (Canada's first written submission, heading above para. 582).

499 Norway also cites a paper by Dr Øen (Exhibit NOR-36). This paper is addressed in the next section. 500 Exhibit EU - 30. Cited in Canada's first written submission, paras. 584-589; and Norway's first written

submission, paras. 806-810. 501 In Section 2.4 the European Union has referred to the same report as "Smith et al." or Smith" (Exhibit

EU - 33). Cited in Canada's first written submission, paras. 590-596. 502 Report of the NAMMCO expert group meeting on best practices in the hunting and killing of seals

(2009)("NAMMCO report") (Exhibit JE – 24). Cited in Canada's first written submission, paras. 604-610.

503 American Veterinary Medical Association, Guidelines on Euthanasia (June 2007) ("AVMA (2007)") (Exhibit NOR – 91). Cited in Norway's first written submission, paras. 811-821.


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IVWG assumed that commercial seal hunting would continue. On this premise,

they sought to find a compromise between the requirements of animal welfare and

the practical needs of commercial sealing. Of those two sets of recommendations,

those made by the IVWG are the most 'pragmatic'. Indeed, the IVWG was of the

view that “there needs to be a realistic balance between ideal procedure and

methodology, and what is practical and achievable.”504 Consistently with this

position of principle, the IVWG's admitted goal was to “produce recommendations

that are realistic in the context of the hunt, so that sealers will accept and

implement them".505

381. Ironically, in view of Canada's reliance on the IVWG's report in this dispute,

Canada's hunting regulations do not even comply with the 'realistic'

recommendations of the IVWG. In particular, Canada has failed to implement the

IVWG's recommendation that "a seal should not be shot in the water, or in any

circumstance when it is possible that the carcass cannot be recovered."506

(a) The AVMA Guidelines

382. The AVMA Guidelines (cited by Norway, but significantly not by Canada) are

generally regarded as authoritative. They do not address specifically the killing of

seals. Nonetheless, they lay down some general principles which may be relevant

in assessing the killing methods prescribed by Canada's and Norway's regulations.

In particular, the AVMA guidelines state that:

• "Stunning […], when properly done, induce loss of consciousness but do not

ensure death. Therefore, these methods must be used only in conjunction with

other procedures, such as […] exsanguination."507

• "Animals may be stunned by a blow to the head […] Stunning must be

followed immediately by a method that ensures death."508

504 Smith, p. 7 (Exhibit EU – 33). 505 Smith, p. 7 (Exhibit EU – 33). 506 Smith, p. 3 (Exhibit EU – 33). 507 AVMA, (2007), p. 17 (Exhibit NOR – 91). 508 AVMA, (2007), p. 17. Emphasis supplied. (Exhibit NOR – 91).


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• "Euthanasia by a blow to the head must be evaluated in terms of anatomic

features of the species on which it is to be performed. A blow to the head can

be a humane method of euthanasia for neonatal animals, such as young pigs, if

a single sharp blow directed to the central skull bones with sufficient force can

produce immediate depression of the central nervous system and destruction

of the brain tissue."509

• "A properly placed gunshot can cause immediate insensibility and humane

death. […] For wildlife and other freely roaming animals, the preferred target

area should be the head. […] A gunshot to the heart or neck does not

immediately render animal unconscious and thus is not considered to meet the

panel's definition of euthanasia."510

383. Canada's and Norway's hunting regulations are not consistent with the above

AVMA Guidelines in a number of important respects. In particular, those

regulations

• allow the stunning via delivery of a manual percussive blow with a club or a

hakapik of seals which have already reached the "beater" stage of

development, even though some experts consider that this method is not

adequate in view of the anatomic characteristics of those animals.511

Moreover, there is evidence that, largely as a result of the unique conditions in

which the commercial seal hunts take place, clubbing is in practice very

inaccurate.512

• do not prohibit shooting a seal on any part of its body other than the head.

Furthermore, again, there is evidence that in many cases and largely as a result

of the conditions in which commercial sealing takes place, shooting is very

inaccurate, so that many seals are not hit in the head but instead in the neck or

other parts of their body.513

509 AVMA, (2007), p. 13 (Exhibit NOR – 91). 510 AVMA, (2007), pp. 13-14, footnotes omitted (Exhibit NOR – 91). 511 Butterworth (2012), p. 5 (Exhibit EU - 37). 512 See above section 2.4.4.3.1. 513 See above Section 2.4.4.3.2.


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• do not require that exsanguination must take place immediately after stunning,

but instead provide for less strict wording, which allows in practice excessive

delays between the three steps of the prescribed killing methods.514

384. The above inconsistencies are not merely the inadvertent result of negligently

drafted regulations. Canada's and Norway's regulations embody well-considered

and deliberate compromises with the practical needs of commercial sealing.515

Those compromises are necessary because, as explained in Section 2.4, there are a

number of inherent obstacles that would render impossible the effective and

consistent application of welfare requirements such as those prescribed by the

AVMA Guidelines under the conditions in which Canada's and Norway's

commercial hunt takes place.

(b) The NAMMCO expert group

385. Canada (but not Norway) also cites the guidelines issues by an expert group set up

by NAMMCO. At the outset, it may be observed that the NAMMCO expert group

was largely composed of government officials of States and territories with

significant seal hunting activities, which calls into question their independence.516

386. Like the EFSA panel and the IVWG, the NAMMCO expert group assumed that

seal hunting will continue to be permitted. It states that the “right to hunt and

utilise marine mammals is a firmly established principle in NAMMCO,” and that

“embedded in this right there is also an obligation to conduct the hunt in a

sustainable way and in such a way that it minimizes animal suffering.”517 The

report further notes that:

No stakeholders or NGO's were invited because focus was on the scientific and technical aspects of the killing aspects and not on the politics of sealing i.e. whether seals should be killed or not.518

514 See above Sections 2.4.4.1.2, 2.4.4.1.3 and 2.4.5.1. 515 See above in Section 2.4.5.1 the discussion of the ill-fated proposal to amend Norway's regulations in

2010. 516 NAMMCO report, pp. 6-7 (Exhibit – JE 24). 517 NAMMCO report, p. 5 (emphasis added) (Exhibit JE – 24). 518 NAMMCO report, p. 6 (Exhibit – JE 24).


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387. Moreover, the recommendations of the NAMMCO expert group are far from

comprehensive and fail to address crucial issues in a clear manner, presumably

because of lack of agreement among experts from countries with very different

regulations and practices. For example, the NAMMCO expert group did not make

any recommendation with regard to the trapping and netting of seals. Instead, it

limited itself to note that "this is an important and widely used form of subsistence

hunting in areas where there are no other alternatives during certain periods of

year"519. In the same vein, the NAMMCO refrained from recommending clearly

the three-step method in any of its variations and limited itself to "recognise the

value of a three-step killing process in large scale seal hunts".520

♦ Possibility to apply effectively and consistently a humane killing method

388. As explained above, the crucial issue is whether it may be feasible to prescribe a

genuinely humane killing method which, in practice, can be applied and enforced

effectively and consistently.

(c) The Daoust (2012) report

389. Canada alleges that the killing methods prescribed by Canada's hunting regulations

are effectively applied in practice. In support of this, Canada cites the conclusions

of a study published in 2012 by Professors Pierre-Yves Daoust and Charles

Caraguel ("Daoust (2012)"). 521 However, as discussed below, upon closer

examination the findings of this report fail to support Canada's claims.

390. Daoust (2012) provides a cursory overview of observations of commercial sealing

in 2005, 2006 and 2008, together with a more in depth analysis of observations in

2009. All the observations were carried out by the authors on board of sealing

vessels, when sealers were aware of the observation and the purpose of it.

Needless to say, this may affect the validity of the results. This is admitted by the

authors, who caution that:

519 NAMMCO report, p. 17 (Exhibit – JE 24). 520 NAMMCO report, p. 18 (Exhibit – JE 24). 521 Canada's first written submission, paras. 597-603.


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This article does not purport to provide a full representative picture of the Canadian harp seal hunt, since the results of the observations reported here were subject to a number of logistical constraints and could have been confounded by many factors that were difficult to control, such as the knowledge and attitude of the crew on board, weather conditions, the relative abundance of seals and thus the rapidity with which the hunt was conducted, and the presence of observers.522

391. As discussed below, there are substantial weaknesses in the methodologies used in

this report. The authors make a number of inaccurate assumptions — from the

methods actually used to deliver unconsciousness and death, to the reason for

movements displayed by seals post stunning— leading to potentially inaccurate

and baseless conclusions. Furthermore, the report details a significant percentage

of poor welfare outcomes and sealing practices that are not consistent with humane

slaughter methods.

(i) 2005 Observations in the Gulf

392. The report reviews observations of 200 seals killed by clubbing in a 6-hour

period.523 The observations did not occur in close proximity to the killing or

through a high-powered lens (which is essential for correctly interpreting sealer

behaviour and seal responses). Rather, the observations were made from sealing

boats, with the killing in some cases occurring more than 20 meters away from the

vessel. In only 63 cases were the killing methods and terminal behaviours of the

seals recorded in detail, and again, these observations occurred at a distance.

Among these 63 seal kills, 88.9% were clubbed with two or more blows. The

report notes that movements were observed following clubbing in 36 of 58 seals.

The authors define these movements as “swimming reflex” (post-death

movements). Yet, in absence of a confirmation of death (impossible for the

veterinarians to ascertain from a vessel many meters away), there is no way for the

observer to know whether the movements were deliberate or post-mortem. The

authors note that among the movements displayed by the seals were flexion

(flexing) of the front flippers and phalanges (fingers inside the flippers) and that

the seals tended to contract as they were handled. Notably, however, in a later

522 Daoust (2012), p. 454 (Exhibit CDA – 34). 523 Daoust (2012), p. 449 (Exhibit CDA – 34).


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section of the paper, the authors reveal that in 2009 their interpretations of

movements in seals as post-mortem were not always correct.

(ii) 2006 Observation in the Front

393. The authors record that, during the observation made in the Front in 2006, out of

the 22 sealing vessels boarded by DFO's officers, three (13.6%) had prohibited

sealing tools (rifles with ammunition of lower caliber than allowed by the

MMR).524 Of the nine skulls examined from seals that had been shot with these

rifles, only five had multiple fractures involving the floor of the cranial cavity.

(iii) 2009 Observations in the Front

394. In 2009 the authors observed, over a period of eight days, the terminal behaviour

of 280 seals from a sealing vessel, apparently at times at distances of more than 40

meters525. The authors conclude that:

during the 2009 observations at the Front, 5% of the 280 seals observed closely were considered to have had a poor welfare outcome, based on the fact that they still appeared to be conscious after step one but that further action to complete this step was not carried out immediately.526

395. This conclusion is highly problematic in that the authors’ definition of “poor

welfare outcome” appears to be arbitrarily (and incorrectly) restricted to seals

which were inadequately stunned and experienced a delay in re-stunning. Yet

other veterinary experts would consider many other outcomes recorded in these

observations to be poor welfare. For example:

• the authors note that, of the 280 seals observed shot, the original point of impact of the bullet could only be determined in 245 cases. Of these, 10.2% were shot in the neck.527 Yet the AVMA specifies that “a gunshot to the heart or neck does not immediately render the animals unconscious and thus is not considered to meet the panel’s definition of euthanasia.”528

• the method of retrieving the seal was recorded in 228 cases. Of these, 108 seals (47.4%) were retrieved with a gaff (impaled on a metal hook and

524 Daoust (2012), pp. 449 (Exhibit CDA-34). 525 Daoust (2012), pp. 449-450 (Exhibit CDA – 34). 526 Daoust (2012), pp. 453 (Exhibit CDA – 34). 527 Daoust (2012), p. 450 (Exhibit CDA – 34). 528 AVMA (2007), p. 13 (Exhibit NOR – 91).


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dragged across the ice and hoisted onto the vessel)529. According to the authors, retrieval of seals from the vessel with a gaff was necessary when the animals had been shot in the water or on ice that appeared too unstable for the sealer to get on it, or if the animal was near the edge of the ice floe when the vessel moved by. The authors correctly point out that “retrieving seals with a gaff significantly increased the interval between step one (stunning) and step two (checking)”.530 But they fail to acknowledge that impaling an animal on a metal hook and dragging the animal onto a vessel while potentially conscious poses a serious welfare problem.

• the authors note that among the 278 seals shot with a rifle, two seals were shot

consecutively before being retrieved on nine occasions, and three seals were shot consecutively before being retrieved on two occasions.531 This means that in 8.6% of cases, the seals were not immediately checked for unconsciousness following stunning.

• in 4.7% of cases where seals were shot, the authors note that the seal was shot two or more times, indicating the seal was not rendered unconscious with the first bullet.532

• blood was found in the stomach of seven (7.9%) of 88 seals, indicating the seal was alive and swallowing blood after the first insult533.

• the authors state that 24 of the 280 seals observed killed (8.6%) was shot in open water534, a practice that even the IVWG recommends be prohibited. When a seal is shot in the water, it is impossible for the sealers to confirm unconsciousness prior to impaling the seal on a metal hook and dragging the animal onto the vessel (according to the authors, “retrieval of seals from the vessel with a gaff was necessary when the animals had been shot in the water.”). Moreover, the chances of wounded seals escaping beneath the surface of the water greatly increase in open water shootings (“struck and lost”). Importantly, the authors admit that it becomes very difficult to accurately shoot wounded seals again if further shots are needed, noting that “in cases where seals were shot in the water but not killed immediately, it was not possible for the gunner to take another shot at the animal unless it lifted its head out of the water, since otherwise a bullet aimed at the head would have fragmented on impact with water.”535 The authors report that “shooting a seal in the water significantly increased the risk of getting a poor welfare outcome to 30%.”536

529 Daoust (2012), p. 449 (Exhibit CDA – 34). 530 Daoust (2012), p. 450 (Exhibit CDA – 34). 531 Daoust (2012), pp. 449-450 (Exhibit CDA – 34). 532 Daoust (2012), p. 450 (Exhibit CDA – 34). 533 Daoust (2012), p. 451 (Exhibit CDA – 34). 534 Daoust (2012), p. 449 (Exhibit CDA – 34). 535 Daoust (2012), p. 451 (Exhibit CDA – 34). 536 Daoust (2012), p. 451 (Exhibit CDA – 34).


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396. The authors go on to compare their incorrect conclusion that 5% of seals suffered

poor welfare outcomes in their 2009 observations with stunning failure rates in

commercial slaughterhouses that they cite as between 2 and 3% and, in one study

conducted in the United Kingdom, between 1.7% and 6.6%.537 Yet, by doing so,

the authors are comparing apples and oranges. The poor welfare they cite in the

5% of cases in sealing observations is the long delay between inadequate stunning

and re-stunning. That is not what is measured in the slaughterhouse statistics they

provide. Rather, the slaughterhouse statistics are of inaccurate stuns (and in a

slaughterhouse repeated stunning in the case of a failed stun must and can occur

immediately). If the authors were to fairly compare apples to apples, they would

need to cite the number of inaccurate stuns they measured in their observations,

and this number is much higher than 5%. For example:

- in 2005 observations, 88.9% of seals were stunned with two or more blows538;

- in 2006 observations, of nine seals observed killed with illegal weapons by fisheries officers, only 5 (55.5%) had multiple fractures involving the floor of the cranial cavity, meaning that 45.5% did not539;

- in 2009 observations, 10% of seals were shot in the neck rather than the head.540

(d) Evidence concerning the enforcement of Canada's regulations

397. Canada further alleges that it is feasible to monitor and enforce effectively the

application of the killing method prescribed by Canada's hunting regulations.

Canada does not provide any evidence of this, but instead limits itself to offer a

very general description of Canada's enforcement methods.541 That description,

however, omits any quantitative indication of the means deployed by the Canadian

authorities or of the results achieved. For example, Canada does not disclose how

many officials, independent observers, helicopters or boats participate in the

537 Daoust (2012), p. 453 (Exhibit CDA – 34). 538 Daoust (2012), p. 449 (Exhibit CDA – 34). 539 Daoust (2012), p. 449 (Exhibit CDA – 34). 540 Daoust (2012), p. 450 (Exhibit CDA – 34). 541 Canada's first written submission, paras. 624-634.


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enforcement activities and for how long; or how many boats and seals were

inspected.

398. The evidence available suggests that the means deployed by the Canadian

authorities are manifestly insufficient in relation to the vast magnitude of the task.

For example:

• according to DFO, in 2008 there were over 100 fisheries officers available for

deployment.542 This equals just 1 officer for approximately 18 vessels.

Furthermore, DFO admits that not all of them are deployed at sea each day of

the seal hunt;543

• in 2007 DFO increased the number of independent 'observers at sea' on sealing

vessels to 23544, which would cover only 1.3 % of sealing vessels.

399. Additionally, according to Canada’s 2010-2015 Integrated Fisheries Management

Plan, registration of sealing vessels is not mandatory. While some vessels are

registered for engagement in other fishing activities, many smaller vessels in

Newfoundland and Labrador are not registered making it difficult for the Coast

Guard to track them and for departmental enforcement monitoring.545

400. Finally, while Canada submits that sealers who fail to comply with the MMRs are

prosecuted, the rate of prosecution appears to be low. For example, according to

the DFO in 2009 there were 21 convictions. In 2010 there were 10 convictions. In

2011, only one violation is noted, and there is nothing in 2012.546

542 DFO, Facts about seals 2008 (Exhibit EU - 60). 543 DFO, Facts about seals 2008 (Exhibit EU - 60). 544 DFO, Facts about seals 2008 (Exhibit EU - 60). 545 See DFO, Canada’s 2010-2015 Integrated Fisheries Management Plan, at Section 3.7.11 (Mandatory

Vessel Registration – “A critical issue is the lack of mandatory registration of sealing vessels. Mandatory registration would lead to more efficient monitoring and control of vessels. In fisheries which do not require Vessel Monitoring Systems, unregistered vessels are more difficult to track, especially in such a widespread activity as the seal harvest. Knowing that a vessel was leaving port to participate in the harvest simplifies Coast Guard tracking and departmental enforcement monitoring. There is no current requirement to register a sealing vessel. Many sealing vessels are already registered through activity in other fisheries, but many smaller vessels are not, particularly in Newfoundland and Labrador.”) (Exhibit EU – 42).

546 Based on information available at DFO's website: http://www.dfo-mpo.gc.ca/media/archive/charges-inculpations2009-eng.htm. http://www.dfo-mpo.gc.ca/media/archive/charges-inculpations2010-eng.htm. http://www.dfo-mpo.gc.ca/media/archive/charges-inculpations2011-eng.htm; http://www.dfo-mpo.gc.ca/media/charges-inculpations-eng.htm.









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(e) Evidence concerning Norway's seal hunt

401. There is hardly any independent evidence on Norway's commercial hunt. 547

Norway cites a paper by Dr. Egil Ole Øen of 1996548, which mentions no

supporting scientific evidence, with the sole exception of a study on the

effectiveness of the rifle conducted by Dr. Øen himself in 1995. That study has not

been provided by the complaining parties and appears not to be available in

English. According to the NOAH Report, that study has serious methodological

shortcomings:

This report was not a registration of real percentage wounded animals in the field, but a controlled study of two types of ammunition where the hunters were aware that they were part of the study, and the researcher (inspector) observed the animals after shooting, when arriving on ice. The study does not inform how long after the shot the researcher was able to reach the animals, and as such have no definition of "instantaneous". From the inspector reports it is shown that the time from shooting and to hitting with hakapik may be considerable, and there is no way to judge whether the time from shooting to observing in the study is comparable to the ongoing commercial hunt. The study does not involve other hunting practices than sporadic hunting, nor does it involve pups that are hit without being shot.549

402. In addition, Norway refers to the "expert statements" made by three Norwegian

veterinarians.550 However, most of the views expressed in those statements with

regard to Norway's commercial seal hunt are totally unsupported assertions.551

Moreover, the independence of the experts appears to be questionable.552 For these

reasons, the probative value of these statements is, to say the least, very limited.

547 EFSA Opinion, section 1.3.2.2 (Exhibit EU –30). 548 Norway's first written submission, paras. 822-827. 549 NOAH Report, p.24 (Exhibit EU - 43). 550 Norway's first written submission, paras. 829-832. These statements have been provided by Norway

as Exhibits NOR-4, NOR – 5 and NOR 6. 551 Ms. Moustgaard's statement cites no references (Exhibit NOR – 6). Mr. Danielson's statement

includes just a few references to the AVMA Guidelines and the VTM report, none of which concerns Norway's commercial seal hunt (Exhibit NOR – 4). In contrast with the other statements, Prof. Knudsen's statement (Exhibit NOR – 6) does cite some scientific evidence, but most of it concerns other species of animals. As regards seals, the only evidence cited by Prof. Knudsen is EFSA's opinion and the VKM report, both of which, as explained in Section 2.4.5, acknowledge that there is hardly any independent evidence on the Norwegian hunt.

552 The three experts appear to have been employed by the Norwegian Government, including as inspectors of sealing vessels.


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403. The above mentioned three statements, together with another "expert statement"

made by the captain of a sealing vessel553, also purport to constitute evidence on

the enforcement of Norway's hunting regulations. The statements seek to portray

an idyllic image of Norway's commercial seal hunting, in which conscientious

sealers dutifully cooperate with omnipresent inspectors, so that violations of

Norway's flawless regulations remain unknown. Remarkably, no reference is made

to the Lindberg or Kvitungen cases or to the controversy surrounding the failed

attempt to amend Norway's hunting regulations. Once again, the evidentiary value

of such uncritical statements made by government officials and sealers for the

exclusive purpose of this dispute appears very questionable. A more realistic, and

sombre, picture emerges from the survey of the actual inspection reports

conducted by NOAH.554

♦ Measures applied by the European Union with regard to other animals

404. Article 2.2 of the TBT does not impose a requirement of "consistency".555

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.556

405. The examination of measures applied to other species of animals could be relevant

only in so far as such measures concerned sufficiently similar situations557 and

then only as a mere "indication" of the availability of alternative measures.558

406. 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.559

553 Kvernmo Statement, Exhibit NOR-7. Mr Kvernmo submitted comments with regard to the proposed

amendment to Norway's hunting regulations discussed above in Section 2.4.5.1. On that occasion, Mr Kvernmo expressed the view that "sealing has been fundamentally complicated by the introduction of hunting rules that have no basis on biology but in politics." (Exhibit EU – 45).

554 Exhibit EU – 43. 555 Cf. Appellate Body Report, Korea – Various measures on Beef, paras. 169-170. See also Panel

Report, US – Tuna II (Mexico), para. 7.442. 556 Cf. Appellate Body Report, Korea – Various measures on Beef, paras. 176-177. 557 Cf. Appellate Body Report, Korea – Various measures on Beef, paras.170 and 172. 558 Cf. Appellate Body Report, Korea – Various measures on Beef, paras. 170 and 172.


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407. In the first place, seals have unique anatomic and physiological features that

enable them to stay under water for very long periods. As a result, seals may

experience suffering in ways which are peculiar to that species.560

408. Second, the killing methods vary considerably. Seals are shot with firearms from

relatively long distances (usually from 40-50 m) and/or clubbed. In contrast, farm

mammals such as cows or sheep are generally stunned by using a mechanical

device applied to the front of the head from a very short distance while the animal

is physically restrained; wild fur animals are generally trapped; farmed fur animals

are usually gassed or electrocuted; etc.

409. Third, even when the killing method is roughly similar (e.g. in the case of farm

cattle), the environmental conditions are very different. Seal hunting occurs in

uniquely harsh environmental conditions, with the effects described in Section 2.4.

In contrast, cattle is slaughtered in the safe and predictable environment of an

abbatoir. EFSA has cautioned that "care should be taken when comparing the

efficacy of the methods used for killing animals in abbatoirs and in the wild

because of the great variation in environmental conditions involved."561 More

precisely, EFSA has noted that:

In an abattoir the facilities are well controlled in many respects as it relatively easy to ensure good welfare by applying certain criteria for the buildings, associated resources (e.g. equipment) and harmonised procedures so as not cause avoidable animal suffering at slaughter.562

410. EFSA contrast this with the unique environmental conditions in which seal hunting

takes place:

559 In addition to being irrelevant, the complaining parties' arguments are sometimes factually inaccurate.

See the detailed technical comments provided by the European Commission's Directorate General for Health Consumers (Exhibit EU – 68).

560 Butterworth (2012) pp. 6-7 (Exhibit EU - 37). 561 EFSA, Section 2, p. 35 (Exhibit EU - 30). 562 EFSA, Section 2.1, p. 21 (Exhibit EU - 30).


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Unlike in an abattoir where the floor should be stable, even and non-slippery, seals are killed on different substrates e.g. on land, in the water, on solid ice, loose pack ice, moving ice floes, in environmental conditions that may rapidly alter the position of both sealer and seal and in weather conditions that may affect visibility.563

411. As a result, according to EFSA, the mis-stunning rate in the abattoir is relatively

low. Moreover, in the abattoir mis-stuns can be easily detected and the animals re-

stuned immediately:

In the abattoir, the number of mis-stuns has been estimated to be 4 to 6.6% for captive bolt shooting (EFSA, 2004). During a field study in the United States the percentages of cattle stunned effectively with 1 shot from a penetrating captive bolt stunner were: 100% in 12% of processing plants; 99% in 24%; 95-98% in 54% of the plants; and < 95% in 10% of the plants. All cattle where the first shot missed were immediately re-stunned (Grandin, 2000).564

412. The above rates are far lower than similar events recorded in the commercial seal

hunt.565 Even more importantly, a slaughterhouse is a controlled environment that

presents the opportunity both for immediate action in cases of inadequate stuns (in

contrast to commercial seal hunts, in which long distance shooting is a common

stunning method) and for general improvement. Supervision and inspections can

be increased and the speed of operations can be slowed, as examples. In contrast,

the main obstacles to humane slaughter in commercial seal hunts are inherent and

unchangeable.

413. Last, the nature and purpose of the commercial seal hunt are also very different. In

the European Union wild terrestrial animals are generally hunted as an occasional

activity for pest control purposes (chiefly for safeguarding public health and safety

and for protecting crops and stock), recreation or wildlife management. In contrast,

commercial seal hunting is a highly competitive commercial activity, with the

negative consequences for animal welfare described in Section 2.4.

563 EFSA, Conclusions and recommendations, 2.1.4, p. 88 (Exhibit EU - 30). 564 EFSA, section 2.1, p. 36 (Exhibit EU - 30). 565 See e.g. the discussion on the data reported in Daoust (2012) at in Section 3.5.4.4.1. See also Sections

2.4.4.3.1 and 2.4.4.3.2.


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414. At any rate, as explained above, even if the situations concerned were sufficiently

similar, the measures applied by the European Union to other species of animals

would, at most, provide a mere "indication" of the availability of alternative

measures.566 Members are entitled to select different levels of protection with

regard to different species of animals. In particular, in choosing an appropriate

level of protection of public morals, a Member may legitimately take into account,

together with the risk that individual animals may experience suffering, other

pertinent moral considerations relating, for example, to the following:567

• whether the animals concerned are wild or have been reared in farms for the

purpose of being slaughtered;

• the purpose for which animals are killed: for example, whether the animals are

killed mainly for purely commercial reasons or for other legitimate purposes,

such as the subsistence of indigenous populations or the management of the

ecosystem;

• the use given to the products obtained from the killed animals: for example,

whether the animals are killed in order to meet basic food requirements or in

order to manufacture inessential goods, such as fashion clothing items;

• whether the killing targets adults or young individuals (as in the case of the

commercial seal hunts).

• the way in which humans relate to each species (something which may vary

from one cultural area to another): for example, it is a fact that the EU

population cares more about marine mammals, such as whales, dolphins or

seals, than about many other animals.

3.3.4.4.2 Second alternative: removing the "three sets of requirements"

415. This alternative measure amounts to repealing the EU Seal Regime and allowing

the placing on the market of seal products without any restriction. While this 566 Cf. Appellate Body Report, Korea – Various measures on Beef, paras. 170 and 172. 567 On the importance of these concerns, see the evidence discussed by Report of the Royal Commission

on Seals and Sealing (1986), Volume I, Chapter 11, "Public Opinion on Sealing", at pp. 156, 159, 160, 163-164 and 169 (Exhibit EU - 48).


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alternative measure is certainly less trade-restrictive, it makes no contribution to

the objective pursued by the EU Seal Regime.

3.3.4.4.3 Third alternative: removal from the MRM exception of the requirements that the product be placed on the market "in a non-systematic way" and "on a non-profit basis"

416. Norway has explained that this alternative relates only to the MRM exception.568

However, since that exception is not trade-restrictive, it does not require

justification under Article 2.2 TBT.

417. Moreover, contrary to Norway's assumption, the MRM exception does not seek to

promote the sustainable management of marine resources.569 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.

3.3.5. Conclusion

418. For the above reasons, the European Union submits that the EU Seal Regime is not

"more trade-restrictive than necessary to fulfil a legitimate objective" and,

therefore, does not create "unnecessary obstacles to trade". Accordingly, the Panel

should reject all the claims submitted by the complaining parties' under Article 2.2

TBT.

3.4. ARTICLES 5.1.2 AND 5.2.1 OF THE TBT AGREEMENT

419. Articles 5.1.2 and 5.2.1 of the TBT Agreement concern "conformity assessment

procedures". Annex 1.3 of the TBT Agreement defines "conformity assessment

procedures" as "[a]ny procedure used, directly or indirectly, to determine that

relevant requirements in technical regulations or standards are fulfilled" (emphasis

added). The provisions of the Implementing Regulation, which Canada and

Norway challenge with their claims under Articles 5.12 and 5.2.1 of the TBT 568 Norway's first written submission, para. 912. 569 See above Section 2.2.1.


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Agreement, set out procedures to determine whether the conditions of the IC and

MRM exception are met. However, as explained above under section 3.1, the

European Union submits that its Seals regime, including the exceptions in

question, is not a technical regulation within the meaning of Annex 1 of the TBT

Agreement. It follows that the procedural provisions under the Implementing

Regulation, which merely concern the operation of the exceptions, do not concern

compliance with technical regulations and, therefore, do not constitute "conformity

assessment procedures" within the meaning of Annex 1.3 of the TBT Agreement.

420. Should the Panel find that the measures at issue do constitute conformity

assessment procedures within the meaning of Annex 1.3 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

3.4.1.1 The legal test

421. Article 5.1 of the TBT Agreement provides that:

5.1 Members shall ensure that, in cases where a positive assurance of conformity with technical regulations or standards is required, their central government bodies apply the following provisions to products originating in the territories of other Members:

[…]

5.1.2 conformity assessment procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. This means, inter alia, that conformity assessment procedures shall not be more strict or be applied more strictly than is necessary to give the importing Member adequate confidence that products conform with the applicable technical regulations or standards, taking account of the risks non-conformity would create.

422. The chapeau of Article 5.1 sets out the scope of the obligation. It requires Members to

ensure that, in cases where a positive assurance of conformity with technical regulations or

standards is required; their central government bodies will apply the provisions of

subparagraphs 1.1 and 1.2 to products originating in the territories of other Members.


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Annex 1 to the TBT Agreement defines a central government body as "[c]entral

government, its ministries and departments or anybody subject to the control of the central

government with respect to the activity in question".

423. In its first sentence Article 5.1.2 requires that conformity assessment procedures

are not prepared, adopted or applied with a view to or with the effect of creating

unnecessary obstacles to international trade. The second sentence provides

guidance on the meaning of the obligation contained in the first sentence. It

clarifies that conformity assessment procedures must not be more strict or applied

more strictly than what is necessary to give the importing member adequate

confidence that products conform with the applicable technical regulations or

standards, taking account of the risks non-conformity would create.

424. The first sentence of Article 5.1.2 appears to set forth a necessity test with respect

to conformity assessment procedures. While Article 5.1.2 itself has not yet been

subject to panel or Appellate Body interpretation, reports interpreting the

obligation under Article 2.2570, which contains some of the same elements, are

relevant in interpreting the obligation under Article 5.1.2.

425. The European Union considers that the Appellate Body in US- Tuna II (Mexico)

provided particularly helpful guidance in this respect:

570 "Members shall ensure that technical regulations are not prepared, adopted or applied with a view to

or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create."


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What has to be assessed for "necessity" is the trade-restrictiveness of the measure at issue. We recall that the Appellate Body has understood the word "restriction" as something that restricts someone or something, a limitation on action, a limiting condition or regulation. Accordingly, it found, in the context of Article XI:2(a) of the GATT 1994, that the word "restriction" refers generally to something that has a limiting effect. As used in Article 2.2 in conjunction with the word "trade", the term means something having a limiting effect on trade. We recall that Article 2.2 does not prohibit measures that have any trade-restrictive effect. It refers to "unnecessary obstacles" to trade and thus allows for some trade-restrictiveness; more specifically, Article 2.2 stipulates that technical regulations shall not be "more trade-restrictive than necessary to fulfil a legitimate objective". Article 2.2 is thus concerned with restrictions on international trade that exceed what is necessary to achieve the degree of contribution that a technical regulation makes to the achievement of a legitimate objective.

The use of the comparative "more … than" in the second sentence of Article 2.2 suggests that the existence of an "unnecessary obstacle[] to international trade" in the first sentence may be established on the basis of a comparative analysis of the above-mentioned factors. In most cases, this would involve a comparison of the trade-restrictiveness and the degree of achievement of the objective by the measure at issue with that of possible alternative measures that may be reasonably available and less trade restrictive than the challenged measure, taking account of the risks non-fulfilment would create. The Appellate Body has clarified that a comparison with reasonably available alternative measures is a conceptual tool for the purpose of ascertaining whether a challenged measure is more trade restrictive than necessary. (emphasis added, footnotes omitted)571

426. In WTO dispute settlement, it is the complaining party that bears the burden of

proving its claim. As emphasised by the Appellate Body in US – Wool Shirts and

Blouses:

[…]it is a generally-accepted canon of evidence in civil law, common law and, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption.572

427. Similarly, in US – Shrimp (Thailand), the Appellate Body recalled that:

571 Appellate Body report, US-Tuna II (Mexico), paras 319-320. 572 Appellate Body report, US – Wool Shirts and Blouses, para. 41.


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It is well established that the party asserting the affirmative of a claim or defence bears the burden of establishing both the legal and factual elements of that claim or defence. 573

428. In US – Gambling, the Appellate Body expressly stated that:

A prima facie case must be based on "evidence and legal arguments" put forward by the complaining party in relation to each of the elements of the claim. A complaining party may not simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency. Nor may a complaining party simply allege facts without relating them to its legal arguments.574

429. The Appellate Body also made it clear that it is not for the panel to make the prima facie

case on behalf of the complaining party: "It is also well accepted that a panel cannot make

a prima facie case for a party who bears that burden."575

430. It is therefore necessary, before the burden of proof can shift to the European

Union, that Canada and Norway not only allege, but demonstrate that the EU

regime does not satisfy the necessity test under Article 5.1.2.

3.4.1.2 The procedure under the Implementing Regulation meets the requirements of the TBT Agreement

431. While it is undisputable that the very requirement to obtain a certificate under the

Seals regime – just like under any other regime requiring certification576 –

constitutes an obstacle, 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.

432. The procedure established under the Implementing Regulation is not a goal in

itself. As reflected in the preamble of the Implementing Regulation,577 it serves the

573 Appellate Body report, US – Shrimp (Thailand), para. 300. 574 Appellate Body report, US – Gambling, para. 140. 575 Appellate Body report, US – Shrimp (Thailand), para. 300. 576 See ISO/IEC: 67:2004(E): Conformity assessment – Fundamentals of product certification, Geneva

2004; pt. 4.3.6 (Exhibit EU- 68). 577 See Recitals (5) and (6):

"(5) Within this exceptional framework, an effective mechanism to ensure an adequate verification of compliance with those requirements should be introduced. That mechanism should not be more trade-restrictive than necessary. (6) Other options would not be sufficient to achieve these aims. Therefore, a mechanism should exist by which recognized bodies issue documents attesting that seal products are compliant with the


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purpose 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.

433. This Panel is called upon to determine whether the obligation under Article 5.1.2

of the TBT Agreement precludes Member States from putting into place a

conformity assessment system, whereby the conformity assessment bodies need to

be designated by central government before they can issue certificates of

conformity and whereby they must continue to meet the designation conditions for

as long as they issue certificates of conformity.578

434. The European Union submits that its Implementing Regulation does not violate

Article 5.1.2. 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.

As will be shown below, the TBT Agreement not only allows such a regime, but

indeed encourages a number of the features that the Implementing Regulation

adopts.

435. Canada alleges in its first written submission that the European Union violates

Article 5.1.2 of the TBT Agreement by failing to create or recognise a body which

would certify compliance with the IC and MRM exceptions laid down in the

Implementing Regulation. 579

436. Similarly, Norway submits that the European Union violates Article 5.1.2 because

the European Commission prepared, adopted and applied conformity assessment

procedures in a way that unnecessarily obstructs international trade.580 It alleges

that the Commission's conformity assessment procedures are ineffective due to an

requirements laid down in Regulation (EC) No 1007/2009, unless the import is for the personal use of travellers or their families." (Exhibit JE-2).

578 Canada's first written submission, para. 720bis. 579 Canada's first written submission, paras 704, 718-721. 580 Norway's first written submission, para. 943.


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"institutional lacuna" and alleges that this lacuna could have been addressed by

designating a "default" recognised body.581

437. 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 assessment bodies need to be

recognised by the European Commission before they can issue certificates of

conformity.

438. While acknowledging the need to show that a less trade-restrictive alternative is

reasonably available to make a prima facie case under Article 5.1.2582, Canada

does not present any concrete alternative nor does it show how such an alternative

would be equally effective and less trade restrictive than the mechanism put in

place by the Implementing Regulation.

439. Norway went slightly further in making its claim in that it proposed an alternative;

namely to designate a "default" recognised body at European level or regional

level. But still fell short of making a prima facie case, as it failed to demonstrate

why the proposed alternative would be equally effective in determining the

product's conformity with the regulation concerned, and less trade restrictive than

the conformity assessment procedure at issue.

440. Since Canada and Norway fail to duly substantiate their claims, the European

Union will limit itself to outlining why the procedure under the Implementing

Regulation cannot be considered as incompatible with Article 5.1.2 of the TBT

Agreement.

3.4.1.2.1 The substantive and procedural requirements for designation of a conformity assessment body under the Implementing Regulation

441. To recall, pursuant to the Implementing Regulation conformity with the

Indigenous Communities and Marine Resources Management exceptions is

determined on the basis of an "attesting document". In accordance with Article 7.1

581 Ibid. paras 948, 950. 582 Canada's first written submission, para. 715.


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of the Implementing Regulation such documents cannot be issued by anybody;

they can only be issued by entities included on the list of "recognised bodies".

442. Article 6 of the Implementing Regulation requires the inclusion on the list of

recognised bodies of any entity that can demonstrate to the European Commission

that it meets certain requirements,583 the purpose of which is to ensure that the

entity is and remains:

– capable of verifying and attesting that the requirements to benefit from an exception have been fulfilled; and

– impartial;

for as long as it issues attesting documents.

443. The European Union firstly notes that Canada and Norway do not challenge the

specific requirements that a recognised body needs to meet pursuant to Article

6(1)(a)-(h) of the Implementing Regulation in order to be included on the list of

recognised bodies. This is not surprising since this type of requirements is not

unique to the Implementing Regulation specifically or the European Union

legislation generally.584

444. 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.585

As the text of Article 6 makes clear an entity which applies and demonstrates

compliance with the requirements of Article 6(1)(a)-(h) must be included on the

list of recognised bodies:

1. An entity shall be included in a list of recognised bodies where it demonstrates that it fulfils the following requirements:

[…] 583 Namely those set out in Article 6(1)(a)-(h) of the Implementing Regulation. See Section 2.1.5 above. 584 See e.g. ISO/IEC 17020:2012, Conformity assessment – Requirements for the operation of various

types of bodies performing inspection. Geneva, 2012 (Exhibit EU-69). The criteria for determining a certification body’s competence are based on the relevant national or international standard (such as the afore referred, but also e.g. ISO/IEC 17024, ISO/IEC Guide 65ISO/IEC 17021) and include: the qualifications required knowledge and skills, training and experience of staff; appropriate equipment that is properly calibrated and maintained; adequate quality assurance procedures; and appropriate sampling practices.

585 In order to show that it continues to comply with those requirements it must submit regular audit reports (Article 6(3) of the Implementing Regulation).


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2. In order to be included in the list referred to in paragraph 1, an entity shall submit to the Commission a request accompanied by documentary evidence that it fulfils the requirements set out in paragraph 1.

[…]

445. The requirement to be included on the "list 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.

446. 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 requirement 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.

3.4.1.2.2 Eligibility of private/non-governmental bodies

447. A key feature of the procedure under the Implementing Regulation is that it does

not recognise one or several public authorities in the territory of the European

Union to act as recognised body. Instead it makes recognition available to public

and private entities from both within and outside the territory of the European

Union.

448. First, contrary to what the complaining parties appear to imply, but fail to

demonstrate, the text of Article 5.1.2 of the TBT Agreement does not impose an

obligation on WTO Members to designate a public (central or local government)

body in all cases where a positive assurance of conformity with technical

regulations or standards is required.


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449. 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.586

450. Canada challenges the compatibility of the Implementing Regulation with Article

5.1.2, because even if a recognised body is established that body might decide at

any time to cease its operations or have its authority revoked by the European

Commission.587 Norway made similar arguments.588 In the view of the European

Union these arguments are manifestly absurd and should be rejected by the Panel.

If the complaining parties' reading of Article 5.1.2 were to be adopted the only

manner in which non-governmental bodies could act as designated certifying

bodies would be if designation was unconditional and permanent.

451. Yet other WTO Members,589 including Canada590 and Norway591, have conformity

assessment procedures in place which allow for designation/accreditation of non-

governmental certifying bodies subject to certain conditions and where failure to

comply with these conditions can result in withdrawal of designation/accreditation.

586 In that regard, the European Union notes that the requirements it put in place for an entity to be added

on the list of recognised bodies within the meaning of Article 6 of the Implementing Regulation fall within the category of reasonable measures available "to ensure that these non-governmental bodies comply with the obligations under Articles 5 of the TBT Agreement".

587 Canada's first written submission, para 720bis. 588 Norway's first written submission, para. 946. 589 See e.g. the United States: OSHA: NRTL Program Policies, Procedures, and Guidelines, Chapters 2

and 6; available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=2004&p_table=DIRECTIVES#ELIGIBILITY (Exhibit EU-70).

590 See e.g. Standards Council of Canada: Certification Body Accreditation Program Handbook: Conditions and procedures for the accreditation of bodies certifying products, processes and services, Ottawa, 2009; available at http://www.scc.ca/sites/default/files/migrated_files/DLFE-410.pdf (Exhibit EU-71). Standards Council of Canada: Policy for the Suspension and Withdrawal of Accreditation and the Resolution of Complaints, Disputes and Appeals, Ottawa, 2012; available at http://www.scc.ca/sites/default/files/publications/CAN-P-15-2012_e.pdf (Exhibit EU-72)

591 See e.g. Norwegian Accreditation: Quality Management - Because Safety and International Trade demand it, p. 16; available at http://www.akkreditert.no/upload/diverse%20dokumenter/Brosjyre%20engelsk.pdf (Exhibit EU-73)

http://www.scc.ca/sites/default/files/migrated_files/DLFE-410.pdf

http://www.scc.ca/sites/default/files/publications/CAN-P-15-2012_e.pdf

http://www.akkreditert.no/upload/diverse dokumenter/Brosjyre engelsk.pdf

http://www.akkreditert.no/upload/diverse dokumenter/Brosjyre engelsk.pdf


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3.4.1.2.3 Eligibility of public and private bodies from within and outside the territory of the European Union

452. Another important feature of the procedure under the Implementing Regulation is

that it allows entities (both public and private) from within and outside its territory

to be designated as recognised conformity assessment bodies.

453. In the view of the European Union there is no basis in the text Article 5.1.2 of the

TBT Agreement to argue592 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.

454. Article 6 of the TBT Agreement, which constitutes relevant context for the

interpretation of Article 5.1.2, provides :

With respect to their central government bodies:

6.1 Without prejudice to the provisions of paragraphs 3 and 4, Members shall ensure, whenever possible, that results of conformity assessment procedures in other Members are accepted, even when those procedures differ from their own, provided they are satisfied that those procedures offer an assurance of conformity with applicable technical regulations or standards equivalent to their own procedures. It is recognized that prior consultations may be necessary in order to arrive at a mutually satisfactory understanding regarding, in particular:

6.1.1 adequate and enduring technical competence of the relevant conformity assessment bodies in the exporting Member, so that confidence in the continued reliability of their conformity assessment results can exist; in this regard, verified compliance, for instance through accreditation, with relevant guides or recommendations issued by international standardizing bodies shall be taken into account as an indication of adequate technical competence; 6.1.2 limitation of the acceptance of conformity assessment results to those produced by designated bodies in the exporting Member.

592 The European Union notes that Canada and Norway did not explicitly make such an argument, but

submits that such a reading can be implied in their argument that to comply with Article 5.1.2, a "default" body must exist at all times for as long as a conformity assessment procedure is in place.


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6.2 Members shall ensure that their conformity assessment procedures permit, as far as practicable, the implementation of the provisions in paragraph 1.

6.3 Members are encouraged, at the request of other Members, to be willing to enter into negotiations for the conclusion of agreements for the mutual recognition of results of each other’s conformity assessment procedures. Members may require that such agreements fulfil the criteria of paragraph 1 and give mutual satisfaction regarding their potential for facilitating trade in the products concerned.

6.4 Members are encouraged to permit participation of conformity assessment bodies located in the territories of other Members in their conformity assessment procedures under conditions no less favourable than those accorded to bodies located within their territory or the territory of any other country.

455. 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.

456. 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 bodies593. 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.

3.4.1.2.4 There is no obligation under Article 5.1.2 of the TBT Agreement to always designate a "default" public (central or local government) body

457. 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 (central or local

593 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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government) body in all cases where it decides to put in place a system of

designated (public and private) conformity assessment bodies.

458. While the European Union does not exclude the possibility that the 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.

459. As the complainants seem to acknowledge in presenting the legal standard of

review under Article 5.1.2,594 this provision does not establish a one-size-fits-all

type of rule, but calls instead for a case-by-case assessment of necessity of a

particular conformity assessment procedure from its preparation and then

throughout its existence. The Explanatory 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 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.595

460. This interpretation is further supported by subsequent practice596 of WTO

Members. The considerable diversity between the systems for

accreditation/designation of conformity assessment bodies between WTO

Members597 confirms the premise that the drafters did not intend to establish a

single rule which would oblige Members to designate a "default" public certifying

authority in all cases where conformity assessment is required.

594 Canada's first written submission, para. 715. Norway's first written submission, para. 939. 595 The second sentence of Article 5.1.2 provides one example of a consideration that needs to be taken

into account in determining the necessity of a particular conformity assessment procedure/system for accreditation/designation; namely, that it cannot be stricter than necessary to give adequate confidence to the importing Member that products subject to it will conform with the applicable conditions. The inclusion of "inter alia" in the second sentence, makes it clear, however, that the drafters wanted to provide for the possibility of other considerations being taken into account in determining the adequacy of a particular conformity assessment procedure.

596 WTO Members' practice is relevant since Article 31 of the Vienna Convention directs that “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” is also to be considered in the interpretation of a treaty.

597 For an overview see ISO Central Secretariat: Building Trust: The conformity assessment toolbox, Geneva 2012; available at http://www.iso.org/iso/casco_building-trust.pdf (Exhibit EU-74).


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461. Indeed, in a large number of cases where certification is mandatory, WTO

Members designate the accreditation bodies accrediting conformity assessment

bodies598 and establish the regulatory framework for the operation of systems for

accreditation of certifying bodies and for certification, but do not always take up

the task of assessing compliance and issuing certificates of conformity themselves

through government authorities.599

462. In view of the fact that Canada's claim under Article 5.1.2 appears to be based on

the incorrect premise that there is an obligation under Article 5.1.2 to ensure the

existence of a conformity assessment body at all times,600 its claim should be

rejected.

3.4.1.3 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

463. The European Union will now briefly601 address 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.

464. The European Union submits that Norway's unsupported allegation that the

designation of a public entity, such as the European Commission or regional

bodies within the European Union, as a "default" recognised body would have

been more efficient than allowing any private of public entity to be designated as a

"recognised" body is disingenuous.

465. In a context, like the one at issue, where certification 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

598 Accredited bodies can be private or government owned, and range in size from sole traders to large

multi-disciplinary, multi-site organisations. 599 The list of the current membership of the International Accreditation Forum, the world association of

national accreditation bodies for management systems and other conformity assessment programs, gives an indication of how wide-spread the system of accreditation of conformity assessment bodies is. This list is available at http://www.iaf.nu/articles/Accreditation_Body_Members_by_Name/52 (Exhibit EU-75).

600 Canada's first written submission, paras 718-721. 601 In view of the fact that Canada and Norway failed to make a prima facie case with respect to the

necessity test under Article 5.1.2, the European Union is not in a position to rebut actual evidence or arguments.

http://www.iaf.nu/articles/Accreditation_Body_Members_by_Name/52


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Union could have a greater trade distortive effect than the system that the

European Union put in place through the Implementing Regulation.

466. Indeed, if one single central government authority, such as the European

Commission, were to issue certificates of compliance for every importer wanting

to benefit of the IC and MRM exceptions, this would probably entail a less

efficient and ultimately considerably costlier certification mechanism for operators

than allowing for any public or private entity (that meets certain basic

requirements guaranteeing its capacity to assess and issue conformity certificates

and operate independently) to issue certificates of compliance.

467. The European Union notes in this respect that pursuant to Article 5.2.5 of the TBT

Agreement, conformity assessment authorities are entitled to charge for

"communication, transportation and other costs arising from differences between

location of facilities of the applicant and the conformity assessment body". In the

context of assessing compliance with the IC and MRM exceptions centralising

conformity assessment and certification activities within the European

Commission would have inevitably resulted in considerable costs for certain

applicants.

468. What Norway describes as an "institutional lacuna"602, is therefore 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. While encouraged603, such degree of openness

to participation of conformity assessment bodies located in the territories of other

Members is not required by the TBT Agreement.

3.4.1.4 Conclusion

469. As they failed to establish a prima facie case, the Panel should reject Canada's and

Norway's claims under Article 5.1.2 of the TBT Agreement.

470. In any event, the European Union showed that the procedure under the

Implementing Regulation falls within the scope of regulatory autonomy that the

602 Norway's first written submission, para. 948. 603 See Article 6 of the TBT Agreement.


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TBT Agreement permits. The Panel should interpret the obligation under Article

5.1.2 in accordance with the customary rules of treaty interpretation604 and reject

its simplistic reading advanced by Canada and Norway.

3.4.2. Article 5.2.1

471. In its first written submission, Canada seems to put forward two claims under

Article 5.2.1. Firstly, it argues that the conformity assessment regime established

in the Implementing Regulation does not include the creation of an appropriate

body competent to perform the conformity assessment procedure to certify

compliance with the IC and MRM exceptions.605 Secondly, it submits that the

European Union's failure to recognise any body as competent to issue attestation

documents "more than 20 months after having received the first application from a

third party entity" amounts to a violation of Article 5.2.1.606 The European Union

understands Canada's first claim to be directed against the Implementing

Regulation "as such", whereas the second claim would appear to be directed

against the Implementing Regulation "as applied" with regard to an application

submitted by Greenland.

472. Norway challenges the Implementing Regulation "as such" as incompatible with

Article 5.2.1 as a result of the lack of a "default" recognised body.607

3.4.2.1 The legal standard

473. Article 5.2 of the TBT Agreement in its relevant part provides that:

When implementing the provisions of paragraph 1, Members shall ensure that:

5.2.1conformity assessment procedures are undertaken and completed as expeditiously as possible […];

474. Article 5.2.1 contains an obligation that conformity assessment procedures be

undertaken and completed "as expeditiously as possible". In this regard, the

604 Article 31(1) of the Vienna Convention on the Law of Treaties provides: "A treaty shall be interpreted

in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."

605 Canada's first written submission, paras 728 et seq. 606 Ibid., para. 732. 607 Norway's first written submission, paras 958 et seq.


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ordinary meaning of the word "expeditious" is "speedily performed or given;

conductive to speedy performance".608 Thus, Article 5.2.1 requires Members to

ensure that relevant procedures are undertaken and completed as speedily as may

be done.

475. The European Union agrees with Canada and Norway609 that the jurisprudence

concerning Annex C.1(a) of the Agreement on the Application of Sanitary and

Phytosanitary Measures (SPS Agreement)610 is relevant in interpreting the

obligation under Article 5.2.1 of the TBT Agreement.

476. In interpreting Annex C.1(a) the panel in EC – Approval and Marketing of Biotech

Products explained the meaning of the phrase "undertake and complete":

The verb "undertake" makes clear that Members are required to begin, or start, approval procedures after receiving an application for approval. The verb "complete", on the other hand, indicates that approval procedures are not only to be undertaken, but are also to be finished, or concluded. Thus, in our view, the phrase "undertake and complete" covers all stages of approval procedures and should be taken as meaning that, once an application has been received, approval procedures must be started and then carried out from beginning to end. (emphasis added, footnotes omitted) 611

477. The panel in EC – Approval and Marketing of Biotech Products further considered

that the ordinary meaning of the phrase "without undue delay" requires that

"approval procedures be undertaken and completed with no unjustifiable loss of

time."612 Therefore, only "undue" delay in the undertaking or completion of

approval procedures is contrary to the first clause of Annex C(1)(a). Regarding

"undue delay", what matters, according to the panel, is whether there is a

legitimate reason, or justification, for a given delay, not the length of a delay as

such:

608 Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 886.

(Exhibit EU-76) 609 Canada's first written submission, para. 726. Norway's first written submission, paras 955-956. 610 Annex C.1(a) of the SPS Agreement reads as follows:

"1. Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that: (a) such procedures are undertaken and completed without undue delay and in no less favourable manner for imported products than for like domestic products;"

611 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1494. 612 Ibid., para. 7.1495.


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We recall in this regard that, in our view, Annex C(1)(a), first clause, requires that there not be any unjustifiable loss of time. Thus, what matters is whether there is a legitimate reason, or justification, for a given delay, not the length of a delay as such. Accordingly, if a Member causes a relatively short, but unjustifiable delay, we do not consider that the mere fact that the delay is relatively short would, or should, preclude a panel from finding that it is "undue". Similarly, we do not consider that a demonstration that a particular approval procedure has been delayed by, say, two years would always and necessarily be sufficient to establish that the relevant procedure has been "unduly" delayed. Having said this, we note that a lengthy delay for which no adequate explanation is provided might in some circumstances permit the inference that the delay is "undue". (footnotes omitted) 613

478. The panel also explained that the determination of "without undue delay" must be

made on a case-by-case basis614 according to the relevant facts and circumstances

of a specific case and considered:

[…] that it would be neither possible nor useful to attempt to define the reasons which would render a given delay "undue", and those which would not render it "undue". Nevertheless, it may be noted that a Member is not legally responsible for delays which are not attributable to it. Hence, delays attributable to action, or inaction, of an applicant must not be held against a Member when a determination is made regarding whether that Member has undertaken or completed approval procedures "without undue delay". (emphasis added) 615

613 Ibid., para. 7.1496. 614 This has been confirmed by the Appellate Body in Australia – Apples which noted that "[w]hether a

relevant procedure has been unduly delayed is, therefore, not an assessment that can be done in the abstract, but one which requires a case-by-case analysis as to the reasons for the alleged failure to act with appropriate dispatch, and whether such reasons are justifiable". (Appellate Body report, Australia – Apples, para. 437.)

615 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1497.


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3.4.2.2 The claim against the Implementing Regulation as such

479. As the European Union explained already in the context of the claim under Article

5.1.2, the conformity assessment procedure and more specifically the system of

designation/recognition of conformity assessment bodies established pursuant to

the Implementing Regulation fall within the scope of regulatory discretion that the

TBT Agreement allows to WTO Members in adopting conformity assessment

procedures. Neither the text, nor the relevant context of Article 5.1.2 or the

subsequent practice, support the interpretation advanced by Canada and Norway,

whereby WTO Members would always be obliged to set up a default government

authority to act as conformity assessment body.616

480. The jurisprudence on Annex C.1(a) of the SPS that Canada and Norway both refer

to in their legal analysis confirms that an obligation on WTO Members to set up a

public body to act as "default" conformity assessment body equally does not flow

from Article 5.2.1.

481. 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 and 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.

482. It is regrettable that despite the fact the Implementing regulation allowed for the

widest possible spectrum of potential conformity assessment bodies, only twelve

applications to be added on the list of recognised bodies for the purpose of issuing

certificates of conformity with the IC and MRM exception under the Seals regime

have been received by the European Commission to date. The first were submitted

on 20 January 2011 with respect to 11 County Administrative Boards by the

616 See above section 3.6.1.2.


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Government of Sweden617. A further application was submitted on 23 February

2011by Denmark on behalf of the Self-Rule Government of Greenland.618

483. Like Annex C.1(a) of the SPS, Article 5.2.1 is a good faith obligation619 requiring

Members to proceed with their conformity assessment procedures as promptly as

possible. As explained in the context of the Article 5.1.2 claim the European

Union acted in good faith when it adopted the Implementing regulation 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).

484. 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. 620

617 The European Commission received on 20 January 2011 a request by the Swedish Ministry of

Agriculture, on behalf of the County Administrative Boards of Norrbotten, Västerbotten, Västernorrland, Gävleborg, Uppsala, Stockholm, Södermanland, Östergötland, Kalmar, Västra Götaland and Halland, dated 20 December 2010, for those bodies to be recognised for the purposes of Article 6 of Commission Regulation (EU) No 737/2010. The request was accompanied by documentary evidence. By letter dated 7 July 2011, the European Commission accepted that the eleven applications be treated jointly and requested additional documentary evidence with regard to fulfilment of some of the requirements set out in Article 6(1) of Commission Regulation (EU) No 737/2010. By letter dated 6 October 2011, the Swedish Ministry for Agriculture submitted additional information and documentary evidence. The European Commission has assessed on the basis of the entirety of the documentary evidence submitted whether the requirements for recognising bodies have been met. On 18 December 2012 the European Commission adopted a decision to recognise the 16 applicant bodies. The list of recognised bodies is published on the European Commission website at http://ec.europa.eu/environment/biodiversity/animal_welfare/seals/seal_hunting.htm (Exhibit EU-77).

618 The application submitted by Greenland was incomplete. The Commission therefore requested additional documentary evidence with regard to the fulfilment of some of the requirements set out in Article 6(1) on 7 July 2011. Supplementary documents were submitted to the European Commission via the Danish Ministry of Foreign Affairs on 19 January 2012. As compliance with the conditions set out in Article 6 of the Implementing Regulation could still not be established, the European Commission has through various exchanges – the most recent one being a meeting on 7 December 2012 at the Greenland Representation in Brussels – engaged with the applicant to explain which additional documentary evidence still needs to be provided before the applicant, Greenland Department of Fisheries, Hunting and Agriculture (APNN), can obtain the status of recognised body.

619 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1498. 620 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1497.

http://ec.europa.eu/environment/biodiversity/animal_welfare/seals/seal_hunting.htm


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3.4.2.3 The claim against the Implementing regulation as applied

485. The European Union submits that Canada's "as applied" claim under Article 5.2.1

falls outside the Panel's terms of reference and should be rejected on those

grounds. As it is clear from its text Canada's panel request only covers the Basic

Regulation and the Implementing regulation as such:

[…] Canada considers that the implementing measure, either in itself or in combination with Regulation (EC) No. 1007/2009, is inconsistent with the European Union's obligations under the following provisions of the TBT Agreement:

[…]

(3) Article 5.2.1 and 5.2.2 in relation to the timeliness of implementation of the conformity assessment procedures set out in the implementing measure. 621

486. In the alternative, 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 Union, because the alleged delay is due to a

deficiency in the application which has still not been fully remedied by the

applicant.622

487. 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".623

3.4.2.4 Conclusion

The complaining parties have not established that the Implementing regulation

violates Article 5.2.1 of the TBT Agreement; their claims should therefore be

rejected.

621 Canada's Request for the establishment of a Panel, WT/DS/400/4. 622 See footnote 618 above. 623 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1497.


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4. THE GATT

4.1. ARTICLE XI:1 OF THE GATT 1994

488. Both Canada and Norway make claims that the EU Seal Regime is inconsistent

with Article XI:I of the GATT 1994.

489. In particular, Canada argues that the EU Seal Regime, through the General Ban

and its three exceptions, imposes a quantitative restriction on foreign seal products,

and in the case of seal products derived from Canada's east coast commercial seal

hunts, an import prohibition on such products, contrary to Article XI:1 of the

GATT.624 According to Canada, around 95% of its seal products come from east

coast commercial hunts and are subject to the ban, whereas some of its products

could fall under the IC and Travelers exceptions.625 Thus, Canada submits that the

EU Seal Regime is a border measure that acts as a restriction or prohibition in

violation of Article XI:1. 626 Similarly, Norway claims that, under Article 3 of the

Basic Regulation, the importation of seal products is permitted only if the products

conform to the IC, Travellers and MRM exceptions, and thus, effectively the

measure operates as a border measure that is inconsistent with Article XI:1 of the

GATT 1994.627

490. The European Union disagrees with the qualification by Canada and Norway of

the EU Seal Regime as falling under Article XI:1 of the GATT 1994. As the

European Union will show below, Article XI:1 of the GATT 1994 only applies to

border measures, by virtue of the Ad Note to Article III of the GATT 1994.

However, the EU Seal Regime is not a border measure but an internal regulation.

As a consequence, the EU Seal Regime falls under the scope of Article III of the

GATT 1994, but not under Article XI.

624 Canada's first written submission, para. 281. 625 Canada's first written submission, para. 286. 626 Canada's first written submission, para. 292. 627 Norway's first written submission, paras. 457 – 462.


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491. Article XI:1 of the GATT 1994 provides that:

No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

492. Thus, Article XI:1 of the GATT 1994 covers measures applied "on the importation

of any product". However, measures do not automatically fall under the scope of

Article XI:1 just because they are 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

what provision applies in cases where a certain type of measure amounts to an

internal regulation which is also enforced at the border. The Ad Note to Article III

provides that:

Any internal tax or other internal charge, or any law, regulation or requirement of the kind referred to in [Article III:1] which 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, is nevertheless to be regarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in [Article III:1], and is accordingly subject to the provisions of Article III.

493. In other words, 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. The GATT panel

in Canada – FIRA confirmed this approach:


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The Panel shares the view of Canada that the General Agreement distinguishes between measures affecting the "importation" of products, which are regulated in Article XI:1, and those affecting "imported products", which are dealt with in Article III. If Article XI:1 were interpreted broadly to cover also internal requirements, Article III would be partly superfluous. Moreover, the exceptions to Article XI:1, in particular those contained in Article XI:2, would also apply to internal requirements restricting imports, which would be contrary to the basic aim of Article III. The Panel did not find, either in the drafting history of the General Agreement or in previous cases examined by the CONTRACTING PARTIES, any evidence justifying such an interpretation of Article XI. For these reasons, the Panel, noting that purchase undertakings do not prevent the importation of goods as such, reached the conclusion that they are not inconsistent with Article XI:1.628

494. Following a similar analysis, the panel in EC—Asbestos applied the Ad Note to

Article III in finding that France's ban on asbestos and asbestos products was to be

assessed under Article III:4 and not under Article XI, because it applied to both

domestic and imported products.629

495. 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.

4.1.2. The EU Seal Regime does not fall under Article XI of the GATT 1994

496. 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

628 GATT Panel, Canada – Administration of the Foreign Investment Review Act (FIRA), adopted on 7

February 1984 (L/5504 - 30S/140), para. 5.14. 629 Panel Report, EC – Asbestos, paras. 8.91 – 8.99. See also Panel Report, China – Publications and

Audiovisual Products, para. 7.1624 ("The Panel agrees with the United States that the Ad Note clarifies that merely because a measure is applied at the border does not mean that it is outside the scope of Article III of the GATT 1994. The Ad Note to Article III states that Article III shall apply to any law, regulation, or requirement affecting the internal sale, offer for sale, purchase, transportation, distribution, or use even if such law is enforced with respect to the imported product at the time or point of importation. We, therefore, concur with the ruling of the panel in India – Autos that "the fact that a requirement is imposed as a condition on importation is not necessarily in itself an obstacle to its falling within the scope of Article III:4").


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characterised as an internal measure (affecting both domestic and imported

products).630

497. Indeed, as stated in Article 1 of the Basic Regulation, the EU Seal Regime

concerns "the placing on the market of seal products". Article 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).

498. In view of the Ad Note to Article III of the GATT 1994, the European Union

considers that the EU Seal Regime does not fall under the scope of Article XI of

the GATT 1994.

4.1.3. Conclusion

499. In light of the foregoing, the European Union requests the Panel to reject the

Parties' claim under Article XI:1 of the GATT 1994. The European Union

considers that, as an internal measure, the Panel should examine whether it is

discriminatory under Article III:4 and Article I:1 of the GATT 1994, as claimed by

the Parties. In any event, were the Panel nevertheless to find that Article XI of the

GATT 1994 is applicable in this case, the European Union submit that, for the

reasons explained below in this submission, the EU Seal Regime is justified under

the General Exceptions of Article XX of the GATT 1994.

4.2. ARTICLE III:4 OF THE GATT 1994


with Article III:4 of the GATT 1994.

630 As discussed below in para. 511, the European Union does not dispute that the EU Seal Regime

amounts to a "law" "affecting the internal sale" of seal products within the EU and thus is a measure o the kind referred to in Article III:1 of the GATT 1994.


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501. In particular, Canada argues that the EU Seal Regime, pursuant to the MRM

exception, allows all domestic seal products from the EU to continue to be placed

on the EU market, but excludes the vast majority of Canadian seal products from

the same market, thereby modifying the conditions of competition to the detriment

of Canadian seal products and constituting a de facto violation of Article III:4 of

the GATT 1994.631 Similarly, Norway claims that, through the MRM exception,

the EU Seal Regime provides less favourable treatment to imported products than

to the like domestic products in violation of Article III:4 of the GATT 1994.632

502. The European Union will demonstrate below that these claims 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. Thus, for the same

reasons as those mentioned before,633 the European Union considers that there is

no de facto discrimination between the group of imported products and the group

of domestic like products. In any event, the European Union will also address the

specific arguments raised by Canada and Norway with respect to this claim.


503. Article III:4 of the GATT 1994 provides that:

The products of the territory of any Member imported into the territory of any other Member shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.

504. It is thus well acknowledged that three elements must be examined to assess a

measure's consistency with Article III:4 of the GATT 1994: (i) whether the

measure is a law, regulation or requirement affecting the internal sale, offering for

sale, purchase, or use of goods; (ii) whether the products at issue are like; and (iii)

631 Canada's first written submission, paras. 325 – 347. 632 Norway's first written submission, paras. 405 – 451. 633 See paras. 251 – 256 and 303 – 335 above of this submission.


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whether imported products are afforded less favourable treatment than that given

to the like domestic products.634

505. The European Union observes that the scope of measures falling under Article

III:4 of the GATT 1994 is different (and potentially broader) than the scope of

measures falling under Article 2.1 of the TBT Agreement. However, the legal

parameters for the purpose of analysing whether a measure violates the national

treatment in the context of both provisions should be the same.635 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 1994.636

506. In particular, with respect to (ii), a determination of "likeness" under Article III:4

is, fundamentally, a determination "about the nature and extent of a competitive

relationship between and among products".637

507. With respect to (iii), i.e., less favourable treatment, in EC – Asbestos the Appellate

Body found, in the context of Article III:4 of the GATT 1994, that a measure

drawing distinctions between like products will not, "for this reason alone", accord

imported products less favourable treatment than that accorded to the group of like

domestic products:

634 Appellate Body Report, Korea – Various Measures on Beef, para. 133. 635 Both Canada and Norway also appear to agree with this proposition (see Canada's first written

submission, para. 380; Norway's first written submission, para. 422). 636 Appellate Body Report, US – Clove Cigarettes, paras. 176 – 182. See also Appellate Body Report, US

– Tuna II (Mexico), paras. 214, 215, and 236-239 and Appellate Body Report, US – COOL, paras. 260 and 270.

637 Appellate Body Report, EC – Asbestos, para. 99.


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Thus, even if two products are "like", that does not mean that a measure is inconsistent with Article III:4. A complaining Member must still establish that the measure accords to the group of "like" imported products "less favourable treatment" than it accords to the group of "like" domestic products. The term "less favourable treatment" expresses the general principle, in Article III:1, that internal regulations "should not be applied … so as to afford protection to domestic production". If there is "less favourable treatment" of the group of "like" imported products, there is, conversely, "protection" of the group of "like" domestic products. However, a Member may draw distinctions between products which have been found to be "like", without, for this reason alone, according to the group of "like" imported products "less favourable treatment" than that accorded to the group of "like" domestic products. In this case, we do not examine further the interpretation of the term "treatment no less favourable" in Article III:4, as the Panel's findings on this issue have not been appealed or, indeed, argued before us.638

508. In sum, like in the context of a claim against a technical regulation pursuant to

Article 2.1 of the TBT Agreement, a panel examining a claim against a measure

affecting the internal sale, offering for sale, purchase, or use of goods in the

context of Article III:4 of the GATT has to examine (i) whether the group of

products at issue are like, by determining the nature and extent of a competitive

relationship between and among products; and (ii) whether the group of imported

products are afforded less favourable treatment than that given to the group of

domestic like products. In examining less favourable treatment in the context of

Article III:4 of the GATT 1994, a Member may draw distinctions between

products which have been found to be "like" without such distinctions involving

less favourable treatment. Insofar as the measure its origin neutral on its face,

discrimination does not arise when two situations that are different are treated

differently.639

638 Appellate Body Report, EC – Asbestos, para. 100. In US – COOL, the Appellate Body expressly made

the link between EC – Asbestos and its jurisprudence about "less favourable treatment" relating to Article 2.1 of the TBT Agreement (Appellate Body Report, US – COOL, footnote 479).

639 Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 87 ("When viewed in the abstract, the concept of discrimination may encompass both the making of distinctions between similar situations, as well as treating dissimilar situations in a formally identical manner"); and Appellate Body Report, EC – Tariff Preferences, paras. 152 – 156 ("It is clear from the ordinary meanings of 'nondiscriminatory', however, that preference-granting countries must make available identical tariff preferences to all similarly-situated beneficiaries. (…) It does not necessarily follow, however, that 'non-discriminatory' should be interpreted to require that preference-granting countries provide 'identical' tariff preferences under GSP schemes to 'all' developing countries").


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509. Against this legal background, the European Union will examine the EU Seal

Regime in order to show that the MRM exception is consistent with Article III:4 of

the GATT 1994.

4.2.2. The EU Seal Regime as a law, regulation or requirement affecting the internal sale, offering for sale, purchase and distribution of seal products in the EU

510. The first element that needs to be examined 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.

511. The European Union does not dispute that the EU Seal Regime amounts to a "law"

"affecting the internal sale" of seal products within the EU. The Basic Regulation

imposes a general prohibition on the "placing on the market" of seal products. This

prohibition is subject to three exceptions allowing, under certain conditions: (i) the

placing on the market of seal products resulting from hunts traditionally conducted

by Inuit or other indigenous communities (IC exception); (ii) the placing on the

market, on a non-profit basis, of seal products resulting from hunts conducted for

the sole purpose of the sustainable management of marine resources (the MRM

exception); and (iii) the import of seal products for personal use by travellers or

their families (the Travellers exception).

512. Thus, the General Ban and its exceptions amounts to a "law" "affecting the internal

sale" of seal products within the European Union.

4.2.3. Likeness

513. 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.

514. For the same reasons as those mentioned before, the European Union considers

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. Indeed, the EU Seal Regime

distinguishes between seal products that can be placed on the EU market (i.e.,


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those falling under the IC and MRM exceptions)640 and those that cannot (i.e., the

rest, falling under the General Ban). The European Union considers that all seal

products have identical product characteristics, i.e., they derived or were obtained

from seals. However, the Basic Regulation makes a distinction between (i) seal

products that conform to certain requirements by referring to the type and purpose

of the hunts (i.e., the traditional hunt conducted by Inuit and other indigenous

communities for the purpose of their subsistence, and the small-scale/non-profit

hunt conducted for the purpose of the sustainable management of marine

resources), and (ii) seal products that do not conform to those requirements

(essentially, those derived or obtained from commercial hunts).


this case are seal products that conform to the Basic Regulation in view of the type

and purpose of the hunt they were obtained from (i.e., traditional and small-scale)

and those that do not conform to the Basic Regulation in view of the commercial

nature of the hunts they derived from.641

4.2.4. Less Favourable Treatment – MRM exception

516. The European Union submits that, for the same 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 less favourable

treatment to the group of imported products.642

517. In addition, the European Union would like to address the following specific

arguments made by the Parties in the context of their claim under Article III:4 of

the GATT 1994.

640 Articles 3.1 ("The placing on the market of seal products shall be allowed only where the seal

products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence") and 3.2(b) of the Basic Regulation ("By way of derogation from paragraph 1: the placing on the market of seal products shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons").

641 See also footnote 350 of this submission. 642 See paras. 322 – 335 above of this submission.


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518. First, Canada states that "EU domestic seal products will benefit greatly from the

Marine Management category, while Canadian seal products will not".643 This is

not the case. As mentioned before, any country in the world carrying out the type

of hunts described in the MRM exception could fall under such exception. Hence,

should Canada have small-scale hunts for the only purpose of managing marine

resources, by-products from those hunts could be placed on the market on a non-

profit basis in accordance with the requirements of Article 3.2.

519. Further, the European Union notes that, as a matter of fact, and as a very recent

development, only seal products originating in Sweden and accompanied by the

relevant document in accordance with Article 5.2 of the Implementing Regulation

can be placed on the market under the MRM exception.644 The products of any

other EU Member State, such as Finland or the United Kingdom (Scotland), are

not allowed to be placed on the EU market. In fact, no public entity in any of those

countries, allegedly targeted by the MRM exception, have even requested the

necessary authorisation to the European Commission to have recognised bodies

which could issue attesting documents. Thus, Canada's allegation about the

purpose of the MRM exception (as seeking only to benefit EU products) is pure

speculation.

520. Second, Canada argues that its seal products cannot fall under the MRM exception

because they derived from seals taken as part of the "annual" east coast seal hunts

and thus are intended to be placed on the market "systematically" by the hunters

for the specific purpose of commercial gain. Canada also suggests that the

"ecosystem-based approach" condition for the management plan would also

exclude Canadian seal products because Canadian hunts are conducted in a manner

to ensure sustainability of seal population, rather than the ecosystem.645 In this

respect, the European Union observes that the fact that Canadian products may not

fall under the MRM exception does not imply that there is de facto discrimination.

As mentioned before, the conditions about the non-systematic way and on non-

profit basis are intrinsic requirements which are in line with the main purpose of

643 Canada's first written submission, para. 337. 644 See footnote 617 above of this submission. 645 Canada's first written submission, paras. 339 – 345.


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the General Ban, i.e., ensure that the killing of seals (and the consequent placement

on the EU market of seal products) is permitted in very limited cases which are

considered as morally acceptable. The same can be concluded from the ecosystem

approach. The fact that Canada does not follow an ecosystem approach, whereas

other countries do,646 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.

521. Third, Norway incorrectly identifies the purpose behind the MRM exception as

satisfying the concerns of those EU Member States that "the Regulation would

impact upon their policies for controlling seal population".647 As explained before,

the MRM exception takes into account that, alongside large-scale seal hunts

carried out mainly for commercial purposes, there exist also small-scale hunts

conducted occasionally with the sole purpose of ensuring a sustainable

management of marine resources. Thus, it is the size, intensity and purpose behind

the hunt in the case of the MRM exception what is relevant and considered as

morally acceptable (i.e., occasional small-scale hunts for the purpose of managing

marine resources). As a result, 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).

522. Moreover, the EU Seal Regime only concerns the placing of the market of seal

products and does not regulate or prohibit seal hunting in any form, including for

the purpose of controlling seal population. Thus, contrary to what Norway

suggests, the EU Seal Regime does not have an impact on any country's policy for

controlling seal population.

646 E.g., Norway (see Norwegian Ministry of Fisheries and Coastal Affairs, English Summary of White

Paper No. 27 (2003-2004) on Norway’s Policy on Marine Mammals (19 March 2004), p. 1 ("…Norway’s efforts to implement the ecosystem approach to the management of its marine resources").

647 Norway's first written submission, para. 425.


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523. Fourth, Norway argues that certain conditions in the MRM exception are (i)

unnecessary to fulfil the measure's stated objectives and (ii) discriminatory.648

With respect to the first limb of Norway's claim, the European Union has already

shown that the stated objective identified by Norway is incorrect. Thus, Norway's

arguments on this basis are misplaced. With regard to the second limb of Norway's

claim, the European Union observes that Norway makes the same essential

mistake as Canada. In particular, 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. The fact that Norway considers

that it does not currently meet those conditions does not make the MRM exception

discriminatory in the sense of Article III:4 of the GATT 1994. Put in other terms,

the fact that "the situation is different in Norway"649 does not imply that there is

"less favourable treatment" per se.650 Insofar as those conditions are meant to

cover situations that are different to the situations prevailing in other countries

conducting other type of hunts that do not meet those specific conditions, the

different treatment provided by the EU Seal Regime through the MRM exception

cannot be found to be discriminatory.

524. In sum, none of the specific arguments raised by the Complaining Parties in the

context of their claim under Article III:4 of the GATT 1994 changes the

conclusion that the EU Seal Regime, through the MRM exception, is consistent

with that provision.

4.2.5. Conclusion


through the MRM exception, is consistent with Article III:4 of the GATT 1994.

648 Norway's first written submission, paras. 428 – 449. 649 Norway's first written submission, para. 444. 650 See para. 289 above. See also Appellate Body Report, Dominican Republic – Import and Sale of

Cigarettes, para. 96 ("[T]he mere demonstration that the per-unit cost of the bond requirement for imported cigarettes was higher than for some domestic cigarettes during a particular period is not, in our view, sufficient to establish 'less favourable treatment' under Article III:4 of the GATT 1994. Indeed, the difference between the per-unit costs of the bond requirement alleged by Honduras is explained by the fact that the importer of Honduran cigarettes has a smaller market share than two domestic producers") and Appellate Body Report, US – Clove Cigarettes, footnote 372.


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4.3. ARTICLE I:1 OF THE GATT 1994


with Article I:1 of the GATT 1994.

527. In particular, Canada argues that the EU Seal Regime, through the IC exception,

violates the MFN obligation under Article I:1 of GATT 1994 because it does not

confer "immediately and unconditionally" the same trade advantage on Canadian

seal products that it confers on seal products from Greenland. In particular,

according to Canada, the conditions that must be satisfied for products to fall

within the IC exception effectively permits all seal products from Greenland to be

placed on the EU market, while excluding the vast majority of Canadian seal

products from the same market.651 Similarly, Norway claims that, through the IC

exception, the EU Seal Regime provides less favourable treatment to imported

products than to the like products from other origins in violation of Article I:1 of

the GATT 1994.652

528. 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. Thus, for the same reasons as those

mentioned before,653 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 will also address the specific arguments raised by Canada and Norway in

the context of this claim.


529. Article I:1 of the GATT 1994 provides, in its relevant part, that:

651 Canada's first written submission, paras. 294 – 324. 652 Norway's first written submission, paras. 365 – 404. 653 See paras. 257 – 302 above of this submission.


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[W]ith respect to all matters referred to in paragraphs 2 and 4 of Article III,* any advantage, favour, privilege or immunity granted by any [Member] to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other [Members].

530. Thus, Article I:1 of the GATT 1994 applies, inter alia, to measures falling under

Article III:4 of the GATT 1994. If, pursuant to those measures, any advantage is

granted to any product originating from any other country, like products

originating in all other Members must be accorded immediately and

unconditionally the same advantage. The Appellate Body in Canada – Autos

discussed the object and purpose of Article I:1 as follows:

Th[e] object and purpose [of Article I] is to prohibit discrimination among like products originating in or destined for different countries. The prohibition of discrimination in Article I:1 also serves as an incentive for concessions, negotiated reciprocally, to be extended to all other Members on an MFN basis.654

531. Thus, in order to establish a violation of Article I:1, there must be an advantage, of

the type covered by Article I and which is not accorded immediately and

unconditionally to all "like products" of all WTO Members.655

532. The term "advantage" within Article I:1 of the GATT 1994 has been interpreted

broadly by the Appellate Body. In Canada – Autos, the Appellate Body discussed

the significance of "any advantage … granted by any Member to any product" as

follows:

654 Appellate Body Report, Canada – Autos, para. 84. 655 Panel Report, EC – Bananas III (Article 21.5 – US), para. 7.555; and Panel Report, Indonesia – Autos,

para. 14.138, citing to Appellate Body Report, EC – Bananas III, para. 206.


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We note next that Article I:1 requires that 'any advantage, favour, privilege or immunity granted by any Member to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other Members.' (emphasis added) The words of Article I:1 refer not to some advantages granted 'with respect to' the subjects that fall within the defined scope of the Article, but to 'any advantage'; not to some products, but to 'any product '; and not to like products from some other Members, but to like products originating in or destined for 'all other' Members.656

533. The panel in EC – Bananas III considered that "advantages" within the meaning of

Article I:1 are those that create "more favourable competitive opportunities" or

affect the commercial relationship between products of different origins.657 Thus,

such advantages affect the commercial opportunities in such a way as to create

"more favourable competitive opportunities" for products of a certain origin. This

is in line with the approach taken in respect of Article III of the GATT 1994.

534. The requirement to extend such advantages "unconditionally" does not imply that

no conditions may be attached to the granting of the advantage in the first place.

This was clearly stated by the panel in Canada – Autos which considered that the

term "unconditionally" does not mean that all and any conditions are prohibited. It

found that "[w]hether conditions attached to an advantage granted in connection

the importation of a product offend Article I:1 depends upon whether or not such

conditions discriminate with respect to the origin of products".658 In other words,

the panel held that conditions unrelated to the imported goods were not contrary to

Article I:1 per se, but only if they discriminated according to the origin of the

products. The panel explained its view in light of the term "unconditionally":

656 Appellate Body Report, Canada – Autos, para. 79. 657 Panel Report, EC – Bananas III (Guatemala and Honduras), para. 7.239. 658 Panel Report, Canada – Autos, para. 10.29.


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The word 'unconditionally' in Article I:1 does not pertain to the granting of an advantage per se, but to the obligation to accord to the like products of all Members an advantage which has been granted to any product originating in any country. The purpose of Article I:1 is to ensure unconditional MFN treatment. In this context, we consider that the obligation to accord 'unconditionally' to third countries which are WTO Members an advantage which has been granted to any other country means that the extension of that advantage may not be made subject to conditions with respect to the situation or conduct of those countries. This means that an advantage granted to the product of any country must be accorded to the like product of all WTO Members without discrimination as to origin.

In this respect, it appears to us that there is an important distinction to be made between, on the one hand, the issue of whether an advantage within the meaning of Article I:1 is subject to conditions, and, on the other, whether an advantage, once it has been granted to the product of any country, is accorded "unconditionally" to the like product of all other Members. An advantage can be granted subject to conditions without necessarily implying that it is not accorded "unconditionally" to the like product of other Members. More specifically, the fact that conditions attached to such an advantage are not related to the imported product itself does not necessarily imply that such conditions are discriminatory with respect to the origin of imported products.659

535. In other words, Article I:1 of the GATT 1994 does not require that any favourable

treatment or advantage has to apply in the exact and same manner to all imports

irrespective of their source. Like the test of Article III:4 of the GATT 1994, the

test of Article I is about discrimination, not about deregulation. Members are

allowed to introduce legislation of any kind as long as they do not discriminate as

to origin in the sense that they affect competitive opportunities between groups of

like products from different WTO Members. Members are equally entitled to

condition access to their markets on compliance with and respect for the Member's

laws and on meeting certain other public policy standards. The GATT panel in US

– MFN Footwear also followed this approach in the contest of an MFN claim

when stating that:

659 Panel Report, Canada – Autos, paras. 10.23 – 10.24.


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The Panel noted that Article I would in principle permit a contracting party to have different countervailing duty laws and procedures for different categories of products, or even to exempt one category of products from countervailing duty laws altogether. The mere fact that one category of products is treated one way by the United States and another category of products is treated another is therefore in principle not inconsistent with the most-favoured-nation obligation of Article I:1.660

536. Thus, the thrust of Article I:1 of the GATT 1994 focuses on whether any

advantage is discriminatory as to origin, either de jure (i.e., based on the explicit

terms of the measure explicitly granting advantages on origin grounds) or de facto

(i.e., based on the totality of the evidence, indicating that certain conditions relate

to origin).661 Conditions attached to an advantage will violate Article I:1 of the

GATT 1994 only when such conditions discriminate with respect to the origin of

the products.662

537. In this respect, the European Union considers that the panel's statement in Canada

–Autos that the "advantage may not be made subject to conditions with respect to

the situation or conduct of those countries" is confusing and a mere obiter dictum.

The preferences at issue in Canada – Autos were not dependent upon the

"situation" or "conduct" of countries, but instead upon the "conduct” of the

importers of automobiles.663 The Appellate Body did not endorse that dictum since

the Appellate Body did not address the meaning of "unconditionally".

538. In the context of Article I:1 of the GATT 1994, like in the context of the MFN

obligation under Article 2.1 of the TBT Agreement, the relevant question is

whether there is "less favourable treatment" between the group of imported

660 GATT Panel Report, US – Denial of MFN Treatment as to Non-Rubber Footwear from Brazil

(adopted on 19 June 1992), para. 6.11. 661 Appellate Body Report, EC – Bananas III, para. 232 ("Articles I and II of the GATT 1994 have been

applied, in past practice, to measures involving de facto discrimination. We refer, in particular, to the panel report in European Economic Community - Imports of Beef from Canada, which examined the consistency of EEC regulations implementing a levy-free tariff quota for high quality grain-fed beef with Article I of the GATT 1947. Those regulations made suspension of the import levy for such beef conditional on production of a certificate of authenticity. The only certifying agency authorized to produce a certificate of authenticity was a United States agency. The panel, therefore, found that the EEC regulations were inconsistent with the MFN principle in Article I of the GATT 1947 as they had the effect of denying access to the EEC market to exports of products of any origin other than that of the United States") (footnotes omitted).

662 See e.g. Panel Report, US – Poultry (China), paras. 7.437 – 7.440. 663 Panel Report, Canada – Autos, para. 10.38.


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products and the group of products from other origin in the territory of the

importing Member. Such "less favourable treatment" may arise because an

advantage is granted on a discriminatory basis as to the origin of the products in

question.664 If the conditions in order to obtain an advantage are drafted in an

origin-neutral manner, i.e., potentially the same situation may take place in many

countries in the world, the requirement of such condition in order to obtain the

advantage would not be discriminatory.

539. Finally, the European Union considers that, despite the difference in their

language, the observations made by the Appellate Body in the context of Article

2.1 of the TBT Agreement as regards the terms "less favourable treatment" apply

mutatis mutandi in the context of the MFN obligation under Article I:1 of the

GATT 1994. Indeed, "any advantage … shall be accorded … unconditionally" is

very similar to the concept of "less favourable treatment" in the sense that if no

such advantage is granted unconditionally, there will be less favourable treatment.

More specifically, the European Union opines that the term "unconditionally" in

Article I:1 of the GATT 1994 permits WTO Members to make distinction between

group of like products and to grant advantages only to certain products if such a

distinction is made on a non-discriminatory basis as to their origin. In this respect,

the European Union observes that both Canada and Norway share the same views

when stating that the same analytical approach applies in Article I:1 GATT 1994

and Article 2.1 of the TBT Agreement.665

540. In sum, like in the context of the MFN obligation under Article 2.1 of the TBT

Agreement, in order to examine whether the EU Seal Regime, through the IC

exception, is consistent with Article I:1 of the GATT 1994, the Panel has to

examine (i) whether the EU Seal Regime, through the IC exception provides an

"advantage"; (ii) whether the group of imported products is "like" the group of 664 Panel Report, US – Tuna II (Mexico), para. 7.295 ("In this respect, we find that the Appellate Body's

suggestion, in EC – Asbestos, that an enquiry into less favourable treatment involves a comparison of how the group of domestic like products and the group of like imports are treated, provides useful guidance. It suggests that the starting point for the analysis should be the entire groups of both products identified as like products. Accordingly, we approach this analysis on the basis of a comparison between the treatment afforded to the groups of US and Mexican tuna products as a whole, as well as Mexican tuna products compared to tuna products originating in any other country, in order to assess the relative situation of these products in respect of access to the dolphin-safe label regulated by the US dolphin-safe provisions").

665 Canada's first written submission, para. 298; and Norway's first written submission, para. 364.


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other origin products; and (iii) and whether there is less favourable treatment in the

sense that the different treatment stands from a legitimate regulatory distinction

which allows extending an advantage to all Members complying with non-

discriminatory conditions (or put in other terms, whether the advantage granted to

the group of products from other origin is granted "unconditionally" to the group

of like imported products).

541. Against this legal background, the European Union will examine the EU Seal

Regime in order to show that the IC exception is consistent with Article I:1 of the

GATT 1994.

4.3.2. Whether the EU Seal Regime, through the IC exception provides an "advantage"

542. The European Union does not dispute that the EU Seal Regime, through the IC

exception, provides an "advantage" in the sense of Article I:1 of the GATT 1994.

Indeed, the IC exception permits the placing of seal products on the EU market

that otherwise, through the General Ban, would be excluded. In this respect, the

EU Seal Regime amounts to a "law" "affecting the internal sale" of seal products

within the EU.666

4.3.3. Likeness

543. Like in the context of Article 2.1 of the TBT Agreement, when examining the

Complaining Parties' claim under Article I:1 of the GATT 1994, the Panel is called

upon to determine the group of products from other origins that are "like" the

group of products imported from the complaining Member.

544. For the same reasons as those mentioned before, the European Union considers

that the relevant group of products with respect to the Complaining Parties' claim

under Article I:1 of the GATT 1994 includes those seal products conforming and

non-conforming with the EU Seal Regime. Indeed, the EU Seal Regime

distinguishes between seal products that can be placed on the EU market (i.e.,

those falling under the IC and MRM exceptions)667 and those that cannot (i.e., the

666 See para. 511 above of this submission. 667 Articles 3.1 ("The placing on the market of seal products shall be allowed only where the seal

products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence") and 3.2(b) of the Basic Regulation ("By way of derogation from


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rest, falling under the General Ban). The European Union considers that all seal

products have identical product characteristics, i.e., they derived or were obtained

from seals. However, the Basic Regulation makes a distinction between (i) seal

products that conform to certain requirements by referring to the type and purpose

of hunts (i.e., the traditional hunt conducted by Inuit and other indigenous

communities for the purpose of their subsistence, and the small-scale hunt

conducted for the purpose of the sustainable management of marine resources),

and (ii) seal products that do not conform to those requirements (essentially, those

derived or obtained from commercial hunts).


this case are seal products that conform to the Basic Regulation in view of the type

and purpose of hunt they were obtained from (i.e., traditional and small-scale) and

those that do not conform to the Basic Regulation in view of the commercial

nature of the hunts they derived from. More particularly, the group of imported

products are those from Norway and Canada (including both seal products derived

from hunts conducted by Inuit and other indigenous communities as well as seal

products derived from commercial hunts) and the group of imported like products

from other origin, Greenland (also including both, although proportionally more

seal products derived from hunts conducted by Inuit for the purpose of their

subsistence).668

4.3.4. Whether the advantage granted to the group of products from other origin is granted "unconditionally" to the group of like imported products (less favourable treatment)

546. The European Union submits that, for the same 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 IC exception, does not provide for less favourable treatment

to the group of imported products.669

paragraph 1: the placing on the market of seal products shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons").

668 See also foonote 350 of this submission. 669 See paras. 257 – 302 above of this submission.


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547. To briefly recall, the conditions contained in the IC exception are origin-neutral as

they refer to the type and purpose of the hunt, as opposed to criteria explicitly

relating to a defined origin. Moreover, both Canadian and Norwegian seal products

derived from Inuit and other indigenous communities in those territories (which

they are) may fall under the IC exception. In this respect, there is no discrimination

when 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. Similarly, there is no discrimination when the

treatment granted to two different sub-categories of the group of like products (i.e.,

seal products obtained from hunts conducted by Inuit and other indigenous

communities for the purpose of their subsistence versus seal products obtained by

non-Inuit hunters for commercial purposes) are treated differently.

548. Thus, the EU Seal Regime, through the IC exception, does not de jure or de facto

discriminate between groups of like products.

549. In addition, the European Union would like to address the following specific

arguments made by the Parties in the context of their claim under Article I:1 of the

GATT 1994.

550. Canada argues that, once the advantage to have access to the EU market has been

granted to products originating in Greenland, such advantage must the extended

immediately and unconditionally to Canadian seal products. Canada claims that

this is not the case here since "the east coast commercial harvest in Canada, from

which the products derive, does not meet the definition of 'indigenous' under the

Inuit Communities category".670 Canada's argument is flawed with several errors.

551. At the outset, the European Union observes that the IC exception does not grant

market access to "products originating in Greenland". It does grant market access

to products that meet certain conditions in connection to the type and purpose of

the hunt, which is considered as morally acceptable in the European Union. Those

conditions are origin-neutral and many countries, including Canada and Norway,

which have seal products resulting from hunts conducted by Inuit or other 670 Canada's first written submission, para. 323.


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indigenous communities for the purpose of their subsistence, are covered by the IC

exception. The reasons why no public authorities in Canada or Norway have yet

requested the European Commission to be included in the list of recognised bodies

authorised to issue the necessary attesting documents which must accompany such

imports remain unknown to date. Thus, such an advantage has been extended, in

the European Union's view, immediately and unconditionally to Canada and

Norway.

552. Moreover, as explained before, Article I:1 of the GATT 1994 does not require

WTO Members to extend an advantage which is subject to certain conditions to all

Members in cases where their products do not meet those specified conditions. In

other words, a failure to grant market access to seal products derived from

commercial hunts while such access is granted in case of seal products obtained

from hunts conducted by Inuit or indigenous communities (widely recognised as

meriting protection) for the purpose of their subsistence does not result in a

violation of the MFN obligation. Simply put, since seal products derived from

non-Inuit commercial hunts and seal products derived from Inuit hunts are not in a

comparable situation, the different treatment granted to those products cannot be

found to be discriminatory.

553. Finally, it should be noted that, as a matter of fact, Greenland itself has stated that

the EU measures are having adverse consequences on their sales, despite the IC

exception.671 And it is also expected that the number of hunters will decline in

Greenland, essentially because of demographics (due to education, alternate

employment options, urbanization, etc), not because of lost market

671 See Report by the European Bureau for Conservation and Development (EBCD), European

Parliament, "The Impact of the EU Seal Ban on the Inuit Population in Greenland" (7 February 2012), http://ebcd.org/pdf/en/166-Report.pdf, p.1 ("'Greenlanders live in harmony with nature and have always exploited seals in a sustainable manner so that future generations can enjoy and benefit from their richness.' said Ane Hansen, Greenlandic Minister for Fisheries, Hunting and Agriculture. The fundamental economic and social interests of indigenous people are adversely affected by the EU ban. Despite the exemption of the EU ban for the Inuits, Greenland has stored about 290.000 sealskins as a result of an alarming decrease in sales. 'To close the knowledge gap on indigenous people rights and the exemption, coordinated and ambitious information campaign in Europe and worldwide is more than ever needed', added Ane Hansen").

http://ebcd.org/pdf/en/166-Report.pdf


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opportunities.672 Thus, allegations that the IC exception benefit all673 products

from one country (i.e., Greenland) are groundless.

554. Consequently, Canada's specific arguments in the context of its claim under

Article I:1 of the GATT 1994 should be rejected.

555. Norway argues that the EU Seal Regime grants market access advantages to seal

products "originating in a limited number of countries identified on a closed list"

or seal products that "are necessarily a defined, limited, and closed group", and

that, in practice, the advantage of market access opportunities through the IC

exception will be "extended predominantly to only one country from this limited

group [i.e. Greenland]".674

556. In this respect, the European Union notes that it is unclear whether Norway argues

that the EU Seal Regime, through the IC exception, is de jure inconsistent with

Article I:1 of the GATT 1994.675 To the extent that Norway is making this claim,

the European Union observes that it has already shown that the EU Seal Regime,

through the IC exception, does not discriminate de jure in the context of the MFN

obligation under Article 2.1 of the TBT Agreement.676

557. In any event, the European Union notes that Article 2(4) of the Basic Regulation

does not contain a "closed list" of countries, but clearly an illustrative list:

‘Inuit’ means indigenous members of the Inuit homeland, namely those arctic and subarctic areas where, presently or traditionally, Inuit have aboriginal rights and interests, recognised by Inuit as being members of their people and includes Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), Kalaallit (Greenland) and Yupik (Russia) (emphasis added).

558. The reference to some country names where Inuit currently live does not imply

that the IC exception only applies to a "limited list of countries", contrary to what

672 See Human Society International, "Some Statistics on Greenland’s Commercial Seal Hunt in Relation

to the Proposed Prohibition on Seal Product Trade in the European Union" (2009), p.3, available at http://bansealtrade.files.wordpress.com/2009/10/hsi-greenland-handout1.pdf.

673 See also COWI Report (2010) ), Annex 5, p. 17/30 ("It is unlikely that all of the Greenland harvest is eligible under Article 3.1").

674 Norway's first written submission, para. 376 (emphasis in the original). 675 Norway's first written submission, footnote 595. 676 See paras. 275 – 290 above of this submission.

http://bansealtrade.files.wordpress.com/2009/10/hsi-greenland-handout1.pdf


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Norway suggests.677 And indeed, Inuit communities also live in other countries not

mentioned therein, such as Ukraine.678

559. Similarly, the definition of "other indigenous communities" in Article 2.1 of the

Implementing Regulation does not list a closed group of countries. Rather, it refers

to "communities in independent countries who are regarded as indigenous on

account of their descent from the populations which inhabited the country, or a

geographical region to which the country belongs, at the time of conquest or

colonisation or the establishment of present State boundaries and who, irrespective

of their legal status, retain some or all of their own social, economic, cultural and

political institutions". Such definition does not mean to capture a particular

situation in one or two countries in the world, but attempts to define those terms in

an international context where the concept of "indigenous" has not ever been

adopted by any UN-system body.679

560. Moreover, contrary to what Norway suggests,680 the conditions imposed under

Article 3 of the Implementing Regulation do not relate to the origin of the

imported seal product. The reference to the "tradition of seal hunting" in the

community and in the geographical region, and that the products are at least party

used, consumed or processed within the communities according to their traditions

seeks to ensure that only those Inuit and indigenous communities that already had

a long tradition of seal hunting (as opposed to new communities carrying out seal

hunting) could continue having their main means of subsistence. It is also clear

that the rule of origin for seal manufactured products is not "the place where the

seal is hunt". Thus, those conditions are not origin-based.

561. Finally, Norway's allegation that, in practice, the advantage of market access

opportunities through the IC exception will be extended predominantly to only

677 Norway's first written submission, para. 378. 678 See State Statistics Committee of Ukraine, All-Ukrainian Population Census (2001)

http://2001.ukrcensus.gov.ua/eng, listing 153 "Inuit" (Ескімоси) http://2001.ukrcensus.gov.ua/results/nationality_population/nationality_popul1/select_5/?botton=cens_db&box=5.1W&k_t=00&p=25&rz=1_1&rz_b=2_1 &n_page=2.

679 See United Nations, Department of Economic and Social Affairs, "The Concept of Indigenous Peoples" (PFII/2004/WS.1/3) (January 2004), available at http://www.un.org/esa/socdev/unpfii/documents/workshop_data_background.doc.

680 Norway's first written submission, paras. 381 – 388.

http://2001.ukrcensus.gov.ua/eng

http://www.un.org/esa/socdev/unpfii/documents/workshop_data_background.doc


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Greenland, is unwarranted.681 As explained before, Canadian and Norwegian seal

products obtained from hunts conducted by their Inuit and other indigenous

communities could fall under the IC exception. The fact that the portion of seal

products out of the total production that may fall under the IC exception in the case

of Greenland is greater than the portion of seal products falling under the same

exception from Norway does not make the EU Seal Regime discriminatory per se.

As explained before, the EU Seal Regime, through the IC exception, allows the

placing on the EU market of products in identical situation (i.e., those obtained

from hunts conducted by Inuit and other indigenous communities for the purpose

of their subsistence), whereas products in a different situation (i.e., those derived

from commercial hunts) do not receive the same treatment. The former is

considered as morally acceptable (and even required under international law in

view of the "indigenous" nature of the hunter), whereas the latter is not considered

as morally acceptable (i.e. killing of the animal for profit).

562. Furthermore, unlike Greenland, neither Canada or Norway have requested the

European Commission to be included in the list of recognised bodies to issue

attesting documents so that their products can be placed on the EU market in

accordance to Article 3.2 of the Implementing Regulation. And, in any event, not

even Greenland (allegedly the "only country" that will benefit from the IC

exception) can yet place its products on the EU market, absent any recognition of

any of its bodies to issue those attesting documents.

563. Consequently, Norway's specific arguments in the context of its claim under

Article I:1 of the GATT 1994 should also be rejected.

4.3.5. Conclusion


through the IC exception, is consistent with Article I:1 of the GATT 1994.

681 Norway's first written submission, paras. 389 – 403. Even Norway concedes that Inuit communities

catch a 100% of the seals hunted in Alaska (United States) (see Norway's first written submission, para. 391 (Table 1). Thus, Norway's factual assertion that Greenland will be the only country predominantly benefiting from the IC exception is inaccurate.


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4.4. ARTICLE XX(a) OF THE GATT 1994

565. 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.

4.4.1. Legal standard under Article XX(a)

566. As clarified by the Appellate Body, the analysis of a measure under Article XX of

the GATT is 'two-tiered':682

• first, the panel must examine whether the measure at issue is provisionally

justified under at least one of the ten exceptions listed under Article XX; and

• second, the panel must determine whether the measure is applied in a manner

that satisfies the requirements of the chapeau of Article XX.

4.4.1.1 The first step

567. Article XX(a) refers to measures "necessary to protect public morals".

Accordingly, for a measure to be provisionally justified under that exception, two

elements must be shown:

• that the policy objective sought by the measure falls within the scope of the

public interest referred to in Article XX(a), i.e. the protection of "public

morals"; and

• that the measure is "necessary" to attain such a policy objective.

4.4.1.1.1 The meaning of "public morals"

568. The meaning of the term "public morals" was first examined by the panel in US –

Gambling in the context of GATS Article XIV(a). That panel concluded that the

682 Appellate Body Report, US- Gasoline, p. 22, DSR 1996:I, 3, at 20. See also Appellate Body Report,

Dominican Republic – Import and Sale of Cigarettes, para. 64; and Appellate Body Report, Brazil – Retreaded Tyres, para. 139.


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term "public morals" denotes "standards of right and wrong conduct maintained by

or on behalf of a community or a nation".683

569. The same panel noted that the content of the concept of public morals "can vary in

time and space, depending upon a range of factors, including prevailing social,

cultural, ethical and religious values"684. For this reason,

Members should be given some scope to define and apply for themselves the concepts of 'public morals' in their respective territories, according to their own systems and scales of values.685

570. The panel in China – Publications and AV products saw no reason to depart from

the interpretation of the term "public morals" developed by the panel in US –

Gambling and adopted it for the purposes of its analysis under Article XX(a) of the

GATT.686

4.4.1.1.2 The definition of policy objectives and the choice of a level of protection

571. It is well-established that it is for each Member to set its own policy objectives

within the scope of each of the areas of public interest enumerated in Article

XX.687 It is also each Member's prerogative to select the level of protection it

wants to obtain, through the measure or the policy it chooses to adopt.688

572. To the extent that scientific evidence is relevant for setting a Member's policy

objective or for selecting its level of protection, that Member is not required to

follow the majority scientific opinion.689 A Member is also entitled to rely, in good

faith, on scientific sources which, at that time, may represent a divergent, but

qualified and respected opinion.690

683 Panel report, US – Gambling, para. 6.465. 684 Panel report, US- Gambling, para. 6.461. 685 Panel report, US – Gambling, para. 6.461. 686 Panel report, China – Publications and Audiovisual Products, para. 7.759. 687 Appellate Body Report, US-Gasoline, p. 22, DSR 1996:I, 3, at 28; Appellate Body Report, Brazil –

Retreaded Tyres, para. 140. 688 Appellate Body Report, EC- Asbestos, para. 168; Appellate Body Report, Brazil – Retreaded Tyres,

para. 140. 689 Appellate Body Report, EC – Asbestos, para. 178. 690 Appellate Body Report, EC – Asbestos, para. 178.


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4.4.1.1.3 The meaning of "necessary"

573. The Appellate Body has underscored that "the word 'necessity' is not limited to

that which is indispensable." 691 Rather, the "necessity" of a measure must be

assessed through a "process of weighing and balancing of a series of factors"692.

According to the Appellate Body, the relevant factors include, in particular, the

following693:

• the relative importance of the interests or values furthered by the challenged

measure;

• the contribution of the measure to the realisation of the ends pursued by it; and

• the restrictive effect of the measure on international commerce.

574. Following the above analysis, the challenged measure must be compared with

possible alternative measures that are less trade restrictive, while making an

equivalent contribution to achieving the desired level of protection of the relevant

objective.694

4.4.1.2 The second step

575. Under the second step the Panel must consider whether the measure is "applied" in

a manner that would constitute

• "a means of arbitrary or unjustifiable discrimination between countries where

the same conditions prevail"; or

• "a disguised restriction on international trade".

691 Appellate Body Report, Korea – Various Measures on Beef, para. 161; Appellate Body Report, Brazil

-Retreaded Tyres, para. 141. 692 Appellate Body Report, Korea – Various Measures on Beef, para. 164. 693 Appellate Body Report, Korea – Various Measures on Beef, para. 164; Appellate Body Report,

Brazil- Retreaded Tyres, paras. 156 and 178; Appellate Body Report, China – Publications and Audiovisual Products, paras. 237-249.

694 Appellate Body Report, Brazil – Retreaded Tyres, paras. 156 -178.


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4.4.1.3 Burden of proof

576. A responding party invoking an affirmative defence bears the burden of

demonstrating that its measure satisfies the requirements of that defence.695 In the

context of GATT Article XX(a) this means that it is for the European Union to

demonstrate that the measure in dispute is "necessary to protect public morals" and

is applied in conformity with the chapeau of GATT Article XX.

577. However, the Appellate Body has clarified that, in establishing the necessity of a

measure, the responding party does not have to "show, in the first instance, that

there are no reasonably available alternatives to achieve its objectives".696 Rather,

it is for the complaining Member "to identify possible alternatives to the measures

at issue that the responding Member could have taken".697 If the complaining

Member has put forward a possible alternative, the responding Member may seek

to show that the measure in question is not, in fact, "reasonably available" or that it

is not a genuine alternative because it would fail to achieve the desired level of

protection.698

4.4.2. The measure is necessary to protect public morals

578. In this section the European Union will show that the EU Seal regime is

"necessary to protect public morals".

4.4.2.1 The policy objective of the measure falls within the scope of Article XX(a)

579. The European Union has identified the policy objective pursued by the EU Seal

Regime in Section 2.2.

580. The European Union submits that, for the reasons set out above in Section 2.3, the

policy objective pursued by the EU Seal Regime falls within the scope of Article

XX(a) GATT.

695 Appellate Body Report, US-Gasoline, pp. 22-23, DSR 1996:I, 3, at 21; Appellate Body Report, US –

Wool Shirts and Blouses, pp. 15-16, DSR 1997:I, 323, at 337; Appellate Body Report, US – FSC (Article 21.5 – EC), para. 133; Appellate Body Report, US – Gambling , para 309.

696 Appellate Body Report, US – Gambling, para. 309. See also Appellate Body Report, Brazil – Retreaded Tyres, para. 156.

697 Appellate Body Report, Brazil - Retreaded Tyres, para. 156. 698 Appellate Body Report, Brazil - Retreaded Tyres, para. 156.


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4.4.2.2 The measure is 'necessary' to achieve its policy objective

581. In accordance with the 'weighing and balancing' test developed by the Appellate

Body for assessing the 'necessity' of a measure, the European Union will address

the following issues in this section:

• the relative importance of the value or interest furthered by the challenged

measure;

• the contribution of the measure to the realisation of the ends pursued by it;

• the restrictive effect of the measure on international commerce;

• the existence of reasonably available alternative measures that are less trade

restrictive, while making an equivalent contribution to achieving the desired

level of protection of the relevant objective.

582. The above factors have already been examined to a large extent as part of the

analysis under Article 2.2 TBT. Here below, the European Union will recall,

where pertinent, that analysis.

4.4.2.2.1 The importance of the values or interest furthered by the measure

583. The Appellate Body has indicated that the more vital or important the values or

interests furthered by a measure are the easier it will be to accept as necessary that

measure.699

584. The panel in China – Publications and AV products held that the protection of

public morals "ranks among the most important values or interests pursued by

members as a matter of public policy".700 The panel elaborated that:

We do not consider it simply accident that the exception relating to 'public morals' is the first exception identified in the ten subparagraphs of Article XX. We therefore concur that the protection of public morals is a highly important value or interest.701

699 Appellate Body Report, Korea – Various Measures on Beef, para. 162. 700 Panel report, China – Publications and Audiovisual Products, para. 7.817. 701 Panel report, China – Publications and Audiovisual Products, para. 7.817.


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585. As explained above, moral concern with regard to the protection of animals is

regarded as a value of high importance in the European Union, which is now

expressly enshrined in its constitutional treaties. Moreover, the measure at issue

was adopted in response to longstanding public demands and with the support of

the vast majority of the members of both the European Parliament and the EU

Council. As shown by the evidence mentioned in Section 2.5 the measure is

supported by a very large majority of the European population.

4.4.2.2.2 Restrictive effect on international trade

586. It is beyond question that the EU Seal 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 seal products, whether domestic or imported. Indeed, the General Ban

aims at being very trade-restrictive, consistently with the high level of fulfilment

of the policy objective sought by the EU legislator

4.4.2.2.3 Contribution of the measure to the achievement of the policy objective

587. For the reasons set out in Section 3.3.4.2, the EU Seal Regime makes a substantial

contribution to its policy objective.

4.4.2.2.4 Alternative measures

588. As recalled above, it is for the complaining parties, and not for the European

Union to identify reasonable available alternatives to the EU Seal Regime which

are less trade restrictive while being equally effective in achieving the desired

level of protection.702

589. In connection with their claims under Article 2.2 TBT, the complaining parties

have identified various alternative measures. As shown in Section 3.3.4.4, none of

them is apt to make an equivalent contribution to the policy objective sought by

the EU Seal Regime.

702 Appellate Body Report, Brazil - Retreaded Tyres, para. 156.


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4.4.3. The measure is applied in accordance with the chapeau of Article XX

590. The EU Seal Regime is not applied in a manner that constitutes "arbitrary or

unjustifiable discrimination between countries where the same conditions prevail"

because it applies indistinctly irrespective of the country of origin of the products.

The EU Seal Regime is also not applied in a manner that constitutes "a concealed

or unannounced restriction or discrimination in international trade".703

4.5. ARTICLE XX(b) OF THE GATT 1994

591. As explained in Section 2.2.2, the EU Seal Regime seeks to address the moral

concerns of the EU population. One of the ways in which the EU Seal Regime

does so is by limiting the global demand for seal products, thereby reducing the

number of seals which are killed every year in a manner that causes them

excessive suffering. The European Union submits that, to that extent, the EU Seal

Regime falls also within the scope of GATT Article XX(b) because it contributes

to protecting the health of seals. The European Union further submits that the EU

Seal regime is necessary to achieve that objective for the same reasons set out

above in Section 4.4.2.2 in connection with Article XX(a) and is applied in

accordance with the chapeau of Article XX for the same reasons mentioned in

Section 4.4.3.

4.6. ARTICLE XXIII(b) OF THE GATT 1994

4.6.1. Legal Standard

4.6.1.1 The test for the application of Article XXIII(b)

592. The text of GATT Article XXIII:1(b) establishes three elements that a complaining

party must demonstrate:

• the application of a measure by a WTO Member;

• a benefit accruing under the relevant agreement; and

703 Appellate Body Report, US – Gasoline, p. 25 (original emphasis).


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• nullification or impairment of the benefit as the result of the application of the

measure.704

593. Past panels have consistently held that the "benefits" referred to in GATT Article

XXIII(b) include the improved market access which a Member may legitimately

expect to obtain from a tariff concession.705 In turn, for the expectation of such a

benefit to be "legitimate", the challenged measure must not have been "reasonably

anticipated" at the time the tariff concession was negotiated.706

594. It is also well-established that, in order to demonstrate that the benefits accruing

from a tariff concession have been nullified or impaired, it must be shown that the

competitive position of the imported products covered by that concession is being

"upset" by the application of the challenged measure.707

595. In EC – Asbestos, the Appellate Body stressed that the 'non-violation' remedy

provided in GATT Article XXIII(b) "should be approached with caution and

should remain exceptional"708.

596. The Appellate Body went on to quote approvingly the following passage of the

panel report in Japan – Film:709

704 Panel Report, Japan – Film, para. 10.41; Panel Report, EC – Asbestos, para. 8.283. 705 Panel Report, Japan – Film, paras. 10.61 and 10.72. 706 Panel Report, Japan- Film, para. 10.76. 707 Panel Report, Japan – Film, para. 10.82. 708 Appellate Body Report, EC - Asbestos, para. 186, quoting with approval the Panel Report on Japan –

Film, para. 10.37. See also the Panel Report, EC – Asbestos, para. 8.271. 709 Appellate Body Report, EC – Asbestos, para. 187.


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Although the non-violation remedy is an important and accepted tool of WTO/GATT dispute settlement and has been "on the books" for almost 50 years, we note that there have only been eight cases in which panels or working parties have substantively considered Article XXIII:1(b) claims. This suggests that both the GATT contracting parties and WTO Members have approached this remedy with caution and, indeed, have treated it as an exceptional instrument of dispute settlement. We note in this regard that both the European Communities and the United States in the EEC – Oilseeds case, and the two parties in this case, have confirmed that the non-violation nullification or impairment remedy should be approached with caution and treated as an exceptional concept. The reason for this caution is straightforward. Members negotiate the rules that they agree to follow and only exceptionally would expect to be challenged for actions not in contravention of those rules (emphasis added) 710

597. The panel in EC – Asbestos concluded that recourse to GATT Article XXIII:1(b)

should be treated as "particularly exceptional" in relation to measures justified by

Article XX(b) GATT. The panel reasoned this conclusion as follows:

Moreover, the Panel is of the opinion that even if the justification of a measure by Article XX does not, in principle, make it impossible to invoke Article XXIII:1(b) in relation to the application of the measure justified, the situation of a measure falling under Article XX with respect to Article XXIII:1(b) cannot be quite the same as that of a measure consistent with another provision of the GATT 1994. This is because Article XX, which is headed "General Exceptions", is intended, in particular, to ensure the protection of public health or, as stated by the Appellate Body in United States – Gasoline, to "permit important State interests – including the protection of human health … to find expression". The Panel considers that in accepting the WTO Agreement Members also accept a priori, through the introduction of these general exceptions, that Members will be able, at some point, to have recourse to these exceptions. Moreover, Members have attached to the use of these exceptions a certain number of conditions contained either in paragraphs (a) to (j) or in the introductory clause of Article XX. These conditions have generally been narrowly interpreted. The result is that:

(a)both the intended objective of these exceptions (pursuit of interests recognized a priori as being of greater importance than Members' commercial interests, since they can outweigh the latter,) and

710 Panel report, Japan- Film, para. 10.36. Underlining supplied.


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(b)the specific conditions that must be satisfied by Members invoking these exceptions mean that, while recognizing that Article XXIII:1(b) applies to measures that fall under Article XX, we are justified in treating recourse to Article XIII:1(b) as particularly exceptional in relation to measures justified by Article XX(b).711

598. While EC – Asbestos was concerned with Article XX(b), the European Union

submits that the above reasoning is equally cogent with regard to measures falling

within the scope of GATT Article XX(a).

599. Moreover, while EC – Asbestos was concerned with a measure which had been

found inconsistent with GATT Article III:4, but justified under GATT Article

XX(b), it is submitted that the same reasoning should apply a fortiori in the case of

a measure that pursues one of the legitimate objectives mentioned in Article XX

but is not inconsistent with any GATT provision.

4.6.1.2 Burden of proof

600. Consistent with the exceptional nature of the remedy provided by Article

XXIII:1(b) GATT, Article 26.1(a) DSU requires the complaining party to present a

"detailed justification" in support of its complaint.

601. The panel in EC – Asbestos held that when a non-violation complaint concerns a

measure justified under Article XX GATT it is justified to place a "stricter burden

of proof" upon the complainant. More specifically, the panel declared that:

Consequently, the Panel concludes that because of the importance conferred on the a priori by the GATT 1994, as compared with the rules governing international trade, situations that fall under Article XX justify a stricter burden of proof being applied in this context to the party invoking Article XXIII:1(b), particularly with regard to the existence of legitimate expectations and whether or not the initial Decree could be reasonably anticipated.712

602. The panel reasoned this conclusion as follows:

711 Panel Report, EC – Asbestos, para. 8.272. footnotes omitted. 712 Panel Report, EC – Asbestos, para. 8.282.


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Furthermore, in the light of our reasoning in paragraph 8.272 above, we consider that the special situation of measures justified under Article XX, insofar as they concern non-commercial interests whose importance has been recognized a priori by Members, requires special treatment. By creating the right to invoke exceptions in certain circumstances, Members have recognized a priori the possibility that the benefits they derive from certain concessions may eventually be nullified or impaired at some future time for reasons recognized as being of overriding importance. This situation is different from that in which a Member takes a measure of a commercial or economic nature such as, for example, a subsidy or a decision organizing a sector of its economy, from which it expects a purely economic benefit. In this latter case, the measure remains within the field of international trade. Moreover, the nature and importance of certain measures falling under Article XX can also justify their being taken at any time, which militates in favour of a stricter treatment of actions brought against them on the basis of Article XXIII:1(b).713

603. By its own terms, the above reasoning, and the conclusion drawn there from by the

panel, are equally applicable to all measures justified under Article XX. Again, it

is submitted that the same reasoning should apply a fortiori in the case of a

measure that would pursue one of the objectives listed in Article XX but is not

inconsistent with any GATT provision.

604. More specifically, the panel in EC – Asbestos held that, in the case of a 'non-

violation' against measures justified under Article XX, it cannot be presumed that

the complaining part could not have reasonably anticipated a measure introduced

after the granting of the relevant tariff concession:

[…] insofar as the Decree postdates the most recent tariff negotiations, we could apply the presumption applied by the Panel in Japan – Film, according to which normally Canada should not be considered to have anticipated a measure introduced after the tariff concession had been negotiated. However, we do not consider such a presumption to be consistent with the standard of proof that we found to be applicable in paragraph 8.272 above in the case of an allegation of non-violation nullification concerning measures falling under Article XX of the GATT 1994.

713 Panel Report, EC – Asbestos, para. 8.281.


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Moreover, the circumstances of the present case seem to us to be different from the situation envisaged in Japan – Film. In that case, the measures in question concerned the organization of the Japanese domestic market. They were therefore economic measures of a kind that a third country might find surprising and, accordingly, difficult to anticipate. Here, it is a question of measures to protect public health under Article XX(b), that is to say, measures whose adoption is expressly envisaged by the GATT 1994. We therefore consider that the presumption applied in Japan – Film is not applicable to the present case.714

605. Finally, it is recalled that the panel in EC – Asbestos took the view that the burden

of proof of the complaining party "must be all the heavier"715 when the intervening

period between the allegedly nullified benefits and the measure is very long (35

and 50 years in that case).

4.6.2. Legal argument

606. 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 for the following two reasons:

• 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; and/or

• the complaining parties have not shown that the measure in dispute could not

have been reasonably anticipated by them.

4.6.2.1 The measure does not upset the competitive relationship between the imported products covered by the concessions and domestic products

607. 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 iure or de facto,

between domestic and imported like products. Therefore, contrary to the

complaining parties' claims, the measure does not upset the competitive

relationship between them.

714 Panel Report, EC – Asbestos, para. 8.291, letter c). 715 Panel Report, EC – Asbestos, para. 8.292.


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4.6.2.2 Norway and Canada could have reasonably anticipated the measure

608. The public morals concerns with regard to the killing of seals long predate the

relevant tariff concessions identified by Canada and Norway. Indeed, according to

Daoust, "the issue of animal welfare with regard to the harp seal hunt was raised in

Newfoundland as early as the first half of the 19th century".716

609. In the 1950s Canadian societies for the protection of animals began to send

observers to the seal hunt and reports of cruelty increasingly filtered to the

public.717

610. In the 1960s various scientific reports raised animal welfare concerns with regard

to the Canadian commercial seal hunt.718 As early as 1966, AG Bourne, the author

of one of such reports concluded that:

In the case of the seal hunt much of the cruelty is unnecessary, but the only way to prevent cruelty altogether is to abolish the industry, and this could only be obtained if the demand for pelts and oil was to cease.719

611. In 1965 Brian Davies began a campaign on behalf of the New Brunswick Society

for the Prevention of Cruelty to Animals which aimed at abolishing the Canadian

seal hunt. He later continued this campaign with the IFAW, which he founded in

1969. 720

612. The years from 1965 to 1969 were a period of great anti-sealing activity.721 The

hunt was the subject of intensive media attention and aroused considerable public

concern in North America and even more in Europe.722 According to the report of

716 Daoust (2002), p. 687, who refers to Ryan S., The Ice Hunters. A History of Newfoundland Sealing to

1914. St John's: Breakwater, 1994". (Exhibit EU - 32). 717 Richardson (2007), p. 8 (Exhibit EU - 36). 718 See the reports cited in Richardson (2007), p. 23 and bibliography (Exhibit EU - 36). See also

Daoust (2002), p. 688 (Exhibit EU - 32). 719 Cited in Richardson (2007), p. 53 (Exhibit EU - 36). 720 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 9, "The Campaign

against sealing ", p. 67 (Exhibit EU - 61). 721 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 9, "The Campaign

against sealing", p. 67 (Exhibit EU - 61). 722 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 9, "The campaign

against sealing ", p. 67 (Exhibit EU - 61).


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the Royal Commission on Seals and Sealing appointed by the Canadian

Government in 1986:

During the mid-1960s, the Canadian High Commission in London and most of Canada's embassies in Europe were besieged with letters protesting the seal hunt. The hunt was becoming a matter of some embarrassment for Canada.723

613. In 1967 protesters in West Germany organised a petition, containing three million

signatures, to persuade the Bundestag to ban the importation of seal products.724

Also in 1967, a question was raised in the Dutch Parliament concerning the

inhumane nature of Canada's sealing operations. The Dutch Ministry of Foreign

Affairs requested Canada's assistance in responding to the question. 725

614. In response to growing public moral concerns, Canada adopted in 1964 the first

Seal Protection Regulations, which prohibited the skinning of live animals.726

Those regulations were amended on several occasions in order to promote more

humane methods of killing.727 These measures, nevertheless, failed to allay public

concerns and the anti-sealing movement remained active throughout the 1970s.728

615. Public pressure lead to the adoption of various restrictions on trade in seal products

by several countries during the 1970s and early 1980s:

• In 1970, the Dutch fur industry agreed with the Dutch authorities to a

voluntary ban on seal products; 729

• In 1977 a voluntary ban was instituted in France; 730

723 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The

Importation ban of the European Communities", p. 122. (Exhibit EU - 62). 724 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 9, "The Campaign

against sealing ", p. 67 (Exhibit EU - 61). 725 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The

Importation ban of the European Communities", p. 122. (Exhibit EU - 62). 726 Richardson (2007), p. 6 (Exhibit EU - 36). 727 Daoust (2002), p. 688 (Exhibit EU - 32). 728 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The

Importation ban of the European Communities", p. 122 ff. (Exhibit EU - 62). 729 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The

Importation ban of the European Communities", p. 123 (Exhibit EU - 62). 730 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The

Importation ban of the European Communities", p. 112. (Exhibit EU - 62).


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• In 1978 Italy subjected imports of seal skins to prior administrative

authorisation;731

• In 1980 the Netherlands prohibited the importation of all seal products; 732

• In 1983 voluntary bans on seal products were introduced in the United

Kingdom and in Germany; 733

• In 1983 the European Economic Community adopted Directive 83/129/EEC

prohibiting the importation of products of whitecoats and bluebacks734, which

at the time accounted for the vast majority of seal products exported from

Canada. While this directive was formally based on conservation grounds, the

debate preceding its adoption was largely driven by moral objections. 735

616. 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.736 In response to that report the Canadian

government banned the killing of whitecoats and bluebacks in 1987.

617. 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 731 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The



Importation ban of the European Communities", p. 112 (Exhibit EU - 62). 734 Council Directive 83/129/EEC of 28 March 1983 concerning the importation into Member States of

skins of certain seal pups and products derived therefrom, OJ L 91, 9.4.1983 (Exhibit CDA - 12). 735 The public debate that preceded the adoption of this directive has been comprehensively surveyed by

the Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 10, "The Importation ban of the European Communities", pp. 104-148 (Exhibit EU - 62). The Royal Commission concluded that, although the directive was formally based on conservation grounds, "the EC Ban was fundamentally the product of an energetic campaign by animal-welfare and animal-rights groups" (p.138). The Royal Commission also noted (at p. 138) that:

"Although the EC Directive was targeted only on young harp and hooded seals, several of the anti-sealing campaigns condemned the slaughter of any seals for any commercial purposes. The Government of the Netherlands took the most extreme public stance, banning the sale of all sealskins. […]."

736 Report of the Royal Commission on Seals and Sealing (1986), Volume I, Chapter 9, "The Campaign against sealing " (Exhibit EU - 61).


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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.

618. The adoption of various trade restrictions on seal products during the 1970s and

the early 1980s, both at the level of the EU Member States and of the European

Communities, should have dispelled any remaining doubts in the minds of the

Canadian and Norwegian authorities that growing public moral concerns could

lead to the adoption of similar, EU-wide measures, with regard to other seal

products.

4.6.3. Conclusion

619. For the reasons set out above, the European Union submits 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

620. Norway argues that the EU Seal Regime is contrary to Article 4.2 of the AoA

because "when a measure affecting trade in agricultural products violates Article

XI:1 of the GATT 1994, it also violates Article 4.2 of the Agreement on

Agriculture".737 According to Norway, the products covered by the EU Seal

Regime all fall under the products listed in Annex 1 of the AoA.738 Since the

import restriction established by the EU Seal Regime is a quantitative restriction

on importation for purposes of Article XI:1 of the GATT 1994, Norway claims

that it constitutes a "quantitative import restriction" on agricultural products that is

prohibited by Article 4.2 of the AoA.739

737 Norway's first written submission, para. 467. 738 Norway's first written submission, para. 468. 739 Norway's first written submission, para. 472.


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621. The European Union requests the Panel to reject Norway's consequential claim.

Indeed, as shown with respect to Norway's claim under Article XI:1 of the GATT

1994, Article XI:1 of the GATT 1994 does not apply in the present case since the

EU Seal Regime is not a border measure. Like Article XI:1 of the GATT 1994,

Article 4.2 of the AoA only applies to border measures (and not to internal

measures).

622. Article 4.2 of the AoA provides that:

Members shall not maintain, resort to, or revert to any measures of the kind which have been required to be converted into ordinary customs duties1, except as otherwise provided for in Article 5 and Annex 5. _________________________________ 1 These measures include quantitative import restrictions, variable import levies, minimum import prices, discretionary import licensing, non-tariff measures maintained through state-trading enterprises, voluntary export restraints, and similar border measures other than ordinary customs duties, whether or not the measures are maintained under country-specific derogations from the provisions of GATT 1947, but not 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.

623. As can be seen, Footnote 1 provides an illustrative list of measures that Members

"have been required to be converted into ordinary customs duties". In particular,

Footnote 1 includes "quantitative import restrictions" "and similar border

measures". As the panel in Chile – Price Bands explained:

[F]ollowing Ministerial Mid-term review of the Uruguay Round negotiations and the December 1991 Draft Final Act, the negotiations on agricultural market access were undertaken on the premise that trade in agriculture was to be conducted on the basis of bound ordinary customs duties and that border measures other than ordinary customs duties would be prohibited. This involved the conversion of a wide range of border measures into ordinary customs duties, a process which has commonly been referred to as "tariffication". In general terms, the purpose of this exercise was to enhance transparency and predictability in agricultural trade, establish or strengthen the link between domestic and world markets, and allow for a progressive negotiated reduction of protection in agricultural trade. Article 4.2 of the Agreement on Agriculture, by prohibiting Members from maintaining, resorting to, or reverting to any measures of the kind which have been required to be converted into ordinary customs duties, accordingly provides the legal underpinning for what, in ordinary parlance, is referred to as a "tariff-only" regime for trade in agriculture.

(…)


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The decision whether to tariffy a particular border measure, to eliminate that measure, or to adopt some other course, was a matter for each participant in the negotiations to decide.740 (emphasis added)

624. Thus, as can be seen, Article 4.2 of the AoA deals with border measures.

625. As explained before,741 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.

626. In addition, the European Union observes that Footnote 1 of the AoA excludes

from the scope of "measures of the 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, as explained in this submission, 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.

627. Consequently, the European Union submits that Article 4.2 of the AoA is not

applicable in the present dispute.

6. CONCLUSION

628. In view of the foregoing, the European Union requests the Panel to reject all the

claims brought by Canada and Norway against the EU Seal Regime.

740 Panel Report, Chile – Price Band System, paras. 7.15 and 7.18. 741 See paras. 496 – 497 above of this submission.