in the world trade organizationtrade.ec.europa.eu/doclib/docs/2012/december/tradoc... · 2019. 4....
TRANSCRIPT
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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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Short Title Full Case Title and Citation
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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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Short Title Full Case Title and Citation
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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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.
EC – Seal Products First Written Submission (DS400, DS401) by the European Union ________________________________________________________________________
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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).
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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.
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).
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.
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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
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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).
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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).
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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).
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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 »»»
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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
administrative provisions" within the meaning of Annex 1.1 of the TBT
Agreement. Annex 1.1 of the TBT Agreement only addresses those administrative
provisions which apply to product characteristics or their related processes and
production methods.
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
administrative provisions" within the meaning of Annex 1.1 of the TBT
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.
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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).
371 Canada's first written submission, para. 8.
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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.
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).
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.
410 Canada's first written submission, para. 375.
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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.
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).
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").
425 Canada's first written submission, para. 390.
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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")).
431 Canada's first written submission, para. 375.
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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. 454 Appellate Body Report, US – Tuna II (Mexico), para. 313; Appellate Body Report, US – COOL, para.
370. 455 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. 463 Appellate Body Report, US – Tuna II (Mexico), para. 322; Appellate Body Report, US – COOL, para.
471. 464 Appellate Body Report, US – Tuna II (Mexico), para. 322; Appellate Body Report, US – COOL, para.
471. 465 Appellate Body Report, US – Tuna II (Mexico), para. 322; Appellate Body Report, US – COOL, para.
471. 466 Appellate Body Report, US – Tuna II (Mexico), para. 322; Appellate Body Report, US – COOL, para.
471. 467 Appellate Body Report, US – Tuna II (Mexico), para. 322; Appellate Body Report, US – COOL, para.
471. 468 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)
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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.
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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.
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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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4.1.1. Legal standard
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
500. Both Canada and Norway make claims that the EU Seal Regime is inconsistent
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.
4.2.1. Legal standard
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).
515. Consequently, the European Union considers that the group of products relevant in
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
525. In light of the foregoing, the European Union submits that the EU Seal Regime,
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
526. Both Canada and Norway make claims that the EU Seal Regime is inconsistent
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.
4.3.1. Legal standard
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).
545. Consequently, the European Union considers that the group of products relevant in
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").
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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.
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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.
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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
564. In light of the foregoing, the European Union submits that the EU Seal Regime,
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. 123 (Exhibit EU - 62). 732 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). 733 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.