In the World Trade Organization European Communities ...trade.ec.europa.eu/doclib/docs/2013/april/tradoc_150812.pdf · In the World Trade Organization European Communities – Measures

In the World Trade Organization

European Communities – Measures Prohibiting the

Importation and Marketing of Seal Products

(DS400, DS401)

Second Written Submission

by the European Union

Geneva, 27 March 2013

EC – Seal Products Second Written Submission

(DS400, DS401) by the European Union

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TABLE OF CONTENTS

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

2. FACTUAL BACKGROUND ................................................................................ 1

2.1. SCIENTIFIC EVIDENCE ............................................................................. 1

2.1.1. Reliability of the evidence submitted by the European Union ......... 1 2.1.1.1 Claim that some studies are not peer reviewed' ................... 2

2.1.1.1.1 Burdon (2001) ...................................................................................... 2 2.1.1.1.2 Butterworth (2007) ............................................................................... 3

2.1.1.2 Claim that the authors lack expertise.................................... 3 2.1.1.3 Claim that some of the studies were facilitated by NGOs ... 5 2.1.1.4 Links of Dr Daoust to the Canadian fur industry ................. 6 2.1.1.5 Claim that the evidence is 'dated' ......................................... 8

2.1.2. Reliability of video evidence ............................................................ 8 2.1.2.1 How video evidence is obtained ........................................... 9 2.1.2.2 Video evidence is reliable and credible .............................. 10

2.1.2.2.1 Video evidence is more accurate ........................................................ 11 2.1.2.2.2 Video evidence is obtained in random fashion ................................... 12

2.1.3. Daoust (2012) ................................................................................. 12

2.1.4. Evidence pertaining to the Norwegian hunt ................................... 14 2.1.5. Specific comments on Complainants' responses to questions from

the Panel ......................................................................................... 20 2.1.5.1 Question 46: NAMMCO ................................................... 20 2.1.5.2 Question 54: changes to hunting regulations ..................... 21

2.1.5.2.1 Amendments to Canada's regulations ................................................. 21 2.1.5.2.2 Amendments to Norway's regulations ................................................ 22

2.1.5.3 Question 55: differences between the environment of farm

animals and wild animals ................................................... 23 2.1.5.4 Question 56: comparison of failure rates in the commercial

seal hunt, in other hunts of wild animals and in

slaughterhouses .................................................................. 24

2.1.5.5 Question 61: Independent observation of the hunts ........... 27

2.1.5.6 Question 62: The three-step method................................... 29 2.1.5.7 Question 65: animal welfare impacts of the deterioration of

ice conditions ...................................................................... 31

2.2. EVIDENCE OF PUBLIC MORALS OBJECTIVE ..................................... 37

2.2.1. The measure at issue ....................................................................... 37

2.2.2. Moral doctrine reflected in the measure ......................................... 40 2.2.3. Other EU policies and measures..................................................... 42

2.2.4. Actions taken by international organizations ................................. 43 2.2.4.1 The OIE .............................................................................. 43

2.2.4.2 The Council of Europe ....................................................... 44 2.2.5. Measures of other Members ........................................................... 44

2.2.5.1 Chinese Taipei .................................................................... 46

2.2.5.2 Russia 47 2.2.5.3 Switzerland ......................................................................... 48

2.2.6. Opinion polls .................................................................................. 49

2.3. CONSULTATION OF NAMIBIA ................................................................ 50



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3. THE TBT AGREEMENT ................................................................................... 52

3.1. APPLICABILITY OF THE TBT AGREEMENT ......................................... 52

3.2. ARTICLE 2.1 OF THE TBT AGREEMENT ............................................... 55

3.2.1. MFN obligation .............................................................................. 55 3.2.1.1 Whether there is detrimental impact in this case ................ 57 3.2.1.2 Whether any detrimental impact reflects discrimination.... 65

3.2.1.2.1 The IC exception is based on a legitimate objective ........................... 66 3.2.1.2.2 The IC exception is designed and applied in an even-handed manner 69

3.2.1.3 Conclusion .......................................................................... 72 3.2.2. National Treatment obligation ........................................................ 72

3.2.2.1 Whether there is detrimental impact in this case ................ 75 3.2.2.2 Whether any detrimental impact reflects discrimination.... 79

3.2.2.2.1 The MRM exception is based on a legitimate objective ..................... 80 3.2.2.2.2 The MRM exception is designed and applied in an even-handed

manner ................................................................................................ 81 3.2.2.3 Conclusion .......................................................................... 84

3.3. ARTICLE 2.2 OF THE TBT AGREEMENT ............................................... 85

3.3.1. The EU Seal Regime makes a substantial contribution to its

objective ......................................................................................... 85

3.3.1.1 The Complainants mischaracterize the EU Seal Regime ... 85 3.3.1.2 The Complainants misunderstand the objective of the EU

Seal Regime ........................................................................ 86

3.3.1.3 The EU Seal Regime makes a substantial contribution to its

public morals objective ...................................................... 87

3.3.1.4 The EU makes a substantial contribution to its animal

welfare objective ................................................................ 89 3.3.2. The alternative measures identified by the Complainant would fail

to make an equivalent contribution to the objective of the EU Seal

Regime ............................................................................................ 94

3.3.2.1 The Complainants´ alternative measure was considered by

the EU legislators and rejected because it involves a lower

level of protection ............................................................... 94 3.3.2.2 The Complainants wrongly assume that seals can be killed

humanely on a consistent basis .......................................... 96 3.3.2.3 The Complainants have failed to prove that seals can be

killed humanely on a consistent basis ................................ 97

3.3.2.4 The examples of certification and labelling systems

mentioned by the Complainants lack pertinence ................ 98

3.4. ARTICLES 5.1.2 AND 5.2.1 OF THE TBT AGREEMENT ........................ 99

3.4.1. Question 49 ..................................................................................... 99

3.4.2. Questions 84 and 85 ..................................................................... 101

3.4.3. Question 87 ................................................................................... 102

4. THE GATT ......................................................................................................... 103

4.1. Discrimination Claims Under the GATT 1994 (Article I:1 and III:4) ..... 103



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4.1.1. The legal standard under Articles I:1 and III:4 of the GATT 1994

and Article 2.1 of the TBT Agreement with respect to their non-

discrimination obligations is fundamentally the same ................. 103 4.1.2. Claim under Article I:1 of the GATT 1994 (MFN Obligation) ... 110

4.1.2.1 The IC exception is origin-neutral .................................... 110 4.1.2.2 The IC exception does not de facto discriminate against

Canada's and Norway's imports under Article I:1 of the

GATT 1994 ...................................................................... 112 4.1.2.3 Conclusion ........................................................................ 115

4.1.3. Claim under Article III:4 of the GATT 1999 (National Treatment

Obligation) .................................................................................... 115 4.1.4. Conclusions .................................................................................. 116

4.2. CLAIM UNDER ARTICLE XI OF THE GATT 1994 ............................... 116

4.3. ARTICLE XX(a) OF THE GATT 1994 ..................................................... 118

5. CONCLUSION ........................................................................................................ 119



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TABLE OF CASES CITED

Short Title Full Case Title and Citation

Belgium – Family Allowances

(allocations familiales)

GATT Panel Report, Belgian Family Allowances, G/32, adopted

7 November 1952, BISD 1S/59

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 – Pharmaceutical

Patents

Panel Report, Canada – Patent Protection of Pharmaceutical Products,

WT/DS114/R, adopted 7 April 2000, DSR 2000:V, 2289

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

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 – 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

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

Thailand – Cigarettes

(Philippines)

Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes

from the Philippines, WT/DS371/AB/R, adopted 15 July 2011

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 – 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 – 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 – 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



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Short Title Full Case Title and Citation

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



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TABLE OF EXHIBITS

Exhibit Title

EU-97

Ware, Mark, Peer review: benefits, perceptions and alternatives, Publishing Research Consortium. 2008. (Dec. 2, 2008) www.publishingresearch.net/documents/PRCsummary4Warefinal.pdf

EU - 98 Credentials of the authors of Burdon (2001), Butterworth (2007 and Butterworth (2012)

EU - 99 List of publications of Professor Donald Broom

EU - 100 Brochure of the Fur Institute of Canada

EU - 101 Composition of the managing bodies of the Fur Institute of Canada, available at

http://www.fur.ca/about.php?id=board#about_nav (

EU - 102 Page from the website of the Fur Industry of Canada, available at:

http://www.fur.ca/about.php?id=fic_programs#about_nav (Exhibit EU - …).

EU - 103 Page from the website of the Seals and Sealing Network, available at:

http://www.sealsandsealing.net/resources.php?page=8

EU - 104

Notices published in the Official Journal of the European Union of the actions brought before

the Court of Justice of the European Union by Inuit Tapiriit Kanatami and others, including

the Fur Institute of Canada, in cases T-102/09, T-526/10 and C-583/11

EU - 105 Transcript of statements made by Barry Rashotte, DFO Director General, to the radio station

CBH-FM on 28 December 2008

EU - 106 Inspection report filed by Mr Danielsson, M/S Havsel (2010)

EU - 107 Response by NOAH to Norway's objections to the NOAH report

EU - 108 Bateson, P. and Bradshaw, E.L. 1997. Physiological effects of hunting red deer (Cervus

elephas). Proceedings of the Royal Society B., 264, 1707-1714

EU - 109 Statement by IFAW and HSI, Challenges to independent observation of commercial sealing

EU - 110 Loi relative a l'interdiction de fabriquer et de commercialiser des produits dérivés de phoques,

16 March 2007, Moniteur Belge of 18.04.2007, 20864

EU - 111 Chambre des députés de Belgique, minutes of the session of 25.01.2007

EU - 112

Decree of 4 July 2007 amending the Flora and Fauna Act (Designation of Species of Animals

and Plants ) Decree and the protected Species of Animals and Plants (Exemption) Decree in

connection with the prohibition of the trade in products of harp seals and hooded seals,

Bulletin of Acts, Orders and Decrees 2007, 253

EU - 113 A.B.M. Raj, Cultural, religious and ethical issues associated with animal welfare,

Proceedings of the OIE's First Global Conference on Animal Welfare, Paris, 23-25 Feb. 2004

EU - 114

Norway's Ministry of Agriculture and Food, Proposition to the Storting No 12 (2002-2003)

Animal Welfare and Animal Husbandry, Recommendation of 13 December 2002, approved

in Council of State on the same date. Abridged version in English made available at the

website of Norway's Ministry of Agriculture and Food

http://www.publishingresearch.net/documents/PRCsummary4Warefinal.pdf

http://www.fur.ca/about.php?id=board#about_nav

http://www.fur.ca/about.php?id=fic_programs#about_nav




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Exhibit Title

EU - 115

Page Page from the website of Norway's Ministry of Agriculture and Food, available

at;http://www.regjeringen.no/en/dep/lmd/documents/Reports-and-

plans/Plans/2006/norwegian-action-plan-on-animal-welfare.html?id=456113

EU - 116 OIE's Terrestrial Animal Code, Chapter 7.1

EU - 117 Council of Europe, Parliamentary Assembly, recommendation 1776(2006) of 17 November

2006 on seal hunting

EU - 118 Russia to completely ban seal hunting by March 1, Ria Novosti, 27 February 2009,

http://en.rian.ru/russia/20090227/120337294.html

EU - 119 Russia to ban hunting of baby seals", New York Times, 18 March 2009,

http://www.nytimes.com/2009/03/19/world/europe/19seal.html?_r=0

EU -120 Russia to ban seal hunting, New York Times, 7 December 2009

http://www.nytimes.com/2009/02/27/world/europe/27iht-27seals.20490795.html

EU - 121 Swiss Federal Assembly, Conseil National, Rapport de la Commission de la science, de

l'éducation et de la culture, 18 November 2011

EU - 122 Swiss Federal Assembly, Conseil National, Rapport de la Commission de la science, de

l'éducation et de la culture, 21 February 2013

EU – 123

Letter dated 10 July 2007 sent by the European Commission to Dr Moses Maurihungirire,

Director – Resource Management, Ministry of Fisheries and Marine Resources, Government

of Namibia

EU - 124 Invitation to a stakeholder consultation meeting addressed by EFSA on 30 august 2007 to the

Namibian authorities

EU – 125 Invitation to a 'Workshop on the animal welfare aspects of seal hunting" held on 14 January

2008 addressed by the European Commission to the Namibian authorities

EU - 126 Chinese Taipei Parliament, YZ-No 1749, Committee proposal of bill No. 13359

http://www.regjeringen.no/en/dep/lmd/documents/Reports-and-plans/Plans/2006/norwegian-action-plan-on-animal-welfare.html?id=456113

http://www.regjeringen.no/en/dep/lmd/documents/Reports-and-plans/Plans/2006/norwegian-action-plan-on-animal-welfare.html?id=456113






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1. INTRODUCTION

1. This submission sets out the rebuttal of the European Union to the argument and

evidence presented by the Complainants as part of their oral statements at the first

meeting of the Panel with the Parties and in their responses to the Panel's questions

following that meeting.

2. The submission is structured as follows:

Section 2 addresses, by way of background, various factual matters concerning

the scientific evidence before the Panel, the public moral objectives pursued by

the EU Seal Regime and certain specific issues raised by the Complainants'

responses to the Panel's Questions.

Sections 3 to 5 address, as necessary, the argument submitted by the

Complainants in connection with their various claims in the same sequence as

in the EU's first written submission.

Section 6 reiterates the conclusion that the Panel should dismiss all the claims

submitted by the Complainants.

2. FACTUAL BACKGROUND

2.1. SCIENTIFIC EVIDENCE

2.1.1. Reliability of the evidence submitted by the European Union

3. The Complainants have sought to discredit the scientific studies relied upon by the

European Union. More specifically, the Complainants contend that: 1) some of

those studies are not peer reviewed; 2) the authors lack expertise; 3) some of the

studies were facilitated by NGOs; and 4) the studies are 'dated' because they rely

on evidence obtained before the amendment of Canada's regulations in 2009.1

1 Canada's Oral Statement, para. 29.



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4. Here below the European Union will show that all these allegations are either

unfounded or irrelevant.

2.1.1.1 Claim that some studies are not peer reviewed'

5. The Complainants assert that Burdon (2001) and Butterworth (2007) are not peer

reviewed and thus are less credible studies.

6. Peer review is the evaluation of work by one or more people of similar

competence to the producers of the work (peers). It constitutes, for scientific

works, a form of quality evaluation by respected scientists within the relevant

field. In academia, peer review is often used to determine the suitability of an

academic paper for publication. Yet, credible scientific studies are produced for a

wide variety of reasons and publication is only one of those. Studies can be

reviewed in many ways, and peer review is just one of those ways.2

7. As discussed below, Burdon (2001) and Butterworth (2007) were produced for

reasons other than publication and both were reviewed by peers far more

exhaustively than would have occurred in a formal peer review for publication.

2.1.1.1.1 Burdon (2001)

8. Burdon (2001) was conducted in connection with a public consultation by the

Canadian government on proposed amendments to its Marine Mammal

Regulations. The study was not designed for publication, but rather to produce

recommendations for the Canadian government regulatory review.

9. In a similar fashion, Smith (2005) was formed to produce recommendations to the

Canadian government in the lead-up to another review of the Marine Mammal

Regulations. Though Smith (2005) was also not peer reviewed or published, the

Canadian government cites the study frequently as the basis for its regulatory

changes in 2009, a clear admission that the Canadian government itself relies on

2 On the limitations of peer review, see Ware, Mark, Peer review: benefits, perceptions and

alternatives, Publishing Research Consortium. 2008. (Dec. 2, 2008) www.publishingresearch.net/documents/PRCsummary4Warefinal.pdf , at pp. 16-17 (Exhibit EU

- 97).

http://www.publishingresearch.net/documents/PRCsummary4Warefinal.pdf



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non-peer reviewed studies on commercial sealing.

10. Some of the findings of Burdon (2001) were reviewed in Daoust (2002).

Moreover, the EFSA panel analysed and reviewed extensively the data from

Burdon (2001). That review involved many more experts and was far more

rigorous than the usual peer review for publication. EFSA does not quote any

unpublished document unless the whole content has been reviewed by the EFSA

Panel.

2.1.1.1.2 Butterworth (2007)

11. Butterworth (2007) was authored by a team of international experts in zoology and

veterinary medicine. The study was never intended for publication. Indeed, it was

a far longer piece than would normally be accepted for publication and was able to

delve into the subject matter in far more detail. Subsequently, nevertheless, many

of the findings of Butterworth (2007) were included in a published, peer reviewed

article (Butterworth (2012)).

12. While Butterworth (2007) study was not peer reviewed, the study actually

underwent a far more rigorous review process: 53 international experts (25 animal

welfare experts, 15 humane slaughter experts and 13 marine mammal experts)

reviewed video evidence of commercial sealing that had been analysed in other

sections of Butterworth (2007) and provided scores on welfare outcomes.3

13. As in the case of Burdon (2001), the findings of Butterworth (2007) were

thoroughly analysed and reported in the EFSA Opinion.

2.1.1.2 Claim that the authors lack expertise.

14. The attempts by the Complainants to challenge the scientific credentials of the

experts who authored the studies relied by the European Union are baseless.

3 Butterworth (2007), pp.19-20, 28-32 (Exhibit EU – 34).



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15. Burdon (2001) was produced by a panel of six veterinarians with expertise in a

variety of specialties. Three of them (Dr Rosemary Burdon, Dr Ian Robinson, Dr

John Gripper) had experience in seals and wildlife. Another (Dr Alan Longair) was

part of the group that authored Smith (2005).

16. The authors of Butterworth (2007) are leading experts in zoology, marine mammal

veterinary science and humane slaughter. One of them, Professor Stephen Harris,

has observed the Canadian seal hunt at close range during two sealing seasons, and

three other authors (Dr Andrew Butterworth, Professor Neville Gregory and Pierre

Gallego, DVM) observed the seal hunt in 2007. Harris, Butterworth, Gregory and

Gallego all performed post mortems on seal carcasses randomly obtained at the

2007 commercial seal hunt. All experts reviewed many hours of unedited video

evidence of commercial sealing.

17. As mentioned above, one of the authors of Butterworth (2012) (Dr Andrew

Butterworth) viewed the commercial seal hunt in 2007. The other author (Dr Mary

Richardson) has studied Canada's seal hunt since 1996 and reviewed many hours

of unedited video evidence.

18. The qualifications of all these experts go well beyond their experiences observing

seal hunting. Many of them are internationally renowned, distinguished scientists

in the field of humane slaughter, and with their expertise have evaluated

commercial sealing in comparison with other large-scale commercial slaughter

operations. The European Union is providing a summary of their credentials as

Exhibit EU – 98.

19. At the first meeting with the Panel the Canadian delegation also questioned the

expertise of Professor Broom. The European Union has requested the assistance of

Professor Broom in this dispute because he is a world leading authority in the field

of animal welfare. Professor Broom is the author of over 300 refereed scientific

publications and seven books, including several publications where the welfare of

seals is addressed (see the list of publications in Exhibit EU - 99).4 In addition,

Professor Broom was a member of the UK Government Special Committee on

Seals for 11 years and of EFSA's Scientific Panel for Animal Health and Welfare,

4 Professor Broom's curriculum vitae was provided as part of the EU's Oral Statement.



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which adopted EFSA's opinion on the animal welfare aspects of the killing and

skinning of seals on 6 December 2007.5

2.1.1.3 Claim that some of the studies were facilitated by NGOs

20. The European Union does not believe that scientific research becomes unreliable

merely because it has been commissioned or facilitated by NGOs with a non-

commercial interest. The key point is whether the scientists involved produce

unbiased scientific information. The European Union notes that Canada's

suggestions to the contrary would have the unacceptable implication that only

government funded research could be admissible in WTO dispute settlement.

Canada's attempts to discredit the evidence relied upon by the European Union on

these grounds are unfounded. Furthermore, Canada's own evidence is questionable

in view of Dr P.Y. Daoust's close links to the Canadian fur industry (see below

section 2.1.1.4).

21. Observation of commercial sealing in Canada can, from a practical perspective,

only occur with the facilitation of the Canadian government or an NGO with

government permission. This is because sealing occurs in remote areas accessible

only by vessel or helicopter. Thus, veterinarians who observe the seal hunt are

either assisted in doing so by the Canadian government (in the case of Daoust

(2002) and Daoust (2012)) or by NGOs (in the case of Burdon (2001) and

Butterworth (2007)).

22. Observing the seal hunt with the Canadian government entails observing sealing

activity from sealing vessels in the presence of government enforcement agents,

with sealers fully aware of the observation and the purpose of it. In marked

contrast, observing the seal hunt with an NGO occurs by helicopter through

gyrostablized cameras with exceptional magnification, allowing for observers to

witness and document commercial sealing from a distance, when sealers are often

unaware that they are being filmed.

5 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 Opinion), p. 2. (Exhibit EU – 30).



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23. Moreover, veterinary observers facilitated by NGOs to observe the seal hunt have

full control over what vessels/crew/activity they observe. In contrast, those who

are facilitated by government must observe the seal hunt on select vessels that

authorize the observation.

2.1.1.4 Links of Dr Daoust to the Canadian fur industry

24. In view of Canada's suggestions that some of the scientific studies relied upon by

the European Union would be unreliable because they were facilitated by NGOs,

the European Union draws the Panel's attention to the links between Dr P.Y.

Daoust (one of the authors of Daoust (2002) and Daoust (2012)) and the Canadian

fur industry, in particular through the Fur Institute of Canada.

25. The Fur Institute of Canada (FIC) describes itself as an "umbrella organization for

the fur industry across Canada".6 While it purports to represent "all sectors of the

industry and stakeholders groups"7, it is controlled by commercial interests, as

evidenced by the composition of its managing bodies:8

Chairman David Hutton Willow Stone Farm Inc.

1st Vice-Chairman Dion Dakins Carino Processing Ltd.

2nd Vice-Chairman Jim Gibb Triple J. Wildlife Services

3rd Vice-Chairman Randy Mersereau New Brunswick Trappers and Fur Harvesters Federation

Board Treasurer Howard Noseworthy Fur Harvesters Auction Inc.

Board Secretary Brian Roberts NRJ Technical Services for Trade & Animal Welfare

Directors

Anne Troake Trapper Gord Inc.

Bob Frederick British Columbia Trappers Association

Daniel Mullen Canada Mink Breeders Association

Darcy Alkerton Nuisance Wildlife Control

David Bewick North American Fur Auctions

Dean Berezanski Manitoba Conservation and Water Stewardship

6 Brochure of the Fur Institute of Canada (Exhibit EU - 100).

7 Brochure of the Fur Institute of Canada (Exhibit EU - 100).

8 List available at the website of the Fur Institute of Canada:

http://www.fur.ca/about.php?id=board#about_nav (Exhibit EU - 101).

http://www.fur.ca/about.php?id=board#about_nav



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Eldred Woodford Canadian Sealers Association

Gordy Klassen Alberta Trappers Association

Howard Noseworthy Fur Harvesters Auction Inc.

Jason White The North West Company Inc.

Jeffery Mitchell Jeff Mitchell Mink Ranch

Jim Gibb Triple J. Wildlife Services

Lloyd H. Jones NWT Industry, Tourism and Investment

Lynda Jagros-May Furriers Guild of Canada

Michael O'Brien Nova Scotia Department of Natural Resources

Paul Tufts Trappers Association of Nova Scotia

Pierre-Yves Daoust Canadian Association of Zoos & Wildlife Veterinarians

Ron D. Spence Nisichawayasihk Cree Nation

Stuart Jansson Manitoba Trappers Association

.

26. In 2006 the FIC formed a Sealing Committee "to help promote positive messages

about sealing".9 Through the Sealing Committee, the FIC facilitates a Seals and

Sealing Network (SSN), which includes members of other sealing countries.

According to SSN's website, the Sealing Committee and SSN "have focused

heavily on motivating the Government of Canada to complement their strategy of

'correcting misinformation' by proactively challenging proposed EU bans."10

As

part of the same strategy, the FIC is one of the applicants in various cases brought

against the EU Seal Regime before the Court of Justice of the European Union.11

27. Dr P.Y. Daoust has been a member of the Board of Directors of the FIC since

2007. In view of that position, it may be assumed that he was aware of and

supportive of FIC's strategy of "motivating" the Canadian Government to

challenge the EU ban in the WTO when he authored Daoust (2012).

28. Dr P.Y. Daoust did not disclose to EFSA his membership of the Board of

Directors of the FIC. Had he done so, he would not have permitted to b a member

of the Working Group. Nor is that membership mentioned in Daoust (2012).

9 From the website of the Fur Industry of Canada, available at:

http://www.fur.ca/about.php?id=fic_programs#about_nav (Exhibit EU - 102). 10

Form SSN's website: http://www.sealsandsealing.net/resources.php?page=8 (Exhibit EU - 103). 11

Notices published in the Official Journal of the European Union of the actions brought before the

Court of Justice of the European Union by Inuit Tapiriit Kanatami and others, including the Fur

Institute of Canada, in cases T-102/09, T-526/10 and C-583/11 (Exhibit EU - 104).

http://www.fur.ca/about.php?id=fic_programs#about_nav




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2.1.1.5 Claim that the evidence is 'dated'

29. The allegation that the studies relied upon by the European Union rely on evidence

which is "dated"12

because Canada has amended its regulations in the meantime is

spurious.

30. As discussed below, the changes made to Canada's regulations in 2009 were "very

minimal"13

and largely inconsequential. Subsequent changes are even less

significant.

31. Behaviours such as shooting seals in the water, delays in completing the three-step

process or hooking and dragging seals before completing the second and third

steps were and continue to be legal under Canada's regulations. Indeed, prohibiting

such practices would make the Canadian hunt unviable in practice.

32. Moreover, the studies relied upon by the European Union focus on the inherent

obstacles to humane killing. For example, inaccurate clubbing and shooting or the

long delays in approaching the seals after shooting them are largely determined by

factors which cannot be addressed through better regulation or enforcement.

33. In connection with this allegation by the Complainants, the European Union

wishes to clarify that more than two thirds of the images showing commercial

sealing in Canada submitted by the European Union as Exhibit EU - 38 were

filmed from 2009 to 2011. This video evidence was therefore filmed after the most

recent regulatory changes occurred in Canada. The remainder of the images of

commercial sealing were filmed from 2005 to 2008 and show killing methods that

remain legal today.

34. Similarly, the vast majority of the images showing commercial sealing in Canada

presented by the European Union at the first Panel's meeting with the parties (EU –

82) were filmed from 2009 to 2011. The remaining images were all filmed from

2005 to 2008 and show sealing methods that remain legal today.

2.1.2. Reliability of video evidence

12

Canada's Oral Statement, para. 9. 13

See transcript of statements made by Barry Rashotte, DFO Director General, to the radio station CBH-

FM on 28 December 2008 (Exhibit EU - 105).



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35. The Complainants contend that video evidence is unreliable. Further, they attribute

to EFSA the view that "video evidence is not a reliable basis upon which to

determine whether seals are in fact killed humanely or not".14

This is not, however,

what EFSA said. EFSA cautioned that:

Because of the difficulties in evaluating whether or not a seal has

been rendered unconscious by a blow to the head or by a bullet at

a distance or on videotape […] or after the animal has been

skinned, varying interpretations among the experts examining the

same evidence are to be expected. 15

36. While EFSA cautioned about the limitations of video evidence, it did not say that

it was intrinsically unreliable. Moreover, EFSA's comment concerns equally

firsthand observation "at a distance", such as that conducted by observers on board

of vessels in the studies relied upon by the Complainants (Daoust (2002) and

Daoust (2012)).

37. That EFSA regarded video evidence as reliable is confirmed by the fact that the

EFSA opinion is largely based on studies which made extensive use of video

evidence, including Burdon (2001), Daoust (2002) and Butterworth (2007).

Furthermore, the members of the EFSA Working Group, and some members of the

EFSA Panel, themselves spent much time reviewing video evidence.

38. Canada's position that video evidence is unreliable is difficult to reconcile with the

fact that Canada claims to rely on video evidence for monitoring the hunt16

or with

the fact that the Canadians authorities have sometimes laid charges against sealers

based on video evidence of commercial sealing supplied by NGOs.

39. As explained below, video evidence is reliable and credible and, in fact, is superior

to firsthand observation at a distance in many ways.

2.1.2.1 How video evidence is obtained

14

Canada's Oral Statement, para. 28. 15

EFSA Opinion, p.54. Emphasis added. (Exhibit EU – 30) 16

See Canada's Response to the Panel's Question 89.



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40. Video evidence of commercial sealing in Canada is filmed by observers licensed

by the Canadian government to witness and document the commercial seal hunt.

This video evidence is filmed either:

from on the ice or from small vessels (rigid inflatable boats) at a minimum

distance of ten metres away from sealers (the distance is a condition of the

observation permits); or

aerially, from helicopters, at a minimum distance of 300 metres above sealers

or 150 metres to the side of sealers (the distances are required by Canadian

transport regulations).

41. Because of sea ice conditions, landing helicopters on sea ice is often not possible,

and there are challenges in filming the seal hunt from vessels. Thus, filming

aerially from helicopters, with Cineflex cameras mounted on the aircraft, has

become a standard method for documenting the seal hunt.

42. Cineflex technology, originally developed by the military, provides an

unprecedented degree of motion stabilization and extreme telephoto capabilities to

achieve stable aerial shots despite the vibration inherent in helicopter flights. The

gyro-stabilized system works with the operator using a joystick from within the

helicopter to control the camera movements. Cineflex technology was used to film

the widely known Planet Earth series, enabling the close-up filming of wild

animals from long distances by helicopter.

43. The considerable magnification of Cineflex technology paired with the

gyrostabilzation produces a highly reliable image in high definition.

2.1.2.2 Video evidence is reliable and credible

44. Video is extensively used in the collection of scientific research data. Video

evidence of commercial sealing, whether taken aerially or from sea level, is a

reliable source of evidence in that it is 1) more accurate than first hand

observation/memory; and 2) obtained in a random fashion.



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2.1.2.2.1 Video evidence is more accurate

45. Firsthand observation at the seal hunt must occur at a distance (from vessels). As

mentioned above, EFSA's cautioning with regard to the limitations of video

evidence applies equally to firsthand observation at a distance.17

In fact, video

evidence of commercial sealing is superior to firsthand observation in determining

outcomes for animals, for several reasons:

Firsthand observation occurs on board sealing vessels when sealers are aware of

the observation, and veterinary reports have noted that this awareness is likely to

affect sealer behaviour.18

In contrast, video evidence filmed aerially is often

recorded at a distance when sealers are unaware they are being filmed. Thus, the

video is more representative of sealers’ actual behaviour at the seal hunt.

Evolving video technology now allows for considerable zoom capabilities,

providing images that are more close-up than can be viewed with the naked eye

from a distance.

Unlike firsthand observation, video evidence can be reviewed repeatedly, allowing

for experts to replay a sequence over and over and even in slow motion. This

permits a far more accurate review of events than would be provided by a one time

firsthand observation.

Firsthand observation occurs in challenging circumstances at the seal hunt.

Veterinary observers are stationed on sealing vessels, and can be distracted while

attempting to observe by crew working around them, vessel movements and

simultaneous sealing activity. Moreover, the observers are attempting to observe

the killing processes and record outcomes simultaneously. Video evidence, in

contrast, records each event from beginning to end, and allows the observer to

study the event repeatedly, without the distractions and pressures that occur in the

field.

Veterinary observers view the killing processes from moving vessels, at a distance.

At a sea level, sea ice formations frequently create visual barriers between the

17

EFSA Opinion, p. 54 (Exhibit EU – 30). 18

EFSA Opinion, p. 54 (Exhibit EU – 30).



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observers and the seals, which prevents constant observation of the seal during the

killing process. In contrast, aerial filming occurs from above and so sea ice

formations do not create visual barriers, and helicopeters can manoeuvre to ensure

direct visual access to the seal.

Video captures detail in a larger area than could be focused on with the naked eye.

This allows reviewers to see things occurring near the seal being killed (for

example, other wounded animals, sea ice formations that could create visual

barriers between sealers and seals, etc.)

2.1.2.2.2 Video evidence is obtained in random fashion

46. It is important to note that video evidence of commercial sealing is obtained in a

purely random fashion. Sealing vessel locations are not disclosed to observers. For

that reason, the images filmed are of random vessels and crews, encountered by

chance.

47. Moreover, observers’ ability to film the seal hunt is limited by distance of sealing

vessels offshore. Helicopters have a fuel range of about three hours. When vessels

are located farther offshore, there is either less time to film, or no ability to film.

48. Observers’ ability to film the seal hunt is also limited by weather. Helicopters

cannot fly in adverse weather conditions such as high winds, fog, low cloud cover

/ “ceiling” and freezing rain, while sealers can and do operate in these conditions.19

49. Thus, the images filmed are of sealing crews and boats encountered by chance,

they are difficult to obtain, and should be viewed as random examples of

commercial sealing taken under optimal environmental conditions. While the

sequences shown to the Panel at the first meeting with parties were selected to

illustrate problems, scientific evaluation of video evidence uses all sequences

collected and hence allows a quantitative measure of the frequency of problems.

2.1.3. Daoust (2012)

19

This bias is mentioned in EFSA Opinion, p. 54 (Exhibit EU – 30).



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50. Canada asserts repeatedly that Daoust (2012) shows that seals can be, and are

killed humanely in the Canadian hunt.20

Daoust (2012) is the central piece of

scientific evidence submitted by Canada in this dispute and on which Canada's

claims depend.21

Yet Daoust (2012) proves the opposite of what Canada purports

to demonstrate.

51. As discussed in detail in the EU's first written submission22

, Daoust (2012)

documents many instances of poor welfare outcomes. These include, in particular,

unacceptable delays between stunning, monitoring for consciousness and bleeding

and high wounding rates. For that reason, Daoust (2012) does not show that the

Canadian hunt is humane. Instead, it shows that its authors, and the Canadian

Government, regard as humane outcomes which most veterinary authorities would

regard as inhumane.

52. In fact, in essence, Daoust (2012) does not even claim that the Canadian seal hunt

is humane, but instead that it is not worse than other hunts of wild animals.23

Yet,

even if that were true24

, the Canadian seal hunt is fundamentally different from

those other hunts. The Canadian seal hunt is a large-scale, commercial activity and

thus should adhere to the same standards as other commercial slaughter operations.

While Daoust (2012) goes on to suggest that poor welfare outcomes in the

commercial seal hunt may be lower than in slaughterhouses25

, the comparisons are

meaningless, as shown in the EU's first written submission.26

53. In a similar fashion, a previous study by Dr P.Y. Daoust (Daoust (2002))

documented many instances of poor animal welfare outcomes. Yet this study has

been used extensively by the Canadian sealing industry, and sometimes by the

Canadian Government, as authority for the assertion that '98 % of seals are killed

20

See e.g. Canada's response to Panel's Question 69, para. 296. 21

Canada's first written submission, paras. 597-603. 22

EU's first written submission, paras. 389-396. 23

Daoust (2012), p. 453, right column ("The proportion of seals considered to have had a poor welfare

outcome is comparable to, or lower than, that in other types of hunt") (Exhibit CDA – 34). 24

See below the EU's comments on the Complainants' responses to the Panel's Question 55. 25

Daoust (2012), p. 453, right column (Exhibit CDA – 34). 26

EU's first written submission, para. 396.



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humanely', a claim which was determined by EFSA to be "scientifically incorrect"

in view of the findings made by Daoust (2002).27

2.1.4. Evidence pertaining to the Norwegian hunt

54. As recognised by EFSA28

and VKM29

, there is hardly any scientific evidence

concerning the Norwegian hunt, let alone genuinely independent evidence.

55. The Norwegian government is largely responsible for this lack of evidence. The

Norwegian authorities like to boast that the Norwegian hunt is the best regulated

and enforced in the world and the most humane.30

Yet the Norwegian authorities

can provide no evidence to substantiate those claims. They keep no statistics on

welfare outcomes.31

The requirement to file inspection reports is a mere formality,

which in many cases is fulfilled by ticking a few boxes in a standardised form.32

The Norwegian authorities appear not to have commissioned any relevant

scientific research since the 1995 paper by Dr Egil Øen (which fails to support

Norway's claims33

and, indeed, has not been provided to the Panel by Norway).

Furthermore, while the Norwegian government pretends now that third party

observation of the hunt is allowed by law, in practice the Norwegian authorities

have rendered it impossible by failing to adopt the necessary implementing

regulations.34

56. In the absence of scientific evidence pertaining to the Norwegian hunt, Norway

has sought to meet its burden of proof by submitting a series of largely repetitive

statements by Mr Danielsson, a sealing inspector.35

The author of the statements

participated in the hunts as a government employee and cannot be regarded as an

independent party. Moreover, the statements consist entirely of bare assertions,

unsupported by evidence and have been prepared expressly for the purpose of this

dispute under the control of the Norwegian authorities.

27

EU's first written submission, para. 85 and footnote 83. 28

EFSA Opinion, section 1.3.2.2, p. 28 (Exhibit EU – 30). 29

EU's first written submission, para. 176. 30

See e.g. Norway's responses to Panel's Question 72, at para. 393, and Question 73, at para. 406. 31

Norway's response to Panel's Question 56, at para. 322. 32

See e.g. the inspection report filed by Mr. Danielsson in 2010 (Exhibit EU - 106). 33

EU's response to Panel's Question 72, para. 221. 34

Norway's response to Panel's Question 61. 35

Exhibits NOR – 4 and NOR – 128. See also Norway's Oral Statement, paras. 176-199.



_________________________________________________________________________

- 15 -

57. Mr Danielson's opinions are often directly contradicted by observations contained

in inspection reports.36

For example, Mr Danielsson asserts, without providing any

evidence, that inspectors can keep an adequate overview of the hunt.37

But the

NOAH report cites no less than six inspection reports where the inspectors

expressed a very different view.38

58. Similarly, Mr Danielsson contends, again without offering any supporting

evidence, that environmental conditions have no significant impact on the conduct

of the hunt.39

Inspection reports, however, attest to the importance of such factors.

For instance, according to Mr Danielsson, swells and waves would not affect the

accuracy of shooting.40

Yet, as reported by NOAH, some inspections reports

contain observations that refute that opinion:

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.41

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."42

59. Mr Danielson objects to the description by the European Union of seals as

"moving targets".43

But Inspector Greve-Isdahl reports instances of sealers

"shooting at animals moving across the floe at high speed and not slowed down by

shots to the body." 44

Another inspector notes that:

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.45

36

EU's first written submission, paras. 178-188. See also NOAH Report (Exhibit EU – 43). 37

See e.g. Norway's Oral Statement, paras. 193-199. 38

NOAH Report, pp. 3-4 (Exhibit EU – 43). 39

Mr Danielsson's Second Statement, paras. 4-26 (Exhibit NOR – 128). 40

Mr Danielsson's Second Statement, paras. 24-26 (Exhibit NOR – 128). 41

Inspection report by Lars Kleivane (1993), NOAH Report, Appendix L, pp. 3-4 (Exhibit EU - 43). 42

Inspection report by Jens Altern Wathne (2000), NOAH Report, Appendix I, p. 4 (Exhibit EU – 43). 43

Norway's Oral Statement, paras.183-185. 44

Inspection report by Liv Greve-Isdahl (2009), NOAH Report, Appendix K (Exhibit EU – 43). 45

Inspection report by Jon Arnemo (1991), NOAH Report, Appendix D, p.4. (Exhibit EU – 43).



_________________________________________________________________________

- 16 -

60. Mr Danielsson also asserts, as usual without citing any evidence, that "shooting

performance is very high".46

Yet, for example, Inspector Moustgaard (another of

Norway's experts in these proceedings) concedes in an inspection report that "it

happens quite frequently that a gunshot proves not to be lethal".4748

61. In a similar vein, Mr Danielsson pretends that, unlike in Canada, struck-and-lost is

an extremely rare occurrence in the Norwegian hunt.49

Yet an unusually detailed

inspection report of 2009 by Inspector Greve-Isdahl concerning a sealing

expedition by the Vessel Kvitungen documents a very high rate of struck-and-lost

animals (10 % during several periods and as much as 50 % during one period):

Of the last 20 animals shot (roughly half of them GRU and half

adult seals), 9 took wounding shots and were lost – almost a 50%

rate of wounding shots over more than 2 hours. Many of the

animals were then shot in the sea and 2 took 6 shots to the body

on the ice before taking the last 2 shots in the sea! (...).

A total of 58 animals took wounding shots and were lost in the

sea, and around 10 were “lost” because of breaking ice. Then

there were the animals that took wounding shots on the ice and

took more than 2 non-fatal shots to the body. Unfortunately, there

is not a full list of these animals, but there were more than 200 of

them. (...)50

.

62. Mr Danielson sums up his views on the seal hunt by concluding that "hunting seals

is considerably more simple"51

than hunting other wild animals on land. Yet this

view is contradicted by Norway's Directorate of Fisheries, which has rightly

stressed that "sealing is a very difficult form of hunting, which places severe

demands on practical hunters, including shooters."52

Similarly, Inspector

Moustgaard opined in an inspection report that:

46

Norway's oral statement, para. 181. 47

Inspection report by Anne Moustgaard (2005), NOAH Report, Appendix T, pp. 3 and 5 (Exhibit EU -

43). 48

See also EU's response to Panel's Question 72, para. 221. 49

M'r Danielsson's Second Statement, para. 43 (Exhibit NOR – 128). Norway attached to Mr

Danielsson's statement a document showing what purports to be the struck-and-loss rates recorded by

Mr Danielsson during the 2011 and 2012 hunts. The European Union observes that the document in

question has not been derived from official statistics (which Norway does not keep). Nor is it based on

the inspector reports filed by Mr Danielsson. There is simply no way in which the European Union or

the Panel could verify the authenticity of the figures shown in the document in question, let alone their

accuracy. 50

Inspection report by Liv Greve-Isdahl (2009), NOAH Report, Appendix K (Exhibit EU – 43). 51

Norway's Oral Statement, para. 184. 52

Letter from the Directorate of Fisheries to the Ministry of Coastal Affairs recommending the

amendment of the regulations dated 14 February 2011, at p. 4 (Exhibit EU – 44).



_________________________________________________________________________

- 17 -

It has earlier been shown, and so also this year, that even

experienced hunters and/or shooters are surprised how difficult it

is to shoot seals […] This lead to some shooting and wounding

and not all wound animals were found despite searching53

63. Norway contends that the NOAH report portrays a "selective and inaccurate

picture" of the Norwegian hunt.54

But there is no reason why Mr Danielsson's

totally unsupported assertions should be regarded as more credible, let alone

representative, than those recorded in the official reports filed by other inspectors.

Nor has Norway specified, let alone proved, why the inspection reports cited by

Noah are "inaccurate".

64. According to information provided by NOAH, over the last 5 years (2008-2012)

only thirteen inspector reports were filed.55

The authors of seven of those reports

(including three reports by Mr Danielsson)56

limited themselves to ticking the

boxes in the report form, without providing any additional comment on the

incidences of the hunt. Four reports (including three by Ms. Moustgaard) provided

some comments on issues such as the need to remind the sealers of the killing

regulations, struck-and-lost animals and other conduct which was not in line with

the regulation, but no violation complaints were filed with the competent

authorities. The remaining two reports resulted in violation complaints. 57

The

most detailed of all thirteen reports is, by far, the report filed by Inspector Greve-

Isdahl in 2009.58

65. Norway attempts to dismiss the report by Inspector Greve-Isdahl as concerning an

"extreme example of unacceptable conduct"59

. But it must be recalled that

Norway's sealing community is very small. In 2009 only three boats participated in

Norway' seal hunt. In other words, the incidents reported by Inspector Greve-

Isdahl concerned one third of Norway's sealing fleet. Moreover, the captain and

many members of the crew were experienced sealers. There is no reason to assume

that they behaved differently in other expeditions. And, indeed, some of them

53

NOAH report, p. 28 (Exhibit EU – 43). 54

Norway's oral statement, para. 149. 55

Response by Noah to Norway's objections to the NOAH report, p. 4 (Exhibit EU – 107). 56

According to NOAH, it appears that Mr Danielsson has never considered it necessary to enter any

comment in any of the inspection reports that he has filed during his entire career as sealing inspector. 57

NOAH's response to Norway's objections to the NOAH report, pp. 4-5 (Exhibit EU - 109). 58

Inspection Report by A. Moustgaard (2009), NOAH report,Appendix K, (Exhibit EU – 43). 59

Norway's Oral Statement, para. 149.



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- 18 -

testified before the Norwegian courts and in the media that the incriminated

conducts were usual in sealing expeditions.60

66. Norway also asserts that the "NOAH report fails to acknowledge that the problems

identified pertain to a tiny fraction of animals hunted".61

But the only evidence

provided in support of this assertion is that an inspection report of 2009 by Ms

Moustgaard only records "non-compliance with regulations regarding around 25

seals"62

. This, according to Norway, would mean that "99 % of animals were

hunted consistently with the standards required by Norwegian regulations with an

animal welfare outcome"63

. This improvised statistic, however, is meaningless. To

begin with, Ms Moustgaard does not report how many seals she observed during

their entire killing process. Yet, as mentioned above, the inability of inspectors to

monitor all the activities of the hunt is a problem recognised by many inspectors.

Moreover, Norway's regulations do not prescribe a humane killing method. Thus,

although Ms Moustgaard could have witnessed many other unacceptable welfare

outcomes, she may not have considered it necessary to report them, as they were

not illegal. Ms Moustgaard did record, nevertheless, the extensive use of some

hunting methods which, although permitted under Norway's regulations (hooking

before hakapiking and bleeding), were rightly regarded as objectionable by

Norway's own Directorate for Fisheries when it proposed an amendment to the

regulations in 2010:

Hunting was mainly pick off hunting, sometimes involving the

extensive use of hooking up seals. [...] 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.64

67. Ms Moustgaard also reports instances of struck-and-lost animals, even though she

downplays the wounds, without actually having seen the animals and being able to

assess the damage properly:

60

NOAH report, pp. 9-10 (Exhibit EU – 43). 61




Inspection Report by A. Moustgaard (2009), NOAH report,,Appendix Q, pp. 6-7. (Exhibit EU – 43).



_________________________________________________________________________

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On a couple of occasions, seals went into the sea and it was

subsequently discovered that they had left behind flecks of blood,

indicating wounding by gunfire. There was nothing to suggest

that this was anything other than superficial grazes and the seals

were not seen again.65

68. Both Canada and Norway have recognised that the conditions (both environmental

and regulatory) in which the Norwegian hunt takes place are very similar to those

prevailing in Canada.66

The same species of seal is hunted, at the same age, in

similar ice and weather conditions and using similar killing methods. For that

reason, the evidence relating to the Canadian hunt can be extrapolated to the

Norwegian hunt. Norway itself does not hesitate to invoke Daoust (2012) in

support of its claims.67

Indeed, the differences between the Canadian and the

Norwegian hunt are relatively minor and do not justify a different assessment.

Those differences are essentially the following:

Norway's regulations prohibit shooting seals in the water.68

Nevertheless, as

shown by the European Union, Norway's regulations are deficient in many

other respects;69

Norway's hunt is a smaller operation involving fewer boats. As a result, it is

viable to require the presence of an inspector on board of each boat. As

explained, however, it is very difficult for the inspector to keep an adequate

overview over all the activities of the hunt at all times.70

In the Norwegian hunt boats are somewhat larger. Norway claims that they

provide a more stable platform for shooting.71

But the use of larger boats has

also drawbacks. Seals are shot from longer distances in Norway72

than in

65

Inspection Report by A. Moustgaard (2009), NOAH report,,Appendix Q, p. 7 (Exhibit EU – 43). 66

Canada's and Norway's responses to Panel's Question 72. 67

Norway's response to Panel's Question 56, para. 322. Norway's oral statement, para. 169. 68

It should be noted, however, that this prohibition applies only with regard to the commercial seal hunt

in the Artic. It does not apply to the hunting of, in particular, grey seals in the Atlantic coasts of

Norway. 69



Norway's response to Panel's Question 73, para. 397. 72

EFSA Opinion, p. 26 (Exhibit EU – 30).



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Canada73

and it may be more difficult to manoeuvre the boat and to retrieve the

seals after shooting them.74

2.1.5. Specific comments on Complainants' responses to questions from the Panel

69. Here below the European Union offers comments on the Complainants' responses

to some of the Panel's questions on scientific issues which have not been addressed

elsewhere in this submission.

2.1.5.1 Question 46: NAMMCO

70. NAMMCO claims to be “an international body for cooperation on the

conservation, management and study of marine mammals in the North Atlantic.”

It was founded in 1992 by its current members (Norway, Iceland, Greenland, and

the Faroe Islands, all pro whaling and pro sealing nations), as an alternative to the

International Whaling Commission (IWC).

71. Nations opposed to whaling do not recognise NAMMCO's claim to be the right

body for management of whale stocks in the North Atlantic, and continue to

support the IWC. Neither the European Union nor its Member States are members

of NAMMCO.

72. According to NAMMCO:

People’s right to hunt and utilize marine mammals is a firmly

established principle in NAMMCO. However, 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.75

73. In 2008, NAMMCO tasked its Committee on Hunting Methods to organize an

“expert group” on best practices in sealing. According to the expert group's report:

73

Smith (2005), p. 9 (Exhibit EU – 33) 74


NAMMCO report, p. 5. Emphasis added. (Exhibit JE – 24).



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All members of the Expert Group were invited in a personal

capacity as experts in fields related to the issue of killing

mammals. No stakeholders or NGO's were invited because focus

was on the scientific and technical aspects of the killing process

and not on the politics of sealing i.e. whether seals should be

killed or not.76

74. The European Union has commented on the report produced by the expert group in

its first written submission.77

As explained there, the report focuses mostly on

describing existing sealing methods, with little consideration of whether these

methods are humane, and few recommendations offered to improve the humane

aspects of sealing. True to the principles of NAMMCO and to its mandate, the

expert group seems to accept that a lesser standard of welfare is inevitable in the

seal hunt given the practical inability to apply in the field the humane slaughter

methods that would be used in an abattoir.

2.1.5.2 Question 54: changes to hunting regulations

2.1.5.2.1 Amendments to Canada's regulations

75. The 2009 amendments to Canada's MMR introduced basically three changes:

replacing the eye blink test for monitoring consciousness with a test based on

the palpation of the skull;

prohibiting the use of the hakapik on animals that are more than one year old;

and

requiring bleeding the seal for at least one minute before skinning.

76. These amendments were described at the time by Barry Rashotte, DFO Director

General, as "very minimal" changes".78

They are not just minimal but also largely

inconsequential.

76

NAMMCO report, p 6 (Exhibit – JE -24) 77


See transcript of statements made by Barry Rashotte, DFO Director General, to the radio station CBH-

FM on 28 December 2008 (Exhibit EU - 105).



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77. These changes do not implement the three-step method because they allow delays

between the three steps, as well as hooking, dragging and hoisting the seals on

board before the second and third step have been implemented.79

78. Skull palpation is not an appropriate method for checking consciousness. It is

regarded as unreliable by some experts because an animal with a damaged skull

can be conscious.80

79. The requirement that seals must be bled for one minute at least is inadequate, in

view of the fact that there is no requirement to bleed the seal immediately after

checking for unconsciousness. In fact, no elapsed time is specified between

checking and bleeding.81

80. The amendment prohibiting the use of the hakapik on animals that are more than

one year old is of little consequence given that 98 to 99 per cent of seals killed in

Canada's commercial seal hunt are recently weaned pups aged about two weeks to

three months.

81. Contrary to Canada's assertions, it is not true that the 2009 amendments "reflect"

the recommendations of Smith 2005.82

Notably, the MMR continue to allow the

shooting of seals in the water, contrary to Smith (2005) recommendation that:

Seals should not be shot in the water due to the high potential for

'struck and lost' events, suffering resulting from the inability to

confirm irreversible consciousness, and potential for the loss of

wounded animals.83

2.1.5.2.2 Amendments to Norway's regulations

82. Norway's hunting regulations were last amended in 2003. The 2003 amendments

represented a major step backwards in terms of animal welfare.

83. Until 2003 Norway's regulations required that the seals be hakapiked and bled on

the ice (the second and third step prescribed by Norway's regulations,

79




Canada's response to Panel's Question 54, para. 233. 83

Smith (2005), p. 21 (Exhibit EU – 33).



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respectively). In 2003, and in response to the sealing industry's pressure, the

regulations were loosened in order to allow hooking the seals on board before

those two steps have been performed in two situations: so-called "sporadic

hunting" and "when the ice conditions make it unadvisable to walk on the ice".84

84. Rather disingenuously, Norway claims now that those two exceptions are subject

to "strictly defined conditions".85

However, in 2010 Norway's Fisheries Directorate

made an attempt to repeal the exceptions on the grounds that, in practice, the two

exceptions are used very extensively and that their use is bound to increase even

further in view of the worsening ice conditions:

The Fisheries Directorate finds that hunting practice has become

more difficult in recent years because of relatively poor ice

conditions in the western ice field, and it is therefore also

assumed that the extent of hooking and bloodletting on board the

vessel can be expected to increase, provided that the regulations

remain unchanged. Large parts of the catch takes place as "pick

hunting", i.e. the capture of individual animals […].86

85. As explained in the EU's first written submission87

, the proposal had to be

abandoned due to strong resistance from shipowners and sealers, who argued that

"ice conditions will usually not permit hunting if hooking is prohibited".88

2.1.5.3 Question 55: differences between the environment of farm

animals and wild animals

86. The European Union notes that the Complainants appear to agree with the obvious

fact that the controlled and predictable environment of a slaughterhouse differs

considerably from the environment in which wild animals live and are hunted.

87. The Complainants, on the other hand, disregard that there are considerable

differences between the uniquely challenging environmental conditions under

which commercial seal hunting takes and those affecting other hunts of wild

animals.

84

See EU's first written submission, para. 172. 85

Norway's response to Question 54, para. 299. 86


amendment of the hunting regulations, dated 14 February 2011, at p. 5 (Exhibit EU – 44). 87


Comments submitted by the Norwegian Fishermen's Association, Norway's Fishing Vessel Owners

Association, at p. 1 (Exhibit EU – 44).



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88. As mentioned above, Norway's Directorate of Fisheries has rightly stressed that

"sealing is a very difficult form of hunting, which places severe demands on

practical hunters, including shooters."89

89. Indeed, seals are increasingly shot from boats because the ice floes are not solid

enough to walk on. Even in good weather conditions the accurate placement of a

shot in the relatively small brain areas from distances of up to 70 metres is difficult

given that the boat is moving, the ice is moving and the seal may also be moving.

In practice, extreme weather conditions, including strong winds, high ocean swells

and waves, extreme cold and low visibility (snow, freezing rain, fog) make

accurate shooting even more difficult.90

90. In contrast, in the European Union wild animals are hunted on land and usually

under much less extreme weather conditions. Moreover, in the European Union

wild animals are not hunted for commercial purposes, but instead for recreational,

management or health control purposes. As a result, unlike the commercial sealers

in Canada and Norway, hunters are not subject to competitive pressure and usually

select the most favourable conditions for hunting.

91. Moreover, by definition, terrestrial hunts do not pose some of the welfare risks

typically associated with seal hunting such as, for example, delays in approaching

the seals due to the difficulty in manoeuvring the boat, the hooking of seals on

board the vessels while still conscious etc.

2.1.5.4 Question 56: comparison of failure rates in the commercial

seal hunt, in other hunts of wild animals and in slaughterhouses

92. In responding to this question, Canada asserts at the outset that:

standards for what constitutes humane killing vary with species

and circumstances in which the animals are being killed.91

93. The European Union disagrees. Killing is either humane or it is not. The definition

of humane does not vary according to the circumstances of the killing. A different

89


amendment of the regulations dated 14 February 2011, at p. 4 (Exhibit EU – 44). 90

See EU's first written submission, paras. 132-138. 91

Canada's response to Panel's Question 56



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matter is whether, in selecting a level of protection against animal welfare risks,

the competent authorities should take into account the circumstances of the killing.

This is essentially a moral judgement.

94. As explained repeatedly by the European Union, the EU Seal Regime seeks to

uphold a basic rule of morality according to which humans should refrain from

inflicting suffering upon animals unnecessarily. In application of this rule of

morality, the EU authorities have concluded that it may be justified to tolerate a

higher level of risk to animal welfare where seals are hunted for subsistence or

management purposes. On the other hand, a high level of protection is appropriate

when seals are hunted for commercial purposes, in particular given that, unlike

farm animals slaughtered to meet basic food requirements, seals are killed in order

to manufacture inessential goods.

95. Canada is also incorrect in stating that "in the seal harvest, the initial strike, or shot

is what kills the animal". As shown by the European Union, veterinary studies

consistently document that, in the circumstances of the commercial seal hunt, both

clubbing92

and shooting93

are very unreliable stunning methods, with high rates of

mis-stunning.

96. Canada also asserts that:

For the seal harvest, the rate of failure is comparable to the rates

seen in slaughterhouses. The rate of seals that are struck and lost

is approximately 5 per cent.94

97. Canada, once again, makes an illogical comparison when it compares struck-and-

lost rates in the Canadian seal hunt to mis-stun rates in slaughterhouses. Struck-

and-lost rates record only those seals that are wounded, lost and not recovered.

However, as mentioned above, there is in addition a large number of seals that are

improperly stunned.

98. In a slaughterhouse, there are no struck-and-lost animals because wounded animals

cannot escape. Thus, mis-stun rates in abattoirs record exclusively those cases in

92

EU's first written submission, paras. 127-131 and 162. 93

EU's first written submission, paras. 132-138, 163 and 395-396. See also EU's response to the Panel's

Question 72, para. 221. 94

Canada's response to Panel's Question 56, para. 252.



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which stunning methods have to be applied more than once - a rate that is well

below 5 % in most commercial slaughter operations.95

Moreover, in most cases

where the animal is improperly stunned in an abattoir, in the sense that the captive

bolt deviates from the ideal position, the animal is nevertheless rendered

unconscious by the first captive bolt application. In contrast, many seals are hit or

shot in the wrong place and are not stunned at all.

99. In addition, struck and lost rates involve wounded animals that escape, are not

retrieved and suffer for extended periods of time until they die – a situation that

never happens in an abattoir. When an animal is incorrectly stunned in an abattoir,

it can be immediately re-stunned, which is not the case with struck and lost. It is

also often not the case with other instances of mis-stunning in commercial sealing

(for example, when seals are shot and wounded, and various visual obstacles or

seal movements prevent sealers from achieving an accurate second or third head

shot).

100. Canada also claims that:

another way to assess rates of failure is to measure whether the

three-step method has been applied.96

101. This is not true. The three steps prescribed in the Canadian sealing regulations

allow for unlimited number of mis-stuns, and actually prescribe secondary

stunning procedures to be carried out when the first application of the stunning

method is ineffective. For example, when seals are shot sealers are to observe the

animals and shoot again if the seal shows 'directed movements'97

– a clear

admission that stun failures occur. Compliance with the Canada’s three-step

method does not indicate positive welfare outcomes because the three steps

required in Canada do not prescribe humane killing. (See below the comments on

Canada's response to Question 62).

102. Contrary to Norway's assertions98

, there is often extreme pre-slaughter stress

during sealing. This stress and suffering ranges from zero following accurate

95

See EU's first written submission, para. 411. 96

Canada's response to the Panel's Question 56, para. 252. 97


Norway's response to Question 56, para. 319.



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shooting of an undisturbed seal, to very high magnitude of poor welfare in a seal

that is shot in the body and not killed for many minutes. Seals that are shot and lost

may have poor welfare for many weeks. Pre-slaughter stress is high in seals

approached by humans and then clubbed one or more times before they become

unconscious. There is a high magnitude of poor welfare if seals are herded prior to

clubbing, as in Namibia, or chased for some time before they can be killed, as is

the case for some seals in every sealing country.

103. Both complainants refer to the hunting of deer as involving higher failure rates.99

In this regard it should be noted that in the European Union deer used

commercially for food are usually farmed and are killed humanely. Shooting of

wild animals is permitted but is not comparable with the commercial seal kill for

the reasons mentioned in the preceding section. The shooting of deer by trained

marksmen is on land, not from a moving boat, and is much more accurate. In a

study of shot deer, Bateson and Bradshaw (1997) found that very few of 50 deer

shot with a rifle showed any increase in the emergency adrenal cortisol response

because most were killed by the shot.100

2.1.5.5 Question 61: Independent observation of the hunts

104. The European Union has asked two of the NGOs which have monitored regularly

the Canadian hunt (IFAW and HSI) whether they encounter obstacles in doing so.

The European Union is submitting a statement with their response as Exhibit EU –

109. According to the NGO's statement:

The Canadian seal hunt occurs in public space, and therefore

observation of it is a right guaranteed under the Canadian Charter

of Rights and Freedoms. However, animal protection groups

contend that the Canadian government has actively discouraged

observation for decades, through the creation and implementation

of a flawed permitting system. Because of intentionally vague

wording in the regulations pertaining to observation, the Canadian

government has been able to create numerous obstacles to

observation in the form of denial of permits and problematic

conditions for observation permits.

99

Canada's response to Question 56, para. 250. Norway's response to Question 55, para. 242. 100

Bateson, P. and Bradshaw, E.L. 1997. Physiological effects of hunting red deer (Cervus elephas).

Proceedings of the Royal Society B., 264, 1707-1714 (Exhibit EU - 108).



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Moreover, sealers and their supporters have repeatedly attempted

to prevent observation of commercial sealing through physical

aggression on the ice and on land (to attempt to prevent

helicopters from taking off and reaching sealing areas).

105. The European Commission's Impact Assessment records that an attempt by two

Commission veterinarians to observe the Canadian hunt failed because of lack of

cooperation on the part of the Canadian authorities:

Two Commission veterinarians travelled to Newfoundland

between 9 and 16 April 2007 to observe the annual seal hunt

following an invitation of the responsible Canadian Minister.

Unfortunately, despite the investment and the efforts undertaken

by the Commission, the mission failed to accomplish its objective

and the Commission's veterinarians were not put in a position to

observe the actual hunting of seals. No adequate arrangements

seem to have been made by Canada to ensure access by them to

the actual observation of the hunt. Adverse weather and ice

conditions also played a role in preventing a successful

observation.101

106. In its response to this question, Norway mentions that the Norwegian hunt is open

to observations by NAMMCO inspectors under the Joint NAMMCO Control

Scheme for the Hunting of Marine Mammals.102

However, it appears that the

specific purpose of that scheme is monitoring compliance with NAMMCO's own

decisions.103

Since NAMMCO has not taken any decision on animal welfare

requirements for killing seals, this scheme appear to be irrelevant for the purposes

of this dispute. Moreover, given NAMMCO's record with regard to seal hunting

(see above comments on the responses to Question 46), observation by NAMMCO

could hardly be regarded as a guarantee that seals are killed humanely in the

Norwegian hunt.

107. The European Union notes again that, while Norway pretends now that

independent observation of the hunt by other parties is permitted by law, in

practice the Norwegian authorities have rendered it impossible by failing to adopt

the necessary implementing regulations. Norway has announced that the requisite

101

European Commission's Impact assessment, p. 13 (Exhibit JE- 16). 102

Norway's Response to Panel's Question 61, para. 344 103

Norway's first written submission, para. 840.



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regulations will be adopted soon, but not before the present proceedings are

closed, lest any unwelcome observer could collect compromising evidence.104

108. In their joint statement IFAW and HSI have observed the following with regard to

the possibilities of observing the Norwegian hunt:

The understanding in the NGO community has always been that

independent observation of Norway’s commercial seal hunt is

prevented. So when the Norwegian delegation indicated at the

first WTO hearing in February that independent observation of

the Norwegian seal hunt might be allowed, NGO representatives

immediately formally requested observer status.

However, despite the Norwegian delegation’s clear attempt to

convince the WTO panel that independent observation is possible,

the Norwegian government has failed to respond to these formal

requests. Two of these requests were sent by Rebecca Aldworth,

Executive Director of Humane Society International/Canada, to

the relevant authorities by email and courier in both English and

Norwegian, yet no response has been forthcoming. Kati

Radziszewska of the International Fund for Animal Welfare also

submitted a formal request to the Directorate of Fisheries, with no

reply.105

2.1.5.6 Question 62: The three-step method

109. In response to this question both Canada and Norway have claimed that their

regulations lay down a three-step method which should be considered as humane.

110. The EU disagrees. As explained in detail in its first written submission, the killing

methods prescribed by both Canada and Norway are deficient in many respects.106

To be clear, Norway and Canada both prescribe a three-step process, but the three

steps are different in each country, and in neither case does the prescribed process

ensure that seals will be killed humanely on a consistent basis. The reason why

neither set of regulations prescribes a genuinely humane killing process is that

such a process would be impossible to implement in the field environment of the

commercial seal hunt.

111. Humane slaughter involves the following steps:

104

Norway's response to Panel's Question 61. 105

Joint Statement by IFAW and HIS, Challenges to independent observation of commercial sealing

(Exhibit EU – 109). 106

EU's first written submission, paras. 112-121 and 171-175.



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the animal should be stunned, using a humane stunning method, without

causing unnecessary pain, fear or distress. There should be no need to repeat

application of the stunning method, except in rare cases of mis-stunning.

the animal should be monitored immediately to confirm unconsciousness by

using reliable indicators.

a killing method (such as bleeding) should be carried out without delay so that

recovery of consciousness does not occur before death. The operator should be

able to inspect and access the animal at all times during the bleeding process.

112. The main reasons why the killing processes prescribed by Canada's and Norway's

regulations cannot be regarded as humane can be summarised as follows:

in the conditions of the commercial seal hunts, both clubbing107

and shooting108

are very unreliable stunning methods, with high rates of mis-stunning;

the regulations of both Canada and Norway allow delays between the three

steps when, as is often the case, seals are shot from a vessel. The distance of

the vessels from the seals when they are shot, paired with the inability for

sealers to work safely on the sea ice in many cases, makes application of the

humane slaughter steps in immediate succession a practical impossibility.109

the regulations allow gaffing, dragging and moving the seals before they have

been monitored for consciousness and bled. In both Norway and Canada,

sealers often gaff the seals from the ice (when the ice is not solid enough for

them to safely operate on) prior to monitoring for consciousness and bleeding.

110

107

EU's first written submission, paras. 127-131 and 162. 108

EU's first written submission, paras. 132-138, 163 and 395-396. See also EU's response to the Panel's


EU's first written submission, paras. 117-120, 139 and 172. See also EU's response to the Panel's

Question 60. 110

EU's first written submission, paras. 140-144, 173-175, 184-186.



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the regulations allow shooting seals in the water (in Canada) 111

or near the

water (in both Canada and Norway), where there is a high risk of 'struck-and-

lost' and where it may be impossible to implement the second and third steps

until the seal has been hooked on board.112

the methods prescribed by Canada's regulations for monitoring consciousness

(skull palpation or observing 'directed movements' after shooting) are not

reliable.113

Norway's regulations do not require monitoring for consciousness; instead the

operators are required to stab the seal in the skull with the spike end of the

hakapik, an act that equates to pithing.114

the regulations do not require 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.115

2.1.5.7 Question 65: animal welfare impacts of the deterioration of

ice conditions

113. In response to this question both Canada and Norway attempt, first, to minimise

the importance of the deterioration of ice conditions; and, second, to deny the

relevance of the ice conditions from an animal welfare perspective. As discussed

below, Canada's and Norway's responses are disingenuous and misleading.

114. Elsewhere, both Canada's and Norway's authorities have recognised the

unquestionable fact that sea ice is declining.116

For example, in 2006 Canada's

111

It should be recalled, however, that in Norway the prohibition on shooting seals in the water applies

only with regard to the commercial seal hunt in the Artic. It does not apply to the hunting of, in

particular, grey seals in the Atlantic coasts of Norway. 112

EU's first written submission, paras. 114 and 145. 113

EU's first written submission, paras. 115-116 and 119. See also EU's response to the Panel's Question

57. 114

EU's first submission, para. 172 and footnote 248. See also AVMA (2013) at 41-42 (Exhibit NOR -

133), which specifies that pithing is used as an adjunctive procedure to ensure death in an animal that

has been rendered unconscious by other means prescribes. In other words, pithing is not humane

unless the operator has confirmed the animal is unconscious first. 115

EU's first written submission, para. 121 116

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,



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DFO noted that "there has been an increased frequency of poor ice cover in recent

years".117

In 2011 Canada's DFO observed that:

Although variable ice conditions have been observed historically,

there has been a dramatic decline in harp seal-friendly ice cover in

recent years. 2010 saw the lowest ice cover ever observed in the

Gulf, and suitable ice occurred much further north than is normal

at the Front.118

115. As regards Norway, it is recalled that the main ground invoked by the Norwegian

authorities in order to justify its attempt to amend the hunting regulations in 2010

was precisely that worsening ice conditions had led to an increase of the

objectionable practices which the proposed amendment sought to outlaw:

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. 119

116. As observed by Butterworth (2012), deteriorating ice conditions have essentially

the following negative welfare impacts:120

increased reliance on long distance shooting as primary stunning method,

which in turn involves high struck-and-lost rates and higher wounding rates;

increased number of seals shot in or near open water, which again involves

higher rates of struck-and-lost;

increased delays between stunning and confirmation of unconsciousness and

bleeding; and

reduced ability to check consciousness and bleed the seals on the ice and,

consequently, increased risk that seals which are not dead or irreversibly

unconscious will be gaffed on board the vessels.

2005 (Exhibit EU - 41). The negative animal welfare impacts of climate change on the Canadian hunt

have been examined in Butterworth (2012), pp. 9-10 (Exhibit EU - 37). 117

DFO, Overview of the Atlantic Seals Hunt, 2006-2010, at. 3.3, (Exhibit EU - 40). 118

See DFO, Canada’s 2010-2015 Integrated Fisheries Management Plan, at Section 3.1.4 (Exhibit EU

– 42). 119

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

(emphasis supplied) (Exhibit EU – 45). 120

Butterworth (2012), pp.10-11 (Exhibit EU – 37).



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117. Both Canada and Norway attempt to deny the relevance of deteriorating ice

conditions from an animal welfare perspective by arguing that the same animal

welfare requirements apply regardless of the ice conditions. This is misleading

because, as discussed below, both Canada's and Norway's regulations prescribe

different, and less humane, methods when seals are shot from a vessel, which in

turn is largely determined by the ice conditions.121

118. As explained in the EU's first written submission122

, while Canada's 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”123

, 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”.124

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. In recent years

the Conditions of Licence125

have required that when 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, as noted in the EU's response to the Panel's Question 49, this surrogate

method of checking if a seal is irreversibly unconscious is manifestly unreliable.

119. Similarly, Norway's regulations provide for different requirements depending on

the stunning method and the ice conditions:

when a seal is shot first, Norway's regulations do not require to strike it with

the spike of the hakapik immediately after shooting, but only "as soon as

possible";126

in the case of so-called "sporadic hunting"127

, it is permitted under certain

conditions to bleed the seals on board of the boat, rather than on the ice.128

As

121

Canada's Response to Question 65, para. 286. 122


Subsection 28(2) of the MMR. Emphasis added (Exhibit CDA – 21). 124

Subsection 28(3) of the MMR (Exhibit CDA – 21). 125

See e.g. the 2011 – 2012 Seal License Conditions for Newfoundland and Labrador (Exhibit EU - 39). 126

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). 127

"Sporadic hunt" or "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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mentioned above, the Norwegian authorities have recognised that the increased

use of sporadic hunting is the consequence of deteriorating ice conditions.

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".129

120. As explained in the EU's first submission130

, in 2010 the Norwegian authorities

made an attempt to amend the hunting regulations in order to repeal the provisions

allowing the hooking of seals on board the vessels before they are bled. This

proposal, nevertheless, was abandoned in view of the strong objections from both

sealers and ship owners, who 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. Thus, for example, the Fishing Vessel Owners Association cautioned that:

[…] 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 motion131

.

121. The European Union also notes that in responding this question Canada asserts

that:

128

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). . 129

Section 10 of the Regulations relating to the conduct of the seal hunt in the West Ice and East Ice

(Exhibit NOR - 15). 130


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.



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As an initial point, Canada observes that the implied assertion by

the European Union that a struck seal must be bled on the ice in

order to ensure a humane kill is not correct, and represents a

misunderstanding of the practical effect of striking the seal on the

head properly with a hakapik, or a bullet penetrating its cranium.

Either method results in a seal that is very likely dead, and almost

inevitably irreversibly unconscious. Furthermore, proper

checking will determine this to be the case. In that scenario,

immediate bleeding out on the ice is unnecessary, especially

where doing so might endanger the sealer.132

122. This assertion is incorrect. To begin with, the European Union considers that seals

should be both monitored and bled on the ice. This position is supported by

Burdon (2001)133

, who 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 [...]"134

and observes that:

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.135

123. EFSA136

and Smith (2005) 137

have recommended that bleeding should occur,

ideally, immediately after checking for consciousness. While in their respective

recommendations, they compromised on this point by allowing that bleeding takes

place "as soon as possible", they did so in order to take into account the safety of

the sealer and the practical needs of commercial seal hunting, and not because they

considered, like Canada, that immediate bleeding is a superfluous requirement

from an animal welfare perspective.

124. Thus, 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.138

132

Canada's response to Panel's Question 65, para. 285. 133

See also Richardson (2007), p. 52 (Exhibit EU – 36) and Butterworth (2012), p. 5 (Exhibit EU – 37). 134

Burdon (2001), p. 1 (Exhibit EU - 31). 135

Burdon, (2001), p. 5 (Exhibit EU - 31). 136

EFSA Opinion, Conclusions and recommendations, section 3.3.2, point 4 (Exhibit EU – 30). 137

Smith (2005), p. 9 (Exhibit EU – 33). 138

EFSA Opinion, Section 3.6.2, p. 49 (Exhibit EU – 30).



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125. Similarly, Smith (2005) noted 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.139

126. The reason why veterinary authorities recommend that bleeding be performed

prior to painful procedures, such as gaffing or skinning, is to ensure that the animal

is dead. This is particularly important in commercial sealing because the

prescribed tests for checking consciousness (such as skull palpation140

and

observation of 'direct movements'141

) are fallible.

127. Given the fallibility of the assessment methods available to monitor seals for

consciousness, the inability to confirm irreversible unconsciousness through the

assessment methods available, and the possibility of painful stimuli causing

animals to regain consciousness, gaffing animals onto vessels prior to monitoring

for consciousness and bleeding is clearly inhumane.

128. Tellingly, Canada fails to address the inability of sealers to monitor seals for

consciousness when they are shot at on sea ice that is not strong enough to support

the weight of a sealer (as is increasingly the case). In these instances, the sealers

have no way to ensure that the animal is unconscious prior to impaling the seal on

a metal hook and dragging the animal onto the vessel. Should the seal be conscious

during gaffing and dragging (a situation that has been consistently documented in

Canada) the animal would suffer greatly.

129. Moreover, given the documented high wounding rates when seals are shot142

, it is

disingenuous for Canada to suggest that the issue at hand is the “practical effect of

striking the seal on the head properly with a hakapik, or a bullet penetrating its

cranium.” The fact is that in many instances, which are well documented in

139

Smith (2005), p. 10 (Exhibit EU - 33). 140

EU's first submission, paras. 115-116. 141

EU's response to Panel's Question 49. 142

EU's first written submission, paras.162-163 and 392-396. See also EU's Response to the Panel's

Question 72, para. 221.



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veterinary studies, seals are not struck on the head properly with a hakapik, and the

bullet does not penetrate the cranium.

2.2. EVIDENCE OF PUBLIC MORALS OBJECTIVE

130. In response to the Panel's Question 48, the European Union has identified various

types of evidence that may be relevant in order to establish the existence of "public

morals". Here below the European Union provides, by way of complement to

sections 2.3 and 2.5 of its first written submission, additional evidence on the

public morals objective of the EU Seal Regime within the framework described in

that response.

2.2.1. The measure at issue

131. As explained by the European Union, the starting point of the enquiry should be

the measure itself, including its preamble and the legislative history.143

132. The structure and design of the EU Seal Regime is fully consistent with the public

morals objective invoked by the European Union. As shown by the European

Union, and contrary to the Complainants' allegations, the relationship among the

different components of the EU Seal Regime (i.e. the General Ban and the three

exceptions) is best explained in the light of that objective.144

133. The preamble to the Basic Regulation confirms that it was enacted in response to

the "serious concerns" expressed by the public with regard to the way in which

seals are killed145

. The European Commission proposal makes it clear that the

concerns at issue were moral concerns. For example, it states that:

143

EU's response to the Panel's Question 48, para. 168. 144

See EU's response to the Panel's Question 10. 145

Basic Regulation, recital 4.



_________________________________________________________________________

- 38 -

For several years, many members of the public have been

concerned about the animal welfare aspects of the killing and

skinning of seals and about trade occurring in products possibly

derived from seals that have been killed and skinned with

avoidable pain, distress and other forms of suffering, which seals,

as sentient mammals, are capable of experiencing. Those

concerns have therefore been expressed by members of the public

out of ethical reasons. The Commission received during the last

years a massive number of letters and petitions on the issue

expressing citizens’ deep indignation and repulsion regarding the

trade in seal products in such conditions.146

…

The Treaty establishing the European Community does not

provide for a specific legal basis allowing the Community to

legislate in the field of ethics as such. However, where the Treaty

empowers the Community to legislate in certain areas and that the

specific conditions of those legal bases are met, the mere

circumstance that the Community legislature relies on ethical

considerations does not prevent it from adopting legislative

measures. It should be noted, in that respect, that the Treaty

enables the Community to adopt measures aimed at establishing

and maintaining an internal market, which is a market without

internal frontiers according to Article 14 of the Treaty147

.

…

Having regard also to the public’s growing awareness and

sensitivity to ethical considerations in how seal products are

obtained, it is likely that obstacles to the free movement of those

products would arise by reason of the adoption by the Member

States of new rules reflecting those concerns.148

134. The Impact Assessment accompanying the European Commission proposal

confirms that, by improving the welfare of seals, the proposal aimed at addressing

the public's moral concerns. It states that:

The main overarching objectives are to:

Protect seals from acts that cause them avoidable pain,

distress, fear and other forms of suffering during the

killing and skinning process.

146

European Commission proposal, Explanatory memorandum, at p. 2. Underlining added. (Exhibit JE -

9). 147


9). 148


9).



_________________________________________________________________________

- 39 -

Address the concerns of the general public with regard to

the killing and skinning of seals.149

135. The amendments to the European Commission proposal made by the EU

legislators were aimed at responding to the public morals concerns of the EU

citizens, which the EU legislators considered had not been sufficiently addressed

by the proposal. Thus, the opinion of the European Parliament's Committee on

Environment, Public Health and Food Safety, which inspired most of the

amendments to the European Commission proposal, stated that:

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.150

136. The Basic Regulation was enacted in order to replace and pre-empt the measures

already taken, or about to be taken, by some EU Member States. It is relevant,

therefore, to look also at the objectives pursued by those measures.

137. According to one of the sponsors of the legislative proposal that lead to the

adoption of the Belgian ban:151

Le projet de loi exprime clairement la volonté de la Belgique de

signifier au Canada, mais aussi aux autres pays qui autorisent la

chasse aux phoques, que de telles pratiques non respectueuses des

animaux ne peuvent être admises dans notre pays au nom de la

morale publique. 152

149

European Commission Impact assessment, p. 23 (Exhibit JE-16). 150

European Parliament, session document A6-0118/2009, 5 March 2009, p. 46, justification under

Amendment 21, emphasis added (Exhibit JE - 4). 151

Loi relative a l'interdiction de fabriquer et de commercialiser des produits dérivés de phoques, 16

March 2007, Moniteur Belge of 18.04.2007, 20864 (Exhibit EU - 110). 152

Chambre des députés de Belgique, minutes of the session of 25.01.2007, pp. 33-42. Emphasis added

(Exhibit EU - 111).



_________________________________________________________________________

- 40 -

138. In turn, the explanatory memorandum accompanying the decree that introduced

the Dutch ban153

states the following:

In view of […] the scale of hunting of young seals and the

hunting method used, which have also caused great outrage in the

Netherlands and are therefore an offence to public order and

decency in this country, the grounds of justification are met.

Scientific research does not at the moment provide sufficient

certainty that the hunting can be described as humane. The vast

majority of the Dutch population is opposed to seal hunting. This

is apparent from opinion polls and petitions. During the recent

plenary debate on the private members' bill it became clear that a

ban on the trade in products of harp seals and hooded seals can

count on a very broad support in the Lower House of Parliament.

The public outrage is reinforced by the special affection that

Dutch people generally feel for seals, which is apparent, for

instance, from the wide public support for the seal sanctuary that

has been established in the Netherlands. […]154

2.2.2. Moral doctrine reflected in the measure

139. Historically human attitudes towards animals have been shaped by religious and

moral values. As a result, they have evolved over time and continue to vary among

different cultures and communities. In modern societies traditional values have

been eroded and largely replaced by ethical considerations inspired by the notion

of 'animal welfare'.155

140. As explained by the European Union156

, the EU Seal Regime seeks to uphold a

standard of conduct according to which it is morally wrong for humans to inflict

suffering upon animals without sufficient justification. This basic rule reflects a

long-established tradition of moral thought, which in its modern form is usually

153

Decree of 4 July 2007 amending the Flora and Fauna Act (Designation of Species of Animals and

Plants ) Decree and the protected Species of Animals and Plants (Exemption) Decree in connection

with the prohibition of the trade in products of harp seals and hooded seals, Bulletin of Acts, Orders

and Decrees 2007, 253 (Exhibit EU - 112). 154

Explanatory memorandum to the Decree of 4 July 2007 amending the Flora and Fauna Act

(Designation of Species of Animals and Plants) Decree and the protected Species of Animals and

Plants (Exemption) Decree in connection with the prohibition of the trade in products of harp seals

and hooded seals, Bulletin of Acts, Orders and Decrees 2007, 253, at p. 3. Emphasis added (Exhibit

EU - 112). 155

See A.B.M. Raj, Cultural, religious and ethical issues associated with animal welfare, Proceedings of

the OIE's First Global Conference on Animal Welfare, Paris, 23-25 Feb. 2004, pp. 235-241 (Exhibit

EU - 113). 156

EU Response to Panel's Question 10.



_________________________________________________________________________

- 41 -

designated as 'animal welfarism'157

. This moral doctrine on the relationship

between humans and animals is the most widely held in modern societies.158

141. 'Animal welfare' and morality are inseparable. According to Duncan and Fraser:

Animal welfare is not a term that arose in science to express a

scientific concept. Rather it arose in society to express ethical

concerns regarding treatment of animals.159

142. The moral standard which the EU Seal Regime seeks to uphold appears to be

shared by the Complainants themselves, and in particular by Norway. 160

143. The European Union has referred in its first written submission to Norway's

Animal Welfare Act of 2009.161

The adoption of that act was the culmination of a

process initiated with a "White Paper" published by the Norwegian Government in

2002, which set out an Action Plan on Animal Welfare.162

According to Norway's

Ministry of Agriculture and Food, the White Paper "constitutes a broad review and

evaluation of all animal care in Norway from an ethical and welfare perspective. It

also includes proposals for long term goals and actions, hereunder an ethical

platform".163

144. The White Paper stresses what Norway seeks to deny in this dispute: that there is

an inextricable link between animal welfare legislation and its moral foundations.

Indeed, one of the White Paper's fundamental principles is that all actions in the

field of animal welfare should be based on an "ethical platform":

157

In contrast with animal welfarism, the more recent "animal rights" school of thought holds that any

killing and use of animal by humans is unacceptable. This moral doctrine remains a minority view.

See the amicus brief submitted by Prof. R. Howse et al., paras. 139-143. 158

See the poll evidence discussed in the Report of the Royal Commission on Seals and Sealing (1986),

Volume I, Chapter 11, "Public Opinion on Sealing", pp. 158-159 (Exhibit EU - 48). 159

Duncan, I.J.H, Fraser, (1997), Understanding Animal Welfare, Animal Welfare, Appleby, M.M.,

Hughes, B. (Eds.), CAB International (Pub), Oxon, UK, pp. 19-37, cited in A.B.M. Raj, Cultural,

religious and ethical issues associated with animal welfare, proceedings of the OIE's First Global

conference on Animal Welfare, Paris, 23-25 Feb. 2004, p. 235. (Exhibit EU -113). 160

As regards Canada, see the poll evidence discussed in the Report of the Royal Commission on Seals

and Sealing (1986), Volume I, Chapter 11, "Public Opinion on Sealing", pp. 158-159 (Exhibit EU -

48). 161


Norway's Ministry of Agriculture and Food, Proposition to the Storting No 12 (2002-2003) Animal

Welfare and Animal Husbandry, Recommendation of 13 December 2002, approved in Council of

State on the same date (hereinafter, "Norway's White Paper on Animal Welfare"). An abridged

version in English made available at the website of Norway's Ministry of Agriculture and Food is

provided as Exhibit EU – 114. 163

Website of Norway's Ministry of Agriculture and Food. Emphasis added (Exhibit EU - 115).



_________________________________________________________________________

- 42 -

The Government wants to turn the spotlight on the ethical

questions that the relationship between people and animals raise,

and it is the view of the Government that there is a need to

develop an ethical platform which gives fundamental guidance for

our attitude to care of animals [… ]164

145. Following a concise but apt summary of the history of 'Animal Ethics'165

, the

White Paper describes as follows the prevailing moral view in Norway with regard

to the relationship between humans and animals:

A widespread moral view in Norway today takes elements from

utilitarianism and rights philosophy. It is not in principle wrong to

keep and slaughter for important human needs. The most

important aspect is how the animals are cared and treated whilst

living and that slaughter takes place with as little pain as possible.

Sufficiently great need can therefore be a defence for animal

rights to be set aside, but even human need cannot defend an

unlimited use of animals. The problem can be summed up in the

following way: how great a disadvantage or level of pain is it

justifiable to subject an animal to, in relation to the profit for

humans? In light of the wording of the Animal Protection Act's

section regarding the purpose of the Act: 'One shall treat animals

well and take into consideration the animal's instincts and natural

needs in order that there is no danger of it suffering

unnecessarily', the question is: what is unnecessary pain? Because

it is not illegal to subject an animal to pain, it is unnecessary pain

which is banned. In some areas the distinction between what is

considered to be necessary and unnecessary pain is drawn in the

legislation. In Norway for example it is not permitted to use a

whip as encouragement device in trotting races. It is permitted to

subject animals to pain for important medical research purposes

according to the legislation regarding animal testing..166

.

146. Thus, the moral view which, according to the Norwegian Government, prevails in

Norway corresponds to the basic standard of morality which the EU Seal Regime

seeks to uphold. The White Paper makes it clear that, contrary to the inflexible and

dogmatic position maintained by Norway in this dispute, the Norwegian

population and the Norwegian authorities do not regard as 'rationally incoherent' to

balance animal welfare and human needs and to give preference to the latter in

certain situations.

2.2.3. Other EU policies and measures

164

Norway's White paper on Animal Welfare, abridged version in English, p. 31. Emphasis added

(Exhibit EU - 114). 165

Norway's White paper on Animal Welfare, abridged version in English, pp.9-13 (Exhibit EU - 114). 166

Norway's White paper on Animal Welfare, abridged version in English, p. 12 (Exhibit EU - 114).



_________________________________________________________________________

- 43 -

147. As explained in the EU's first written submission, the standard of morality which

the EU Seal Regime seeks to uphold also inspires other measures and policies of

the European Union.

148. To recall, 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.167

149. The European Union has adopted a comprehensive body of legislation on the

welfare of farm animals within the framework of its Common Agricultural

Policy.168

150. 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.169

151. 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".170

2.2.4. Actions taken by international organizations

2.2.4.1 The OIE

152. As explained by the European Union in its first written submission, the OIE has

emerged as the main international standardizing body in the field of animal

welfare.171

The OIE has recognised the close links between animal welfare and its

moral foundations. The OIE's Guiding Principles for Animal Welfare state that:

167

EU's first written submission, para. 63 168

EU's first written submission, para.64. 169

EU's first written submission, para. 65. See also EU's response to Panel's Question 53. 170


EU's first written submission, para. 71.



_________________________________________________________________________

- 44 -

the use of animals carries with it an ethical responsibility to

ensure the welfare of such animals to the greatest extent

possible.172

153. As explained in the EU's response to the Panel's Question 46, the OIE has

considered to develop a standard with regard to the commercial killing of seals.

Nevertheless, the discussions soon revealed that the humane killing standards

developed by OIE for the commercial slaughtering of animals for food cannot be

transposed to the commercial seal hunts due to the environmental conditions in

which the latter take place. A practicable standard for the commercial seal hunts

would have to include compromises deviating from those standards and allow the

continuation of inhumane practices. As a result, discussions on a standard for the

commercial killing of seals have been abandoned

2.2.4.2 The Council of Europe

154. In 2006 the Parliamentary Assembly of the Council of Europe issued a

recommendation asking the Committee of Ministers and the parliaments of the

member states of that organization "to promote initiatives aimed at prohibiting the

import and marketing of seal-derived products"173

. The grounds cited by the

recommendation included the following:

The Assembly is aware that the international controversy

surrounding seal hunting is first and foremost a political debate,

bringing different and sometimes conflicting values, objectives

and attitudes into play, and that public opinion is particularly

sensitive to this matter.

The Assembly notes that, during the last decade, the cruelty of

seal hunting has been documented by videos from several

authoritative television channels as well as by the personal

observations of many members of national and European

parliaments, scientists, celebrities and representatives of non-

governmental organisations (NGOs). Such cruelty has

generated a public morality debate in Europe.174

2.2.5. Measures of other Members

172

The Guiding Principles for animal welfare were included in 2004 in the OIE's Terrestrial Animal

Health Code, as article 7.1.2 (Exhibit EU - 116). 173

Council of Europe, Parliamentary Assembly, Recommendation 1776(2006) of 17 November 2006 on

seal hunting (Exhibit EU - 117). 174

Council of Europe, Parliamentary Assembly, Recommendation 1776(2006) of 17 November 2006 on

seal hunting. Emphasis supplied (Exhibit EU – 117).



_________________________________________________________________________

- 45 -

155. In its first written submission, the European Union has referred to various

measures restricting trade in animal products applied by other Members on public

moral grounds related to animal welfare, including measures restricting trade in

seal products,175

as evidence of the fact that the objective pursued by the EU Seal

Regime is a legitimate objective176

and, more specifically, that it falls within the

scope of Article XX(a) of the GATT.177

156. The Complainants have argued that those measures of other Members do not

amount to "practice" within the meaning of Article 31(3)(b) of Vienna Convention

on the Law of the Treaties (VCLT).178

However, whether or not there is an

international 'practice' of banning trade in seal products is not legally relevant for

this dispute.

157. Previous panels have held 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"179

. 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.180

158. As public morals may vary from one country to another, the responding Member is

not required to show that the rule of morality which it seeks to uphold is shared by

any other Member, let alone that it has acquired the status of 'practice' under the

VCLT.

159. The disputed issue before the Panel does not concern the legal interpretation of the

notion of "public morals" in Article XX(a) of the GATT. All the Parties appear to

agree with the interpretation of that notion made by previous panels as "standards

of right and wrong conduct maintained by or on behalf of a community or a

nation".181

. There is no need, therefore, for the Panel to consider whether there is

175




Complainants' responses to the Panel's Question 17. 179

Panel report, US- Gambling, para. 6.461. 180

Panel report, US – Gambling, para. 6.461. 181

Panel report, US – Gambling, para. 6.465.



_________________________________________________________________________

- 46 -

any international 'practice' within the meaning of the rules of treaty interpretation

of the VCLT which may be relevant in order to interpret that notion.

160. Instead, the disputed issue before the Panel is a factual one: whether the EU Seal

Regime pursues the objective identified by the European Union and whether that

objective involves a genuine "standard of right and wrong conduct maintained by

or on behalf of" the EU population. It is in the context of that factual enquiry that

the European Union has referred to measures of other Members. Indeed, the

European Union considers that the fact that other Members apply similar measures

for similar purposes lends credence to its claim that, as a factual matter, the EU

Seal Regime pursues a genuine public morals objective, contrary to the

Complainants' view that the European Union is invoking a bogus rule of morality

as a mere pretext for pursuing illegitimate policies. The European Union believes

that it was in a similar context and with a similar purpose that the panel in US –

Gambling considered relevant to examine the measures applied by other Members

in order to establish that the U.S. measure at issue in that dispute pursued a public

morals objective.182

2.2.5.1 Chinese Taipei

161. Both Canada and Norway assert that the ban on trade in seal products adopted by

Chinese Taipei in 2013 was based exclusively on conservation grounds. 183

They

give no other reason except that the ban is part of the Wildlife Conservation Act.

162. In fact, the adoption of the ban followed a widespread public campaign against

trade in commercial seal products, which resulted from public concerns about the

welfare of the seals. Local media repeatedly broadcast images of commercial

sealing, and a petition in support of a prohibition on seal product trade, with more

than 160,000 signatures, was submitted to government.

163. The ban was adopted on the basis of a proposal submitted by 33 legislators.184

The

proposal contained the following motivation:

182

Panel report, US- Gambling, paras. 6471-6473. 183

Canada's response to Panel's Question 17, para. 99. Norway's response to Panel's Question 17,

footnote 110.



_________________________________________________________________________

- 47 -

In recent years, many cosmeceutical chain stores and TV

shopping channels in Taiwan have commercialized various brands

of seal or fur seal oil products in the name of ‘Health Care’. As

per statistics from the Environment & Animal Society of Taiwan

(EAST), one of Taiwan’s animal protection groups, Taiwan has

imported approximately 430,000 kilos of marine mammal oils and

fats (i.e. seal oil) from Canada between 2003 and 2009. Imports

ranked fourth globally and accounted for 4% of Canada’s total

exports in this respect. As a conservative estimate, Taiwanese

consumers have indirectly slaughtered 120,000 innocent seals!

All relevant products are made from wild baby seals (mostly

Canadian harp seals) that have been brutally killed. In fact, seal or

fur seal oils cannot be regarded as ‘health food’, and their health

benefits proclaimed by manufacturers and vendors have no

scientific basis. In addition, the hunting process has proven to be

extremely brutal and inhumane. Therefore, there is a long-

standing ban on the trading of any seal or fur seal products in the

USA and the European Union.

Although the Canadian government requires fishermen to hunt

seals in compliance with Canadian regulations on humane

slaughter (which are similar to the principles of our own Animal

Slaughter Norms), all veterinary research institutes dedicated to

Canadian commercial seal hunting reveal that it’s very difficult

for hunters to kill seals on floating ice as it may be unable to bear

the weight of hunters in the course of beating, examining, and

bleeding the seals. Additionally, the wet and slippery ice surface

makes it very difficult for hunters to kill seals by beating their

heads or by shooting them from far away. As a result, the mass

commercial seal hunting taking place in Canada each year can

hardly comply with regulations with respect to humane slaughter.

[…].

Given the brutal seal hunting methods, in 2009 the European

Union voted overwhelmingly to ban any trading of seal products

within its internal market, including seal flesh, oil, organs, fat, and

unprocessed or processed fur or fur products. As early as 1972,

the United States adopted its Marine Mammal Protection Act in

order to prohibit the import of seal products made from seals that

were pregnant, nursing, younger than eight months old, or killed

in an inhumane manner. On this basis, Taiwan shall take the lead

in the establishment of legislation banning the import of seal

products, and act as the model for other Asian countries.

164. Clearly, public moral concerns about animal welfare was one of the main grounds

for the prohibition of trade in seal products, contrary to the Complainants'

allegations that the ban was enacted exclusively for conservation purposes.

2.2.5.2 Russia

184

YZ-No 1749, Committee proposal of bill No. 13359 (Exhibit EU – 126).



_________________________________________________________________________

- 48 -

165. Norway (but not Canada) makes the implausible claim that the ban on the hunting

of seals enacted by Russia in 2009 was based exclusively on conservation

purposes. In response to a question from the Panel, Russia has clarified that the

subsequent ban on international trade in seal products was motivated by the

following reasons:

The purpose of this measure is to preserve the population of

marine mammal and to protect wild animals and baby animals

from hard treatment.

166. Public statements made by the highest Russian authorities at the time when the ban

on hunting was enacted clearly indicate that moral concerns related to animal

welfare played a major role. In the lead-up to the sealing ban, the Natural

Resources Minister, Mr Trutnev, said:

Russia will completely ban one of the most inhumane types of

hunting in the world, which is banned in the vast majority of

developed states.185

167. Upon announcing the ban, Minister Trutnev stated:

The bloody sight of the hunting of seals, the slaughter of these

defenseless animals, which you cannot even call a real hunt, is

banned in our country, just as well as in most developed countries

he stated […], 186

“

168. Russian President Vladimir Putin was quoted as saying that seal hunting “is a

bloody business that should have been banned long ago."187

2.2.5.3 Switzerland

169. On 29 May 2012 one of the houses of the Swiss Federal Assembly (the National

Council) approved a proposal to ban trade in seal products. In view of the legal

uncertainty created by the present dispute, the other chamber (the Council of

States) decided on 4 December 2012 to suspend further consideration pending the

185

"Russia to completely ban seal hunting by March 1", Ria Novosti, 27 February 2009,

http://en.rian.ru/russia/20090227/120337294.html (Exhibit EU - 118.). 186

"Russia to ban hunting of baby seals", New York Times, 18 March 2009,

http://www.nytimes.com/2009/03/19/world/europe/19seal.html?_r=0 (Exhibit EU - 119). 187

Russia to ban seal hunting, New York Times, 7 December 2009

http://www.nytimes.com/2009/02/27/world/europe/27iht-27seals.20490795.html (Exhibit EU -120).






_________________________________________________________________________

- 49 -

resolution of this dispute.188

On 21 February 2013 the relevant commission of the

National Council took position in favour of approving the ban without waiting for

the outcome of the present dispute.189

170. The proposal is modelled after the EU Seal Regime and includes, in addition to the

ban, an exception for the products resulting from Inuit hunts. It cites inter alia the

following grounds for prohibiting the marketing of seal products in Switzerland:

La population soutient à une large majorité une telle interdiction.

Dans un sondage représentatif mené au début de 2011 par

l'Institut gfs-zurich sur mandat de la Fondation Franz Weber, 89

pour cent des personnes interrogées considéraient d'un oeil

critique voire rejetaient le commerce de produits dérivés du

phoque. Une fois informées des pratiques commerciales de la

chasse au phoque, 97 pour cent des personnes interrogées étaient

plutôt enclines à rejeter la vente et le commerce de ces produits en

Suisse, voire les rejetaient clairement.

Près de 100 000 citoyens demandent dans une pétition ouverte

jusqu'en juin 2011 une interdiction de l'importation de produits

dérivés du phoque issus de la chasse commerciale.

La chasse au phoque continue d'être extrêmement cruelle. […]190

2.2.6. Opinion polls

171. As part of its EU's first submission, the European Union has submitted a series of

opinion polls conducted in various EU Member States which confirm that the

objective pursued by the EU Seal Regime is regarded as a matter of public morals

by the EU population.

172. The opinion polls provided as Exhibits EU – 49 through EU-59 show a strong

public demand for a ban on the marketing of seal products. This demand indicates

the unacceptability of seal hunting, rather than mere dislike of seal hunting or

preference for some alternative. This expression of unacceptability is evidence of a

moral concern.

188

These developments are summarised in Conseil National, Rapport de la Commission de la science, de

l'éducation et de la culture, 18 November 2011; and Rapport de la Commission de la science de la

science, de l'éducation et de la culture, 21 February 2013 (Exhibit EU - 121). 189

Conseil National, Rapport de la Commission de la science, de l'éducation et de la culture, 21 February

2013 (Exhibit EU -122). 190

The text of the proposal is reproduced in Conseil National, Rapport de la Commission de la science,

de l'éducation et de la culture, 18 November 2011 (Exhibit EU - 123).



_________________________________________________________________________

- 50 -

173. The Complainants have argued that the respondents were “ill-informed”. The

European Union disagrees. But, at any rate, the Complainants' criticism misses the

point because the European Union does not rely on the opinion polls in order to

prove that commercial sealing is inherently inhumane. Instead, the European

Union relies on the opinion polls as evidence that the EU population does care

strongly about the welfare of seals and would regard a trade ban as an adequate

response to serious seal welfare concerns, should such concerns be warranted on

the basis of scientific evidence.

174. The various opinion polls analysed by Canada´s Royal Commission on sealing in

the document provided as Exhibit EU - 48 do not test the public support for a

certain measure. Instead, they evaluate the attitudes of the public with regard to

both animals in general and various aspects of seal hunting. They confirm that a

very large majority of the public agrees that the killing of animals may be justified

for both subsistence purposes and management purposes.191

They also show that,

in the words of the Royal Commission, "the purpose behind the hunt may have a

great effect on public reaction to it"192

. More specifically, while a very large

majority found acceptable subsistence hunting by indigenous populations, an even

a larger majority objected to hunting for commercial reasons. 193

175. The opinion polls relied upon by the European Union span over various decades,

which shows that public concerns with seal hunting are not a transitory and

superficial opinion, but instead a well-rooted and permanent moral concern.

2.3. CONSULTATION OF NAMIBIA

176. In response to the Panel's Question 12 ("Was Namibia consulted during the

development of the EU Seal Regime?”), Namibia has stated that:

191

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

on Sealing", pp. 160 and 185 (Exhibit EU - 48). 192


on Sealing", p. 185 (Exhibit EU - 48). 193


on Sealing", table 11.6 at p. 169 and p.185 (Exhibit EU - 48).



_________________________________________________________________________

- 51 -

We are unable to establish evidence that shows that Namibia was

consulted by the EU with respect to the EU Seal Regime

prohibiting the Namibian seal products in their market.

177. While the European Union does not consider that it had a legal obligation under

the WTO Agreement to consult Namibia, it wishes to put on record that it did

consult Namibia (as well as the authorities of other countries concerned) several

times during the development of the EU Seal Regime.

178. On 10 July 2007 the European Commission addressed a letter to the Namibian

authorities announcing the legislative process in course and requesting information

on the Namibian hunt.194

In response to that letter, the Namibian authorities

provided some information which was taken into account by the European

Commission.

179. On 15 August 2007 staff of the European Commission's delegation in Windhoek

met Permanent Secretary of Namibian's Ministry of Fisheries and Maritime

Resources, Mr Frans Thseehama, to discuss the practice of seal hunting in

Namibia.

180. On 4 October 2007 EFSA addressed an invitation to the Namibian authorities to

participate in a Stakeholder Consultation Meeting organised by EFSA in which a

near final draft of the scientific report was discussed.195

Namibia declined the

invitation to attend this meeting.

181. On 4 December 2007, the European Commission invited the Namibian authorities

to participate in a 'Workshop on the animal welfare aspects of animal hunting',

with a view to discussing the factual information collected by COWI, the impact

assessment methodology, the preliminary conclusions and recommendations and

the EFSA opinion.196

Namibia did participate in the workshop, which took place

on 14 January 2008.

194

Exhibit EU – 123. 195

Exhibit EU – 124. 196

Exhibit EU – 125.



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3. THE TBT AGREEMENT

3.1. APPLICABILITY OF THE TBT AGREEMENT

182. As the European Union explained in its first written submission197

and in its replies

to the Panel's questions after the first substantive meeting,198

contrary to the

allegations of Canada199

and Norway200

, the EU Seals Regime is not a technical

regulation.

183. In response to the arguments put forward by the European Union, Canada201

essentially submits that the TBT Agreement applies to the EU Seal Regime since

the latter serves the purpose of determining whether or not a product may contain

seal. Norway202

similarly reduces the EU Seal Regime to a negative intrinsic

characteristic that products may not contain seal and submits that it falls as a

consequence within the scope of the TBT Agreement.203

184. All Parties seem to agree that in order to establish whether a measure can be

considered as a technical regulation within the meaning of Annex 1.1 of the TBT

Agreement the measure must be examined as an integrated whole. The European

Union recalls in this respect that the EU Seal Regime provides for a General Ban

on the placing on the market of seal products, which is subject to three exceptions:

the IC exception, the MRM exception and the Travellers exception.

185. As also noted by the United States in its third party intervention204

, the purpose of

a technical regulation is to set out product characteristics or their related processes

or production methods, which if met, allow the product to be marketed. This is not

the case of the EU Seal Regime, the purpose of which is not to ensure that a seal

product fits a product characteristic or related process or production method. The

197

See European Union's first written submission, paras 209 et seq. 198

See replies to Questions 19, 20. 199

Canada's first written submission, paras 360-366. 200

Norway's first written submission, paras 499-505. 201

See Canada's First Oral Statement, paras 71 and 72; Canada's response to questions from the first

substantive meeting, para. 106. 202

See Norway's first opening statement, para. 56. 203

The European Union explained in response to a question by the Panel why this characterisation of the

EU Seal regime is incorrect (See European Union's responses to Panel's Question 1.) 204

United States oral statement, para. 7.



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purpose of the EU Seal regime is to prohibit the sale of all seal products.205

To the

extent that the EU Seal Regime provides for exceptions from the ban, where

conformity with certain conditions can be established, it does so not do so by

relaying on product characteristics or their related processes or production

methods as conditions, but by relying on conditions that are not related to product

characteristics.

186. Despite the weight that the Complainants ascribe to the exceptions in formulating

their claims under the TBT Agreement, they submit that the fact that the

exceptions do not set out intrinsic or related product characteristics, is irrelevant

for establishing weather the TBT Agreement applies to the EU Seal Regime.206

187. By following the Complainants' logic any condition or requirement that can have a

role in determining whether a seal product will be permitted or not on the EU

market would be subject to TBT disciplines. This is clearly not the case.207

For

example, a number of fiscal and customs requirements that are in place with

respect to imports, including imports of seal products, can be dispositive for the

decision whether or not a product will be allowed for importation - without,

however, falling within the scope of the TBT Agreement as a result.

188. In support of its line of reasoning, Canada and Norway also refer to the Appellate

Body report in US – Tuna II.208

The Complainants submit that just like the

measures laying down the requirements for when tuna products sold in the United

States could be labelled as "dolphin safe", the exceptions under the EU Seal

Regime should be considered as conditions for a product containing seal. The

European Union notes that the Appellate Body in US – Tuna II concluded that the

US measure at issue set out a mandatory "labelling requirement", which applied to

a product, process or production method.209

Labelling requirements (i.e. conditions

for displaying a label), fall within the scope of the TBT Agreement by virtue of the

explicit language in the second sentence of Annex 1.1. Furthermore, the

requirements set out in the US measure at issue in the US – Tuna II dispute were

205

Save for the three exceptions which do not lay down any product characteristics within the meaning of

the TBT Agreement. 206

Canada's First Oral Statement, para. 73. 207

See also Appellate Body report, EC – Asbestos, para. 77. 208

Canada's First Oral Statement, para. 74. Norway's first opening statement, para/ 57 et seq. 209

Appellate Body report, US – Tuna II, para. 193.



_________________________________________________________________________

- 54 -

directly relevant to the determination of whether the tuna was harvested in manner

which can be considered "dolphin safe", whereas the same cannot be said with

respect to the exceptions under the Seals Regime the role of which is not to

establish whether or not a product contains seal. The US- Tuna II report is

therefore of rather limited relevance in the context of the present dispute, which is

not concerned with labelling requirements.

189. In response to Question 21 both Canada210

and Norway211

further submit that the

EU Seal Regime establishes process or production methods within the meaning of

Annex 1.1 of the TBT Agreement. Canada considers that a process and production

method is laid down through the IC exception; Norway alleges this both with

respect to the IC and MRM exceptions.

190. The EU212

does not agree with Canada and Norway and submits that the EU Seals

Regime does not regulate any processes and productions methods. The ban read

together with the exceptions allows the placing on the market of seals products

depending on the "purpose" of the hunt, which has nothing to do with methods for

the production of seals products.

191. Even if the Panel were to consider, quod non, that the EU Seal Regime through its

IC exception and/or MRM exception lays down a process or production method,

the European Union submits that such processes and production method cannot be

considered to be "related" to product characteristics, as required by the first

sentence of Annex 1.1 of the TBT Agreement.213

192. In sum, contrary to what the Complainants argue, the issue whether a condition for

placing or the market – or as is the case here exception to a general ban – lays

down a product characteristic or their related process and production methods214

within the meaning of Annex 1.1 of the TBT Agreement is of utmost relevance for

the Panel's assessment on the applicability of the TBT Agreement. As already

noted, this is particularly important in the context of this dispute, where a number

210

See Canada's responses to the Panel's questions from the first substantive meeting, paras 109 – 110. 211

See Norway's responses to the Panel's questions from the first substantive meeting, paras 149 – 150. 212

European Union's first written submission, para. 226 – 228. 213

The European Union does not consider that either of the Complainants even engaged let alone

established that what they allege to be process or production methods relate to product characteristics

in the sense of Annex 1.1 of the TBT Agreement. 214

Including the applicable administrative provisions.



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- 55 -

of the claims under the TBT Agreement are directed against those very exceptions

and the manner in which they are administered.215

3.2. ARTICLE 2.1 OF THE TBT AGREEMENT

193. The European Union has already provided its views as to why Canada's claim

under Article 2.1 of the TBT Agreement should be rejected. In this submission, the

European Union will focus on the main factual and legal issues which remain

disputed by the parties.216

First, the European Union will address the MFN

obligation in Article 2.1 of the TBT Agreement, i.e., Canada's claim that the EU

Seal Regime, through the IC exception, accords its imports of seal products less

favourable treatment when compared with the treatment accorded to “like”

products originating in any other country. Second, the European Union will deal

with the National Treatment obligation in Article 2.1 of the TBT Agreement, i.e.,

Canada's claim that EU Seal Regime, through the MRM exception, accords its

imports of seal products less favourable treatment when compared with the

treatment accorded to “like” products of EU origin.

3.2.1. MFN obligation

194. Canada claims that the EU Seal Regime, through the IC exception, accords its


treatment accorded to “like” products originating in any other country, in

particular Greenland. Specifically, Canada argues that the vast majority of its seal

products (around 95%) cannot be placed on the EU market, whilst the vast

majority of Greenlandic seal products (nearly 100%) can be placed on the EU

market thanks to the IC exception.217

195. The European Union observes that Canada does not dispute that the Panel should

apply the legal standard under Article 2.1 of the TBT Agreement as clarified by

215

In this context and in response to arguments made by Norway in it first opening statement, paras 61 –

62, the European Union refers to its first written submission, paras 229-235, as well as the arguments

made by the United States in its Oral Statement, paras 17 - 20, which it hereby endorses and makes its

own. 216

For the sake of clarity, the European Union would like to note that the issues addressed in this

submission are not exhaustive. Thus, silence with respect to a fact raised by Canada or Norway should

not be interpreted as agreement. 217

See Canada's Opening Oral Statement, First Meeting with the Panel, para. 62; Canada's Response to

Question 23, para. 121.



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- 56 -

the Appellate Body in US – Clove Cigarettes, US – COOL and US – Tuna II

(Mexico) to the facts of the present case.218

In particular, there are 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

products of other origins; and (iii) that the treatment accorded to imported products

must be less favourable than that accorded to "like" products from other countries.

196. Assuming that the Panel agrees with Canada's (and Norway's) claim that the EU

Seal Regime can be characterised as a "technical regulation", the Panel needs to

determine the "group" or "universe" of directly competitive and substitutable

“products” in both sides of the equation, i.e. seal products originating in Canada

and seal products originating in other countries (including Greenland and

Norway). In this respect, it appears that Canada now agrees that all seal products,

conforming and non-conforming with the EU Seal Regime, should be included in

the "group" or "universe" of "products".219

As Canada put it, "all conforming and

non-conforming seal products are in a competitive relationship to each other".220

Thus, the “group” of relevant “products” in the present case can be represented by

the following drawing, where the dotted line represents the regulatory distinction

made by the EU Seal Regime between conforming and non-conforming products.

218

See European Union's first written submission, paras. 240 – 249. 219

See Canada's Opening Oral Statement, First Meeting with the Panel, para. 62; and Canada's Response

to Question 23, para. 116. 220

Canada's Response to Question 23, para. 117.



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- 57 -

197. Once identified the "group" or "universe" of “products” relevant in the present

case, the Panel is called upon to examine whether the EU Seal Regime, through IC

exception, accords Canada's imports of seal products "less favourable treatment"

when compared with the treatment accorded to "like" products originating in any

other country, in particular Greenland. On this point, the views of Canada and the

European Union differ.

198. On the one hand, Canada argues that the EU Seal Regime, through the IC

exception, (i) modifies the conditions of competition to the detriment of Canadian

imports (when compared with the treatment accorded to Greenlandic imports) and

(ii) that such a detrimental impact does not stem exclusively from a legitimate

regulatory distinction. On the other hand, the European Union contends that the

EU Seal Regime, through the IC exception, does not modify the conditions of

competition to the detriment of Canadian imports and, even if that were to be the

case, such detrimental effect does not reflect discrimination as it stems from a

legitimate regulatory distinction. The European Union will examine below these

two elements in more detail.

3.2.1.1 Whether there is detrimental impact in this case

199. Canada considers that the EU Seal Regime, through the IC exception, modifies the

conditions of competition to the detriment of its imports when compared with

imports of Greenland. Specifically, Canada suggests that, in the case of an origin-

Canada

Dir

ectl

y C

om

pet

itiv

e o

r

Su

bst

itu

table

Pro

du

cts

Greenland Norway

y Other

Conforming Conforming Conforming Conforming

Non-Conforming Non-Conforming Non-Conforming Non-Conforming



_________________________________________________________________________

- 58 -

neutral measure, like the EU Seal Regime, a quantitative analysis of the treatment

provided to the group of products in question as a whole shows de facto less

favourable treatment.221

Canada thus considers that the detrimental impact is

shown because most of its seal products cannot be placed on the EU market

whereas most of Greenlandic seal products can be placed on the EU market

through the operation of the IC exception.

200. The European Union considers that Canada's reliance on its "quantitative

approach" to show de facto discrimination is manifestly incorrect.222

To illustrate

Canada's arguments with the following drawing, Canada submits that where a

measure is designed, is expected to result or indeed results in a specific data

pattern (as the one shown in the drawing), such fact alone is sufficient to show

detrimental impact.

Canada

Dir

ectl

y C

om

pet

itiv

e o

r

Su

bst

itu

table

Pro

du

cts

Greenland Norway Other

Conforming Conforming Conforming Conforming

Non-Conforming Non-Conforming Non-Conforming Non-Conforming

201. In this respect, the European Union observes that in US – COOL the Appellate

Body noted that, in examining de facto less favourable treatment, panels must take

into consideration "the totality of facts and circumstances before it", and assess

any "implications" for competitive conditions "discernible from the design,

221

Canada's opening oral statement, first meeting with the Panel, para. 62 ("…in comparing all like

products…"). 222

The European Union observes that Norway makes the same error. In other words, for Norway, the

“quantitative approach”, entirely based on the distribution pattern of the data with respect to products

falling under the General Ban or falling under the exceptions, is sufficient to find detrimental impact.

Thus, the observations made in this section apply mutatis mutandi in the context of Norway’s claim

under Articles I:1 and III:4 of the GATT 1994.



_________________________________________________________________________

- 59 -

structure, and expected operation of the measure".223 In other words, such a single

fact, as expressed in Canada's quantitative approach, cannot be dispositive to find

detrimental impact. The Panel is thus called upon to examine all relevant facts in

the present case.

202. Indeed, by definition, discrimination does not arise when two different situations

are treated differently.224

In the same sense, in US – Clove Cigarettes the Appellate

Body observed that:

[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. 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)225

203. Applying this principle to the facts of the present case, the European Union

submits that Article 2.1 of the TBT Agreement does not preclude making

distinctions between seal products found to be "like" (i.e., between seal products

derived from hunts for commercial purposes and seal products obtained from hunts

for subsistence purposes) as long as the treatment accorded to the “group” of

imported products (i.e. Canadian seal products including both seal products from

hunts for commercial purposes and hunts for subsistence purposes) is no less

favourable than that accorded to the “group” of “like” products from other origins

223

Appellate Body Report, US – COOL, para. 267. 224

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 'non discriminatory', 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"). 225

Appellate Body Report, US – Clove Cigarettes, para. 193 (citing Appellate Body Report, EC –

Asbestos, para. 100).



_________________________________________________________________________

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(i.e., Greenland/Norway including both seal products from hunts for commercial

purposes and hunts for subsistence purposes).226

204. In order to ensure that the comparison required at this stage of the analysis is not

skewed towards finding less favourable treatment (i.e., by taking individual

products in the group of imported products and comparing them with other

individual products in the other group) and yet preserves the analysis of the group

as a whole, it is necessary to compare the aggregate competitive opportunities

afforded. This requires an analysis of the various categories within each of the

groups of products at issue. Specifically, the Panel would have to compare the

treatment accorded by the EU Seal Regime to Canadian seal products derived from

hunts for commercial purposes with the treatment provided to "like" products

derived from hunts for commercial purposes (e.g., Greenland/Norway). Such

comparison leads to the result that all those products are subject to the same

treatment, i.e., the General Ban. Further, the Panel would have to compare the

treatment accorded by the EU Seal Regime to Canadian seal products derived from

hunts for subsistence purposes with "like" products of other origins derived from

hunts for subsistence purposes (e.g., Greenland/Norway). Such a comparison leads

to the conclusion that all those products are subject to the same treatment, i.e., they

are allowed to be placed on the EU market under the IC exception. The categories

of "like" products used to make the above comparison are not "discretionary" or

"arbitrary". They are based on the "regulatory distinction" embedded in the EU

Seal Regime, specifically, in the IC exception, and thus are comparable.

205. Thus, when making a category-to-category comparison within the groups of

products in each side of the comparison (i.e., Canada versus other origins, such as

Greenland/Norway), it should be concluded that there is no alteration of the

aggregate competitive opportunities in favour of those other origins' groups of

products. Put in simple terms, this approach shows that there is no discrimination

since each category in the same situation (by reference to the "purpose" of the

hunt) is treated equally and has identical access to (or prohibition to access) the

EU market.

226

For the sake of clarity, the European Union considers that, at this stage of the analysis, the ratio or

proportion of seal products falling under each category (commercial/subsistence purposes) is

irrelevant.



_________________________________________________________________________

- 61 -

206. Consequently, the European Union submits that the "quantitative approach"

advocated by Canada is not dispositive. In order to determine whether the EU Seal

Regime, through the IC exception, modifies the conditions of competition to the

detriment of Canada's imports, the Panel should also take into account the

following pertinent facts.

207. First, the EU Seal Regime is completely neutral in the sense that it equally affects

seal products resulting from hunts for commercial purposes (non-conforming with

the EU Seal Regime) as well as seal products resulting from hunts for subsistence

and management purposes (conforming with the EU Seal Regime, either under the

IC or MRM exceptions), regardless of their origin. In this sense, Canadian imports

of seal products derived from hunts for commercial purposes cannot be placed on

the EU market, the same as imports of seal products similarly situated, such as

those originating in Norway or Namibia (to name a few countries). Likewise,

Canada's imports of seal products derived from hunts for subsistence purposes can

be placed on the EU market through the IC exception, the same as imports of seal

products similarly situated originating in Greenland or Norway (to mention some

examples).

208. In addressing the moral concerns of the EU population, the EU legislators

balanced the welfare of seals and other interests, as reflected in the IC exception

and the MRM exception (conforming products), again regardless of their origin,

foreign or domestic. The IC exception reflects the EU legislators' assessment that

the subsistence of the Inuit and other indigenous communities and the preservation

of their cultural identity provide benefits to humans that, from a moral point of

view, outweigh the risk of suffering inflicted upon seals as a result of the hunts

conducted by those communities.227

In turn, the MRM exception reflects the EU

legislators' assessment that small-scale hunts conducted exclusively for

management purposes do not raise moral concerns because the benefits to humans

and other animals which are part of the same ecosystem outweigh the risk of

suffering being inflicted upon the relatively small number of seals concerned.228

227

See European Union's Response to Question 10, para. 44. 228

Moreover, the prohibition of the marketing of products from the hunts covered by the MRM exception

would not contribute to reduce the suffering of seals, because those hunts would take place in any

event, as they are conducted exclusively for management purposes and not for commercial reasons.



_________________________________________________________________________

- 62 -

Therefore, the EU Seal Regime takes into account considerations relating to the

"purpose" behind the hunt from which the seal products are derived from,

considerations that are completely unrelated to the foreign/domestic origin of the

seal products.229

209. Second, like the EU Seal Regime as a whole, the IC exception is also origin-

neutral. All seal products meeting the requirements contemplated in Article 3.1 of

the Basic Regulation and Article 3 of the Implementing Regulation can fall under

the scope of such exception, regardless of their origin. In this respect, the

conditions attached to the IC exception relate to the the community to which the

hunters belong (seal hunts conducted by Inuit or other indigenous communities),

the habit of the hunt in the community in question (hunts traditionally230

conducted

by Inuit and other indigenous communities), the use of the results of the hunt (the

products of which are at least partly used, consumed or processed within the

communities according to their traditions) and the contribution of the hunt to the

subsistence of the community. All these conditions ensure that only products from

genuinely hunts for subsistence purposes qualify for the IC exception, avoiding

potential circumvention of the General Ban (e.g. by introducing seal hunting in

regions where there was no hunting in the past; or by engaging in intensive and

systematic hunting, in order to kill more seals for the market). Thus, the conditions

attached to the IC exception are strictly linked to the subsistence "purpose" behind

the hunt and, again, they include considerations that are completely unrelated to

the foreign/domestic origin of the seal products.

210. Third, the European Union observes that Canada readily admits that the Inuit

communities in Canada have a very limited access to the distribution networks,

processing facilities and marketing opportunities needed to export seal products to

the European Union.231

This is in stark contrast, according to Canada, to the

situation in Greenland, where the seal industry is highly developed and able to

On the contrary, prohibiting the marketing of the products from those hunts could be

counterproductive from the point of view of animal welfare. See European Union's Response to


Appellate Body Report, Dominican Republic – Cigarettes, para. 96; Appellate Body Report, US –

Clove Cigarettes, footnote 372. 230

This does not relate to the methods of hunting but rather means that the community in question must

have a tradition of seal hunting in the geographical region. 231

Canada's Response to Question 43, para. 170 (…"due to logistical barriers").



_________________________________________________________________________

- 63 -

export to the EU market.232

In similar terms, in 2010 COWI's Report it is noted

that Canadian Inuit hunt is "not as centrally organised as that in Greenland" and

that "Canadian Inuit hunt essentially uses the sales and marketing chains of the

commercial hunt, implying it would need to invest heavily in separating its Inuit

product from the rest".233

Moreover, Canada notes that the Inuit communities in

Canada have "deliberately decided to focus on the development of the local (i.e.

Nunavut) market".234

211. In this respect, the fact that a country (Canada) does not invest in providing the

means to have access to the EU market, whereas another country (Greenland)

does, cannot be found to constitute sufficient evidence of detrimental impact vis-à-

vis the former. In other words, when taking into account the particular

characteristics of the industry at issue, a relevant element is the development of

such industry, in particular in Canada and Greenland. Canada's seal industry

appears to be mostly organised and dependent on commercial hunts, in the sense

that seal products derived from hunts conducted by Inuit communities for

subsistence purposes in Canada do not find their way into the distribution

channels, and there is a decision to sell locally predominantly. In contrast,

Greenland's seal industry is organised and has been developed by its authorities to

precisely being capable of distributing seal products derived from hunts conducted

by Inuit for subsistence purposes, locally as well as abroad. A finding that the EU

Seal Regime through the IC exception modifies the conditions of competition in

favour of Greenlandic seal products to the detriment of Canadian seal products

would be inappropriate, as it would penalise the development of an industry in one

country (Greenland) vis-à-vis the lack of development (as a matter of choice) of

the same industry, including towards export markets, in another country (Canada).

212. Fourth, Canada argues that a high percentage of its seal products is negatively

impacted by the EU Seal Regime in comparison with Greenland. However, the

European Union observes that this high percentage is artificially created by the

232

See Canada's Response to Question 38, para. 152; see also Canada's Response to Question 84, para.

324 ("… considerable expenditure of resources and effort would be required to set up such a

recognized body…there is no guarantee that it would be worth the effort"). 233

COWI Report (2010) (Exhibit JE-21), p. 84. 234

See Canada's Response to Question 71, para. 304.



_________________________________________________________________________

- 64 -

provision of government support to commercial hunting.235

If the market were

allowed to operate freely without such support, the percentage of Canadian seal

products blocked from the EU market out of the total number of seal products for

each country would be much less. Indeed, without government support, the

commercial sealing industry might cease to function. Thus, it is the choice of the

Canadian government to create a large supply of seal products derived from hunts

for commercial purposes not warranted by normal market demand forces. Absent

such support, the factual pattern invoked by Canada would look very different (and

perhaps more balanced in relative terms compared to seal products originating in

Greenland).

213. Last, the European Union also notes that Canada as well as public and private

entities in Canada, as a matter of choice, have refrained from requesting the status

of certifying bodies so that some of Canada's seal products, eligible under the IC

exception, could be placed on the EU market.

214. All these factors indicate that the EU Seal Regime, through the IC exception, does

not modify the conditions of competition to the detriment of Canada's imports.

Seal products derived from hunts for commercial purposes are subject to the

General Ban, regardless of whether they come from Canada, Norway, Namibia or

even the European Union. Seal products derived from hunts for subsistence

purposes can be placed on the EU market pursuant to the IC exception regardless

of whether they come from Canada, Norway or Greenland, and all those countries

have the opportunity to set up certification bodies and make use of the IC

exception. In this respect, the EU Seal Regime, including the IC exception, is

based on considerations that are completely unrelated to the foreign/domestic

origin of the seal products and, thus, does not modify the conditions of competition

to the detriment of Canada's imports.

215. The fact that, as Canada argues, less Canadian seal products derived from hunts

conducted by Inuit communities for subsistence purposes can be placed on the EU

market when compared to Greenlandic seal products under the same conditions

would not stem from the EU Seal Regime; rather, Canada substantially contributes

235

See amicus curiae brief by Anima et al., paras. 206 and 211 (Exhibit EU-81).



_________________________________________________________________________

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to such a result by its own choices, i.e. (i) by failing to put in place the necessary

infrastructure and distribution channels to facilitate the marketability of seal

products derived from hunts conducted by Inuit communities in its territory; (ii) by

deciding to support its industry of seal products hunted for commercial purposes,

thereby artificially creating a supply which then Canada complains it cannot place

on the EU market to its detriment; and (iii) by failing to take the necessary steps

which would allow Canada to certify its seal products in accordance with Articles

3 and 6 to 10 of the Implementing Regulation.

216. The European Union submits that, when all these facts are taken into account, the

Panel should find that the EU Seal Regime, through the IC exception, does not

modify the conditions of competition to the detriment of Canadian imports.

3.2.1.2 Whether any detrimental impact reflects discrimination

217. Even if the Panel were to agree with Canada that the EU Seal Regime, through the

IC exception, modifies the conditions of competition to the detriment of Canadian

imports, the European Union submits that such detrimental impact would not

reflect discrimination. In particular, such a detrimental impact would stem

exclusively from a legitimate regulatory distinction.

218. As explained before,236

the "regulatory distinction" made by the IC and MRM

exception is primarily based on the "purpose" of the hunt in each case, when

compared to the "purpose" of the hunt behind the group of non-conforming

products (i.e., hunts for commercial purposes). Thus, the EU Seal Regime

distinguishes between seal products that can be placed on the EU market in view

of the "purpose" of the hunt they are derived from.

219. The European Union submits that the "regulatory distinction" made by the EU

Seal Regime between conforming seal products under the IC exception and non-

conforming products subject to the General Ban is "legitimate" because (i) it is

based on legitimate objective, and (ii) it is designed and applied in an even-handed

manner.

236

See European Union's Response to Question 28.



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3.2.1.2.1 The IC exception is based on a legitimate objective


Seal Regime between conforming seal products under the IC exception and non-

conforming products subject to the General Ban is "legitimate" because it is based

on a legitimate objective.237

According to the Appellate Body, the terms

"legitimate objective" refer to "an aim that is lawful, justifiable or proper".238

Further, if an objective is considered to be "legitimate" under Article 2.2 of the

TBT Agreement, the regulatory distinction made pursuant to the measure based on

that objective would also be "legitimate" (provided that such a regulatory

distinction is designed and applied in a non-discriminatory, even-handed manner).

In this respect, Article 2.2 of the TBT Agreement provides for an open list of

"legitimate" objectives. The Appellate Body has also observed that objectives

recognised 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 of the TBT Agreement.239

221. The IC exception aims at protecting the economic and social interests of Inuit and

other indigenous communities traditionally engaged in the hunting of seals as a

means to ensure their subsistence.240

The IC exception reflects the EU legislators'

assessment that the subsistence of the Inuit and other indigenous communities and

the preservation of their cultural identity provide benefits to humans that, from a

moral point of view, outweigh the risk of suffering inflicted upon seals as a result

of the hunts conducted by those communities.241

Accordingly, the IC exception

permits the placing on the EU market of seal products resulting from hunts

traditionally conducted by those communities and which contribute to their

subsistence.

237

See European Union's first written submission, paras. 262 – 274. 238

Appellate Body Report, US – Tuna II (Mexico), para. 313; Appellate Body Report, US – COOL, para.

370. 239

Appellate Body Report, US – Tuna II (Mexico), para. 313; Appellate Body Report, US – COOL, para.

370. 240

See Basic Regulation, Recital (14). 241

See European Union's Response to Question 10, para. 44.



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222. Canada agrees that the protection of public morals is a legitimate objective under

Article 2.2 of the TBT Agreement.242

The IC exception stems from the rule of

public morality which the EU Seal Regime seeks to uphold. Even if the IC

exception did not reflect a rule of morality, as Canada asserts, the European Union

submits that the protection of Inuit and other indigenous communities would be a

legitimate objective in itself.

223. Canada appears to agree that the protection of the interests of Inuit and other

indigenous communities is a "legitimate" objective under Article 2.2 of the TBT

Agreement.243

However, Canada appears to question the relevance of the

international instruments cited by the European Union in support of the legitimacy

of that objective.244

224. The European Union disagrees. The protection of the economic and social interests

of Inuit and other indigenous communities is widely recognised in the international

forum. This is reflected not only in international conventions and UN Declarations

on the matter, but also in specific international institutions specifically dealing

with the state of indigenous communities worldwide.245

As explained in the

European Union's response to Question 39, the European Union considers that

such international context supports the conclusion that the objective pursued by the

IC exception, and on which the regulatory distinction is based, is "legitimate" for

the purpose of Article 2.1 of the TBT Agreement.

242

See Canada's Response to Question 15, para. 91. Norway also agrees (Norway’s Response to Question

15, para. 103). 243

The European Union observes that in its first written submission Canada did not dispute that the

protection of the interests of the Inuit and other indigenous communities was a "legitimate" objective,

see Canada's first written submission, para. 463bis ("Canada strongly supports the interests of the Inuit

and other indigenous communities and considers that protecting the economic and social interests of

Inuit and other indigenous communities engaged in sealing is a legitimate objective for the purposes

of Article 2.2"). Norway did not dispute either that promoting the interests of Inuit and other

indigenous communities as “legitimate” (see Norway’s first written submission, para. 641); rather,

Norway appears to contest the means as to how the interests of Inuit and other indigenous

communities are protected (i.e., by providing trade preference which discriminate among trade

partners) (see Norway’s first written submission, para. 644). 244

See Canada's Response to Question 39, paras. 153 – 159. Similarly, see Norway's Response to


See e.g., UN Department of Economic and Social Affairs, "State of the World's Indigenous People",

ST/ESA/328 (2009), p. 10, available at

http://www.un.org/esa/socdev/unpfii/documents/SOWIP_web.pdf).

http://www.un.org/esa/socdev/unpfii/documents/SOWIP_web.pdf



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225. Further context is provided by the general objectives mentioned in the preamble to

the Marrakesh Agreement Establishing the World Trade Organization, which

recognises that trade should be conducted "with a view to raising standards of

living", having regard to "different levels of economic development". Similarly,

and quite tellingly, the TBT Agreement itself recognises the possibility for

developing countries of "preserving indigenous technology and production

methods and processes compatible with their development needs".246

Thus, the

possibility of protecting the economic and social interest of indigenous

communities can be inferred from the covered agreements.

226. Consequently, the European Union submits that the IC exception, and thus the

regulatory distinction made pursuant to the IC exception, is based on a "legitimate"

objective, either as an expression of the public morals rule that the European

Union seeks to uphold or as an independent objective.247

While Canada appears to

agree that the protection of the Inuit and other indigenous communities is a

legitimate objective, it contests the possibility of granting discriminatory trade

preferences for indigenous communities.248

Canada misses the point. The IC

exception is not based on a public moral judgment that indigenous communities

need special trade preferences, but rather on a public moral judgment that the EU

public is willing to tolerate risks to animal welfare when such risks result from

activities necessary to sustain indigenous communities.

246

TBT Agreement, Article 12.4 ("Members recognize that, although international standards, guides or

recommendations may exist, in their particular technological and socio-economic conditions,

developing country Members adopt certain technical regulations, standards or conformity assessment

procedures aimed at preserving indigenous technology and production methods and processes

compatible with their development needs. Members therefore recognize that developing country

Members should not be expected to use international standards as a basis for their technical

regulations or standards, including test methods, which are not appropriate to their development,

financial and trade needs") (emphasis added). 247

The European Union observes that other countries through their national actions have demonstrated

that they believe that protecting traditional ways of life is legitimate. In particular, Norway's

Constitution (Article 110a) states that: "It is the responsibility of the authorities of the State to create

conditions enabling the Sami people to preserve and develop its language, culture and way of life".

Norway has ratified the ILO convention No. 169 concerning indigenous and tribal peoples, which

states that rights for the indigenous peoples to land and natural resources are recognised as central for

their material and cultural survival. In addition, it states that indigenous peoples should be entitled to

exercise control over, and manage, their own institutions, ways of life and economic development in

order to maintain and develop their identities, languages and religions, within the framework of the

states in which they live. Norway also voted in favor of the UN Declaration on the Rights of

Indigenous Peoples. In addition, Norway has provided the Sami with the exclusive right to herd

reindeer in the country (http://www.galdu.org/govat/doc/eng_reindeer.pdf), which is significant both

economically and culturally to the Sami. 248

Canada's Response to Question 35, para. 138 and Question 39, para. 155.

http://www.galdu.org/govat/doc/eng_reindeer.pdf



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227. Further, providing different treatment to certain groups, such as indigenous

communities, racial minorities, women or handicapped people, while it may

disadvantage imports from certain countries depending on the structure of their

population, is not discriminatory since it is based on a legitimate objective, and is

different from country-based distinctions, contrary to the examples cited by

Norway.249

3.2.1.2.2 The IC exception is designed and applied in an even-handed manner

228. The "regulatory distinction" made by the EU Seal Regime between conforming

seal products under the IC exception and non-conforming products subject to the

General Ban is also "legitimate" because it is designed and applied in an even-

handed manner.250

The IC exception is "calibrated" and does not go beyond what it

is necessary to achieve its purpose.251

In particular, the IC exception relates to:

the community to which the hunters belong: the IC exception aims at

protecting the economic and social interests of a particular community

clearly identified and broadly accepted as being characterised by its high

dependence on seal hunting, i.e. Inuit or other indigenous communities;

the habit of the hunt in the community in question: the IC exception only

covers hunts traditionally252

conducted by Inuit and other indigenous

communities. It does not cover communities where seal hunting was not a

tradition before the EU Seal Regime, in order to avoid circumvention of the

General Ban (e.g., by not incentivising indigenous people to begin seal

hunting in communities where there was no such tradition in order to take

advantage of the IC exception);

the use of the results of the hunt: the IC exception is applicable only if the

products resulting from those hunts are at least partly used, consumed or

processed within the communities according to their traditions. This is

249

Norway's Response to Question 39, paras. 209 250

See European Union's first written submission, para. 301. 251

See Appellate Body Report, US – Tuna II (Mexico), para. 297. 252

This does not relate to the methods of hunting but rather means that the community in question must

have a tradition of seal hunting in the geographical region. See also Canada's Response to Question

67, para. 292 (…"hunt itself is traditional and a fundamental element of the Inuit culture and society").



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well-known to be the case for Inuit and other indigenous communities;253

and

the contribution of the hunt to the subsistence of the community: the IC

exception recognises that traditional hunts by the Inuit and other

indigenous communities may have a commercial dimension in the sense

that part of the products resulting from the hunt are not consumed by the

hunters and their families but are also sold in the market. Indeed, otherwise

the IC exception would have been useless as the proceeds derived from

those sales serve to enable indigenous communities to purchase necessary

goods to which they do not have access in their immediate area as well as

to finance the costs of conducting such hunts and, thus, are critical to the

subsistence of those communities. The hunts qualifying for the IC

exception, however, differ from the hunts addressed by the General Ban in

that they must contribute to the subsistence of the Inuit or other indigenous

communities, with the implication that they should not be conducted

primarily or exclusively for commercial purposes.

229. All these conditions ensure that only seal products from genuinely hunts for

subsistence purposes qualify for the IC exception, avoiding potential

circumvention of the General Ban.

230. Canada seemingly disagrees and argues that the cultural heritage of the hunter is

not relevant to the moral concerns of the EU's citizen about seal welfare.254

Canada

is wrong. As explained before, the tradition of seal hunting in the community as

well as the nature of the hunter as belonging to Inuit and other indigenous

communities is precisely one of the fundamental pillars on which the EU's rule of

morality is based. The continuance of this traditional means of community support

also enables the community to ensure that this invaluable part of its culture

remains alive and experienced by all living generations so that the community

253

See European Union's Response to Question 66; see also COWI Report (2010) (Exhibit JE-21), p. 27

(explaining that most of seal products are consumed locally by Canadian Inuit and where only one

third of sealskins end up on the market), and pp. 29 and 30 (with respect to Inuit in Greenland);

Canada's Response to Question 74, para. 320 and Norway's Response to Question 41, para. 217

(confirming that half of the skins are traded in and exported from Greenland, the other half are

consumed locally). 254

Canada's Response to Question 38, para. 150.



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culture can be passed from generation to generation intact. Thus, the moral

concerns on animal welfare are outweighed by the concern of preserving the

cultural identity of Inuit and other indigenous communities, dependent on seal

hunting.

231. Canada also argues that the distinction between commercial and non-commercial

(subsistence) purpose of the hunt is artificial because even Greenlandic seal

hunting has a "commercial dimension" or is "mixed with subsistence".255

The

European Union disagrees. The "regulatory distinction" on which the IC exception

is based is not the "incidental" or "ancillary" result that seal products derived from

hunts will be introduced into commerce with a profit. The IC exception

contemplates the possibility that some seal products derived from hunts for

subsistence purposes would enter the market, as an additional manner to contribute

to the subsistence of those communities. Thus, this incidental or ancillary result

does not undermine the objective behind the IC exception. In this respect, the

European Union further observes that Canada seemingly agrees that "[t]he purpose

of the Canadian Inuit hunt today is not materially different from the hunt 1,000

years ago, although the emergence of a monetized society and new technologies

has caused the Canadian Inuit to commercialize some output to generate

income".256

Indeed, part of the cultural heritage of seal hunting involves bartering

the outputs for necessary goods. Now that bartering is rarely practiced, that

cultural heritage is continued through placing the products on the market and then

using the proceeds to buy necessary goods and finance the cost of conducting seal

hunting. Thus, it is uncontested that the primary purpose of the hunts conducted by

Inuit and other indigenous communities is for their own subsistence.

232. Finally, Canada argues that the IC exception is not "calibrated" to the animal

welfare concerns it pursues.257

Canada is equally wrong.258

Canada disregards the

balance between the welfare of seals and other interests as reflected in the IC

exception. The subsistence of the Inuit and other indigenous communities and the

preservation of their cultural identity provide benefits to humans that, from a moral

255

Canada's Response to Question 28, para. 130. Norway makes the same argument (see Norway's

Response to Question 18, para. 138 and Question 28, 184). 256



European Union's Response to Question 8, paras. 22 – 23.



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point of view, outweigh the risk of suffering inflicted upon seals as a result of the

hunts conducted by those communities.259

Using certain hunting methods such as

"trapping and netting" is indispensable for the subsistence of the Inuit, who

otherwise would not be able to hunt during almost half of the year.260

233. Consequently, the European Union maintains that the "regulatory distinction"

made by the EU Seal Regime, through the IC exception, is "legitimate". Therefore,

any detrimental impact on Canadian imports does not reflect discrimination as it

stems exclusively from this legitimate regulatory distinction.

3.2.1.3 Conclusion

234. In view of the foregoing, the European Union submits that the EU Seal Regime,

through the IC exception, does not accord less favourable treatment to Canadian

imports and, thus, is consistent with Article 2.1 of the TBT Agreement. Thus, the

European Union requests the Panel to reject Canada's claim under Article 2.1 of

the TBT Agreement.

3.2.2. National Treatment obligation

235. Canada claims that the EU Seal Regime, through the MRM exception, accords its


treatment accorded to “like” products of EU origin. Specifically, Canada argues

that all or virtually all of the EU's seal products can be placed on the EU market

while the vast majority of Canada's seal products cannot.261

236. The European Union observes that Canada makes certain statements as regards the

facts and inferences concerning the European Union's position with respect to the

facts which the European Union should address at the outset. In this respect,

Canada wrongly asserts that "the EU admits that seal products from Finland and

Sweden can be placed on the market under the [MRM exception]".262

This is

259

See European Union's Response to Question 10, para. 44. 260

Government of Greenland, Management and utilization of Seals in Greenland, p. 19 (Exhibit JE - 26)

("[F]rom October to the end of March, netting is the prevailing method since it is impossible to use

any other technique during the dark winter months"). 261

Canada's Opening Oral Statement, First Meeting with the Panel, para. 65. 262

Canada's Opening Oral Statement, First Meeting with the Panel, para. 65.



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- 73 -

wrong. As a matter of fact, only seal products accompanied by the relevant

certificate from the Swedish recognised bodies can be placed on the market under

the MRM exception. And this is a very recent development.263

No entity in Finland

has even requested authorisation to become a recognised body in accordance with

the Implementing Regulation. Consequently, Canada's statement of fact should be

understood as only referring to seal products from Sweden. It is undisputed that

the number of seals hunted in Sweden is very small (less than one hundred grey

seals per year).264

237. Moreover, Canada wrongly asserts that the legislative history leading to the

inclusion of the MRM exception in the EU Seal Regime "confirms that the design

of this category was developed in response to concerns coming from those

Member States".265

This is both incorrect and irrelevant. The legislative history

shows that the MRM exception originated from the concerns expressed by the

Rapporteur of the opinion of the European Parliament's Committee on Agriculture

and Rural Development, not by EU Member States. These concerns were echoed

by some Member States (such as Sweden and Finland), not most or all Member

States (such as the United Kingdom). And in any event, those concerns were

expressed in an origin-neutral manner, as relevant for "States" with this type of

hunts for management purposes, regardless of whether they were EU Member

“States” or otherwise.266

238. Having clarified those factual elements, the European Union will show below that

the EU Seal Regime through the MRM exception does not accord less favourable

treatment to Canadian imports when compared with the treatment accorded to like

products of EU origin.

263

See European Union's first written submission, footnote 617 and Exhibit EU-77. 264

See Norway's Response to Question 96, para. 454; and European Union's Response to Question 96,

para. 272. 265

Canada's Opening Oral Statement, First Meeting with the Panel, para. 65; and Canada's Response to


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 ("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").



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- 74 -

239. The European Union observes that Canada does not dispute that the Panel should

apply the legal standard under Article 2.1 of the TBT Agreement as clarified by

the Appellate Body in US – Clove Cigarettes, US – COOL and US – Tuna II

(Mexico) to the facts of the present case,267

including its analysis of the MRM

exception.

240. As explained before, as a first step in its analysis the Panel needs to determine the

"group" or "universe" of directly competitive and substitutable “products” in both

sides of the equation, i.e. seal products originating in Canada and seal products of

EU origin. The "group" of relevant “products” in the present case can be

represented by the following drawing, where the dotted line represents the

regulatory distinction made by the EU Seal Regime between conforming and non-

conforming products.

241. Once identified the "group" or "universe" of “products” relevant in the present

case, the Panel is called upon to examine whether the EU Seal Regime through

MRM exception accords Canada's imports of seal products "less favourable

treatment" when compared with the treatment accorded to "like" domestic

products. In this respect, as was the case under the IC exception, the views of

Canada and the European Union differ.

267

See European Union's first written submission, paras. 240 – 249.

Canada

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242. On the one hand, Canada argues that the EU Seal Regime through the MRM

exception (i) modifies the conditions of competition to the detriment of Canadian

imports (when compared to the treatment accorded to “like” domestic products)

and (ii) that such a detrimental impact does not stem exclusively from a legitimate

regulatory distinction. On the other hand, the European Union contends that the

EU Seal Regime through the MRM exception does not modify the conditions of

competition to the detriment of Canadian imports and, even if that were to be the

case, such detrimental effect does not reflect discrimination as it stems from a

legitimate regulatory distinction. The European Union will examine below these

two elements in more detail.

3.2.2.1 Whether there is detrimental impact in this case

243. As in the case of the IC exception, Canada considers that the EU Seal Regime,

through the MRM exception, modifies the conditions of competition to the

detriment of its imports when compared with “like” domestic products. In

particular, Canada considers that the detrimental impact is shown because most of

its seal products cannot be placed on the EU market whereas most of the "like"

domestic seal products can be placed on the EU market through the operation of

the MRM exception. In other words, Canada follows here the same "quantitative

approach" as with respect to the IC exception to show de facto less favourable

treatment.268

244. The European Union has already explained that Canada's reliance on its

quantitative approach to show de facto discrimination is manifestly incorrect. To

illustrate Canada's arguments with the following drawing, Canada submits that

where a measure is designed, is expected to result or indeed results in a specific

data pattern (as the one shown in the drawing), such a single fact is sufficient to

show detrimental impact.

268

Canada's opening oral statement, first meeting with the Panel, para. 62 ("…in comparing all like

products…"). Norway follows the same quantitative approach in its claim under Article III:4 of the

GATT 1994.



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245. This single fact, as expressed in Canada's quantitative approach, cannot be

dispositive to find detrimental impact. As in the case of the IC exception, the

European Union considers that any detrimental impact caused to Canadian imports

by the EU Seal Regime, through the MRM exception, does not reflect

discrimination. In particular, when making a category-to-category comparison

within each of the groups of products in each side of the comparison (i.e., Canada

versus European Union), it should be concluded that there is no alteration of the

aggregate competitive opportunities in favour of the EU's group of products.

Canadian seal products derived from hunts for commercial purposes with

(theoretical) "like" domestic products derived from hunts for commercial purposes

would be subject to the same treatment (i.e. the General Ban). Both Canadian seal

products derived from hunts for management purposes and "like" domestic

products derived from hunts for management purposes would also be subject to the

same treatment (i.e. they are allowed to be placed on the EU market pursuant to

the MRM exception). Thus, this approach shows that there is no discrimination

since each category in the same situation (by reference to the "purpose" of the

hunt) is treated equally and has identical access to (or prohibition to access) the

EU market. The categories of "like" products used to make the above comparison

Canada

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are not "discretionary" or "arbitrary". They are based on the "regulatory

distinction" embedded in the EU Seal Regime, specifically, in the MRM exception

and, thus, are comparable.

246. The Panel is thus called upon to examine all relevant facts in the present case. In

particular, the European Union submits that the Panel should take into account the

following facts as pertinent to determine whether the EU Seal Regime, through the

MRM exception, modifies the conditions of competition to the detriment of

Canadian imports.

247. First, as mentioned before, the EU Seal Regime is completely neutral in the sense

that it equally affects seal products resulting from hunts for commercial purposes

(non-conforming with the EU Seal Regime) as well as seal products resulting from

hunts for subsistence and management purposes (conforming with the EU Seal

Regime, either under the IC or MRM exceptions), regardless of their origin.269

In

addressing the moral concerns of the EU population, the EU legislators balanced

the welfare of seals and other interests, as reflected in the MRM exception,

regardless of their origin, foreign or domestic. Had the European Union have seal

products derived from commercial hunts, the same treatment would have been

granted to those like domestic products under the EU Seal Regime. They would

have been banned. Likewise, Canada's imports of seal products derived from hunts

for management purposes may be placed on the EU market through the MRM

exception, the same as the “like” domestic seal products falling under the MRM

exception. Therefore, the EU Seal Regime takes into account considerations

relating to the "purpose" behind the hunt from which the seal products are derived

from, considerations that are completely unrelated to the foreign/domestic origin

of the seal products.270

248. Second, the MRM exception also is origin-neutral. All seal products meeting the

requirements contemplated in Article 3.2(b) of the Basic Regulation and Article 5

of the Implementing Regulation fall under the scope of such exception, regardless

of their origin. In this respect, the conditions attached to the MRM exception

269

See para. 207 above of this submission. 270

Appellate Body Report, Dominican Republic – Cigarettes, para. 96; Appellate Body Report, US –

Clove Cigarettes, footnote 372.



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ensure that the sole purpose of the hunt is managing marine resources, by

including elements such as that those hunt must be regulated by national law;

conducted in accordance to a national or regional natural resources management

plan which uses scientific population models of marine resources and applies the

ecosystem-based approach; and that those seal hunts do not exceed the total

allowable catch quota established in accordance with the plan in question. The

MRM exception also includes anti-circumvention elements ensuring that those

hunts are not for commercial purposes, such as that the nature and quantity of the

products placed on the EU market does not show the commercial nature of the

hunt (for instance, by requiring that those products are placed on the EU market on

a non-systematic, non-profit basis). Thus, Canada is wrong when asserting that, in

effect, the MRM exception is designed, structured or applied to the European

Union's seal products.271

249. Third, and importantly, seal products derived from hunts falling under the MRM

exception are non-commercial in nature. Indeed, hunts falling under the MRM

exception would take place in any event, as they are conducted exclusively for

management purposes and not for commercial reasons. While the MRM exception

improves seal welfare by providing a motivation for the hunter to make clean shots

and avoid "struck and lost",272

the MRM exception does not permit the hunter to

make a profit. Thus, seal products falling under the MRM exception are by-

products of an already non-commercial activity.273

250. Fourth, Canada alleges that its seal products cannot fall under the MRM exception

because of the nature and the quantity of the seal products resulting from its hunts

conducted for marine resource management purposes and, therefore, Canada or

any Canadian entity has refrained from requesting to be included in the list of

recognised bodies according to Article 6 of the Implementing Regulation.274

In this

respect, the European Union observes that the fact that currently there are no

Canadian imports of seal products falling under the MRM exception is the result of

Canada's own choice. Indeed, according to Canada's internal regulations, licenses

271


European Union's Response to Question 8, para. 27. 273

See also amicus curiae brief by Anima et al., para. 131 (Exhibit EU-81). 274

Canada's firs written submission, para. 391bis; Canada's Response to Question 84.



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(which are mandatory to hunt seals) are granted for commercial use, for personal

use as well as "for nuisance seal".275

It appears that seal products derived from the

hunts of those nuisance seals, in principle, fall under the MRM exception,

provided all the relevant conditions are met.276

Thus, Canada may place on the EU

market its seal products in conformity with the MRM exception but chooses not to

do so.277

251. All these factors indicate that the EU Seal Regime, and in particular, through the

MRM exception, does not modify the conditions of competition to the detriment of

Canada's imports. The EU Seal Regime equally affects seal products resulting

from hunts for commercial purposes (non-conforming with the EU Seal Regime)

as well as seal products resulting from hunts for management purposes

(conforming with the EU Seal Regime, through the MRM exception). Seal

products derived from commercial hunts are subject to the General Ban, regardless

of whether they originate in Canada or the European Union. Seal products derived

from hunts for management purposes can be placed on the EU market pursuant to

the MRM exception regardless of whether they originate in Canada or the

European Union. In this respect, the EU Seal Regime, including the MRM

exception, is based on considerations that are completely unrelated to the

foreign/domestic origin of the seal products and, thus, does not modify the

conditions of competition to the detriment of Canada's imports.

3.2.2.2 Whether any detrimental impact reflects discrimination

252. Even if the Panel were to agree with Canada that the EU Seal Regime, through the

MRM exception, modifies the conditions of competition to the detriment of

Canadian imports, the European Union submits that such detrimental impact

would not reflect discrimination because it would stem exclusively from the

legitimate regulatory distinction embedded in the EU Seal Regime.

275

See Marine Mammal Regulations, S.O.R./93-56, Article 26.1 (Exhibit CDA-21) 276

See European Union's Response to Question 29. 277

Instead, Canada choses to continuously support hunts for commercial purposes. In this respect, the

same observation as to the relevance of government support to hunts for commercial purposes also

applies in this context (see para. 212 above of this submission).



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the "regulatory distinction" made by the IC and MRM

exceptions is primarily based on the "purpose" of the hunt in each case, when

compared to the "purpose" of the hunt behind the group of non-conforming

products (i.e., hunts for commercial purposes). Thus, the EU Seal regime

distinguishes between seal products that can be placed on the EU market in view

of the "purpose" of the hunt they are derived from.


Seal Regime between conforming seal products under the MRM exception and

non-conforming products subject to the General Ban is "legitimate" because (i) it

is based on legitimate objective, and (ii) it is designed and applied in an even-

handed manner.

3.2.2.2.1 The MRM exception is based on a legitimate objective


Seal Regime between conforming seal products under the MRM exception and

non-conforming products subject to the General Ban is "legitimate" because it is

based on a legitimate objective.279

The MRM exception reflects the EU legislators'

assessment that hunts conducted exclusively for management purposes do not raise

moral concerns because the benefits to humans and other animals which are part of

the same ecosystem outweigh the risk of suffering being inflicted upon the

relatively small number of seals concerned. Moreover, the prohibition of the

marketing of products from the hunts covered by the MRM exception would not

contribute to reduce the suffering of seals, because those hunts would take place in

any event, as they are conducted exclusively for management purposes and not for

commercial reasons. On the contrary, prohibiting the marketing of the products

from those hunts could be counterproductive from the point of view of animal

welfare.280

278

See European Union's Response to Question 28. 279

See European Union's first written submission, paras. 308 – 317. See also para. 220 above of this

submission. 280

See EU's first written submission, paras. 42 and 316, and footnote 438.



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256. Canada agrees that the protection of public morals as well as animal welfare are

legitimate objectives under Article 2.2 of the TBT Agreement.281

The MRM

exception stems from the rule of public morality which the EU Seal Regime seeks

to uphold. Consequently, the European Union submits that the MRM exception,

and thus the regulatory distinction made pursuant to the MRM exception, is based

on a "legitimate" objective (i.e. it is legitimate to permit the hunting of seals

exclusively for managing marine resources in view of the benefits to humans and

other animals part of the same ecosystem). Even if the Panel agreed with Canada

that the EU Seal Regime does not pursue a public morals objective, the MRM

exception would be based on a legitimate objective to the extent that it contributes

to the welfare of seals.282

3.2.2.2.2 The MRM exception is designed and applied in an even-handed manner

257. The "regulatory distinction" made by the EU Seal Regime between conforming

seal products under the MRM exception and non-conforming products subject to

the General Ban is also "legitimate" because it is designed and applied in an even-

handed manner.283

The MRM exception is "calibrated" to its purpose284

and does

not amount to arbitrary or unjustifiable discrimination. In particular, the MRM

exception contains two sets of conditions.

258. On the one hand, the MRM exceptions relates to seal hunts conducted for the sole

purpose of the sustainable management of marine resources. This is the central

condition behind the MRM exception, i.e. the purpose of the hunt. The exception

is drafted in a manner that the exclusive purpose of the hunt has to be the

sustainable management of marine resources, as opposed to the exclusive or main

purpose behind hunts for commercial purposes (i.e., making profit out of selling

inessential by-products). Other elements are directly linked to secure the

enforcement of this condition:

281

See Canada's Response to Question 15, para. 91, and Question 9, paras. 61 and 62. Similarly, see

Norway’s first written submission, para. 632 and Norway’s Response to Question 15, para. 103. 282

See European Union's first written submission, para. 316; and European Union's Responses to

Question 8, paras. 26 – 27 and Question 10, para. 45. 283

See European Union's first written submission, para. 301. 284

See Appellate Body Report, US – Tuna II (Mexico), para. 297.



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seal hunts that is regulated by national law: the MRM exception covers

statutory controlled hunting in order to prevent seal products derived from

e.g. furtive or illegal hunting.285

This ensures that the purpose for which

seals are hunted is easier to determine in view of the laws and regulations

of each country;

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: this element ensures

that hunts under the MRM exception are conducted having the purpose of

managing marine resources in accordance with well-accepted standards;286

seal hunts which do not exceed the total allowable catch quota established

in accordance with that plan: 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).287

259. On the other hand, the MRM exception contains elements which ensure the non-

commercial purpose behind the hunt in question. In other words, the following

conditions are meant to avoid using the MRM exception to place seal products

derived from commercial hunts in the EU market:

the by-products of those seal hunts are placed on the market in a non-

systematic way: the systematic and repeated way in placing those products

on the EU market would indicate that the nature of the hunt in question was

commercial. Indeed, if seal products are repeatedly and systematically

placed on the EU market e.g. in certain periods of the year or through the

285

See 2007 EFSA Opinion (Exhibit JE-22), p. 13 ("the killing of nuisance seals may or may not be

regulated"). 286

See e.g. Norway’s first written submission, paras. 637, 639 and 685. 287

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).



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same channels of commerce, this would indicate that they are being sold

for a commercial purpose;

the by-products of those seal hunts are placed on the market only on a non-

profit basis: this element eliminates any incentives for the hunter to make

profit out of the killing 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. For

the purposes of this exception, the Implementing Regulation defines

"placing on the market on a non-profit basis" as 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.288

In view of the government support involved in this activity, the European

Union considers that "profit" should not include any benefit conferred by

such support;

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: as

mentioned before, the "nature" relates to elements such as the systematic

way in which the seal products are placed on the market or the use of

traditional commercial channels of distribution for those products, which

would indicate the commercial nature behind the hunt;

finally, 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". This again ensures that the MRM exception

would not be used to allow the placing on the market of seal products

subject to the General Ban and, thus, it is rationally connected to the main

purpose of the General Ban.

260. All these conditions ensure that only seal products from genuinely hunts for

management purposes qualify for the MRM exception, avoiding potential

circumvention of the General Ban.

288

Article 2.2 of the Implementing Regulation.



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261. Contrary to what Canada suggests,289

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 aims at affecting the

conduct of the hunter by eliminating the incentives hunters may have to kill more

seals than necessary to management purposes. The fact that other manufactures or

processors down the line can make profits when further processing those products

does not undermine that objective. And in fact, operators in the EU can purchase

seal products falling under the MRM exception for further processing regardless of

their origin, insofar as such a sale did not involve profit for the hunter. Thus,

Canada's observation does not show lack of even-handedness.

262. Likewise, Canada's assertion that hunts falling under the MRM exception also

have an incidental commercial dimension is completely irrelevant.290

As explained

before, the hunter involved in hunts for management purposes does not seek to

maximise its profits. The fact that a fisherman when killing a seal does so in order

to fish more and earn more returns out of its fishing activity does not turn such a

hunt into one "for commercial purposes". Thus, any incidental commercial

dimension in the type of hunts falling under the MRM exception does not diminish

the objective pursued by such exception.

263. Consequently, the European Union maintains that the "regulatory distinction"

made by the EU Seal Regime through the MRM exception is "legitimate".

Therefore, any detrimental impact on Canadian imports does not reflect

discrimination as it stems exclusively from this legitimate regulatory distinction.

3.2.2.3 Conclusion

264. In view of the foregoing, the European Union submits that the EU Seal Regime

through the MRM exception does not accord less favourable treatment to Canadian

imports and, thus, is consistent with Article 2.1 of the TBT Agreement. Thus, the

289

Canada's first written submission, para. 392; see also Norway's Response to Question 28, para. 185. 290

Canada's Response to Question 28, para. 130. Norway makes the same argument (see Norway's

Response to Question 18, para. 138 and Question 28, 184).



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European Union requests the Panel to reject Canada's claim under Article 2.1 of

the TBT Agreement.

3.3. ARTICLE 2.2 OF THE TBT AGREEMENT

265. The Complainants allege that the EU Seal Regime fails to make a material

contribution to its objectives and that less trade restrictive measures would make a

greater contribution. The Complainants are wrong on both counts.

3.3.1. The EU Seal Regime makes a substantial contribution to its objective

266. The Complainants contend that the EU Seal Regime makes no contribution at all,

or only a minor contribution, to each of the various objectives which they have

attributed to the EU Seal Regime. More specifically, the Complainants allege that

the EU Seal Regime makes no contribution to the welfare of seals because none of

the three sets of “requirements” which they read into the EU Seal Regime includes

any condition relating to animal welfare.

267. The Complainants' analysis is fundamentally flawed. The Complainants have

mischaracterized the EU Seal regime and misunderstood its objectives. When the

EU Seal Regime is properly characterized and its objectives are correctly

apprehended, it becomes evident that the EU Seal Regime does make a substantial

contribution to the achievement of those objectives.

3.3.1.1 The Complainants mischaracterize the EU Seal Regime

268. The Complainants have characterized the measure at issue as consisting of three

separate and self-standing sets of so-called “requirements”.291

As already

explained by the European Union, that characterization is overtly formalistic,

contrived and fundamentally misguided.292

As the Complainants themselves

recognised in their panel requests293

, the EU Seal Regime provides for a general

prohibition on the placing of the market of seal products. That prohibition (the

291

See Canada's and Norway's responses to the Panel's Question 1. 292

EU's response to the Panel's Question 1. 293

EU's response to the Panel's Question 1, paras. 8-10.



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General Ban) is subject to three exceptions: the IC exception, the MRM exception

ad the Travellers exception.

269. The exceptions to the General Ban do not restrict trade. On the contrary, they

allow trade that would otherwise be prohibited by the General Ban. The exceptions

could be regarded as “trade restrictive” only in so far as they discriminated

between domestic and imported products or between imports from different

sources. But, as the European Union has shown, both the IC exception and the

MRM exception are consistent with Article 2.1 of the TBT Agreement. Indeed,

Norway does not even argue that those exceptions are inconsistent with Article 2.1

of the TBT Agreement. The Travellers exception benefits exclusively imports of

all origins. Neither Complainant has alleged that it is discriminatory.

270. As the exceptions are not trade restrictive, the European Union is not required to

justify them under Article 2.2 of the TBT Agreement. Instead, it is the General

Ban which must be justified under that provision. The exceptions could be relevant

for the analysis under Article 2.2 only to the extent that they detracted from the

contribution made by the General Ban to the objectives of the EU Seal Regime.

3.3.1.2 The Complainants misunderstand the objective of the EU

Seal Regime

271. The Complainants have misunderstood the objective pursued by the EU Seal

Regime. Contrary to the Complainants' allegations, the EU Seal Regime does not

pursue a “patchwork” of disconnected objectives.

272. As already explained by the European Union294

, the EU Seal Regime addresses

two closely related objectives:

first, responding to the moral concerns of the EU population with regard to the

welfare of seals; and

second, contributing to the welfare of seals by reducing the number of seals

killed in an inhumane way.

294

See EU's response to the Panel's Question 10.



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273. The second objective can be regarded as being simultaneously a legitimate

objective on its own and one of the instruments to achieve the first, broader and

overarching, objective.

274. In turn, the moral concerns addressed by the EU Seal Regime are of two types:295

first, moral concerns about the inhumane killing of seals as such; and, second,

moral concerns about the EU public's contribution, as consumers, to the inhumane

killing of seals, and more broadly about their exposure to the presence of morally

tainted products in the EU market.

275. Both types of concerns stem from a basic rule of morality, according to which

humans ought not to inflict suffering upon animals without a sufficient

justification.296

In the case at hand, the implementation of this rule of morality

requires balancing the welfare of seals with other morally pertinent interests.

276. The IC exception and the MRM exception do not pursue independent objectives

from those sought by the General Ban. Rather, those exceptions must be seen as

the outcome of the balancing of the welfare of seals and other interests, which is

part of the basic standard of morality that the EU Seal Regime as a whole seeks to

uphold. In other words, the EU Seal regime provides for those two exceptions

because, for the reasons already explained by the European Union, the products

falling within the scope of those exceptions do not raise moral concerns, unlike the

products from the commercial hunts which are subject to the General Ban.297

3.3.1.3 The EU Seal Regime makes a substantial contribution to its

public morals objective

277. The General Ban addresses the moral concerns of the EU population in two

different ways:

278. First, by prohibiting the marketing of seal products resulting from commercial

hunts on the EU market, the General Ban seeks to reduce global demand for those

products and, consequently, the number of seals which are not killed in a humane

295


See EU's response to the Panel's Question 10, para. 37. 297

See EU's response to the Panel's Question 10, paras. 44-45 and EU's response to Panel's Question 8.



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way in the commercial hunts. This improves the welfare of seals and, at the same

time, addresses the public moral concerns with regard to the act of killing seals as

such (the first type of concerns mentioned above).

279. Second, by prohibiting the marketing of seals, the EU Seal Regime addresses the

moral concerns with regard to certain acts performed within the EU territory which

are morally reprehensible in themselves: selling seal products from commercial

hunts, because it involves an act of commercial exploitation of an immoral act (the

killing of seals in an inhumane way); and purchasing those seal products, because

it promotes such immoral killings. Furthermore, by prohibiting the marketing of

seal products from commercial hunts in the EU market, the EU Seal Regime also

addresses the broader concern of the EU population not to render itself accomplice

collectively to an immoral act by tolerating the marketing of seal products within

the European Union, while shielding the EU public from being confronted with the

products resulting from such immoral act.

280. As regards the first type of contribution, there are clear indications that the EU

Seal Regime, and the bans of the EU Member States which preceded it, have had a

significant impact on the global demand for products resulting from commercial

hunts products and, consequently, on the number of seals killed inhumanely every

year.

281. The volume of catches declined considerably in both Canada and Norway after

2006, coinciding with the introduction of the first EU bans.298

While the level of

catches appears to have stabilized in the most recent years, thanks to the subsidies

provided by the Canadian and the Norwegian authorities, they remain at a very

low level in Canada. Exports from Canada declined even more drastically after

2006.299

Again, while they have recovered slightly in the last two years, they

remain far below the levels reached during the last decade.

282. The Canadian Government has recognised that the EU Seal Ban has had

“significant negative impacts” on Canada's sealing industry:

298

Canadian Commercial Seal Harvest Overview, tables 2, 8, 9 and 10 (Exhibit JE – 27). See also

amicus curiae brief by Anima et al, pp. 61-62 (Exhibit EU - 81). See also Canada's and Norway's

responses to the Panel's Questions 96 and 99. 299

Canadian Commercial Seal Harvest Overview, tables 3-7 and 12-15 (Exhibit JE – 27).



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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. 300

283. The fact that the General Ban is subject to exceptions does not prevent it from

making a substantial contribution to its public moral objective in the first of the

two ways described above. As recalled above, the products falling within the scope

of the IC exception and the MRM exception do not raise moral concerns, because

the suffering inflicted upon seals is outweighed by the benefits to humans (or other

animals). In turn, as recognised by the Complainants, the trade impact of the

Travellers exception is "minuscule"301

.

284. Furthermore, even if the Panel were to conclude that the EU Seal Regime makes

no contribution to its public moral objective in the first of the ways above

described, it is beyond question that the EU Seal Regime would still make a

material contribution to its public moral objective in the second way.

3.3.1.4 The EU makes a substantial contribution to its animal

welfare objective

285. Even if the Panel concluded that the EU Seal Regime does not have as its objective

addressing public moral concerns with regard to the inhumane killing of seals, but

instead exclusively the welfare of seals as such, it would remain that the EU Seal

Regime does make a substantial contribution to the welfare of seals for the reasons

explained above in the preceding section.

300

Canada's first written submission, paras. 80-81. 301

Canada's first written submission, para. 286.



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286. Contrary to the Complainants' allegations, the three exceptions to the General Ban

do not nullify the contribution of the EU Seal Regime to the welfare of seals.

287. As mentioned above, the trade impact of the Travellers exception is

"minuscule".302

288. The MRM exception is subject to strict conditions. Its scope is very limited and the

trade potentially concerned very small. Currently the MRM exception is available

only with regard to seals hunted in Sweden. In 2011 only 86 seals were hunted in

Sweden.303

Moreover, as already explained, prohibiting the placing on the market

of products within the scope of the MRM exception would not prevent the killing

of the seals concerned, which are hunted exclusively for management purposes,

and could be counterproductive from an animal welfare point of view.304

289. The IC exception has, potentially, a broader scope of application than the other

two exceptions. But the Complainants' allegations that, as a result of the IC

exception, exports from Greenland will replace exports from Canada and Norway,

so that global demand for seal products, and hence the number of seals killed

inhumanely, will remain unaffected is speculative and implausible.305

290. The IC exemption does not seek to promote exports from Greenland, but instead to

mitigate the necessarily adverse impact of the EU Seal Regime on the Inuit and

other indigenous populations to the extent compatible with the animal welfare

objectives of the EU Seal Regime.

291. The Greenlandic authorities do not regard the IC exception as beneficial for

Greenland's trade. They have strongly and consistently complained about the EU

Seal Regime and made it abundantly clear that they would like it to be repealed.306

They consider that:

302

Canada's first written submission, para. 286. 303


See EU's response to Panel's Question 8, para. 27. 305

Canada's first written submission, paras. 487-488. Norway's first written submission, para. 683. 306

Government of Greenland, Management and utilization of seals in Greenland, pp. 31-36 (Exhibit JE -

26).



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[T]he ban ignore[s] the realities of the market place, which is

highly integrated. Greenlandic hunters depend on the income

derived from the sale of their seal products to support their

traditional subsistence hunting activity. Closing the European

market and now also the Russian market to seal products will

most certainly lead to another global collapse in prices and

demand of seal products, similar to what happened after the 1983

EEC Directive, which also included an exemption for Greenlandic

products and which proved to be entirely inappropriate. Since

then, the subsistence hunting of seals in Greenland has had to be

heavily subsidized in order to ensure reasonable income for Inuit

hunters dependent on selling sealskins. 307

292. The same concern has been expressed by the authorities of Nunavut:

The impact of the EU seal ban on market interest in sealskins was

immediate and apparent well in advance of the official

implementation date for the ban. In fact, market interest in ringed

seal pelts and products declined sharply in 2008 following the

submission of a proposal to the European parliament and the

Council concerning a regulation on the trade in seal products.

Following this development, international fur buyers and brokers

were unwilling to risk purchasing sealskins due to the uncertain

future of the market and to uncertainties surrounding international

shipment of these products and trans-shipment through the EU.

[…] A decrease in both sales volume and average price [for

Nunavut Ringed Sealskins] is apparent beginning in 2008 and

continuing to the present. Following the initial drop in sales that

occurred in 2008, the volume of sealskins sold annually has

increased and stabilized around 4,000 skins, far below historical

levels. 308

293. The authorities of Nunavut stress the crucial fact that the EU market occupies a

central position in the global market and that the closure of the EU market, albeit

partial, reduces demand also in other markets:

307

Government of Greenland, Management and utilization of seals in Greenland, Table 4, p. 33 (Exhibit

JE - 26). 308

Nunavut Department of Environment, Fisheries and Sealing Division, Report on the Impacts of the

European Union Seal Ban, p. 3 (Exhibit JE – 30).



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The absence of harp seal pelts in the marketplace and the absence

of harp seal garments on the fashion runways of Paris, Milan and

other EU fashion centers have led to a major decrease in the

market demand for both harp seals and ringed seals

internationally. Non-EU fur manufacturing superwowers such as

China frequently look to the EU to set fashion trends that are

produced at low cost by Chinese manufacturers; therefore, the

impacts of the EU ban are not limited to a loss of EU customers

but are, in fact, global in scale.309

294. In response to a question from the Panel, Canada has conceded that the EU Seal

Regime has a depressing effect on both global prices and demand, and not just on

Canada's or Norway's exports and catches:

While cause and effect are often difficult to establish empirically,

it is the case that the European Union initiative to develop a

measure to severely restrict market access in the European Union

for seal products coincided with a sharp drop in overall global

demand for seal skins. It also coincided with a global recession,

and there are other factors, such as over-supply, that appear to

have had an impact on pricing, at least in the short run. However,

prices (and demand) have remained depressed into 2013, and it is

reasonable to conclude that this impact is at least in part due to the

EU Seal Regime. While it is possible to also point to the recent

ban on imports of harp seal products in Russia as a contributing

cause of continued lower demand, the price depression pre-dated

that measure by several years.310

295. As a result, the EU Seal Regime has necessarily a negative impact also on the

prices and the demand for seal products from Greenland, even if such impact is

mitigated by the IC exception.

296. As shown by the table below, between 2007 and 2011 the number of skins sold by

Great Greenland fell considerably both in the European Union (by 73 %) and

outside the European Union (by 53 %), even if it has recovered somewhat in the

last two years from its lowest point in 2009.

309

Nunavut Department of Environment, Fisheries and Sealing Division, Report on the Impacts of the

European Union Seal Ban, p. 9 (Exhibit JE – 30). 310

Canada's response to Question 40, para. 161.



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Table 1 – Number of skins sold by Great Greenland

Total EU Non-EU Distribution

EU/Non EU

2007 51.141 18.750 24.853 37%/63%

2008 42.306 5.414 28.425 13%/87%

2009 20.288 1.419 5.034 7%/93%

2010 23.165 4.226 12.031 18%/82%

2011 25.788 4.970 11.596 19%/81%

Source: Great Greenland, 19th

March 2013. Information transmitted to the European Commission

by the Danish authorities.

297. The Complainants' speculations are further contradicted by the EU import data for

2011, which shows that imports from Greenland under the IC exception remained

stable at the same, relatively low levels of 2009. 311

298. Furthermore, the Complainants continue to disregard that Greenland's hunt is

largely for subsistence purposes (in some years over 50 % of the catches are not

traded).312

This makes it much less responsive to market fluctuations than Canada's

harvest. Nonetheless, the number of catches declined by 26 % between 2006 and

2010.313

299. The European Union considers that, in any event, the impact of the EU Seal

Regime should not be assessed only on a short term basis. Some of the

governments concerned have responded to the EU Seal Regime by granting large

subsidies which, in some cases (in particular, Norway and to a lesser extent

Greenland), have dampened the effects of the EU Seal Regime. In the longer term,

311

EU's Response to Question 97, Exhibit EU 88. The figures for imports into the European Union

shown in the Eurostat statistics provided in Exhibit EU – 88 exceed the figures in Table 1 for sales in

the European Union, because a large part of the imports into the European Union are not immediately

sold by Great Greenland within the European Union, but instead stored in Denmark and sold

subsequently either in the European Union or to third countries. 312

Based on the figures shown in Government of Greenland, Management and utilization of seals in

Greenland, Table 3, p. 27 (Exhibit JE - 26). 313

Based on the figures shown in Government of Greenland, Management and utilization of seals in

Greenland, Table 2, p. 22 (Exhibit JE - 26).



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however, those subsidies may come to be perceived as unsustainable and

discontinued if the EU Seal Regime is maintained.

300. On the other hand, if the EU Seal Regime is maintained, it will set an example for

other Members to introduce similar measures, which will amplify its effects. This

is not a theoretical possibility. For example, as explained above, in May 2012 one

of the houses of the Swiss Federal Assembly approved a proposal to ban trade in

seal products, which is modelled after the EU Seal Regime. Nevertheless, in view

of the legal uncertainty created by the present dispute, the other chamber decided

in December 2012 to suspend further consideration pending the resolution of this

dispute.

3.3.2. The alternative measures identified by the Complainant would fail to make an

equivalent contribution to the objective of the EU Seal Regime

301. Both Canada and Norway have identified as a less restrictive alternative measure a

regime that would condition market access on compliance with animal welfare

standards combined with a labelling requirement.314

302. In addition, Norway has identified two other alternative measures: the removal of

the "the three sets of requirements comprising the EU Seal Regime";315

and 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".316

303. As shown by the European Union in its first written submission317

, the measures

cited by Canada and Norway are not genuine alternatives, because they would not

make an equivalent contribution to the objective pursued by the EU Seal Regime.

Here below, the European Union will elaborate on its arguments concerning the

first alleged alternative.

3.3.2.1 The Complainants´ alternative measure was considered by

the EU legislators and rejected because it involves a lower level of

protection

314

Canada's first written submission, para. 556. Norway's first written submission, para. 796. 315

Norway's first written submission, para. 776. 316

Norway's first written submission, paras. 912-917. 317

EU's first written submission, 369-418.



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304. The Complainants' alternative is similar to the measure proposed by the European

Commission.318

As already explained319

, that measure was rejected by the EU

legislators because it failed to provide a sufficiently high level of protection.

305. The European Commission proposal envisaged a prohibition, as a general rule, of

the placing on the market of all seal products.320

That prohibition, however, was

subject to a derogation for products meeting certain animal welfare requirements.

Specifically, according to Article 4 of the proposal, the placing on the market of

seal products would have been allowed where those products

have been obtained from seals killed and skinned in a country

where, or by persons to whom, adequate legislative provisions or

other requirements apply ensuring that seals are killed and

skinned without causing avoidable pain, distress and any other

form of suffering.321

306. The EU legislators, nevertheless, considered that it was not enough to address only

the avoidable risks, because the unavoidable risks to animal welfare that are

inherent in commercial seal hunting are excessive and unacceptable. According to

the justification advanced by the European Parliament:

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.322

307. The Complainants have suggested that usual standards of humane treatment only

require that animals be spared such suffering as is avoidable.323

However, the

notion of avoidable suffering is a relative one. The degree of suffering which is

unavoidable may vary considerably from one situation to another. Whereas the

risk of unavoidable suffering is generally low in the controlled environment of a

slaughterhouse, where most risks can be properly addressed, it is considerable in

the conditions of the commercial seal hunts. Contrary to what the Complainants

318

EU Commission proposal (Exhibit JE – 9). 319


Article 3 of the European Commission proposal (Exhibit JE - 9). 321

EU Commission proposal, Article 4 (Exhibit JE – 8). Emphasis supplied. 322

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

Amendment 4. Emphasis added (Exhibit JE - 4). 323

See e.g. Canada's response to the Panel's Question 60, at para. 271.



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appear to consider, there is no rule in the TBT Agreement or elsewhere in the

WTO Agreement which would require a Member to tolerate certain risk merely

because it is unavoidable. Where the unavoidable risks of an activity are excessive

in light of a Member's chose level of protection, as in the case of commercial seal

hunting, a Member is entitled to ban the products resulting from such activity.

3.3.2.2 The Complainants wrongly assume that seals can be killed

humanely on a consistent basis

308. The Complainants' proposed alternative is premised on the unproven assumption

that seals can be killed humanely on a consistent basis. The EU Seal Regime, on

the other hand, is based on the view that, while it may be possible to kill seals in a

humane way, the conditions in which commercial seal hunting takes place make it

impossible to do so consistently. This view is supported by qualified scientific

evidence provided to the Panel by the European Union.324

309. Because a genuinely humane killing method cannot be applied on a consistent

basis in the commercial seal hunts, it would be impossible to certify that all the

seals hunted in a given country, or in a given hunt, or even by a certain hunter,

comply with all the requirements of such a genuinely humane killing method. At

most, a qualified veterinary inspector could certify that a given individual seal has

been killed in accordance with such requirements, provided that he was able to

observe the entire killing process of the seal in question. Nevertheless, the

implementation of such a seal-by-seal certification system would be unviable in

practice. Not only because it would require an army of inspectors, but also

because, as explained by the European Union, in practice an inspector would often

face considerable obstacles to observe adequately the entire killing process.325

310. Even more crucially, a seal-by-seal certification system would fail to make an

equivalent contribution to the objectives of the EU Seal Regime. The fact that the

seal products marketed in the European Union had been obtained from seals killed

in a humane way would not meet the concerns that led to the adoption of the EU

324

EU's first written submission, Section 2.4. 325

EU's response to the Panel's Question 65, paras. 208-209. See also Amicus curiae brief by Anima et

al., paras. 221-223. (Exhibit EU – 81)..



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Seal Regime. Those concerns would persist because of the impossibility of killing

seals humanely on a consistent basis. Not even the most conscientious and law-

abiding sealer can avoid killing seals in an inhumane way in some instances (e.g.

because he mis-shoots a seal and fails to recognise from the vessel that it is still

conscious). As a result, in order to kill the requisite number of certified seals in a

humane way, it would be necessary to kill many other seals in an inhumane

way326

. Indeed, the proposed system could have the perverse effect of increasing

the number of seals killed in an inhumane way. 327

3.3.2.3 The Complainants have failed to prove that seals can be

killed humanely on a consistent basis

311. For the reasons explained above, in order to show that their proposed alternative

measure would make an equivalent contribution to the objective of the EU Seal

Regime, the Complainants would have to prove that a genuinely humane killing

method can be applied on a consistent basis in the conditions of the commercial

hunts.

312. The Panel has asked the Complainants whether a humane method can be applied

consistently in the seal hunts.328

The Complainants' responses, however, obfuscate

the issue. The Complainants reply that there is no "perfect" killing method329

; that

it is not "impossible" to kill seals humanely330

; and that it would be "unrealistic" to

demand that seals be killed "always" in a humane way.331

Yet these responses fail

to address the issue raised by the Panel's question: whether seals can be killed

humanely consistently.

313. Moreover, the Complainants' replies misrepresent, by implication, the EU's

position. The European Union does not argue that it is always impossible to kill

seals in a humane way. Nor is the European Union advocating a zero risk policy.

The EU's position is that, while it may be possible to kill seals humanely, a

326

Amicus curiae brief by Anima et al., para. 225. (Exhibit EU – 81). 327

Amicus curiae brief by Anima et al., para. 226 (Exhibit EU – 81).. 328

Panel's Question 69. 329

Norway's response to the Panel's question 69, para. 367. 330

Norway's response to the Panel's question 69, para. 368 331

Canada's response to the Panel's question 69, para. 295.



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genuinely humane method cannot be applied on a consistent basis in the

commercial hunts as a result of inherent obstacles which cannot be properly

addressed through better regulation or enforcement.

314. EFSA concluded in this regard 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.332

315. While it is not possible to quantify precisely the precise number or proportion of

seals which are not killed humanely in the commercial seal hunts, the scientific

evidence provided by the European Union to the Panel indicate that such number

is far from negligible and can indeed be very considerable.

316. The Complainants bear the burden of proving that the scientific evidence relied

upon the Europe Union is not qualified or respectable. The Complainants have

failed to meet that burden of proof.333

3.3.2.4 The examples of certification and labelling systems

mentioned by the Complainants lack pertinence

317. In its response to the Panel's Question 94, the European Union has explained why

none of the various examples of certification and labelling schemes identified by

the Complainants in their first written submission was really pertinent.334

318. In their own responses to Question 94, the Complainants cite other examples of

certification systems, including one concerning kangaroos hunted commercially in

Australia, the OA scheme, the French Label Rouge Scheme and the Swedish Krav

scheme.

319. Those examples, however, lack pertinence for the same reasons as the previous

examples cited by the Complainants. Some of them are not even primarily

concerned with animal welfare (e.g. Krav and Label Rouge). Furthermore, in each

332

EFSA Opinion, General Conclusions, point 4, at p. 94 (Exhibit EU - 30). 333

See above sections 2.1.3 and 2.1.4. 334

EU's response to the Panel's Question 94.



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case, the animals concerned are different, the environment is different, the killing

methods are different and, consequently, the risks to animal welfare are also very

different.

320. Moreover, it appears that the various schemes mentioned by the Complainants are

based on the assumption that the underlying animal welfare requirements can be

applied on a consistent basis, whereas in the case of seals, as explained above,

certification would have to be made on a seal-by-seal basis and would be, for that

reason, unviable in practice in view of the conditions under which commercial seal

hunting takes place.

321. Even more fundamentally, the availability of a certification system depends on the

level of protection chosen by each Member. As explained by the European Union,

a seal-by-seal certification system would fail to make an equivalent contribution to

the objectives pursued by the EU Seal Regime and, indeed, could be

counterproductive.

3.4. ARTICLES 5.1.2 AND 5.2.1 OF THE TBT AGREEMENT

3.4.1. Question 49

322. In its response to Question 49 (and Question 87), Canada for the first time submits

that a supplier declaration would have constituted a less trade-restrictive measure

within the meaning of Article 5.1.2 of the TBT Agreement, which could serve as

an alternative to the third-party conformity assessment system established under

the Implementing Regulation.

323. The European Union notes that in its response Canada does not even attempt to

establish that such an allegedly less trade-restrictive alternative would give the EU,

as the importing Member, adequate confidence that products conform with the

applicable regulation, while taking into account the risks of non-conformity. On

the contrary, in its response to Question 85 Canada seems to question whether

even a third party conformity assessment system can give a level of adequate

confidence when products like seal skins undergo some secondary processing.



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324. In its response Norway first restates arguments made in its first written submission

that the EU was required pursuant to Article 5.1.2 to establish a "default

conformity assessment body". As the European Union explained in its first written

submission, the establishment of a "default conformity assessment body" is not an

obligation under the TBT Agreement.335

Equally important, such a "default

conformity assessment body" would, contrary to what Norway alleges, not make

the assessment of compliance less trade restrictive.336

325. The European Union further notes that Norway acknowledged in its response that

there would have been no "unnecessary obstacle to international trade" in the sense

of Article 5.1.2, had the European Union recognised third party conformity

assessment bodies who expressed willingness to become recognised bodies.337

Norway, however, relies on the fact that the requests submitted by Swedish entities

were granted in December 2012 to argue that an "unnecessary obstacle" still exists.

326. In light of this acknowledgment by Norway, it is even less clear to the European

Union in which respect it is supposed to have contravened its obligations under

Article 5.1.2 and 5.2.1 of the TBT Agreement.

327. The European Union explained why the processing of the request made by entities

from Sweden took as long as it took.338

(It also explained why a decision could not

yet be made with respect to the request submitted by Greenland.339

) In those

circumstances the delay in processing cannot be considered as attributable to the

European Union.

328. Similarly not attributable to the European Union is the fact that only few entities

had submitted a request. Seals are hunted in just a handful of WTO Members. As

Canada and Norway acknowledge in responding to Question 84, some have taken

the decision not to submit a request. It seems obvious that certificates of

conformity with the conditions under the IC and MRM exceptions cannot be

issued, when the potential beneficiaries of the exception do not want the system to

become operational. The European Union fails to see how the existence of a

335

European Union's first written submission, paras 457-462. 336

Ibid. paras 463 – 468. 337

Norway's responses to the questions of the Panel after the first substantive meeting, para. 264. 338

See European Union's first written submission, footnote 617. 339

Ibid., footnote 618 and reply to Panel's question 88.



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"default recognised body" in the context of the Seals Regime would have changed

this fact.340

329. Finally, the European Union notes that Norway quotes from Exhibit EU-74 to

support its arguments. The European Union would like to stress that what

Norway's quote from the ISO Conformity Assessment Toolbox indicates as practice

in situations where conformity assessment arrangements need to be set up urgently

(namely for public authorities to "decide to directly assess and appoint bodies", as

opposed to delegating this authority to another entity, known as accreditation

body), is what the European Union has done in the context of the EU Seal Regime.

3.4.2. Questions 84 and 85

330. Both Canada and Norway confirm through their respective responses to Question

84 that no Canadian or Norwegian public entity has introduced a request to be

included on the list of recognised bodies according to Article 6 of the

Implementing Regulation.

331. This acknowledgement is important when one considers that Canada and Norway

base their claims under Article 5.1.2 and Article 5.2.1 of the TBT Agreement on

the allegation that the system set up under the Implementing Regulation was not

operational, because of the manner in which it was set up. In view of the fact that

seal hunting takes place in only a handful of countries, it seems clear that the

reason why more requests had not been submitted is grounded in the lack of desire

of the potential beneficiaries to make use of the system rather than in alleged

deficiencies in the set-up of the system itself.

332. Canada argues that no request had been submitted because (i) complying with the

EU Seal Regime exceptions would entail costs and would pose difficulty; (ii) only

a very limited number of Canadian products would qualify under the conditions of

the exceptions; (iii) following the introduction of the ban there was no demand for

seal products on the EU market. Norway, explains that none of its public

authorities submitted a request, because Norwegian seal products would not

qualify under the exceptions.341

Without prejudice to the European Union's

340

C.f. European Union's first written submission, paras 463-468. 341

Norway's responses to the questions of the Panel after the first substantive meeting, para. 419.



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position that the establishment of a "default recognised body" is not required under

the TBT Agreement, it seems that the existence of a "default recognised body",

would not have altered any of Canada's or Norway's considerations which

motivated their decision not to submit a request.

3.4.3. Question 87

333. In its response to Question 87 Canada accepts that third-party conformity

assessment schemes, like the one established under the Implementing Regulation,

are not uncommon. Indeed, Canada seems to recognise that these are frequently

relied upon by Canada, the United States and the European Union.

334. Canada further submits that third-party conformity assessment schemes are

generally used where the safety risks associated with product non-conformity are

significant. However it rightly does not – and cannot – claim that third-party

conformity assessment schemes are not used in other contexts, where risks of non-

compliance threat to affect objectives other than (human) safety and the fact that a

conformity assessment system is based on an independent third-party assessment

in practice constitutes the only credible guarantee capable of giving adequate

confidence to importing Members that imported products conform with the

applicable legislation.

335. Norway too acknowledges in its response that third party conformity assessment

schemes are not uncommon. It contends, however, that such schemes, and notably

the scheme under the Implementing Regulation, are WTO-inconsistent unless they

provide for a creation of a "default conformity assessment body", which operates

in the absence of recognised bodies.

336. Norway questions the value of Exhibit EU-74 and – one can only assume – the

value of looking at the practice of WTO Members in setting up systems for the

accreditation/designation of conformity assessment bodies, by implying that there

may be other cases of Members that have created or operate WTO-incompatible

third party conformity assessment schemes. While the European Union has a

certain degree of sympathy for this rather defensive response (in view of the fact

that the interpretation of Article 5.1.2 of the TBT Agreement put forward by

European Union is supported not only by the text but also by the practice of WTO



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Members), the European Union recalls that WTO Members are presumed to

enforce their treaty obligations in good faith, unless and until the contrary has been

established through procedures provided under the DSU.

337. The European Union also refers to its comments to Norway's response to Question

50, which address some of the arguments that Norway put forward in both

responses.

4. THE GATT

4.1. Discrimination Claims Under the GATT 1994 (Article I:1 and III:4)

338. The European Union observes that most of the evidence and arguments raised by

Canada in the context of its claim under Article 2.1 of the TBT Agreement are

repeated when addressing its claims under Articles I:1 and III:4 of the GATT

1994. Further, in the context of its claims under Articles I:1 and III:4 of the GATT

1994, Norway repeats most of the evidence and arguments raised by Canada under

Canada's claim pursuant to Article 2.1 of the TBT Agreement. For the reasons

mentioned in our submissions and further elaborated below, the European Union

considers that the legal standard under Article 2.1 of the TBT Agreement and

Articles I:1 and III:4 of the GATT 1994 should be the same, in the sense that

whether the EU Seal Regime discriminates against Canada’s and Norway’s groups

of imported products when compared to Greenland’s and the EU’s groups of

“like” products should be examined in light of the legitimate objective embedded

in the distinctions drawn by the EU Seal Regime through its exceptions. Thus, all

the considerations made by the European Union with respect to Canada's claim

under Article 2.1 of the TBT Agreement apply mutatis mutandi to Canada's and

Norway's claims under Articles I:1 and III:4 of the GATT 1994. Therefore, in this

section, the European Union will only address the specific arguments and

comments made by Canada and Norway with respect to their claims under Articles

I:1 and III:4 of the GATT 1994.

4.1.1. The legal standard under Articles I:1 and III:4 of the GATT 1994 and Article

2.1 of the TBT Agreement with respect to their non-discrimination obligations is

fundamentally the same



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339. Both Canada and Norway argue that the legal analysis under Articles I:1 and III:4

of the GATT 1994 is fundamentally different from the analysis that the Panel has

to make under Article 2.1 of the TBT Agreement. They argue that where de facto

discrimination is claimed, the non-discrimination obligations under Articles I:1

and III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement require an

analysis of whether the measure at issue modifies the conditions of competition to

the detriment of imported goods, in particular the complainant. For both this is the

case where the origin-neutral regulatory criteria disproportionately advantage, in

terms of competitive opportunities, products from certain sources over like

products from other sources (what the European Union refers to as the

"quantitative approach"). Both Canada and Norway consider that under Articles

I:1 and III:4 of the GATT 1994 no further analysis is required in order to find a

violation of these provisions. In Canada's and Norway's views, the defendant may

seek to justify the violation of Articles I:1 and III:4 of the GATT 1994 by showing

that the detrimental impact results exclusively from a legitimate regulatory

distinction covered by Article XX of the GATT 1994. In contrast, under Article

2.1 of the TBT Agreement, both Canada and Norway opine that the consideration

of whether a detrimental impact results exclusively from a legitimate regulatory

distinction is part of the analysis under Article 2.1 itself.342

Both seem to rely on

the Appellate Body's statement in US – Tuna II (Mexico) that the "scope and

content of [Article 2.1 and Articles I:1 and III:4 of the GATT 1994 are] not the

same".343

340. The European Union respectfully disagrees with those assertions.

341. First, the Appellate Body's statement in US – Tuna II (Mexico) should be seen in

the context of the previous statements made by the Appellate Body indicating that

Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement must be

interpreted in a coherent and consistent manner.

342

See, inter alia, Canada's opening oral statement at the first meeting with the Panel, paras. 52 – 56 and

61; Canada's Response to Question 7, para. 48, Question 23, paras. 118 – 119, and Question 23, para.

121; Norway's opening oral statement at the first meeting with the Panel, para. 35; and Norway's

Response to Question 7, paras. 48 – 49, and Question 27, paras. 165, 168 and 169. 343

Appellate Body Report, US – Tuna II (Mexico), para. 405.



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342. In particular, in US – Clove Cigarettes, the Appellate Body noted that the second

recital of the TBT Agreement ("Desiring to further the objectives of GATT 1994")

links it to the GATT 1994, suggesting that "the two agreements overlap in scope

and have similar objectives".344

It further noted that "the very similar formulation

of the provisions, and the overlap in their scope of application in respect of

technical regulations, confirm that Article III:4 of the GATT 1994 is relevant

context for the interpretation of the national treatment obligation of Article 2.1 of

the TBT Agreement".345

343. Importantly, the Appellate Body also noted that "[s]imilarly to Article III:4 of the

GATT 1994, Article 2.1 of the TBT Agreement requires WTO Members to accord

to the group of imported products treatment no less favourable than that accorded

to the group of like domestic products [and] Article 2.1 prescribes such treatment

specifically in respect of technical regulations"346

. Thus, it is clear that Article 2.1

of the TBT Agreement has a narrower scope than Articles I and III of the GATT

1994 since the former applies only to technical regulations. The Appellate Body's

statement in US – Tuna II (Mexico) as to the different "scope" of Article 2.1 of the

TBT Agreement and Articles I:1 and III:4 of the GATT 1994 should be read in

that light.

344. Moreover, the Appellate Body has confirmed that the essence of the substantive

non-discrimination obligation under Article 2.1 of the TBT Agreement and Article

III:4 of the GATT 1994 is the same: both permit distinctions to be made between

categories of the “like” products and those distinctions (either based on "technical"

aspects or other regulatory considerations) per se do not amount to "less

favourable treatment". In this respect, in US – Clove Cigarettes the Appellate

Body observed that:

344

Appellate Body Report, US – Clove Cigarettes, para. 91. 345


Appellate Body Report, US – Clove Cigarettes, para. 180.



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[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. 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)347

345. Therefore, the national treatment obligations of Article 2.1 and Article III:4 are

"built around the same core terms".348

The contours of the basic non-

discrimination obligations in Article 2.1 of the TBT Agreement and Article III:4 of

the GATT 1994 are similarly crafted as there would be no point in recognising the

regulatory space in the TBT Agreement if then the same regulatory autonomy

were to be undermined under Article III:4 of the GATT 1994.

346. The European Union does not see any reason why a different conclusion should be

reached with respect to the relationship between Article 2.1 of the TBT Agreement

and Article I:1 of the GATT 1994. Both (similarly to Article III:4) aim at ensuring

that origin-neutral regulatory criteria do not provide an unfair or improper

advantage, in terms of competitive opportunities, to products from certain sources

over "like" products from other sources. If Article I:1 of the GATT 1994, on the

one hand, and Article III:4 of the GATT 1994 and Article 2.1 of the TBT

Agreement, on the other hand, are interpreted differently, then regulations that are

consistent with Article III:4 of the GAT 1994 because they pursue a legitimate

objective would fall foul of Article I:1 of the GATT 1994. To illustrate this with

an example: internal regulations providing for incentives to products made or

marketed by certain categories of persons, such as those made by women,

minorities or handicapped people, could be found inconsistent with Article I:1 of

347

Appellate Body Report, US – Clove Cigarettes, para. 193 (citing Appellate Body Report, EC –

Asbestos, para. 100). 348

Appellate Body Report, US – Clove Cigarettes, para. 100.



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the GATT 1994 (based on Canada's and Norway's approach) and yet consistent

with Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement.

347. As a result, the European Union considers that the Appellate Body's statement in

US – Tuna II (Mexico) cited by the Complainants should be understood as

referring to the different "contents" and texts regarding the non-discrimination

obligations between Articles I:1 and III:4 of the GATT 1994 (MFN and national

treatment respectively) and Article 2.1 of the TBT Agreement (containing both

MFN and national treatment aspects), as well as the different "content" and text of

Article 2.1 of the TBT Agreement,349

which applies in the specific context of

technical regulations.

348. Second, the non-discrimination obligations in Articles I:1 and III:4 of the GATT

1994 permit, like in the case of Article 2.1 of the TBT Agreement,350

to draw

distinctions between products which have been found to be "like" without such

distinctions involving "less favourable treatment". By definition, discrimination

does not arise when two different factual situations are treated differently. In

contrast, discrimination arises when distinguishing among similarly-situated

situations.351

In most cases, the examination as to whether two situations are

similarly-situated would require examining whether the basis for such distinction

was proper or improper. In other words, in determining the existence of

discrimination, the objectives behind the distinction made between two situations

are relevant to establish whether those situations are similar and whether such a

distinction is proper.352

An examination of whether a measure discriminates

349

In this respect, the European Union observes that Article I:1 of the GATT 1994 also applies to exports

as well as products "destined for" the territory of another Member, whereas Article 2.1 of the TBT

Agreement applies only to imports. 350

See footnote 347 above. 351

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 'non discriminatory', 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"). 352

See Panel Report, Canada – Patent Protection of Pharmaceutical Products, para. 7.101 (“[D]e 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” (emphasis added).



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contrary to Articles I:1 and III:4 of the GATT 1994 without enquiring into the

objectives behind any different treatment would amount to a mechanical

application of these provisions.353

349. Whilst the "quantitative approach", together with all the other evidence, might be

pertinent to establish the existence of detrimental impact, it is necessary to go on to

consider whether or not such detrimental impact indeed reflects discrimination.

This necessarily entails an enquiry into whether the design and structure of the

measure is related to the foreign origin of the regulated products,354

or whether the

measure pursues a legitimate purpose upon which the regulatory distinction is

based and that explains the alleged detrimental impact.

350. In the European Union’s view, the relationship between Articles I:1/III:4 and XX

of the GATT 1994 does not require that the regulatory distinction made between

two different factual situations and resulting in de facto different treatment must

always be examined in the context of the exceptions under Article XX of the

GATT 1994.355

Such proposition would actually create an imbalance between the

TBT Agreement and the GATT 1994, contrary to the object and purpose of the

353

This is what the European Union would characterise as a “qualitative approach” in examining

discrimination. Unlike the “quantitative approach” suggested by the complainants, the distribution of

the data showing that a regulatory measure affects more products from one country in comparison

with products from other origins would not be dispositive of a finding of de facto discrimination. An

examination of the appropriateness of such an outcome or, put in other words, whether any

detrimental impact reflects discrimination, would require examining the objectives on which the

regulatory distinction was based. 354

Appellate Body Report, EC-Asbestos, para. 100 ("…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"); Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes,

para. 96 ("… the existence of a detrimental effect on a given imported product resulting from a

measure does not necessarily imply that this measure accords less favourable treatment to imports if

the detrimental effect is explained by factors or circumstances unrelated to the foreign origin of the

product"); Appellate Body Report, Thailand – Cigarettes, para. 128 ("… the mere fact that a Member

draws regulatory distinctions between imported and like domestic products is, in itself, not

determinative of whether imported products are treated less favourably within the meaning of Article

III:4"); Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.2514: ("… Argentina

has not adduced argument and evidence sufficient to raise a presumption that the alleged less

favourable treatment is explained by the foreign origin of the relevant biotech products"). 355

The European Union considers that a different outcome would arise in cases of de jure discrimination

(i.e. when a measure is non-origin neutral on its face). In those cases, the analysis of the objectives

and their justification would take place under Article XX of the GATT 1994. In contrast, it would

appear that the possibility of justifying de jure discriminations under Article 2.1 of the TBT

Agreement would be excluded. This makes sense in the context of the narrower scope of application

of the TBT Agreement.



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TBT Agreement356

and the Appellate Body's interpretation that "two Agreements

should be interpreted in a coherent and consistent manner".357

Indeed, the list of

exceptions under Article XX of the GATT 1994 is exhaustive whereas the list of

objectives that may be legitimately pursued by technical regulations is merely

illustrative.358

If both the GATT 1994 and the TBT Agreement are intended to

strike a balance between trade liberalisation and regulatory autonomy, then it

makes little (if any) sense for technical regulations to enjoy a much broader scope

of policy space than all other types of internal regulations. Further, it would make

no sense whatsoever to conclude that Articles I:1 and III:4 of the GATT 1994

prohibit what is consistent under Article 2.1 of the TBT Agreement, as this would

make Article 2.1 of the TBT Agreement and the balanced interpretation of that

provision carefully developed by the Appellate Body utterly useless. Given that

the GATT 1994 also applies to all technical regulations, complainants would have

an incentive to bring claims only under the GATT 1994, thereby limiting the

possibilities of justifying regulatory distinctions to those grounds contained in the

closed list in Article XX. This is precisely the situation in this dispute, when the

Norway has not made a claim under Article 2.1 of the TBT Agreement and has

invited the Panel to examine its claims under the GATT 1994 first,359

and where

Canada has invited the Panel to exercise judicial economy on its claims under the

TBT Agreement.360

351. In sum, the European Union considers that regulatory distinctions made with

respect to categories of “like” products within the relevant group or universe of

products and resulting in a different treatment do not per se amount to "less

favourable treatment"; rather, in order to determine whether such distinctions

violate Articles I:1 and/or Article III:4 of the GATT 1994, it is necessary to

examine whether such different treatment reflects discrimination.361

Consequently,

the European Union submits that the legal standard under Articles I:1 and III:4 of

the GATT 1994 and Article 2.1 of the TBT Agreement with respect to their non-

discrimination obligations is fundamentally the same. Both permit regulations

356

TBT Agreement, second recital. 357


TBT Agreement, sixth recital and Article 2.2. 359

Norway's Response to Questions 4 – 6, para. 39. 360


See also European Union's Response to Question 7, para. 17.



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drawing distinctions between categories of "like" products without such distinction

amounting to "less favourable treatment", except when those distinctions reflect

discrimination against the group of imported products.

352. With these considerations in mind, the European Union will examine the specific

arguments raised by the complainants in the context of their claims under Articles

I:1 and III:4 of the GATT 1994.

4.1.2. Claim under Article I:1 of the GATT 1994 (MFN Obligation)

353. As already explained in its first written submission, the European Union submits

that Canada's and Norway's claim under Article I:1 of the GATT 1994 must fail.362

In this submission, the European Union will make some remarks to the arguments

raised by the complainants in their oral statements as well as in their responses to

the questions from the Panel specifically relating to this claim. In particular, the

European Union will show that Norway is wrong when maintaining that the IC

exception de jure violates Article I:1 of the GATT 1994 because it is not

“ostensibly” origin-neutral on its face. Furthermore, the European Union will show

that the IC exception does not result in de facto discrimination contrary to Article

I:1 of the GATT 1994.

4.1.2.1 The IC exception is origin-neutral

354. Norway insists that the IC exception is not origin-neutral because the territories

from which qualifying goods may originate can be identified on a map, either

explicitly or by necessary implication. In this respect, Norway claims that the IC

exception is not ostensibly origin-neutral and, thus, amounts to a de jure

discriminatory contrary to Article I:1 of the GATT 1994.363

355. Norway attempts to blur the distinction between de jure and de facto

discrimination by wrongly arguing that the necessary implications of the terms of

the measure may already show that the measure is not origin-neutral on its face. In

the European Union's view, the necessary implications of the terms of the measure

do not imply looking at facts exogenous to the very terms of the measure. In other

362

European Union's first written submission, paras. 526 – 564. 363

Norway's opening oral statement at the first meeting with the Panel, paras. 43 – 48.



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words, if a measure is drafted in origin-neutral terms (such as by referring to

certain product characteristics that may, in principle, be found in products from

many origins), the fact that when looking at the reality such a description limits the

scope of the measure to one country only does not mean that the necessary

implication of the terms used by the measure amounts to de jure discrimination.

Put in other words, whether a measure is origin-neutral on its face has to be

examined on the very terms of the measure, without the need to have recourse to

any other facts or information in order to assess whether the measure, in reality,

refers to origin. Looking at other facts or information necessarily turns the inquiry

into one of de facto discrimination.

356. Moreover, the European Union observes that whether a measure de jure

discriminates against products because of origin must be assessed by examining

the measure on its face, i.e., the explicit terms of the measure in question. Norway

appears to argue that when a measure is not “ostensibly” origin-neutral, then the

measure is de jure discriminatory. This is not the case. There is no degree in the

examination of whether the measure de jure discriminates because of origin on its

face. Either the measure explicitly discriminates because of origin on its face or

not.364

As the panel in Canada – Periodicals put it, ”[d]iscrimination may arise

from explicitly different treatment, sometimes called ‘de jure discrimination’, but

it may also arise from ostensibly identical treatment which, due to differences in

circumstances, produces differentially disadvantageous effects, sometimes called

‘de facto discrimination’”.365

357. Thus, the European Union submits that Norway's approach to determine de jure

discrimination is incorrect, as a matter of law.366

364

To put it in other terms, a woman is pregnant or not. A woman is not “ostensibly” pregnant. 365

Panel Report, Canada – Patent Protection of Pharmaceutical Products, para. 7.94 (emphasis added). 366

See also the approach followed in Panel Report, US – Tuna II (Mexico), para. 7.305 ("… this

distinction is not inherently tied to the "national" origin of the fish"); Panel Report, US – COOL,

paras. 7.393-7.404 (rejecting the US argument that the measure was not related to the foreign origin of

the products); and GATT Panel Report, Belgium – Family Allowances, para. 3 (“According to the

provisions of paragraph 1 of Article I of the General Agreement, any advantage, favour, privilege or

immunity granted by Belgium to any product originating in the territory of any country with respect to

all matters referred to in paragraph 2 of Article III shall be granted immediately and unconditionally to

the like product originating in the territories of all contracting parties. Belgium has granted exemption

from the levy under consideration to products purchased by public bodies when they originate in

Luxembourg and the Netherlands, as well as in France, Italy, Sweden and the United Kingdom. If the

General Agreement were definitively in force in accordance with Article XXVI, it is clear that that



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358. Norway's arguments are also incorrect, as a matter of fact in the present case. The

European Union has already shown that the IC exception is origin-neutral on its

face.367

To recall, the IC exception does not list countries by name or is based on

factors such as the nationality of the hunter or the origin of the parts contained in

the products.368

Rather, the IC exception is drafted by reference to the purpose of

the hunt, in particular for the subsistence of Inuit and other indigenous

communities. In view of this, Article 3.1 of the Implementing Regulation requires

that the hunt (i) is conducted by Inuit or other indigenous communities which have

a tradition of seal hunting in the community and in the geographical region; that

(ii) the products of those hunts are at least partly used, consumed or processed

within the communities according to their traditions; and that (iii) those hunts

contribute to the subsistence of the community.

359. In sum, contrary to what Norway asserts, the IC exception is origin-neutral on its

face.

4.1.2.2 The IC exception does not de facto discriminate against

Canada's and Norway's imports under Article I:1 of the GATT 1994

360. For the reasons mentioned in paragraphs 196 – 234 above, the European Union

considers that the EU Seal Regime, through the IC exception, does not de facto

discriminate against Canada's and Norway's imports in the sense of Article I:1 of

the GATT 1994.


the EU Seal Regime through the IC exception does not

modify the conditions of competition to the detriment of Canadian and Norwegian

imports when compared to Greenlandic imports. The "quantitative approach"

suggested by the complainants cannot be dispositive of whether the measure in

exemption would have to be granted unconditionally to all other contracting parties (including

Denmark and Norway). The consistency or otherwise of the system of family allowances in force in

the territory of a given contracting party with the requirements of the Belgian law would be irrelevant

in this respect, and the Belgian legislation would have to be amended insofar as it introduced a

discrimination between countries having a given system of family allowances and those which had a

different system or no system at all, and made the granting of the exemption dependent on certain

conditions”). 367


See e.g., Panel Report, Colombia – Ports of Entry, paras. 7.362 – 7.367; and Panel Report, Indonesia

– Autos, paras. 14.112 – 14.113. 369

See paras. 199 – 216 above of this submission.



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question provides an unfair advantage to the group of "like" products originating

in Greenland when compared to the treatment provided to the group of products

originating in Canada or Norway.370

In the European Union’s view, as part of an

examination of the totality of the facts, Article I:1 of the GATT 1994 calls for a

“qualitative approach” whereby the treatment granted to a group of imported

products when compared with the treatment granted to a group of “like” products

from other origins should be examined in light of the objectives behind the

regulatory distinction.

362. In this respect, the European Union observes that Canada argues that the test for a

violation under Article I:1 is not whether there has been less favourable treatment

accorded to a "like" product from one country but whether an advantage has been

provided to a "like" product from a WTO Member that is not accorded

immediately and unconditionally to an “individual” “like” product from any other

country.371

What is relevant, according to Canada, is that "some seal products from

Greenland are exported or available for export and would meet the conditions of

the IC category for access to the EU market".372

363. The European Union disagrees. As explained before,373

the term "unconditionally"

in Article I:1 of the GATT 1994 does not mean that any favourable treatment or

advantage has to apply in the exact and same manner to each and every import,

irrespective of its 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 pursuing legitimate objectives 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.

364. Thus, the same considerations as those made in the context of Canada's claim

under Article 2.1 of the TBT Agreement apply when examining Canada's claim

under Article I:1 of the GATT 1994.374

370

See in particular, paras. 200 – 201 above of this submission 371







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365. The same observations apply mutatis mutandi to Norway. Seal products derived

from hunts for commercial purpose in Canada, Norway, Greenland and anywhere

in the world are subject to the General Ban, whereas seal products derived from

hunts conducted by Inuit and other indigenous communities for subsistence

purposes in Canada, Norway, Greenland and anywhere in the world can be placed

on the EU market under the IC exception.

366. Moreover, with respect to specific facts relating to Norway, the European Union

observes that, like Canada, Norway provides government support to its

commercial seal hunting.375

Further, no public or private entity in Norway has

requested to become a recognised body either. Again, this is a matter of choice and

judgement by Norway, despite the uncontested fact that Norway has seal hunts

potentially falling under the IC exception.376

Norway’s actions (omissions) and

choices are, therefore, relevant in the examination of whether the EU Seal Regime,

through the IC exception, modifies the conditions of competition to the detriment

of Norway's imports (which is not the case, as the European Union pleads).

367. Furthermore, as explained before, in cases where the measure at issue draws

distinctions within the group of products on the basis of legitimate objectives, such

distinctions does not show discrimination per se. In order to determine whether the

distinctions drawn reflect discrimination it is necessary to examine the objectives

behind such a distinction. The European Union submits that the considerations

made in this respect when dealing with Canada's claim under Article 2.1 of the

TBT Agreement apply mutatis mutandi to Canada's and Norway's claim under

Article I:1 of the GATT 1994.377

The objective behind the regulatory distinction

made by the IC exception is legitimate, and any differential treatment resulting

375

See amicus curiae brief by Anima et al., paras. 210 (Exhibit EU-81); see also press clipping by

kystogfjord.no, "Four for seal hunt", dated 7 March 2013 ("Four ships have joined this year's seal

hunt. The ships can get to 10 million in subsidies. A total of 32,000 harp seals can be caught this year.

Also receiving site can receive grants for specific terms. The scheme aims to ensure that the industry

can operate as efficiently and profitably as possible, said of Fisheries and Coastal Affairs in a

statement. Quotas and regulations will be continued from last year, with the ability to capture 25,000

one year and older harp seals in the West Ice and 7000 one year and older harp seals in the East Ice.

Harvesting period is set at 10 April - 30 June") (available at

http://www.kystogfjord.no/nyheter/forsiden/Fire-paa-selfangst). 376

Norway's Response to Question 85, para. 419 ("…the Government of Norway sees no utility in

investing taxpayers’ resources in securing the European Commission’s approval for a Norwegian

body that would be bound to disappoint Norwegian traders in implementing a WTO-inconsistent

measure that is attributable to the European Union"). 377


http://www.kystogfjord.no/nyheter/forsiden/Fire-paa-selfangst



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from the regulatory distinction made by the EU Seal Regime through the IC

exception does not reflect discrimination.

4.1.2.3 Conclusion

368. In view of the foregoing, the European Union requests the Panel to reject Canada's

and Norway's claim under Article I:1 of the GATT 1994.

4.1.3. Claim under Article III:4 of the GATT 1999 (National Treatment Obligation)

369. For the reasons explained in its first written submission378

as well as in paragraphs

235 – 263 of this submission, the European Union submits that Canada's and

Norway's claim under Article III:4 of the GATT 1994 must also fail.

370. The EU Seal Regime, through the MRM exception, does not modify the conditions

of competition to the detriment of Canada's and Norway's imports.379

The EU Seal

Regime equally affects seal products resulting from hunts for commercial purposes

(non-conforming with the EU Seal Regime) as well as seal products resulting from

hunts for management purposes (conforming with the EU Seal Regime, through

the MRM exception). Seal products derived from commercial hunts are subject to

the General Ban, regardless of whether they come from Canada, Norway or the

European Union. Seal products derived from hunts for management purposes can

be placed on the EU market pursuant to the MRM exception regardless of whether

they come from Canada, Norway or the European Union. In this respect, the EU

Seal Regime, including the MRM exception, is based on considerations that are

completely unrelated to the domestic origin of the seal products and, thus, does not

modify the conditions of competition to the detriment of Canada's and Norway's

imports.

371. Even if the EU Seal Regime, through the MRM exception, were to modify the

conditions of competition to the detriment of Canada's and Norway's imports, the

European Union considers that the distinction drawn by the EU Seal Regime

through the MRM exception does not amount to "less favourable treatment". The

distinction must be viewed in light of the legitimate objectives pursued by such a

378





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distinction.380

The European Union submits that the considerations made in this

respect when dealing with Canada's claim under Article 2.1 of the TBT Agreement

apply mutatis mutandi to Canada's and Norway's claim under Article III:4 of the

GATT 1994.381

The objective behind the regulatory distinction made by the MRM

exception is legitimate, and any differential treatment resulting from the regulatory

distinction made by the EU Seal Regime through the MRM exception does not

reflect discrimination.

372. Consequently, the European Union requests the Panel to reject Canada's and

Norway's claim under Article III:4 of the GATT 1994.

4.1.4. Conclusions

373. In light of the foregoing, the European Union submits that the EU Seal Regime,

through the IC and MRM exceptions, does not violate Articles I:1 and III:4 of the

GATT 1994.

4.2. CLAIM UNDER ARTICLE XI OF THE GATT 1994

374. In its first written submission, the European Union has already shown that the EU

Seal Regime is an internal measure indistinctly applicable to foreign or domestic

products.382

Thus, the Panel should examine whether the EU Seal Regime, through

the IC and MRM exceptions, is discriminatory under Articles I:1 and III:4 of the

GATT 1994, as claimed by Canada and Norway.

375. In this respect, the European Union notes that in its responses to the Panel's

Questions, Canada has clarified that its claims under Articles III:4 and XI are

380

Indeed, Article III:4 of the GATT 1994 itself permits different treatment based on non-origin related

factors ("The provisions of this paragraph shall not prevent the application of differential internal

transportation charges which are based exclusively on the economic operation of the means of

transport and not on the nationality of the product"). In this respect, the European Union wonders how

a determination that a measure of this type de facto discriminates against imported products when

compared with “like” domestic products merely on the basis of the “quantitative approach” without

examining, for instance whether the different internal transportation charges are exclusively based on

the economic operation of the means of transport. This shows again that the objectives of the

regulatory distinction should be examined already at the stage of determining the existence or not of

the violation of Article III:4 of the GATT 1994. 381

See paras. 252– 263 above of this submission. 382

European Union's first written submission, paras. 488 – 499.



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made in the alternative, to the extent that it is enforced at the time of

importation.383

376. The European Union confirms that it is the case. Article 3.1 of the Basic

Regulation 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). The fact that the EU Seal Regime is enforced at the

border is merely for administrative convenience, in order to ensure effective

enforcement.

377. For its part, Norway agrees that for aspects of the EU Seal Regime that operate as

an internal regulation "which applies to … the like domestic product", it is

appropriate to analyse the matter under Article III:4 of the GATT 1994. However,

for restrictions on imports that do not operate in this way, Norway’s claim under

Article XI:1 must be addressed. Norway identifies the Travellers exception as

restricting imports by laying down conditions as to "personal use" and the "nature

and quantity" of imports.384

378. The European Union considers Norway's explanation nonsensical. The EU Seal

Regime imposes a General Ban that applies to all seal products, foreign and

domestic. In this sense, the EU Seal Regime and the IC and MRM exceptions also

apply to the “like” domestic products (as well as any imported product). With

respect to the Travellers exception, while it applies only to imports, it provides

"more favourable treatment" as a derogation from the General Ban.

379. Moreover, the three exceptions made by the EU Seal Regime are not trade

restrictive and, therefore, cannot amount to import restrictions under Article XI of

the GATT 1994. Norway apparently argues that if a country that does not produce

e.g. asbestos, bans the placing on the market of such a product regardless of its

383

Canada's Response to Question 3. 384

Norway's Response to Question 3. Canada makes the same argument (Canada's Response to Question

1, para. 24).



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origin, such a measure would amount to an import restriction under Article XI of

the GATT 1994. The European Union respectfully disagrees with such

characterisation.

380. Norway also seems to ignore that the EU Seal Regime permits the further

processing of seal products by operators in the EU market. For instance, a

producer of handbags in Italy can still make those handbags using seal products

placed on the market in accordance with the IC or MRM exceptions. Thus, the EU

Seal Regime does not operate “effectively” as a border measure.

4.3. ARTICLE XX(a) OF THE GATT 1994

381. Norway has argued that the European Union "has failed to defend the

discriminatory aspects of the EU Seal Regime".385

382. The European Union disagrees. The less favourable treatment alleged by the

Complainants results from the interplay between the General Ban and the IC and

MRM exceptions. Specifically, the alleged les favourable treatment results from

the fact that the placing on the market of some products imported from Greenland

and of some domestic products is allowed, respectively, by the IC exception and

the MRM exception, whereas the placing on the market of some products imported

from Canada and Norway is prohibited pursuant to the General Ban.

383. As explained by the European Union, if the Panel found that the alleged difference

in treatment is inconsistent with Articles I:1 and/or Article III:4 of the GATT

1994, it should examine whether the "regulatory differences"386

between the

General Ban and the two exceptions are "necessary" in order to achieve the

objectives invoked by the European Union.

384. More precisely, in order to establish that the less favourable treatment alleged by

the Complainants is justified under Article XX(a) or Article XX(d), the following

would have to be shown: (1) that the treatment provided to seal products subject to

the General Ban is “necessary” in order to achieve the objectives set out in Article

XX(a) and/or Article XX(b) at the selected level of protection; and (2) that it is not

385

Norway's oral statement, paras. 49-52. 386

Appellate Body Report, Thailand – Cigarettes, para. 177. Footnote omitted. Underlining added.



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“necessary”, in order to achieve those objectives at the same level of protection, to

extend the same treatment provided under the General Ban to seal products falling

under the MRM exception or the IC exception.

385. The European Union has shown that the General Ban is necessary in order to

achieve the public morals objective pursued by the EU Seal Regime.387

The

European Union has also shown that prohibiting the placing on the market of

products falling within the IC exception and the MRM exception would not be

necessary in order to attain that objective, because the seal products falling under

those two exceptions do not raise moral concerns, unlike the products from the

commercial hunts.388

Therefore, the regulatory differences alleged to be

discriminatory by Norway are justified under Article XX(a)

386. As regards Article XX(b), the European Union has shown that, even if the Panel

were to decide that the EU Seal Regime does not seek to address the moral

concerns of the EU public, but exclusively the concerns on seal welfare as such,

the General Ban would be necessary in order to achieve the latter objective. 389

Prohibiting the placing on the market of products falling within the IC exception

and the MRM exception would not be necessary because those products result

from hunts which take place under different conditions.390

Moreover, prohibiting

the placing on the market of products within the scope of the MRM exception

would not prevent the killing of the seals concerned, which are hunted exclusively

for management purposes, and could be counterproductive from an animal welfare

point of view.391

5. CONCLUSION

387. For the reasons set out in this submission, the European Union reiterates its request

that the Panel rejects all the claims submitted by the Complainants.

387

EU's first written submission, paras. 357-418. See also sections 33.1 and 3.3.2 above. 388

EU's first written submission, paras. 40-41. See also EU's response to Panel's Question 10, paras. 43-

45 and 48. 389

EU's first written submission, paras. 357-418. See also sections 33.1 and 3.3.2 above 390

EU's response to the Panel's Question 8. 391

EU Response to the Panel's Question 8.

Documents

In the World Trade Organization European Communities ...trade.ec.europa.eu/doclib/docs/2013/april/tradoc_150812.pdf · In the World Trade Organization European Communities – Measures