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IS THE EU SEAL PRODUCTS REGULATION A SEALED DEAL? EU AND WTO CHALLENGES

  • Tamara Perišin (a1)

Abstract

In both the EU and the WTO there are currently pending cases on the legality of EU Regulation 1007/2009 on trade in seal products and its Implementing Regulation 737/2010. While seals seem to be very attractive to the public so that raising arguments against these EU measures are not popular, the Regulations do raise concerns about competences, subsidiarity and proportionality which are relevant for compliance with EU primary law. They also raise concerns about possible protectionism, the use of public morals, coherence and necessity with regard to compatibility with WTO law. This paper seeks to examine all these issues.

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1 Regulation (EC) 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products [2009] OJ L286/36 (hereinafter: the Regulation).

2 Commission Regulation (EU) 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) 1007/2009 of the European Parliament and of the Council on trade in seal products [2010] OJ L216/1 (hereinafter: the Implementing Regulation).

3 The idea that WTO law should have a direct effect was rejected during the Uruguay Round, while the fact that it does not have such an effect was confirmed by the Panel in WTO, United States – Sections 301–310 of the Trade Act of 1974—Panel Report (22 December 1999) WT/DS152/R, para 7.72. On the effect of WTO law in the EU, see eg Case C-21-24/72 International Fruit Company v Produktschaap voor Groenten and Fruit [1972] ECR 1219; Case 70/87 Fediol v Commission [1989] ECR 1781; Case C-69/89 Nakajima v Council [1991] ECR I-2069. See also Snyder, F, ‘The Gatekeepers: The European Courts and WTO Law’ (2003) 40 CMLRev 313; 2Dani, M, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders’ (2010) 21 EJIL 303.

4 See different views on whether the EU Regulations on seal products is consistent with WTO law: Howse, R and Langille, J, ‘Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Permit Trade Restrictions Justified by Non-Instrumental Moral Values’ (2012) 37 YaleJIntlL 367; Fitzgerald, PL, ‘ “Morality” May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law’ (2011) 14 Journal of International Wildlife Law & Policy 85; De Ville, F, ‘Explaining the Genesis of a Trade Dispute: The European Union's Seal Trade Ban’ (2012) 34 Journal of European Integration 37; Ankersmit, L, Lawrence, J and Davies, G, ‘Diverging EU and WTO Perspectives on Extraterritorial Process Regulation’ (2012) Minnesota Journal of International Law Online, Spring <http://ssrn.com/abstract=2007098>; 7Luan, X and Chaisse, J, ‘Preliminary Comments on the WTO Seals Products Dispute: Traditional Hunting, Public Morals and Technical Barriers to Trade’ (2011) 22 ColJIntlEnvtlL&Pol 2.

5 See activities listed above (n *).

6 Hunted seal species are, with one exception, not listed in the appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Only the cape fur seal, hunted in Namibia, was listed in CITES Appendix II which means that this is one of the species that are ‘not necessarily now threatened with extinction but that may become so unless trade is closely controlled’. The Commission funded study on the potential impact of a seals ban of products derived from seal species conducted by the consultancy, ‘Assessment of the Potential Impact of a Ban of Products Derived from Seal Species’ April 2008, 26, 116 <http://ec.europa.eu/environment/biodiversity/animal_welfare/seals/seal_hunting.htm>.

Similarly, the IUCN Red List <http://www.iucnredlist.org/> distinguishes seven levels of endangerment: least concern, near threatened, vulnerable, endangered, critically endangered, extinct in the wild, and extinct. Of the five seal species which are (according to the EU website <http://ec.europa.eu/environment/biodiversity/animal_welfare/seals/seal_hunting.htm>) most hunted—harp seals, ringed seals, grey seals, hooded seals and Cape fur seals (also known as Afro-Australian fur seals)—four have the status ‘least concern’ while hooded seals have the status ‘vulnerable’.

7 There is an abundant literature on the reasons behind animal welfare and the pivotal work on speciesism by Peter Singer can also lend support to a regulatory system which would be aimed at protecting more than one selected, non-endangered, species. See Singer, P, Animal Liberation: A New Ethics for our Treatment of Animals (New York Review 1975). For an analysis of animal welfare in the light of WTO law, see Nielsen, L, The WTO, Animals and PPMs (Martinus Nijhoff Publishers 2007).

8 See European Food Safety Authority, ‘Scientific Opinion on Animal Welfare Aspects of the Killing and Skinning of Seals’ <http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178671319178.htm>; European Parliamentary Questions <http://www.europarl.europa.eu/sidesSearch/sipadeMapUrl.do?PROG=QP&SORT_ORDER=DA&S_REF_QP=%25&S_RANK=%25&F_MI_TEXT=seal&MI_TEXT=seal&LEG_ID=6&L=EN>; Spongenberg, H, ‘Canada Starts Trade Dispute with the EU over Seals’ (2007) EU observer <http://euobserver.com/9/24853>.

9 WTO, European Communities: Certain Measures Prohibiting the Importation and Marketing of Seal Products (Complainant: Canada), DS36925 September 2007.

10 Art 2(1(1)) Regulation (n 1).

11 MacDonald, DW (ed), The Encyclopaedia of Mammals (OUP 2006) 479, 520–35.

12 Art 3 Regulation (n 1).

13 ibid art 3(1).

14 ibid art 3(2)b).

15 ibid art 3(2)a).

16 WTO, European Communities: Measures Prohibiting the Importation and Marketing of Seal Products (Complainant: Canada) DS400 2 November 2009.

17 WTO, European Communities: Measures Prohibiting the Importation and Marketing of Seal Products (Complainant: Norway) DS401 5 November 2009.

19 Dispute Settlement: WTO establishes panel in seal case, 21 April 2011 <http://www.wto.org/english/news_e/news11_e/dsb_21apr11_e.htm>.

20 The Report of the Canadian Parliament's fact finding mission to the EU reports that ‘sensitive issues like the seal hunt … [a]lthough … not part of the CETA negotiating agenda, they could affect ratification of any future agreement’. Fact-Finding Mission to the European Union on the Benefits and Challenges of a Possible Comprehensive Economic and Trade Agreement Between Canada and the European Union – Report of the Standing Committee on International Trade, February 2011, 40th Parliament, 3rd Session <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4928552&Language=E&Mode=1&Parl=40&Ses=3&File=5> and cited from <www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4928552&Language=E&Mode=1&Parl=40&Ses=3&File=18>. However, discussions in the Canadian Parliament reveal that there is agreement between the EU and Canada to treat the seal dispute separately from CETA. See, eg, Minutes of the 40th Parliament, 3rd Session Standing Committee on International Trade, 15 November 2010 <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4775831&Mode=1&Parl=40&Ses=3&Language=E>; Minutes of the 41st Parliament, 1st Session, 8 June 2011<http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5082569&Language=E&Mode=1&Parl=41&Ses=1>. On the relationship between the negotiated FTA and the seals dispute, see De Ville (n 4).

21 Art 3 Council Directive 83/129/EEC of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived therefrom [1983] OJ L091/30.

22 Art 3(2) Loi relative à l'interdiction de fabriquer et de commercialiser des produits dérivés de phoques, 16 Mars 2007, Moniteur Belge 18 March 2007 <http://www.ejustice.just.fgov.be/cgi/api2.pl?lg=fr&pd=2007-04-18&numac=2007011138>.

23 Besluit van 15 maart 2011 houdende wijziging van het Besluit aanwijzing dier- en plantensoorten Flora- en faunawet en het Besluit vrijstelling beschermde dier- en plantensoorten in verband met Europees verbod handel zeehondenproducten, Staatsblad van het Koninkrijk der Nederlanden 155, 2011, 4 <https://zoek.officielebekendmakingen.nl/stb-2011-155.pdf>.

24 The Leghold Trap Regulation, for example, did not contain any exceptions for indigenous communities. In 1995 there was a Proposal to amend the Regulation which referred to indigenous peoples, but it was never adopted. Instead, the Agreement on international humane trapping standards between the European Community, Canada and the Russian Federation was adopted in 1998, providing derogations for uses of ‘traditional wooden traps essential for preserving cultural heritage of indigenous communities’. A similar agreement between the EU and US has no such provision. See Council Regulation (EEC) 3254/91 of 4 November 1991 prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards [1991]OJ L308/1; Proposal for a Council Regulation (EC) amending Council Regulation (EEC) 3254/91 prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards, COM(95) 737 final – 95/0357 (SYN); art 10 – 1 d) Agreement on international humane trapping standards between the European Community, Canada and the Russian Federation[1998] OJ L42/43. Agreed Minute, L 219/26 <http://ec.europa.eu/environment/biodiversity/animal_welfare/hts/pdf/l_21919980807en00260037.pdf>.

26 Art 3(1) Implementing Regulation (n 2).

27 ibid arts 7, 9.

28 ibid art 7.

29 ibid.

30 ibid art 8(4).

31 T-18/10 Inuit Tapiriit Kanatami ea v Parliament and Council, action brought on 11 January 2010 [2010] OJ C100/64.

32 T-526/10 Inuit Tapiriit Kanatami and Others v Commission, action brought on 9 November 2010 [2011] OJ C13/34.

33 T-18/10 Inuit Tapiriit Kanatami ea v Parliament and Council, Order of the General Court of 6 September 2011.

34 Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council, appeal brought on 23 November 2011[2012] OJ C58/3.

35 The Commission funded study (n 6) mentions four EU members or overseas counties and territories which could be affected by then seal ban: Finland, Sweden, the UK (Scotland) and Greenland. In Finland and Sweden, the seal hunt is largely recreational and not commercial (35, 79). In the UK, seals are not hunted, but are killed to protect the fisheries industry (87). The Regulation does not apply to Greenland. Data on the seal hunt in the EU are also available in the EFSA's ‘Scientific Opinion’ (n 8), which mentions Finland, Sweden and the UK as countries where seals are hunted, while only Sweden is listed among those where some commercial hunting takes place.

36 T-18/10 Inuit Tapiriit Kanatami, action for annulment (n 31).

37 The challenge on the basis of fundamental rights is tenuous, and it might have been incorporated into the application only to show how the applicants are affected by the Regulation and Implementing Regulation. The Inuit claim that the Regulation ‘unduly limits [their] subsistence possibilities’ and thereby violates art I of Protocol No I to the European Convention of Human Rights (ECHR) – Protection of property; and art 8 ECHR – ‘Right to respect for private and family life’, read in light of arts 9 ‘Freedom of thought, conscience and religion’ and 10 ECHR ‘Freedom of expression’, and the right to be heard. In the absence of any available material which would offer some explanation of these claims, the problems seem to be as follows. First, some of these rights are not recognized in the legal order of the EU or of its Member States, eg the right to be heard in the legislative process is not a fundamental right and exists only when another piece of legislation explicitly grants it. Second, all the other mentioned rights are not absolute and can be limited under certain conditions. Third, there would be serious problems with the extraterritorial application of fundamental rights if a regulation of one country or of the EU which applies on its territory could be found to breach the rights of persons leaving and working primarily in another country and on another continent. Similar cases have never been decided by the European Court of Human Rights or the CJEU.

38 Art 1(2) TEU.

39 See Lenaerts, K, ‘Federalism: Essential Concepts in Evolution – The Case of the European Union’ (1998) 21 Fordham Int LJ 746; McConnell, MW, ‘Federalism: Evaluating the Founders'Design’ (1987) 54 U Chi L Rev 1484; Rubin, EL and Feeley, M, ‘Federalism: Some Notes on a National Neurosis’ (April 1994) 41 U Cal LAL Rev 903; Young, EA, ‘Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism’ (December, 2002) 77 NYUL Rev 1612; Young, EA, ‘Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments’ (March 2005) 46 William and Mary Law Review 1733; Lenaerts, K, ‘Constitutionalism and the Many Faces of Federalism’ (1990) 38 Am J Comp L 205; Halberstam, D and Hills, RM Jr, ‘State Autonomy in Germany and the United States’ (2001) 574 Annals of the American Academy of Political & Social Sciences 158; von Bogdandy, A, ‘The European Union as Situation, Executive, and Promoter of International Law of Cultural Diversity – Elements of Beautiful Friendship’ (2008) 19 EJIL 241.

40 Art 114 TFEU (ex Art 95 EC; 100a EC).

41 Case C-376/98 Germany v European Parliament & Council [2000] ECR I-8419 (hereinafter: Tobacco Advertising).

42 Case C-58/08 The Queen on the application of Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, Orange Personal Communications Services Ltd v Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-04999.

43 Tobacco Advertising (n 41) para 83.

44 ibid para 84.

45 ibid.

46 ibid para 86.

47 ibid para 95. Actually, in Tobacco Advertising the CJEU did not use the connector ‘or’, but instead the connector ‘and’. However, it can be seen from the application of this test that the three elements do not have to be cumulatively met. In other words, only one of the three elements of the test had to be fulfilled for a directive to be valid. This is confirmed by the BAT case where the CJEU adjusted its wording, BAT para 60. Case C-491/01 The Queen and Secretary of State for Health, ex parte: British American Tobacco Investments Ltd and Imperial Tobacco Ltd, supported by Japan Tobacco Inc and JT International SA [2002] ECR I-11453 (hereinafter: BAT).

48 BAT (n 47).

49 Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products [2001] OJ L194 /26.

50 Art 8(2) Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products [1989] OJ L359/1.

51 Vodafone (n 42) paras 34–36.

52 See eg Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, para 15.

53 Case C-210/03 Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I-11893; the Court in para 9 cites recital 17 of the Preamble to Council Directive 92/41/EEC of 15 May 1992 amending Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products [1992] OJ L158/30 which was amended by the disputed Directive.

54 Vodafone (n 42) paras 45–47.

55 See Wyatt, D, ‘Community Competence to Regulate the Internal Market’ in Dougan, M, Currie, S (eds), 50 Years of European Treaties, Oxford Legal Studies Research Paper No 9/2007 (Hart Publishing 2009) 2933, available at SSRN: <http://ssrn.com/abstract=997863>; Wyatt, D, ‘Is the European Union an Organization of Limited Powers? in Arnull, A et al. (eds), A Constitutional Order of States? (Hart Publishing 2011).

56 Swedish Match (n 53) paras 37, 38.

57 See on this point the Vodafone (n 42), Opinion of AG Poiares Maduro, especially fn 15. On whether the Community has general power to regulate the internal market, see Wyatt, ‘Community Competence’ (n 55).

58 cf case law from Tobacco Advertising (n 41) and Swedish Match (n 53) with US Supreme Court cases United States v Morrison [2000] 529 US 598 and United States v Gonzalez-Lopez [2006] 548 US 140 on the one hand, and Gonzales v Raich [2005] 545 US 1 on the other hand.

59 Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products, Brussels, 23 July 2008 COM (2008) 469 final, 2008/0160 (COD).

60 See eg Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on 20 February 1979 in Case 120/78 (Cassis de Dijon) [1980] OJ C256/2.

61 Proposal for a Regulation of the European Parliament and of the Council concerning trade in seals products, 2008/0160 (COD).

62 ibid art 4(1).

63 ibid.

64 ibid art 4(2).

65 For a detailed analysis of the Regulation's legislative history, see De Ville (n 4).

66 Preamble of the Regulation (n 1) recital 6.

67 Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety [2002] OJ L011/4. See Case C-359/92 Germany v Council [1994] ECR I-3681 in connection with Council Directive 92/59/EEC of 29 June 1992 on general product safety [1992] OJ L228/ 24.

68 Preamble of the Regulation (n 1) recital 7.

69 ibid recital 8.

70 See on this point Weatherill, S, ‘The Limits of Legislative Harmonization Ten Years after Tobacco Advertising: How the Court's Case Law Has Become a “Drafting Guide” ’ (2011) 12 German Law Journal 827.

71 Art 5 (ex art 4) Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality [2008] OJ C115/206.

72 EFSA Scientific Opinion (n 8).

73 Commission funded study (n 6).

74 Impact Assessment on the Potential Impact of a Ban of Products Derived From Seal Species COM (2008) 469 final, COM (2008) 2291. <http://ec.europa.eu/environment/biodiversity/animal_welfare/seals/pdf/seals_ia.pdf>.

76 See Young, AR, ‘Incidental Fortress: The Single European Market and the World Trade’ (2004) 42 J Com Mar St 393.

77 WTO, European Communities: Measures Affecting the Approval and Marketing of Biotech Products – Reports of the Panel (29 September 2006) WT/DS291/R, WT/DS292/R, WT/DS293/R.

78 GATT: arts I:1; III:4; XI:1; XXIII:1(b)—not invoked by Norway; TBT: arts 2.1; 2.2; 5.1 (5.1.1, 5.1.2— subparagraphs specified by Canada); 5.2 (5.2.1, 5.2.2, 5.2.3—subparas specified by Canada); 5.4; 5.6; 6.1, 6.2—this paragraph is not explicitly specified by Norway, but Norway invoked the whole of art 6; 7.1; 7.2—not invoked by Norway; 7.4, 7.5, 8.1, 8.2, 9.2—not invoked by Canada; 9.3 not invoked by Canada; and the Agriculture Agreement: art 4.2.

79 In the WTO, this provision banning quantitative restrictions and certain other non-fiscal measures has been interpreted quite narrowly in contrast to art 34 TFEU, but internal measures which limit imports can be dealt with under the art III GATT national treatment principle. According to the Panel in Canada–FIRA, the interpretative note ad art III suggests that art XI applies to importation and that art III applies to imported products, art XI deals with border measurers and art III with internal measures. Similarly, in EC–Asbestos, the Panel held (and this was upheld by the AB) that the asbestos import ban was not a prohibition on imports covered by art XI, but instead an internal measure consisting of a ban on the sale and use of asbestos which was for administrative purposes applied at the border. Canada–Administration of the Foreign Investment Review Act (FIRA) (1984) GATTBISD 30S/140 para 5.14. WTO, European Communities: Measures Affecting Asbestos and Asbestos-Containing Products—Report of the Panel (18 September 2000) WT/DS135/R, paras 8.83–8.100.

80 eg in WTO, European Communities: Measures Concerning Meat and Meat Products (Hormones)—Report of the Appellate Body (16 January 1998) WT/DS26/AB/R and WT/DS48/AB/R; WTO, Japan: Measures Affecting Agricultural Products—Report of the Appellate Body (22 February 1999) WT/DS76/AB/R; WTO, Japan: Measures Affecting the Importation of Apples—Report of the Appellate Body (26 November 2003) WT/DS245/AB/R; WTO, European Communities: Trade Description of Sardines—Report of the Appellate Body (26 September 2002) WT/DS231/AB/R. For a commentary of the relationship between science and the SPS, see J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures (OUP 2007). See also J Pauwelyn, ‘The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes – EC – Hormones, Australia – Salmon and Japan – Varietals’ (1999) 2 JIEL 641.

81 See on this point Hudec, RE, ‘GATT/WTO Constraints on National Regulation: Requiem for an “Aim and Effects” Test’ (1998) 32 Intl Law 619; Regan, DH, ‘Regulatory Purpose and “Like Products” in Article III:4 of the GATT (with Additional Remarks on Article III:2)’ (2002) 36 JWT 443; Regan, DH, ‘Further Thoughts on the Role of Regulatory Purpose under Article III of the General Agreement on Tariffs and Trade’ (2003) 37 JWT 737.

82 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7.

83 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the Conservation of Wild Birds [2010] OJ L20/7.

84 eg Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes [1998] OJ L221 /23.

85 eg Council Regulation (EC) 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) 1255/97 [2005] OJ L3/1.

86 eg Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing [1993] OJ L340/21.

87 Case C-341/95 Gianni Bettati v Safety Hi-Tech Srl [1998] ECR I-04355, paras 37–43; WTO, United States: Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products—Report of the Panel (15 September 2011)WT/DS381/R (hereinafter: Tuna/Dolphin III) para 7.442.

88 See eg McGinness, S and Richards, P, ‘The Fur Farming (Prohibition) Bill, Bill 6 of 1999–2000’ (2000) House of Commons Research Paper 00/4.

89 Art 2(1(1)) Regulation.

90 MacDonald (n 11) 479, 520–535.

91 See IUCN Red List (n 6) and comment in note 5 for an overview of seven levels of endangerment and the observation that most seal species are in the category of ‘least concern’.

92 Directive 83/129/EEC (n 21).

93 See data from the Commission funded study (n 6) and EFSA scientific opinion (n 8) cited in n 35.

94 The European Fur Breeders' Association Fact Sheet <http://www.efba.eu/fact_sheet.html>.

95 United States International Trade Commission (USITC), Industry & Trade Summary—Furskins 18 <http://www.usitc.gov/publications/332/pub3666.pdf>.

96 Saga Furs <http://www.sagafurs.com/>.

97 USITC (n 95) 18.

98 Kopenhagenfur <http://www.kopenhagenfur.com/>.

99 Preamble of the Regulation (n 1) recitals 7, 8.

100 Report of the Working Party on Border Tax Adjustments, adopted on 2 December 1970 (L/3464) para 18; cited eg in WTO, Japan: Tax on Alcoholic Beverages—Report of the Appellate Body (4 October 1996) WT/DS/8,10-11/AB/R, 20.

101 WTO, Chile: Taxes on Alcoholic Beverages—Report of the Appellate Body (13 December 1999) WT/DS87/AB/R, WT/DS110/AB/R, paras 62, 71.

102 WTO, European Communities: Measures Affecting Asbestos and Asbestos-Containing Products—Report of the Appellate Body 12 March 2001WT/DS135/AB/R, para 99 (majority view) paras 153, 154 (dissent of the concurring member). WTO, Philippines: Taxes on Distilled Spirits—Report of the Appellate Body (21 December 2011) WT/DS396/AB/R, WT/DS403/AB/R, paras 119, 120.

103 EC–Asbestos, AB Report (n 102) para 139.

104 To determine a breach of art III:4 GATT, the complainant will have to prove three elements: that there are domestic and foreign products which are like; that foreign like products are treated less favourably than domestic ones; and that this is done so as to afford protection to domestic production. To prove that a measure is justified on the basis of art XX GATT, one has to prove that it is covered by one of the listed justification grounds, that it is suitable or necessary to achieve that aim and that it is not contrary to the chapeau which requires measures not to be ‘applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade' (chapeau of art XX GATT). The Panel can approach these issues in technically different ways. For example, in the analysis of art III: 4, the analysis of ‘likeness’ of domestic and foreign products precedes the analysis of ‘less favourable treatment’ of foreign products, but there are cases where the Panel reversed the order of analysis (eg EC–Biotech, Panel Report (n 77)). The Panel can also take different approaches to ‘likeness’, to non-written justification grounds, etc.

105 WTO, United States: Import Prohibitions on Certain Shrimp and Shrimp Products—Report of the Panel (15 May 1998) WT/DS58/R and Report of the Appellate Body (12 October 1998) WT/DS58/AB/R, paras 127–134.

106 Preamble of the Regulation (n 1) recital 4.

107 Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products COM (2008) 469 final, 2008/0160 (COD) 3.

108 WTO, United States: Measures Affecting the Cross-Border Supply of Gambling and Betting Services—Report of the Appellate Body (7 April 2005) WT/DS285/AB/R.

109 WTO, China: Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment ProductsReport of the Appellate Body (23 December 2009) WT/DS363/AB/R.

110 In US–Gambling (n 108) the measure was not justified because it did not meet the conditions from the chapeau to art XIV GATS; and in China–Audiovisuals (n 109) the measures failed the necessity test.

111 US–Gambling (n 108) para 296. The AB upheld the Panel which defined public morals in such a way.

112 Commission funded study (n 6) 5, 125.

113 ibid 5.

114 Impact assessment (n 74) 11.

115 Excerpt from the speech of Mary Simon, president of ‘Inuit Tapiriit Kanatami’ (‘Inuit are united in Canada’), ‘The European Union, Canada, and the Arctic: Challenges of International Governance’, delivered at Carleton University, Ottawa, 23 September 2011 <www.itk.ca/media/speech/european-union-canada-and-arctic-challenges-international-governance>.

116 Regulation (EC) 1523/2007 of the European Parliament and of the Council of 11 December 2007 banning the placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur [2007] OJ L343/1.

117 See Wenzel, G, Animal Rights, Human Rights: Ecology, Economy, and Ideology in the Canadian Arctic, (University of Toronto Press 1991) 47.

118 eg in Sweden and the UK. Commission funded study (n 6) 8, 80, 130.

119 See arguments put forward by Howse and Langille (n 4) 369.

120 Commission funded study (n 6) 26.

121 ibid.

122 ibid.

123 Ipsos Mori, ‘Ban on Sale of Seal Products – Poll of 11 EU Countries’ <http://www.ipsos-mori.com/Assets/Docs/ipsos-mori-seal-hunting-2011-topline.pdf>.

124 ibid 2.

125 ibid 3.

126 See Mavroidis on the argument that not all public anxiety should be followed by government intervention, but that public anxiety should be subject to rational scrutiny, and that the WTO should have a cautious attitude towards the precautionary principle. Mavroidis, P, Trade in Goods (2nd edn, OUP 2012) 83, 84.

127 United States–Measures Affecting Alcoholic and Malt Beverages (1992) GATTBISD 39S/206, paras 5.23–5.26; United States–Taxes on Automobiles, unadopted Report of the GATT Panel, DS31/R 11 October 1994, para 5.10; Japan–Alcohol, AB Report (n 100); Chile–Alcohol, AB Report (n 101) paras 62, 71. See also Hudec (n 81); Regan, ‘Regulatory Purpose’ (n 81); Regan, ‘Further Thoughts’ (n 81).

128 In the obiter dictum of the decision in EC–Asbestos, AB Report (n 102), the AB mentioned that the term ‘less favourable treatment’ was a reflection of the general principle from art III:1 that internal regulations should not be ‘applied so as to afford protection’ (para 100). So, ‘[i]f there is “less favourable treatment” of the group of “like” imported products, there is, conversely, “protection” of the group of “like” domestic products. However, a Member may draw distinctions between products which have been found to be “like”, without, for this reason alone, according to the group of “like” imported products “less favourable treatment” than that accorded to the group of “like” domestic products'(para 100). For a useful overview of the possible interpretations of para 100 in the AB's Report in EC–Asbestos, see Ehring, L, ‘De Facto Discrimination in WTO Law: National and Most-Favoured-Nation Treatment – or Equal Treatment?’ (2002) 36 JWT 921.

129 See WTO, Brazil: Measures Affecting Imports of Retreaded Tyres—Report of the Appellate Body (3 December 2007) WT/DS332/AB/R, para 227.

130 Chapeau of art XX GATT.

131 WTO, Australia Measures Affecting Importation of Salmon—Report of the Appellate Body (20 October 1998) WT/DS18/AB/R, para 3 (citing the Panel Report), 153, 158, 177, 178. For the CJEU's attitude towards consistency, see Cases C-570/07 and C-571/07 José Manuel Blanco Pérez,María del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios, Principado de Asturias [2010] ECR I-04629, para 94.

132 United States—Restrictions on Imports of Tuna, unadopted Report of the GATT Panel (DS21/R-39S/155) 3 September 1991 (hereinafter: Tuna/Dolphin); United States—Restrictions on Imports of Tuna, unadopted Report of the GATT Panel (DS29/R) 16 June 1994 (hereinafter: Tuna/Dolphin II).

133 Shrimp/Turtle, Panel Report and AB Report (n 105).

134 Shrimp/Turtle, AB Report (n 105) para 163.

135 ibid para 165.

136 ibid para 176, 186.

137 Art 3 Leghold Trap Regulation (n 24); see also European Commission <http://ec.europa.eu/environment/biodiversity/animal_welfare/hts/index_en.htm>.

138 Art 3(1) Implementing Regulation (n 2).

139 Recital 14 of the Preamble to the Implementing Regulation explicitly refers to the United Nations Declaration on the Rights of Indigenous Peoples.

140 International Convention for the Regulation of Whaling, signed at Washington, 2 December 1946. See <http://www.iwcoffice.org/aboriginal>.

141 Commission funded study (n 6) 13.

142 Preamble to the Regulation (n 1) recital 11.

143 EC–Hormones, AB Report (n 80) para 205.

144 Dispute Settlement: WTO establishes panel in seal case (n 19).

145 Commission funded study (n 6) 32, 33.

146 EC–Hormones, AB Report (n 80) para 207.

147 Commission funded study (n 6) 32, 33.

148 Art 3 Leghold Trap Regulation (n 24).

149 Preamble to the Regulation (n 1) recital 12.

150 ibid.

151 This is explicitly stated in the Inuit associations' Action for annulment, T-18/10 Inuit Tapiriit Kanatami (n 31).

152 Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Options for animal welfare labelling and the establishment of a European Network of Reference Centres for the protection and welfare of animals, COM (2009) 584 final, SEC (2009) 1432, SEC (2009) 1433.

154 Art 114(3) TFEU.

155 BAT (n 47) para 80.

156 Art 13 TFEU.

Thanks to Amin Alavi, Paul Cardwell, Tamara Ćapeta, Marise Cremona, Isabelle Van Damme, Hano Ernst, Tamara Hervey, Robert Howse, Mislav Mataija, Petros Mavroidis, Marko Milanović, John Morijn, Donald Regan, Siniša Rodin, Karsten Engsig Sørensen, Veljko Vorkapić, Stephen Weatherill and Derrick Wyatt for useful discussions on this topic or for comments on earlier drafts, and to the participants of the seminars, workshops and roundtables at the European University Institute, University of Sheffield and University of Aarhus where this paper was presented. The opinions expressed in this paper are the author's.

Keywords

IS THE EU SEAL PRODUCTS REGULATION A SEALED DEAL? EU AND WTO CHALLENGES

  • Tamara Perišin (a1)

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