The high-profile WTO dispute on the EU’s seal import ban has now entered the next stage, with Norway and Canada appealing the panel ruling that had upheld the EU measure as justified on moral grounds. Despite its favourable outcome, Brussels is also appealing other aspects of the panel’s report with which it disagrees. (DS400, DS401)
At issue in the case is a 2009 European Commission regulation that bans the sale of seal products in all EU member states. Advocates for the measure say that it is necessary on the grounds of public morality, specifically regarding animal welfare, given the inhumane nature of commercial sealing operations. (See Bridges Trade BioRes, 2 May 2011).
In their original complaints, Oslo and Ottawa had claimed that the ban unfairly discriminated against their industries, compared to sealing taking place in Greenland, as well as Sweden and Finland. Norway had also said that the ban complicated their own efforts at sustainably managing marine resources.
Back in November, a dispute panel had granted Brussels a partial victory in the case. While finding that the EU regime did restrict international trade, the panel agreed with the EU that the prohibition was necessary for the protection of public morals – a result that Brussels welcomed as confirmation that their ban was justified.
According to documents posted yesterday on the European Commission’s website, the EU is challenging some of the panel’s findings, such as its characterisation of the measure as a technical regulation – which puts it under the WTO’s Agreement on Technical Barriers to Trade.
Exceptions
The original panel had also reviewed two exceptions to the seal regime for their compatibility with WTO rules. Under the original EU regulation, seal products obtained from indigenous community hunts (ICs) or sustainable resource management programmes (SRMs) were able to obtain an exemption from the ban.
These exceptions allowed for limited trade in domestically-obtained seal products and an almost unlimited trade in Greenlandic seal products. However, they virtually excluded all Canadian and Norwegian-caught seal – a result that the panel deemed discriminatory. The panel also found that the legislative history of the EU’s seal regime indicated a lack of even-handedness in the design of the IC and SRM exceptions.
The panel had found that the objectives of these exceptions were separate from the overall goal of promoting public morality, with regard to animal welfare. Canada and Norway have requested the Appellate Body to reverse this finding, and Norway has argued that promoting SRM is a legitimate objective.
Sources say that Brussels, for its part, is appealing the panel’s finding that the IC exception diminishes the seal regime’s contribution to the EU’s public morality objective. The EU appeal is not yet publicly available.
Canada and Norway, sources add, have asked the Appellate Body to reconsider the panel’s rejection of their proposals for alternatives to the EU regime. These proposals, the two complainants say, would have provided less-trade-restrictive ways of addressing EU concerns over inhumane seal hunting. Their suggested alternatives mainly involved implementing certification programmes rooted in animal welfare standards.
The Appellate Body will review aspects of law – such as legal interpretation – but generally will not interfere with the factual findings of the original panel. A report is likely to be issued within three months.
ICTSD