Case-Note: European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seals) WT/DS400/AB/R WR/DS401/AB/R 22 May 2014

Abstract

The dispute concerns with discriminatory application of the EC Seal Regime against Canada and Norway. The EC Seal regime consists of an exception (Travelers’ exception) and two derogations (IC and MRM conditions) from the prohibition against the marketing of seal products in the EU. The Appellate Body (AB) report in this dispute is controversial in its interpretation of ‘technical regulation’ under the Technical Barriers to Trade (TBT) Agreement, as it has limited the scope of the Agreement to assess technical regulatory measures impacting trade. Further, such an interpretation is not supported by the previous Appellate Body rulings. From a legal standpoint, the dispute provides key differences between the National Treatment and Most-Favored Treatment principles of GATT 1994 as compared to the TBT Agreement The interpretation of ‘public morals’ makes the dispute a rare decision dealing with both the protection of public morals and animal welfare. It sheds light on the application of the chapeau of Art. XX GATT 1994 as it clarifies the importance of cooperative agreements and negotiations with the affected Members of the WTO prior to the imposition of any measure that may lead to an arbitrary and unjustifiable discrimination. Given the role of WTO as an organization with defined priorities; the AB’s holding that the animal welfare scheme by the EC violates the WTO obligations does not mean that WTO law does not recognize animal welfare as a moral concern. The ruling in this dispute is against the discriminatory application of such a measure. The AB has provided a balanced outcome in this dispute under Art. XX GATT 1994, even though there are some technical inconsistencies in the reasoning as regards the scope of the TBT Agreement.