The EU Ban on Seal Products: Some Customs and WTO Open Questions

Abstract

The recent adoption by the EU of a regulation as to the ban of seal products has left unsolved a number of legal issues; namely, in the areas of (1) EU customs law and (2) the WTO law. As to the EU customs law, for example, the regulation lacks provisions as to the administration of the customs procedures. For example, the transit regime is undefined in the regulation. Thus, the legitimacy of the transit of seal products is still uncertain and open to several interpretations by national authorities. The way transit as to the seal products regime will be managed, this will inevitably affect other sectors of trade. In addition, the regulation lacks as well clear rules for the implementation of a harmonized custom penalty regime. How this is implemented will determine whether it is consistent with the general principles of EU law. These and other legal issues will affect directly or ‘de relato’ a great number of trading sectors, which are involved in the seal products trade, because as changes are made to create harmony with EU law, other sectors will inevitably be affected. Further, with reference to the World Trade Organization (WTO) law, in late 2009, Canada and Norway have brought a complaint against the regulation, claiming the inconsistency of the latter in the light of the WTO law. The pending litigation, which is mainly about environmental issues, may reach a new striking interpretation of several WTO principles, for example, as to the general exemption under Article XX(b) of the General Agreement on Tariffs and Trade (GATT) 1994 and, in general, as to Article XX of the GATT 1994. Indeed, in the previous few case laws involving animals health issue, such as US-Shrimp, such general exemption under Article XX(b) was not analysed by the Appellate Body. Therefore, this seal product litigation could instead push WTO jurisprudence ahead on the interpretation of Article XX(b) and the consistency of the measures in the light of the chapeau of Article XX of the GATT 1994. It goes without saying that the interpretation that the WTO judicature will possibly make over these issues will constitute a case law, which will be invoked in many future WTO litigation.