\nCDA-102 Nunavut Economy Fact Sheet\nCDA-122 Deer Commission for Scotland/Scottish Natural Heritage webpage, Best Practice Guide,\n\"Reaction & follow-up\", available at:\n<http://www.bestpracticeguides.org.uk/culling/follow-up> (accessed 19 April 2013)\nCDA-123 DEFRA, Current and Future Deer Management Options, Report on behalf of DEFRA European\nWildlife Division, December 2003, pp. 14-15, available at:\n<http://www.naturalengland.org.uk/Images/managementoptions_tcm6-4637.pdf>\nCDA-124 The British Deer Society webpage, \"Learn about deer\", available at:\n<http://www.bds.org.uk/learn_about_deer.html> (accessed 24 April 2013)\nJE-1 Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of\n16 September 2009 on trade in seal products, Official Journal of the European Union,\nL Series, No. 286 (31 October 2009)\nJE-2 Commission Regulation (EU) No. 737/2010 of 10 August 2010 laying down detailed rules for\nthe implementation of Regulation (EC) No. 1007/2009 of the European Parliament and of the\nCouncil on trade in seal products, Official Journal of the European Union, L Series, No. 216\n(17 August 2010), pp. 1-10\nJE-4 Committee on the Internal Market and Consumer Protection, Report on the proposal for a\nregulation of the European Parliament and of the Council concerning trade in seals products\n(5 March 2009), A-0118/2009\nJE-8 European Commission webpage, \"Implementatio n of Humane Trapping Standard in the EU\n– 1991-2005\", available at:\n<http://ec.europa.eu/environment/biodiversity/animal_welfare/hts/index_en.htm> (accessed\n14 October 2012)\nJE-9 European Commission, Proposal for a regulation of the European Parliament and the Council\nconcerning trade in seal products (23 July 2008), COM(2008) 469 final\nJE-16 European Commission, \"Commission Staff Wo rking Document accompanying document to the\nProposal for a regulation of the European Parliament and of the council concerning trade in\nseal products – Impact Assessment on the potential impact of a ban of products derived from\nseal species\" (23 July 2008), COM(2008) 469 final\nJE-17 European Commission, Staff Working Paper, \"Impact Assessment: accompanying the\ndocument, Communication from the Commission to the European Parliament, the Council and\nthe European Economic and Social Committee on the European Union Strategy for the\nProtection and Welfare of Animals 2012-2015\" (19 January 2012), COM(2012) 6 final\nJE-20 COWI, Assessment of the potential impact of a ban of products derived from seal species\n(April 2008)\nJE-21 COWI, Study on implementing measures for trade in seal products, Final Report\n(January 2010)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nShort Title Full Case Title and Citation\nJE-22 European Food Safety Authority, \"Scienti fic Opinion of the Panel on Animal Health and\nWelfare on a request from the Commission on the Animal Welfare aspects of the killing and\nskinning of seals\", The EFSA Journal (2007), No. 610, pp. 1-122\nJE-24 North Atlantic Marine Mammal Commission, Report of the NAMMCO Expert Group Meeting on\nBest Practices in the Hunting and Killing of Seals (February 2009)\nJE-26 Government of Greenland, Ministry of Fisheries, Hunting and Agriculture, Management and\nUtilization of Seals in Greenland (revised April 2012)\nJE-27 Canadian Department of Fisheries and Oceans, Canadian Commercial Seal Harvest Overview\n2011, Statistical and economic analysis series (October 2012)\nJE-30 Nunavut Department of Environment, Fisheries and Sealing Division, Report on the Impacts\nof the European Union Seal Ban, (EC) No. 1007/2009, in Nunavut (2012)\nJE-31 Norwegian Scientific Committee for Food Safety (VKM), Panel on Animal Health and Welfare,\nScientific Opinion on animal welfare aspects of the killing and skinning in the Norwegian seal\nhunt (October 2007)\nEU-48 Report of the Royal Commission, Seals and Sealing in Canada (1986), Vol. I, Chapter 11,\n\"Public Opinion on Sealing\"\nEU-49 Public opinion survey by Orb for Respect for Animals, 16 December 2008 (United Kingdom)\nEU-50 Public opinion survey by TNS Infratest for IFAW, February 2009 (Germany)\nEU-51 Public opinion survey by TNO NIPP, July 2006 (The Netherlands)\nEU-52 Public opinion survey by Ipsos-MORI for IFAW, 11 October 2007 (Portugal and Slovenia)\nEU-53 Public opinion survey by Dedicated Research for IFAW, May 2006 (Belgium)\nEU-54 Public opinion survey by IPSOS for IFAW, 18 October 2007 (France)\nEU-55 Public opinion survey by TNS Infratest for IFAW, August 2007 (Austria)\nEU-56 Public opinion survey by IPSOS-Mori for IFAW, January 2008 (Sweden)\nEU-57 Public opinion survey by TNS Aisa for IFAW, February 2008 (Czech Republic)\nEU-58 A summary of the results of various pu blic opinion surveys compiled by IFAW\nEU-59 Public opinion survey by IPSO-Mori for IFAW and HSI, June 2011 (Belgium, France, Germany,\nUnited Kingdom, Italy, Lithuania, Netherlands, Poland, Romania, Spain and Sweden)\nEU-145 \"European Commission representative visits Iqaluit on good-will trip\", Nunatsiaq Online,\n23 April 2013\nWT/DS400/AB/R • WT/DS401/AB/R\n\nABBREVIATIONS USED IN THESE REPORTS\nAbbreviation Description\nAGRI Committee on Agriculture and Rural Development of the European Parliament\nBasic Regulation Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of\n16 September 2009 on trade in seal products, Official Journal of the\nEuropean Union, L Series, No. 286 (31 October 2009) (Panel Exhibit JE-1)\nCanada Panel Report\n(DS400)\nPanel Report, European Communities – Measures Prohibiting the Importation and\nMarketing of Seal Products (WT/DS400/R)\nCanadian Seal Harvest\nOverview\nCanadian Department of Fisheries and Oceans, Canadian Commercial Seal\nHarvest Overview 2011, Statistical and economic analysis series (October 2012)\n(Panel Exhibit JE-27)\nCommission 2008 Impact\nAssessment\nEuropean Commission, \"Commission Staff Working Document accompanying\ndocument to the Proposal for a regulation of the European Parliament and of the\ncouncil concerning trade in seal products – Impact Assessment on the potential\nimpact of a ban of products derived from seal species\" (23 July 2008),\nCOM(2008) 469 final (Panel Exhibit JE-16)\nCommission Proposal European Commission, Proposal for a regulation of the European Parliament and\nthe Council concerning trade in seal products (23 July 2008), COM(2008) 469\nfinal (Panel Exhibit JE-9)\nComplainants Canada and Norway\nCOWI Danish-based international consulting group\nCOWI 2008 Report COWI, Assessment of the potential impact of a ban of products derived from seal\nspecies (April 2008) (Panel Exhibit JE-20)\nCOWI 2010 Report COWI, Study on implementing measures for trade in seal products, Final Report\n(January 2010) (Panel Exhibit JE-21)\nCSA poll Opinion poll conducted by the Canadian Sealers Association (Research\nDimensions, 1985) (results printed in Royal Commission Report, pp. 151-152)\nDSB Dispute Settlement Body\nDSU Understanding on Rules and Procedures Governing the Settlement of Disputes\nEC Seal Pups Directive Council Directive No. 83/129 of 28 March 1983 concerning the importation into\nMember States of skins of certain seal pups and products derived therefrom,\nOfficial Journal of the European Communities, L Series, No. 91 (9 April 1983),\npp. 30-31 (Panel Exhibit CDA-12)\nEFSA European Food Safety Authority\nEFSA Scientific Opinion European Food Safety Authority, \"Scientific Opinion of the Panel on Animal\nHealth and Welfare on a request from the Commission on the Animal Welfare\naspects of the killing and skinning of seals\", The EFSA Journal (2007), No. 610,\npp. 1-122 (Panel Exhibit JE-22)\nENVI Committee on the Environment, Public Health and Food Safety of the European\nParliament\nEPA United States Environmental Protection Agency\nEU Seal Regime The Basic Regulation and the Implementing Regulation combined together\nGATS General Agreement on Trade in Services\nGATT 1994 General Agreement on Tariffs and Trade 1994\nGreenland 2012 Seal\nManagement Report\nGovernment of Greenland, Ministry of Fisheries, Hunting and Agriculture,\nManagement and Utilization of Seals in Greenland (revised April 2012) (Panel\nExhibit JE-26)\nIC Inuit or other indigenous communities\nIC exception An exception under the EU Seal Regime for seal products obtained from seals\nhunted by Inuit or other indigenous communities\nIC hunts Hunts undertaken by Inuit or other indigenous communities\nWT/DS400/AB/R • WT/DS401/AB/R\n\nAbbreviation Description\nImplementing Regulation Commission Regulation (EU) No. 737/2010 of 10 August 2010 laying down\ndetailed rules for the implementation of Regulation (EC) No. 1007/2009 of the\nEuropean Parliament and of the Council on trade in seal products, Official Journal\nof the European Union, L Series, No. 216 (17 August 2010), pp. 1-10\n(Panel Exhibit JE-2)\nISO/IEC Guide International Organization for St andardization/International Electrotechnical\nCommission, Guide 2:1991 – General terms and their definitions concerning\nstandardization and related activities, 6th edn\nMFN Most favoured nation\nMRM Marine resource management\nMRM exception An exception under the EU Seal Regime for seal products obtained from seals\nhunted for purposes of marine resource management\nMRM hunts Hunts conducted for marine resource management purposes\nNorway Panel Report\n(DS401)\nPanel Report, European Communities – Measures Prohibiting the Importation and\nMarketing of Seal Products (WT/DS401/R)\nNunavut 2012 Report Nunavut Department of En vironment, Fisheries and Sealing Division, Report on\nthe Impacts of the European Union Seal Ban, (EC) No. 1007/2009, in Nunavut\n(2012) (Panel Exhibit JE-30)\nPanel Reports Panel Reports, European Communities – Measures Prohibiting the Importation\nand Marketing of Seal Products (WT/DS400/R / WT/DS401/R)\nParliament Report Committee on the Inte rnal Market and Consumer Protection, Report on the\nproposal for a regulation of the European Parliament and of the Council\nconcerning trade in seals products (5 March 2009), A-0118/2009 (Panel Exhibit\nJE-4)\nPPMs Processes and production methods\nRC poll Opinion poll conducted by the Cana dian Royal Commission (Canadian Gallup Poll\nLimited, 1986a, 1986b) (results printed in Royal Commission Report,\npp. 150-151)\nRoyal Commission Report Report of the Royal Commission, Seals and Sealing in Canada (1986), Vol. I,\nChapter 11, \"Public Opinion on Sealing\" (Panel Exhibit EU-48)\nSCM Agreement Agreement on Subsid ies and Countervailing Measures\nSPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures\nTBT Agreement Agreement on Technical Barriers to Trade\nTravellers exception An exception under the EU Seal Regime for seal products brought by travellers\ninto the European Union in limited circumstances\nWorking Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010\nWTO World Trade Organization\nWTO Agreement Marrakesh Agreement Esta blishing the World Trade Organization\nWT/DS400/AB/R • WT/DS401/AB/R\n\n1.2. The measure at issue in these disputes, as identified by the Panel 9, consists of the following\nlegal instruments:\na. Regulation (EC) No. 1007/2009 of the Euro pean Parliament and of the Council of\n16 September 2009 on trade in seal products10 (Basic Regulation); and\nb. Commission Regulation (EU) No. 737/2010 of 10 August 2010 laying down detailed rules\nfor the implementation of Regulation (EC) No. 1007/2009 of the European Parliament\nand of the Council on trade in seal products11 (Implementing Regulation).\n1.3. The Panel considered it appropriate to treat the Basic Regulation and the Implementing\nRegulation as a single measure, which it referred to as the \"EU Seal Regime\". 12 We do the same in\nthese Reports.\n1.4. The EU Seal Regime prohibits the placing of seal products on the EU market unless they\nqualify under certain exceptions, consisting of the following: (i) seal products obtained from seals\nhunted by Inuit or other indigenous communities (IC exception); (ii) seal products obtained from\nseals hunted for purposes of marine resource management (MRM exception); and (iii) seal\nproducts brought by travellers into the European Union in limited circumstances (Travellers\nexception).\n13 The EU Seal Regime lays down specific requirements in respect of each of these\nexceptions.14\n1.5. Canada and Norway claimed before the Pa nel that the EU Seal Regime violates various\nobligations under the General Agreement on Tariffs and Trade 1994 (GATT 1994) and the\nAgreement on Technical Barriers to Trade (TBT Agreement). The complainants alleged that the\nIC and MRM exceptions of the EU Seal Regime violate the non-discrimination obligations under\nArticles I:1 and III:4 of the GATT 1994 and, accord ing to Canada, also under Article 2.1 of the\nTBT Agreement. Both complainants contended, in essence, that the IC and MRM exceptions accord\nseal products from Canada and Norway less favourable treatment than that accorded to like seal\nproducts of domestic origin, mainly from Sweden and Finland, and those of other foreign origin,\nparticularly from Greenland. The complainants also asserted that the EU Seal Regime creates an\nunnecessary obstacle to trade, inconsistent with Article 2.2 of the TBT Agreement, because it is\nmore trade restrictive than necessary to fulfil a legitimate objective. They further argued that\ncertain procedural aspects of the measure violate the requirements for conformity assessment\nunder Article 5 of the TBT Agreement. The compla inants additionally claimed that the IC, MRM,\nand Travellers exceptions impose quantitative restrictions on trade, in a manner inconsistent with\nArticle XI:1 of the GATT 1994.\n15 Norway also argued that, if the EU Seal Regime was found to\nviolate Article XI:1 of the GATT 1994, then it wo uld also violate Article 4.2 of the Agreement on\nAgriculture. Finally, Canada and Norway both co ntended that the application of the EU Seal\nRegime nullifies or impairs benefits accruing to them under the covered agreements within the\nmeaning of Article XXIII:1(b) of the GATT 1994.16\n1.6. The Panel Reports were circulated to Members of the World Trade Organization (WTO) on\n25 November 2013. In its Reports, the Panel found it appropriate first to address the claims under\nthe TBT Agreement, followed by those made under the GATT 1994.17\n\n9 Panel Reports, para. 7.7.\n10 Official Journal of the European Union, L Series, No. 286 (31 October 2009) (Panel Exhibit JE-1).\n11 Official Journal of the European Union, L Series, No. 216 (17 August 2010) (Panel Exhibit JE-2).\n12 Panel Reports, para. 7.8; see also para. 7.26 (referring to the parties' responses to Panel question\nNo. 2).\n13 Panel Reports, para. 7.1. Apart from the reference to \"conditions\" in paragraphs 7.1 and 7.2, the\nPanel referred throughout its Reports to the IC, MRM, and Travellers \"exceptions\". (See e.g. ibid., para. 7.35)\n14 Panel Reports, para. 7.1.\n15 Panel Reports, para. 7.2.\n16 Panel Reports, para. 7.2.\n17 Panel Reports, para. 7.69.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n1.7. With respect to Canada's and Norway's claims under the TBT Agreement, the Panel concluded\nthat:\na. the EU Seal Regime is a \"technical regulation\" within the meaning of Annex 1.1 to the\nTBT Agreement;\nb. with respect to Canada's claim under Article 2.1, the IC exception and MRM exception\nunder the EU Seal Regime are inconsistent with Article 2.1 because the detrimental\nimpact caused by these exceptions does not stem exclusively from legitimate regulatory\ndistinctions and, consequently, the exceptions accord imported seal products treatment\nless favourable than that accorded to like domestic and other foreign seal products;\nc. the EU Seal Regime is not inconsistent with Article 2.2 because it fulfils the objective of\naddressing EU public moral concerns regarding seal welfare to a certain extent, and no\nalternative measure has been demonstrated to make an equivalent or greater\ncontribution to the fulfilment of the objective of the EU Seal Regime;\nd. the European Union acted inconsistently with its obligations under Article 5.1.2 because\nthe conformity assessment procedures under the EU Seal Regime were incapable of\nenabling trade in qualifying products to take place as from the date of entry into force of\nthe EU Seal Regime; and\ne. Canada and Norway did not demonstrate that the European Union had acted\ninconsistently with its obligations under Article 5.2.1.\n18\n1.8. With respect to Canada's and Norway's claims under the GATT 1994, the Panel concluded\nthat:\na. the IC exception under the EU Seal Regime is inconsistent with Article I:1 because an\nadvantage granted by the European Union to seal products originating in Greenland is\nnot accorded immediately and unconditionally to like seal products originating in Canada\nand Norway;\nb. the MRM exception under the EU Seal Regime is inconsistent with Article III:4 because it\naccords imported seal products treatment less favourable than that accorded to like\ndomestic seal products;\nc. each of the IC, MRM, and Travellers exce ptions under the EU Seal Regime is not\ninconsistent with Article XI:1;\nd. the IC exception and the MRM exception under t h e E U S e a l R e g i m e a r e n o t j u s t i f i e d\nunder Article XX(a) because they fail to meet the requirements under the chapeau of\nArticle XX; and\ne. the IC exception and the MRM exception under t h e E U S e a l R e g i m e a r e n o t j u s t i f i e d\nunder Article XX(b) because the European Union failed to make a prima facie case for its\nclaim.\n19\n1.9. The Panel rejected Norway's claim under Article 4.2 of the Agreement on Agriculture 20, and\nrefrained from examining Canada's and Norway's non-violation claim under Article XXIII:1 of the\nGATT 1994.21 The Panel found that, pursuant to Article 3.8 of the Understanding on Rules and\nProcedures Governing the Settlement of Disputes (DSU), to the extent that the European Union\nhad acted inconsistently with Article 2.1 (in the case of Canada) and Article 5.1.2 of the\n\n20 Norway Panel Report (DS401), para. 8.4.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nTBT Agreement, and Articles I:1 and III:4 of the GATT 1994, it nullified or impaired benefits\naccruing to Canada and Norway under these agreements.22\n1.10. On 24 January 2014, Canada and Norway each notified the Dispute Settlement Body (DSB),\npursuant to Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered\nin the Panel Reports and certain legal interpretations developed by the Panel, and each filed a\nNotice of Appeal23 and an appellant's submission pursuant to Rule 20 and Rule 21, respectively, of\nthe Working Procedures for Appellate Review 24 (Working Procedures). On 29 January 2014, the\nEuropean Union notified the DSB, pursuant to Arti cles 16.4 and 17 of the DSU, of its intention to\nappeal certain issues of law covered in the Panel Reports and certain legal interpretations\ndeveloped by the Panel and filed a Notice of Other Appeal\n25 and an other appellant's submission\npursuant to Rule 23 of the Working Procedur es. On 11 February 2014, the European Union,\nCanada, and Norway each filed an appellee's submission. 26 On 14 February 2014, Iceland, Japan,\nMexico, and the United States each filed a third participant's submission. 27 On the same day,\nNamibia notified its intention to appear at the oral hearing as a third participant 28 (in DS401 only),\nand Argentina, China, and Ecuador (on 17 February 2014), Colombia (on 19 February 2014), and\nRussia (on 21 February 2014) each notified its intention to appear at the oral hearing as a third\nparticipant.\n29\n1.11. On 29 January 2014, the Appellate Body re ceived a joint communication from Canada and\nNorway requesting that the oral hearing in these appellate proceedings be opened to public\nobservation. Both complainants proposed that public observation be permitted via simultaneous\nclosed-circuit television broadcasting with the option for the transmission to be turned off should a\nthird participant indicate that it wished to keep its oral statement confidential. They further\nrequested the adoption of additional procedures to ensure the security and orderly conduct of the\nproceedings. On the same date, the Appellate Body received a communication from the\nEuropean Union, joining Canada and Norway's requ est for public observation of the hearing, and\nindicating that it had no objections to the proposed additional security arrangements.\n1.12. On 30 January 2014, the Appellate Body Divi sion in these appellate proceedings invited the\nthird parties to comment in writing on the participants' request for an open oral hearing. Japan,\nMexico, and the United States submitted their responses on 3 February 2014. In its\ncommunication, Japan indicated that it had no objection to the request for public observation or\nthe proposed logistical arrangements. Mexico also did not object, but nevertheless stated that its\nposition in these appeals was without prejudice to its systemic views on the public observation of\noral hearings. The United States articulated its support for the request to open the hearing to the\npublic, and suggested that the Division accommodate the participants' logistical requests to the\nextent possible.\n1.13. On 5 February 2014, the Division issued a Procedural Ruling authorizing the request of\nCanada, Norway, and the European Union to open the hearing to public observation and adopting\nadditional procedures for the conduct of the hearing. The Procedural Ruling is attached as Annex 4\nto these Reports.\n1.14. The oral hearing in these appeals was originally scheduled for 3-5 March 2014. On\n30 January 2014, the Appellate Body received letters from Canada, Norway, and the European\nUnion, requesting the postponement of the dates for the oral hearing due to logistical difficulties\nfaced by the parties during the week of 3 March 2014. The participants requested that the oral\nhearing be postponed to no earlier than th e week of 17 March 2014. On 31 January 2014, the\nDivision invited the third parties to comment in writing on the request for postponement of the oral\nhearing. Japan, Mexico, and the United States submitted their comments on 4 February 2014,\nindicating that they had no objection to the participants' request. On 5 February 2014, the Division\n\n23 WT/DS400/8 (Canada), WT/DS401/9 (Norway) (attached as Annexes 1 and 2 to these Reports,\nrespectively).\n24 WT/AB/WP/6, 16 August 2010.\n25 WT/DS400/9, WT/DS401/10 (attached as Annex 3 to these Reports).\n26 Pursuant to Rules 22 and 23(4) of the Working Procedures.\n27 Pursuant to Rule 24(1) of the Working Procedures.\n28 Pursuant to Rule 24(2) of the Working Procedures.\n29 Pursuant to Rule 24(4) of the Working Procedures.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nissued a Procedural Ruling rescheduling the oral hearing for 17 to 19 March 2014. The Procedural\nRuling is attached as Annex 5 to these Reports.\n1.15. On 19 February30, 6 March31, and 17 March 2014 32, the Appellate Body received unsolicited\namicus curiae briefs. The participants and third particip ants were given an opportunity to express\ntheir views on the admissibility and substance of these briefs at the oral hearing, if they so wished.\nWe note that the brief of 17 March 2014 was received on the first day of the oral hearing. In the\nlight of its late filing, and mindful of the requ irement to ensure that participants and third\nparticipants are given an adequate opportunity fully to consider any written submission filed with\nthe Appellate Body, the Division deemed this br ief inadmissible. The Division did not find it\nnecessary to rely on the other two amicus curiae briefs in rendering its decision.\n1.16. The oral hearing in these appeals was held from 17 to 19 March 2014. Public observation\ntook place via simultaneous closed-circuit television broadcast to a separate viewing room. The\nparticipants and Ecuador, Japan, Mexico, Namibia, and the United States made opening\nstatements. The participants and third participan ts responded to questions posed by the Members\nof the Division hearing the appeals.\n1.17. On 24 March 2014, the Chair of the Appellate Body informed the Chair of the DSB that, due\nto the requests made by the participants to postpone the date for the oral hearing and the\nsubsequent rescheduling of the oral hearing fr om 3-5 March 2014 to 17-19 March 2014, and also\ndue to the size of these appeals and the other appeal by the European Union, including the\nnumber and complexity of the issues raised by the participants, it was expected that the Appellate\nBody Reports in these appeals would be circulated to WTO Members no later than Tuesday,\n20 May 2014.\n33 Subsequently, by letter dated 16 May 2014, the Chair of the Appellate Body\ninformed the Chair of the DSB that due to the time required for translation and the caseload of the\nAppellate Body, the Reports in these appeals woul d be circulated on Thursday, 22 May 2014 in all\nofficial languages.34\n2 ARGUMENTS OF THE PARTICIPANTS AND THIRD PARTICIPANTS\n2.1 Claims of error by Canada – Appellant\n2.1.1 Article 2.1 of the TBT Agreement\n2.1. Canada submits that the Panel erred by formulating and applying the wrong legal test under\nArticle 2.1 of the TBT Agreement. Canada further challenges the Panel's intermediate conclusion,\nin the context of its analysis under Article 2.1, that the regulatory distinction between commercial\nhunts and hunts undertaken by Inuit or other indigenous communities (IC hunts) is justified.\nCanada requests the Appellate Body to complete the legal analysis under Article 2.1 by applying\nthe correct \"even-handedness\" test; and to uphold the Panel's ultimate finding that the\ndetrimental impact of the EU Seal Regime does not stem exclusively from a legitimate regulatory\ndistinction under Article 2.1, but on the modified grounds that the distinction between commercial\nand IC hunts is arbitrary and unjustifiable.\n2.2. Canada submits that the Panel committed a legal error by articulating the wrong test to\ndetermine whether the detrimental impact of the EU Seal Regime on the competitive opportunities\nof Canadian seal products stems exclusively from a legitimate regulatory distinction. Specifically,\nCanada takes issue with the Panel's framing of the test as consisting of three distinct elements.\nAccording to Canada, this is contrary to the Appellate Body's framing of the test, in three previous\ndisputes under the TBT Agreement, as \"a determin ation of whether the regulatory distinction that\n\n30 From a group of animal welfare organizations. These organizations include Anima, Animal Rights\nAction Network, Asociación Nacional para la Defensa de los Animales, Bont Voor Dieren, Compassion in World\nFarming, Djurens Rätt, Eurogroup for Animals, Fondation Brigitte Bardot, Fondation Franz Weber, Four Paws,\nGAIA, Humane Society of the United States/Humane Society International, International Fund for Animal\nWelfare, Lega Anti Vivisezione, Prijatelji živontinja, Respect for Animals, Royal Society for the Prevention of\nCruelty to Animals, Svoboda zvířat, and World Society for the Protection of Animals.\n31 From the International Fur Federation.\n32 From Professor Robert Howse, Joanna Langille, and Professor Katie Sykes.\n33 This letter was circulated as document WT/DS400/10, WT/DS401/11.\n34 This letter was circulated as document WT/DS400/11, WT/DS401/12.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nresulted in the detrimental impact was desi gned or applied in an even-handed manner.\" 35 Canada\nsubmits that the Panel erred in treating the first two elements of its test – i.e. whether the\nregulatory distinction was rationally connected to the objective and, if not, whether there was\nanother cause or rationale that could justify the di stinction – as distinct from the third element –\ni.e. whether the regulatory distinction was designed and applied in an even-handed manner.\n36 In\nsupport of its argument, Canada points to the Appellate Body's findings in US – Clove Cigarettes\nand US – COOL . Canada argues that, in both of these cases, \"the absence of [a] rationale\nexplaining or justifying the regulatory distinction played a central role in the Appellate Body finding\nthat there had been a lack of even-handedness in how the distinction was designed and applied.\"37\nHence, in Canada's view, \"the presence or absence of a rationale that explains or justifies the\nregulatory distinction is a critical aspect in determining whether a regulatory distinction is\neven-handed.\"\n38\n2.3. Canada further submits that the Panel committed a number of legal errors in finding that the\nregulatory distinction between non-conforming Canadian seal products and Greenlandic Inuit seal\nproducts was justifiable. First, Canada asserts th at the Panel erred in finding that the distinction\nwas justifiable despite evidence demonstrating that the rationale for the distinction \"goes against\"\nthe objective of the EU Seal Regime.\n39 Canada highlights that, in its assessment of the EU Seal\nRegime's contribution to its objective, the Panel found that the IC exception actually \"diminishes\"\nthe overall contribution of the EU Seal Regime to that objective. 40 Canada submits that a\nregulatory distinction that undermines the objective of a measure cannot be justified, as it would\nconstitute arbitrary or unjustifiable discrimination. Canada argues that, in Brazil – Retreaded\nTyres, the finding that the rationale for the di scrimination undermined the objective of the\nmeasure at issue was determinative for the finding of arbitrary and unjustifiable discrimination.\n41\nGiven the similarities between the test under Arti cle 2.1 of the TBT Agreement and the chapeau of\nArticle XX of the GATT 1994, Canada argues that th e fact that the rationale for the discrimination\ncompletely undermines the objective of the measure must play a determinative role under both\nprovisions. Canada further clarifies its view that the Panel committed an error in attempting to\ndistinguish the Appellate Body's reasoning in Brazil – Retreaded Tyres .\n42 Canada notes that,\naccording to the Panel, the Appellate Body's conclusion of arbitrary and unjustifiable discrimination\nin that case was based on a finding that the rationale for the exception was not sufficient to justify\nthe exception in the face of the rational disconne ction to the objective of the measure. Canada\nsubmits that this is not correct. In Canada's view, the Appellate Body's conclusion was based\nsolely on its determination that there was no rational connection between the exception and the\nobjective of the ban, and did not involve a balancing of the objective of the exception with the\nrational disconnection.\n2.4. Second, Canada alleges that the Panel committed a legal error \"by relying on international\ninstruments extraneous to the case\" to justify the distinction between IC and commercial hunts.\n43\nCanada notes that the international agreements ci ted by the European Union before the Panel do\nnot require the European Union to protect the interests of Inuit or other indigenous communities\nby discriminating against the products of non-indigenous peoples. Canada further argues that \"the\nmerits of according preferential treatment to indigenous peoples must still be balanced with how\nsuch treatment accords with the objective of the measure.\"\n44 Canada recalls the Appellate Body's\nobservation in Brazil – Retreaded Tyres that, even if a rationale is not capricious or random, it can\nstill be found to be arbitrary or unjustifiable because it bears no relationship to the objective of the\nmeasure or goes against it. 45 Canada submits that the existence of international agreements that\n\n35 Canada's appellant's submission, para. 51 (referring to Appellate Body Reports, US – Clove\nCigarettes, paras. 182 and 215; US – Tuna II (Mexico), paras. 216 and 225; and US – COOL, paras. 271, 272,\nand 341).\n36 Canada's appellant's submission, para. 52 (referring to Panel Reports, para. 7.259).\n37 Canada's appellant's submission, para. 77.\n38 Canada's appellant's submission, para. 77.\n39 Canada's appellant's submission, para. 78 (quoting Appellate Body Report, Brazil – Retreaded Tyres,\npara. 228).\n40 Canada's appellant's submission, para. 78 (referring to Panel Reports, para. 7.448).\n41 Canada's appellant's submission, paras. 80-82 (referring to Appellate Body Report, Brazil – Retreaded\nTyres, para. 227).\n42 Canada's opening statement at the oral hearing.\n43 Canada's appellant's submission, heading B.a), at p. 27.\n44 Canada's appellant's submission, para. 89.\n45 Canada's appellant's submission, para. 89 (referring to Appellate Body Report, Brazil – Retreaded\nTyres, para. 232).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nrecognize, in general terms, the interests of indigenous people cannot be a determining factor in\nassessing whether the rationale for the regulatory distinction is justified.\n2.5. The third legal error that Canada identifies is the Panel's failure to examine whether giving\neffect to the distinction will actually fulfil its rationale. Canada points to the Appellate Body's\ndiscussion of the rationales for the distinction between clove and menthol cigarettes that the\nUnited States put forward in the US – Clove Cigarettes case. According to Canada, the Appellate\nBody in that case dismissed the rationales on the basis that \"it was not clear\" that the alleged\nconsequences of not making the distinction – namely, the impact on the US health care system\nassociated with banning menthol and the risk of the development of a black market for menthol\ncigarettes – would materialize.\n46 Canada argues that, in the present disputes, it is equally \"not\nclear\" that the IC exception will serve to protect Inuit or other indigenous communities' (IC)\ninterests. Canada notes that Inuit communities were opposed to the EU Seal Regime as a whole\ndespite the IC exception because they believe that it will have a negative impact on the market for\nall seal products.\n47 Canada submits that the Panel's failure to consider the lack of fulfilment of the\nregulatory distinction's purpose constitutes legal error.48\n2.6. Canada further alleges that the Panel erred by focusing on the wrong comparison in its\nassessment of whether the regulatory distinction is even-handed. According to Canada, the Panel\nerroneously applied the \"even-handedness\" test by analysing different Inuit hunts rather than the\nregulatory distinction between commercial and IC hunts, which it had found to be causing the\ndetrimental impact. Canada notes that, in assessing the legitimacy of a regulatory distinction for\nthe purposes of Article 2.1 of the TBT Agreemen t, the Appellate Body has focused only on the\ndistinction that accounts for the detrimental impact on imported products as compared to domestic\nproducts.\n49 Canada submits that, by not focusing on th e proper regulatory distinction, the Panel\nfailed to follow the guidance provided by the Appellate Body in previous TBT disputes. Canada\nargues that, had the Panel directed its attent ion towards the regulatory distinction between\ncommercial and IC hunts, it would have had the correct basis to conclude that this regulatory\ndistinction was designed and applied in an arbitrary manner because the IC hunt in Greenland\nexhibits the characteristics of a commercial hunt. As Canada sees it, the fact that the application of\nthe IC exception results in differentiated benefits amongst the Inuit is not germane to the question\nof whether the regulatory distinction between commercial and IC hunts is even-handed. As a\nresult, Canada argues, the Panel failed to determine whether the regulatory distinction between\ncommercial and IC hunts is even-handed.\n2.7. Canada further submits that the Panel erred by failing to examine the arbitrary aspects of the\nregulatory distinction between commercial and IC hunts.\n50 In Canada's view, the Panel should\nhave taken into account its finding that the Inuit hunt in Greenland has \"characteristics that are\nclosely related to that of commercial hunts\" in examining whether the regulatory distinction\nbetween commercial and IC hunts was designed and applied in an arbitrary or unjustifiable\nmanner.\n51 For Canada, the Panel's findings regarding the similarities between the Inuit hunt in\nGreenland and commercial hunts are relevant to the application of the test under Article 2.1, not\nbecause they show that the IC exception was not designed or applied in an even-handed manner,\nbut because they demonstrate that the distinctio n between Inuit and commercial hunts is \"illusory\nin practice\", and is thus designed in an arbitrary manner.\n52 According to Canada, it is, therefore,\nthe distinction between commercial and IC hunts, ra ther than the IC exception as such, that is\n\n46 Canada's appellant's submission, para. 90 (quoting Appellate Body Report, US – Clove Cigarettes,\npara. 225).\n47 Canada's appellant's submission, para. 91 (referring to Nunavut Department of Environment,\nFisheries and Sealing Division, Report on the Impacts of the European Union Seal Ban, (EC) No. 1007/2009, in\nNunavut (2012) (Panel Exhibit JE-30) (Nunavut 2012 Report), p. 3; Government of Greenland, Ministry of\nFisheries, Hunting and Agriculture, Management and Utilization of Seals in Greenland (revised April 2012)\n(Panel Exhibit JE-26) (Greenland 2012 Seal Management Report), pp. 31-36; and Canada's first written\nsubmission to the Panel, paras. 526-532).\n48 Canada's appellant's submission, para. 92.\n49 Canada's appellant's submission, para. 94 (referring to Appellate Body Report, US – Tuna II (Mexico),\npara. 286).\n50 Canada's appellant's submission, para. 99.\n52 Canada's appellant's submission, para. 102 (referring to Canada's second written submission to the\nPanel, paras. 280-284).\nWT/DS400/AB/R • WT/DS401/AB/R\n\ndesigned in an arbitrary manner. 53 Canada submits that the Panel's analysis of the\neven-handedness of the regulatory distinction between commercial and IC hunts was misdirected\nand constitutes an error of law.\n2.8. Canada further submits that the factual findings made by the Panel in its analysis of the\neven-handedness of the EU Seal Regime with resp ect to different IC hunts support the conclusion\nthat the Greenlandic seal hunt is not primarily driven by subsistence considerations. 54 Therefore,\nCanada argues, the application of the regulatory distinction between Canada's commercial hunt\nand the Greenlandic hunt is arbitrary, even if the distinction between commercial hunts and Inuit\nhunts, generally, may not be.\n2.9. Canada further argues that the Panel acted inconsistently with its duties under Article 11 of\nthe DSU in failing to assess Canada's evidence demonstrating that the commercial hunts in Canada\npossess characteristics that are similar to the characteristics of subsistence hunts. According to\nCanada, this evidence was \"highly material\" to Canada's claims pertaining to the legitimacy of the\nregulatory distinction between commercial and IC hunts.\n55 Canada asserts that, in its assessment\nof commercial hunts, the Panel selectively highlighted certain characteristics that are not similar to\nthose of IC hunts, and did not respond to Canada's claims regarding the long-standing tradition of\nseal hunting on the east coast of Canada, the generation of income for small seal-hunting\ncommunities from the seal hunt, as well as the use of seal by-products in those communities.\n56\nCanada submits that, even if examining this evidence would not have changed the Panel's ultimate\nfinding on the uniqueness of IC hunts, the Pane l had a duty under Article 11 of the DSU to\nconsider this evidence and explain why this information did not affect its finding.\n2.10. Canada, therefore, requests the Appellate Body to complete the legal analysis under\nArticle 2.1 by applying the correct \"even-handedness\" test; and to uphold the Panel's ultimate\nfinding that the detrimental impact of the EU Seal Regime does not stem exclusively from a\nlegitimate regulatory distinction under Article 2.1 of the TBT Agreement, but on the modified\ngrounds that the distinction between commercial and IC hunts is arbitrary and unjustifiable.\n57\n2.1.2 Article 2.2 of the TBT Agreement\n2.11. Canada claims that the Panel erred in finding that the EU Seal Regime is more trade\nrestrictive than necessary within the meaning of Article 2.2 of the TBT Agreement. Canada submits\nthat the Panel erred in its analysis of the degree of contribution that the EU Seal Regime makes to\nthe identified objective, in failing to assess the risk non-fulfilment would create and to conduct a\n\"relational\" analysis, and in its analysis of whether the alternative measure makes at least an\nequivalent or greater contribution to the objective. Canada requests that the Appellate Body\nreverse the Panel's finding and complete the legal analysis and find that the EU Seal Regime is\ninconsistent with Article 2.2.\n2.1.2.1 The Panel's analysis of the contribution of the EU Seal Regime to its objective\n2.12. Canada argues that the Appellate Body has stressed the importance of \"clear and precise\"\npanel findings in considering the three elem ents of the test under Article 2.2 of the\nTBT Agreement.\n58 Without clear and precise findings regarding the degree of contribution of the\nmeasure to the objective, Canada argues, \"a panel cannot complete the relational analysis or the\ncomparison of the challenged measure with an alternative measure as it will not have a sufficiently\naccurate benchmark degree of contribution for comparison.\"\n59\n\n53 Canada's appellant's submission, para. 102 (referring to Canada's second written submission to the\nPanel, paras. 280-284).\n54 Canada's opening statement at the oral hearing.\n55 Canada's appellant's submission, para. 111.\n56 Canada's appellant's submission, paras. 110 and 111 (referring to Canada's first written submission to\nthe Panel, paras. 25-31).\n57 Canada's appellant's submission, para. 112.\n58 Canada's appellant's submission, para. 158 (quoting Appellate Body Reports, US – COOL, para. 479).\n59 Canada's appellant's submission, para. 158.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.13. Canada claims that the Panel erred in its \"contribution\" analysis in several respects. Canada\nsubmits that the Panel erred in its analysis of the contribution of the EU Seal Regime to the first\naspect of the identified objective, namely, prev enting the EU public from being exposed to or\npurchasing products derived from seals killed inhumanely. Canada argues that the Panel's\nconsideration of the prohibitive part of the measure is \"immaterial\" because its permissive aspect\nallows unlimited amounts of products from IC hunts and hunts conducted for marine resource\nmanagement purposes (MRM hunts).\n60 Because the Panel found that the EU public is exposed to\nand may be purchasing seal products derived fr om inhumanely killed seals under the EU Seal\nRegime, Canada states that the Panel \"should have found that the EU Seal Regime, as a whole,\nfails to contribute to the first aspect of the objective because the EU public may still purchase seal\nproducts derived from seals killed inhumanely\".\n61\n2.14. Moreover, Canada argues that, even if the Panel correctly found that the ban contributes to\nthe first aspect of the objective, it erred \"by failin g to make an overall conclusion that the EU Seal\nRegime as a whole makes a net positive contribution to preventing the EU public from being\nexposed to or purchasing seal products from inhumanely killed seals\".62 Canada maintains that the\ndegree of contribution is a key factor in assessing the necessity of a measure under Article 2.2.\nIn Canada's view, the Panel's failure to articulate a \"clear or precise\" finding of the extent of a\npositive or negative contribution to the first aspect of the objective of the EU Seal Regime and to\nprovide an overall conclusion on the degree of contribution to that objective as a whole constitutes\nlegal error.\n63 Canada adds that, if the Panel had proper ly articulated the extent of the degree of\ncontribution of the prohibitive and permissive aspects to the first aspect of the objective, there\nwere factual findings in other sections of the Panel Reports \"that [led] to the conclusion that\nproducts allowed access under the IC exception in particular, include a much higher risk of being\nderived from inhumanely killed seals\".\n64 Canada maintains that, based on the Panel's findings,\n\"there is an increased likelihood of seal products being derived from inhumanely killed seals\" in\nGreenlandic versus Canadian hunts, and \"a high likelihood of an increase in supply of seal products\nfrom Greenland in the absence of seal products from Canada and Norway\".\n65 In Canada's view, not\nonly are EU citizens being exposed to and po ssibly purchasing seal products derived from\ninhumanely killed seals under the EU Seal Regime, but the extent to which this occurs is higher\nunder the EU Seal Regime and increases the negati ve contribution of the exceptions to the first\naspect of the objective. If the Panel had applied the \"degree of contribution\" test correctly to the\nfacts, Canada argues, it would have found that \"the EU Seal Regime as a whole fails completely to\nmake a contribution to the first aspect of the objective.\"\n66\n2.15. Canada submits that the Panel erred in its analysis of the contribution of the EU Seal\nRegime to the second aspect of the identified objective, namely, reducing the incidence of the\ninhumane killing of seals. Canada argues that the Panel sought to determine whether the measure\ncontributed to a \"proxy objective\" of reducing demand for seal products in the EU and globally\nwithout assessing whether this then contributed to a reduction in the incidence of the inhumane\nkilling of seals.\n67 Canada states that, in failing to assess this second step, the Panel failed to\ndemonstrate that there was \"a genuine relation ship of ends and means between the objective\npursued and the measure at issue\". 68 Canada moreover states that this finding was made on the\nbasis of its examination of trade data, despite finding that \"the extent of the connection between\nthe ban aspect of the measure and the reduction in the number of seals killed is not clearly\ndiscernible\".69\n\n60 Canada's appellant's submission, para. 161.\n61 Canada's appellant's submission, para. 162.\n62 Canada's appellant's submission, para. 163.\n63 Canada's appellant's submission, para. 168.\n64 Canada's appellant's submission, para. 169.\n65 Canada's appellant's submission, para. 174.\n66 Canada's appellant's submission, para. 175.\n67 Canada's appellant's submission, para. 177.\n68 Canada's appellant's submission, para. 178 (quoting Appellate Body Report, Brazil – Retreaded Tyres,\npara. 145).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.16. In Canada's view, the Panel erred because it \"failed to provide a clear and precise\narticulation of an actual contribution and the extent of the contribution or the capability of making\na contribution to the proxy objective\". 70 Canada adds that the Panel then \"failed to undertake an\nexamination of whether a reduction in demand for seal products in the EU or globally would\nconsequently result in a reduction in the incidence of inhumane killing of seals\". 71 Canada argues\nthat findings made by the Panel in other parts of its Reports would not support such a showing\nsince \"the incidence of inhumane killing under the exceptions would be greater despite the\npossibility of fewer overall seals being killed.\"\n72 Canada further alleges that the Panel compounded\nits error by referring to the \"'incidence' of i nhumane killing\" without clarifying whether it was\nreferring to the \"proportion of seals being killed inhumanely or a total number of seals killed\ninhumanely\".\n73 Canada also contends that the Panel acted contrary to Article 11 of the DSU by\nfailing to refer to any evidence that supports its finding that, by reducing global demand for seal\nproducts resulting from commercial hunts, fewer seals will be killed in an inhumane way.\n2.17. Canada argues that the Panel erred because its findings with respect to the contribution that\nthe EU Seal Regime makes to the identified objective \"are insufficiently specific or detailed to\nprovide an accurate assessment of the 'degree' of contribution and a benchmark for comparison\nwith the alternative measure\".\n74 Relying on the Appellate Body reports in US – COOL , Canada\ncontends that a panel needs to present \"clear and precise\" findings that enable identification of the\ndegree of contribution made to the objective. 75 In Canada's view, however, the Panel failed to\narticulate what degree of contribution the EU Seal Regime as a whole makes to the identified\nobjective \"beyond vague references to 'some' contribution, 'a contribution' and 'contributes to a\ncertain extent'\".\n76 Moreover, Canada considers that the Panel's finding that one part of the EU Seal\nRegime is capable of making and does make some contribution to the objective, while finding that\nthe contribution is diminished and further negati vely affected by other parts of the measure,\nprovides an insufficient basis on which to identify the overall degree to which the EU Seal Regime\nmakes a contribution to the objective. Canada argues that, without a finding of the overall degree\nof contribution of the measure to the objective, \"it is not possible to compare the degree of\ncontribution of the EU Seal Regime with that of the alternative measure.\"\n77\n2.18. Canada further explains that its argument is not that imports from Greenland will replace\nimports from Canada, but rather that imports from Greenland can and do have access to the\nEU market despite the fact, as found by the Panel, that these products may be derived from seals\nkilled inhumanely\n78 Similarly, with respect to reducing the incidence of inhumanely killed seals,\nCanada notes that its contention is not that imports from Greenland will replace imports from\nCanada, but rather that they could, because there is no limit on the number of imports under the\nIC exception that can be placed on the EU market. Thus, Canada maintains, a reduction in demand\nfor seal products in the European Union would not necessarily result in a decrease in the incidence\nof inhumanely killed seals since imports from Greenland are derived from hunting practices that\nhave been recognized as creating poor animal welfare outcomes.\n2.19. Finally, Canada claims that the Panel erred in two respects in its application of the legal\nstandard under Article 2.2. First, the Panel failed properly to assess the risks non-fulfilment would\ncreate. According to Canada, although the Panel determined that the level of protection actually\nachieved by the measure is not as high as the European Union had claimed, the Panel then failed\n\"to continue its analysis to assess the 'nature of the risks at issue' and the 'consequences of\nnon-fulfilment' of the objective under the EU Seal Regime\".\n79 Second, Canada considers that the\nPanel compounded this error by failing to undertake a \"relational\" analysis between the risks\nnon-fulfilment would create under the EU Seal Regime, the trade-restrictiveness of the EU Seal\nRegime, and the contribution of the EU Seal Regi me to the identified objective. Had the Panel\ncompleted this analysis, Canada asserts, the Panel would have concluded that \"a very\n\n70 Canada's appellant's submission, para. 186.\n71 Canada's appellant's submission, para. 187.\n72 Canada's appellant's submission, para. 189 (referring to, inter alia, Panel Reports, paras. 7.164,\n7.216, 7.220, 7.250, 7.268, 7.269, 7.310, 7.314, and 7.315).\n73 Canada's appellant's submission, para. 194.\n74 Canada's appellant's submission, para. 209.\n75 Canada's appellant's submission, para. 213 (quoting Appellate Body Reports, US – COOL, para. 479).\n76 Canada's appellant's submission, para. 215.\n77 Canada's appellant's submission, para. 215.\n78 Canada's opening statement at the oral hearing.\n79 Canada's appellant's submission, para. 309.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ntrade-restrictive measure that does not make a significant contribution to the objective and has\nrelatively low consequences of nonfulfillment of the objective is not 'provisionally' necessary\npending confirmation by comparison with a less trade-restrictive alternative\".\n80\n2.1.2.2 The Panel's analysis of the alternative measure\n2.20. Canada claims that the Panel erred in several respects in its assessment of the alternative\nmeasure. Canada argues that the Panel erred by comparing the contribution of the alternative\nmeasure against only the prohibitive aspect of the EU Seal Regime. Canada notes that, unlike the\nPanel's analysis of the contribution of the EU Se al Regime, in which it assessed both positive and\nnegative contributions to the objective, the Panel made no reference to the manner in which the\nexceptions, both implicit and explicit, diminish and undermine the contribution to the objective.\nCanada argues that the Panel erred by \"ignoring its own findings\" and establishing an improper\nbenchmark for analysis of the alternative measure that considered the EU Seal Regime as \"only a\nprohibition without the explicit or implicit exceptions\".\n81\n2.21. Canada maintains that, by failing to assess the alternative measure against the actual\ncontribution of the EU Seal Regime, the Panel \"assessed the alternative measure against the\nstandard of complete fulfilment of the objective\". 82 Canada considers that such an approach\ncreated an improper standard against which to co mpare the alternative measure. With regard to\nthe first aspect of the objective, Canada argues that it appears the Panel was requiring that the\nalternative measure \"would have to limit market access to only those seal products that were, in\nfact, derived from humanely killed seals\"\n83, and thus \"prescribe adequate animal welfare standards\nand a certification and labelling scheme that would succeed in limiting access to the EU market\nexclusively to seal products derived from humanely killed seals\". 84 And although the Panel also\nconcluded that less stringent animal welfare standards and verification requirements would\ndiminish the degree of contribution to the fulfilment of the objective, Canada argues that the Panel\n\"fail[ed] to reconcile this with its finding that the IC and MRM exceptions 'diminish' the extent of\nthe contribution that the 'ban' makes to both aspects of the objective and that the 'implicit\nexceptions' undermine the objective\".\n85\n2.22. With regard to the second aspect of the objective – namely, reducing the number of\ninhumanely killed seals – Canada observes that, on the one hand, the Panel found that the\nalternative measure may subject a greater number of seals to the risks of poor animal welfare by\n\"restoring the potential market\" in the European Union.\n86 On the other hand, the Panel considered\nthat the imposition of animal welfare requirements may also promote the humane killing practices\nin seal hunts that could reduce the number of inhumanely killed seals to some extent. Canada\nargues, however, that the Panel here also \"failed to make an overall determination of the extent of\ncontribution that the alternative measure makes to this aspect of the objective\".\n87 Canada\nconsiders that, by comparing the alternative measure to a standard of complete fulfilment of the\nobjective and its two aspects, a standard that the EU Seal Regime itself failed to meet, the Panel\nerred in the application of the \"necessity\" test under Article 2.2.\n88\n2.23. Canada also argues that the Panel erred by adopting the incorrect legal standard of\ncomplete fulfilment of the objective with respec t to determining the degree of contribution the\nalternative measure would need to make and thus the reasonable availability of the alternative\nmeasure on that basis. In Canada's view, \"[s]ince complete fulfilment of the objective is a higher\ndegree of contribution than what was found under the EU Seal Regime, the Panel erred in finding\nthat the alternative measure is not reasonably available.\"\n89 Canada argues that, when the Panel\nconsidered whether the EU Seal Regime was reasonably available, it sought to determine whether\nthe alternative measure reflected a high level of animal welfare. In doing so, Canada contends, the\nPanel erred \"by basing its conclusion that the alternative measure was not reasonably available on\n\n80 Canada's appellant's submission, para. 322.\n81 Canada's appellant's submission, para. 244.\n82 Canada's appellant's submission, para. 246.\n83 Canada's appellant's submission, para. 250.\n84 Canada's appellant's submission, para. 251. (emphasis original)\n85 Canada's appellant's submission, para. 253.\n87 Canada's appellant's submission, para. 257 (referring to Panel Reports, para. 7.485).\n88 Canada's appellant's submission, para. 259.\n89 Canada's appellant's submission, para. 261.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthe requirement that it meet this level of animal welfare\". 90 Canada argues that the Panel also\nwrongly concluded that certification at the country or hunter level is insufficient because it would\nfail to convey accurate information in respect of seal welfare. Canada thus maintains that the Panel\nerred because its conclusion that the stringent version of the alternative measure imposes the sort\nof prohibitive costs and technical difficulties th at can prevent an alternative measure from being\nconsidered to be reasonably available was \"premised on the alternative measure being required to\ncompletely fulfil the objective\".\n91\n2.24. Canada submits that the Panel's error in evaluating the alternative measure against\ncomplete fulfilment of the objective led it to err in its reliance on certain jurisprudence and to\ndisregard other relevant considerations. Canada argues, for instance, that the Panel's\nmisconception about the standard against which to compare the alternative led it to err in its\nreliance on the Appellate Body report in EC – Asbestos .\n92 According to Canada, it was not\nappropriate for the Panel to rely on the Appella te Body's analysis of whether the alternative\nmeasure led to a continuation of asbestos-related health risks because, in contrast to the measure\nin EC – Asbestos , the EU Seal Regime does not achieve the level of protection asserted by the\nEuropean Union.\n2.25. Canada maintains that the Panel further erred in its interpretation and application of the\njurisprudence by dismissing the evidence regarding other wildlife hunts and abattoirs. Canada\npoints to the Appellate Body's statements in Korea – Various Measures on Beef as support for\nexamining measures applicable to other related product areas in assessing the reasonable\navailability of a proposed alternative measure.\n93 Canada argues that, because the Panel found that\nthe EU public's specific moral concern with respect to the inhumane killing of seals was rooted in\nanimal welfare generally being an issue of public morals in the EU, \"the same regulatory actions\napplied in the cases of other animals relied on by the EU to support its assertion of a public moral\non seal welfare are relevant to the issue of wh ich types of regulatory responses are reasonably\navailable.\"\n94 In Canada's view, if the Panel had correctly interpreted and applied the jurisprudence,\nit would have found that the types of measures applied with respect to the welfare of other\nanimals – including setting animal welfare requirements, certification, labelling, monitoring, and\nenforcement – raise doubts with respect to the ne cessity of the more restrictive EU Seal Regime.\nFurthermore, Canada argues that, because the Panel misinterpreted and misapplied the\njurisprudence to the facts of this case, it \"erred in considering the costs and logistical demands on\nhunters and marketers of seal products if a strict certification scheme were to be adopted by\nthe EU\".\n95 C a n a d a a l s o a r g u e s t h a t i t i s t h e b u r dens and costs imposed by compliance with an\nalternative measure on the responding WTO Member , not on the industry, that are relevant for a\nfinding that the alternative measure is reasonably available.\n2.26. For these reasons, Canada requests the Appellate Body to reverse the Panel's finding, and\nto complete the legal analysis and find that the EU Seal Regime is inconsistent with Article 2.2 of\nthe TBT Agreement.96\n2.27. Canada also asserts a claim under Article 11 of the DSU regarding the Panel's finding that\nthe alternative measure could result in an increa se in the number of seals killed inhumanely. In\nparticular, Canada argues that the Panel's finding was based on an assertion of the European\nUnion, which is itself a restatement of an unsupported assertion made in an amicus curiae\nsubmission. According to Canada, the Panel thus found that \"a stringent animal welfare standard\nwould lead to more seals being killed inhumanely … without any evidentiary support.\"\n97\n\n90 Canada's appellant's submission, para. 263.\n91 Canada's appellant's submission, para. 269.\n92 Canada's appellant's submission, paras. 270 and 271 (referring to Appellate Body Report, EC –\nAsbestos, para. 174).\n93 Canada's appellant's submission, paras. 281 and 282 (referring to Appellate Body Report, Korea –\nVarious Measures on Beef, paras. 170 and 168, respectively).\n94 Canada's appellant's submission, para. 284.\n95 Canada's appellant's submission, para. 291.\n96 Canada's appellant's submission, para. 335.\n97 Canada's appellant's submission, para. 334.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.1.3 Article XX of the GATT 1994\n2.1.3.1 Scope of Article XX(a)\n2.28. Canada appeals the Panel's finding that the EU Seal Regime was designed to protect public\nmorals and therefore falls within the scope of application of Article XX(a) of the GATT 1994.\nRelying on the Panel report in US – Gambling , Canada notes that the first element of the test\nunder Article XX(a) is to determine whether a given measure is designed \"to protect\" public\nmorals.\n98 C a n a d a h i g h l i g h t s t h a t t h e p h r a s e \" t o p r o t e c t \" i s a l s o u s e d i n A r t i c l e X X ( b ) . I n EC –\nAsbestos, the panel observed that \"the use of the word 'protection' implies the existence of a\nrisk.\"99 In Canada's view, \"[g]iven the close similarity between Articles XX(a) and XX(b), the\ninterpretive reasoning of the panel in EC – Asbestos is highly relevant to this dispute\".100 For these\nreasons, Canada \"extrapolate[s] that the test to be applied\" in determining whether a measure\nfalls within the scope of application of Article XX(a) includes three elements: (i) \"identification of a\npublic moral\"; (ii) \"identification of a risk to that public moral\"; and (iii) \"establishing that a nexus\nexists between the challenged measure and the protection of the public moral against that risk in\nthe sense that the measure is capable of making a contribution to the protection of that public\nmoral\".\n101\n2.29. With respect to the first element of its test, Canada argues that the Panel failed to \"inquire\nwhat the content of the [relevant] moral norm is\" by evaluating \"the standard of right and wrong\nconduct in the European Union with respect to animal welfare\".102 According to Canada, \"[s]uch an\ninquiry must focus on the content of animal welfare laws, policies and practices\" in the European\nUnion.\n103 Instead, Canada argues, the Panel \"merely po inted to the existence of EU animal welfare\nlegislation while noting that the presence of animal welfare policies in a variety of EU and\nEU Member State legislation supports the idea that animal welfare is a moral matter\".104\n2.30. Turning to the second element of its test, Canada asserts that, in order to ascertain whether\na \"risk\" to the public morals identified above ex ists, the Panel should have considered \"whether\nthere is evidence to show that the animal welfare practices with which the measure is concerned\nfall below that standard.\"\n105 According to Canada, a \"risk\" to public morals in the European Union\nexists only if the evidence leads to the conclusion that \"the commercial seal hunts targeted by the\nban exhibit a degree or incidence of animal suffering that falls below the standard or norm of right\nand wrong conduct in the context of animal we lfare shown to prevail within the [European\nUnion].\"106 Canada recalls that it had presented ev idence before the Panel to show that\n\"EU policies and practices with respect to animal welfare included a tolerance for a certain degree\nof animal suffering, both for slaughterhouses and wildlife hunts\", and that the welfare risks\nassociated with commercial seal hunts are \"'commonplace' in situations that involve the killing of\nanimals, especially in the context of wild life hunts\".\n107 On this basis, Canada argues that the Panel\nfailed to consider whether the risks associated with commercial seal hunts \"exceeded the accepted\nlevel of risk of compromised animal welfare, as reflected in the EU's policies and practices in this\nfield\".\n108\n\n98 Canada's appellant's submission, para. 386 and fn 470 thereto (quoting Panel Report, US – Gambling,\npara. 6.455).\n99 Canada's appellant's submission, para. 388 (quoting Panel Report, EC – Asbestos, para. 8.184).\n100 Canada's appellant's submission, para. 389.\n101 Canada's appellant's submission, para. 390.\n102 Canada's appellant's submission, para. 392.\n103 Canada's appellant's submission, para. 392.\n104 Canada's appellant's submission, para. 393 (referring to Panel Reports, para. 7.409).\n105 Canada's appellant's submission, para. 394.\n106 Canada's appellant's submission, para. 396.\n107 Canada's appellant's submission, para. 395 (referring to Canada's first written submission to the\nPanel, paras. 146-162 and 198-213; second written submission to the Panel, paras. 45-49; opening statement\nat the second Panel meeting, paras. 44-50; response to Panel question No. 60, paras. 248-250; and the\nfollowing Exhibits submitted by Canada before the Panel: Panel Exhibits CDA-29; CDA-34, p. 453; CDA-47;\nCDA-98; CDA-122; CDA-123, p. 14; CDA-124; JE-8; JE-17; and JE-22, p. 88 (see list of Panel Exhibits,\npp. 9-10).\n108 Canada's appellant's submission, para. 397.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.31. Canada also challenges the Panel's findings under Article 11 of the DSU, specifically in\nrespect of the Panel's finding \"that the circumstances and conditions of seal hunts present certain\nspecific challenges to the humane killing of seals\".\n109 Canada argues that, by characterizing seal\nhunts as \"unique\", and by disregarding the evidence relating to other situations involving the\nkilling of animals, the Panel \"failed to provide th e comparative basis that would have allowed it to\nevaluate whether the commercial seal hunt failed to satisfy prevailing animal welfare standards in\nthe European Union that provide the foundation for the alleged public moral concern\".\n110\n2.32. Canada asserts that \"[t]he Panel did not pr ovide any analysis based on the evidence before\nit to support its finding that the physical environment of seal hunts was distinguishable from\nwildlife hunts.\"\n111 While the Panel did consider the European Food Safety Authority's Scientific\nOpinion on Animal Health and Welfare 112 (EFSA Scientific Opinion) that compared the conditions\nbetween seal hunts and abattoirs, it did not refer to any part of the EFSA Scientific Opinion that\nlooked at other wildlife hunts. 113 Canada argues that much of the evidence regarding seal hunts,\nincluding the EFSA Scientific Opinion, provided comparison with other hunts \"for the purpose of\nmaking qualified conclusions regarding the seal hunt\", and such comparisons were necessary for\nthe findings in the EFSA Scientific Opinion. 114 Because the Panel \"felt that the other wildlife hunts\nwere not comparable\", Canada argues, the Panel \"deviated from the proper scientific method\nemployed by the experts to arrive at their conclusion on the seal hunt\". 115 According to Canada,\nthe Panel, \"[a]t a minimum\", should have provided \"a thorough assessment of the findings in the\nEFSA Scientific Opinion regarding other wildlife hunts.\"\n116 Canada argues that the Panel acted\ninconsistently with Article 11 of the DSU when it failed to provide reasons why environmental\nconditions between seal hunts and other wildlife hunts \"are so different as to make the animal\nwelfare aspects of the respective hunts incomparable\", and when it did not objectively assess the\nevidence before it, \"particularly evidence that goes to the heart of Canada's arguments\".\n117\n2.33. Canada also argues that the Panel did not properly compare the risks to animal welfare that\narise from other terrestrial hunts. In particular, Canada points out that the Panel failed to take into\naccount its evidence and arguments with respect to poor animal welfare outcomes in deer hunts,\nand, therefore, failed to recognize and compar e the poor animal welfare outcomes in other\nterrestrial hunts.\n118 According to Canada, the particular characteristics of seal hunts identified by\nthe Panel \"that pose 'various risks to the welfare of seals' including things such as ineffective\nstunning, delays in the killing process and struck an d lost rates are all equally evident in wildlife\nhunts\".\n119 Canada recalls that it \"had shown that the shooting of wildlife such as deer pose similar\nrisks due to poor marksmanship, wounding as opposed to killing of deer as well as the inordinate\ndelay between a shot and when a hunter checks the animal\".\n120 The Panel, however, \"failed to\ndisclose why this evidence that is of utmost relevance for Canada's arguments did not have a\nbearing on its determination regarding the particular risks to seal hunting\".121\n\n110 Canada's appellant's submission, para. 400.\n111 Canada's appellant's submission, para. 401.\n112 European Food Safety Authority, \"Scientific Opinion of the Panel on Animal Health and Welfare on a\nrequest from the Commission on the Animal Welfare aspects of the killing and skinning of seals\", The EFSA\nJournal (2007), No. 610, pp. 1-122 (Panel Exhibit JE-22).\n113 Canada's appellant's submission, para. 401 (referring to Panel Reports, fn 254 to para. 7.187).\n114 Canada's appellant's submission, para. 403 (referring to the following Exhibits submitted by Canada\nbefore the Panel: Panel Exhibits JE-20; JE-21; JE-22; JE-24; JE-31; and CDA-34 (see list of Panel Exhibits,\npp. 9-10).\n115 Canada's appellant's submission, para. 403.\n116 Canada's appellant's submission, para. 403. (fn omitted)\n117 Canada's appellant's submission, para. 402.\n118 Canada's appellant's submission, para. 404 (referring to DEFRA, Current and Future Deer\nManagement Options, Report on behalf of DEFRA European Wildlife Division, December 2003, pp. 14-15,\navailable at: <http://www.naturalengland.org.uk/Images/managementoptions_tcm6-4637.pdf> (Panel Exhibit\nCDA-123)).\n119 Canada's appellant's submission, para. 406.\n120 Canada's appellant's submission, para. 406 (referring to Canada's oral statement at the second Panel\nmeeting, paras. 42-49).\n121 Canada's appellant's submission, para. 406.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.1.3.2 The Panel's analysis of \"necessity\"\n2.34. Canada claims that the Panel also erred in its interpretation and application of the\n\"necessity\" test under Article XX(a) of the GATT 1994. To the extent that the Panel relied upon its\nanalysis under Article 2.2 of the TBT Agreement, Canada puts forth the same claims of error with\nrespect to the Panel's \"necessity\" analysis under Article XX(a) as Canada's claims of error with\nrespect to Article 2.2 of the TBT Agreement.\n122 Additionally, Canada presents a \"specific claim of\nlegal error\" concerning the Panel's interpretation of the \"material contribution\" test established by\nthe Appellate Body in Brazil – Retreaded Tyres.123\n2.35. Canada takes issue with the Panel's conclusion that \"for a preliminary finding that 'the\nmeasure as a whole is \"necessary\"' the contribution 'made by the \"ban\" to the identified objective\nmust be shown to be at least material given the extent of its trade-restrictiveness'.\"\n124 According\nto Canada, in taking this approach, the Panel appears to have relied on the statement of the\nAppellate Body in Brazil – Retreaded Tyres , that refers to \"restrictive effects\" \"as severe as those\nresulting from an import ban\". 125 Canada highlights, however, that in that dispute the panel\nanalysed the import ban on retreaded tyres as a measure on its own and the MERCOSUR exception\nas a separate measure because of the structure of the complainant's request for the establishment\nof a panel in that case.\n126 Relying on the Appellate Body's observations in Brazil – Retreaded\nTyres, Canada argues that \"the jurisprudence does not provide a basis upon which only the ban,\nwhich is not the aspect of the measure found inconsistent with the other provisions of the\nGATT 1994, is examined for the purposes of determining whether the measure makes a material\ncontribution to the objective.\"\n127 For these reasons, Canada contends that the Panel erred in its\ninterpretation and application of the \"contribution\" test by only considering the \"ban\" aspect of the\nEU Seal Regime when considering whether the me asure makes a \"material\" contribution to its\nidentified objective.128\n2.36. Next, Canada argues that, had the Panel a pplied the contribution element of the \"necessity\"\ntest correctly, it would have found that the EU Seal Regime failed to make a material contribution\nto its objective. Canada recalls that, under its Article XX(a) analysis, the Panel referred to its\nfindings in the context of Article 2.2 of the TBT Agreement to conclude that \"[o]verall, with respect\nto the EU Seal Regime as a whole … we found that it contributed to a certain extent to its\nobjective.\"\n129 T h e P a n e l ' s c o n c l u s i o n t h a t t h e E U S e a l R e g i m e m a k e s \" s o m e c o n t r i b u t i o n \" o r\n\"contributes to a certain extent\" does not provide a \"sufficient or meaningful articulation\" of the\ndegree of contribution of the measure to the objective. 130 For a measure to be considered\n\"necessary\", \"it should fall significantly closer to the pole of 'indispensable' rather than the\nopposite pole of 'simply making a contribution to'.\"\n131 However, the EU Seal Regime's \"degree of\ncontribution\" identified by the Panel, \"fall[s] clos er to the 'simply making a contribution to' end of\nthe spectrum rather than the indispensable end\". 132 For these reasons, Canada contends that the\nPanel erred in characterizing \"some contribution\" and \"makes a contribution to\" the identified\nobjective as equivalent to making a \"material contribution\", as suggested by the Appellate Body in\nBrazil – Retreaded Tyres.133\n\n122 Canada's appellant's submission, paras. 407 and 408 (referring to Panel Reports, paras. 7.634\nand 7.637-7.639).\n123 Canada's appellant's submission, para. 409 (referring to Appellate Body Report, Brazil – Retreaded\nTyres, para. 150).\n126 Canada's appellant's submission, para. 418 (quoting Appellate Body Report, Brazil – Retreaded\nTyres, para. 123).\n127 Canada's appellant's submission, paras. 419 and 420 (referring to Appellate Body Report, Brazil –\nRetreaded Tyres, para. 126).\n130 Canada's appellant's submission, para. 429.\n131 Canada's appellant's submission, para. 423 (quoting Appellate Body Report, Korea – Various\nMeasures on Beef, para. 161).\n132 Canada's appellant's submission, para. 429.\n133 Canada's appellant's submission, paras. 430 and 424, respectively (referring to Appellate Body\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.37. Canada also takes issue with the Panel's statement: \"[w]e consider, and the parties do not\ndispute, that … such public moral concern [with regard to the protection of animals] is indeed an\nimportant value or interest.\"\n134 Specifically, Canada refers to its second written submission to the\nPanel to assert that it \"did not agree that the specific public moral concern[s] in issue [were]\nconsidered important or presented a serious risk\". 135 For this reason, Canada asserts that the\nPanel erred in stating that Canada did not dispute the importance of the public moral concerns at\nissue in this case, and thus erred in making an objective assessment of the matter, contrary to\nArticle 11 of the DSU.\n2.38. Canada, therefore, requests the Appellate Body to reverse the Panel's intermediate findings\nunder Article XX(a) of the GATT 1994 that: (i) the measure falls within the scope of application of\nArticle XX(a); (ii) the EU Seal Regime as a whole makes a contribution to the identified objective;\nand (iii) the alternative measure advanced by Canada is not reasonably available.\n136 Canada also\nrequests the Appellate Body to complete the lega l analysis and find that the EU Seal Regime\ncannot be provisionally justified under Article XX(a).137\n2.1.3.3 The Panel's analysis under the chapeau of Article XX\n2.39. Canada argues that, although the Panel came to the correct conclusion, it erred in its\nreasoning under the chapeau of Article XX of th e GATT 1994 by finding that the discrimination\nagainst Canadian \"non-Inuit\" seal products is justifiable. Canada takes issue with the Panel's\n\"exclusive\" reliance on its legal analysis and find ings under Article 2.1 of the TBT Agreement to\ndetermine whether the EU Seal Regime is applied in a manner that constitutes \"arbitrary or\nunjustifiable discrimination\" within the meaning of the chapeau of Article XX.\n138 Canada argues\nthat, by \"relying solely on the ['legitimate regulatory distinction'] test it had devised under\nTBT Article 2.1\", the Panel committed an \"error in law\". 139 Canada maintains that the general\noverlap in scope and similarities in the obje ctives between the GATT 1994 and the TBT Agreement\nare not sufficient to \"import the results of the ['legitimate regulatory distinction'] test directly into\nthe analysis of the chapeau requirements\", while \"ignor[ing] crucial elements of the test for\narbitrary or unjustifiable discrimination\" under the chapeau.\n140 According to Canada, although the\ntext of the chapeau of Article XX is similar to the text of the sixth preambular recital of the\nTBT Agreement, there is no reason why \"the word ing of the sixth recital of the preamble of the\nTBT Agreement, created in 1994, should affect th e interpretation of the chapeau requirements of\nArticle XX, which dates back to 1947.\" 141 Canada asserts that the Panel \"did not have a proper\nbasis under the customary international law rules of treaty interpretation to read into the text of\nthe chapeau requirements the ['legitimate regulatory distinction'] test applicable to another\nagreement\".\n142 Canada also argues that, by relying on its analysis under Article 2.1, the Panel\nerred by failing to apply the test la id down by the Appellate Body in Brazil – Retreaded Tyres . In\nthat case, the Appellate Body ended its analysis under the chapeau of Article XX after finding that\n\"there was no rational connection between the discrimination in the Brazilian measure and its\nobjective\".143 Canada argues that, \"[a]t a minimum\", the Panel should have referred to the\n\"rational connection\" test that is directly applicable to the chapeau and provided an explanation\nwhy it did not apply the test in its chapeau analysis.\n144\n2.40. Canada asserts that \"[t]he ['legitimate regulatory distinction'] test developed by the Panel\nfor TBT Article 2.1 did not properly assess the just ifiability of the rationale for the regulatory\ndistinction in the light of the identified objective of the measure.\" 145 According to the Appellate\nBody, Canada adds, \"a rationale that purports to explain discrimination cannot be justified under\n\n134 Canada's appellant's submission, para. 431 (referring to Panel Reports, para. 7.632).\n135 Canada's appellant's submission, para. 434 (referring to Canada's second written submission to the\nPanel, paras. 176, 179, and 181-183; and Panel Report, US – Gambling, paras. 6.489-6.492).\n136 Canada's appellant's submission, para. 467.\n137 Canada's appellant's submission, para. 467.\n138 Canada's appellant's submission, paras. 447 and 450.\n139 Canada's appellant's submission, para. 449.\n140 Canada's appellant's submission, para. 450.\n141 Canada's appellant's submission, para. 452.\n142 Canada's appellant's submission, para. 453.\n143 Canada's appellant's submission, para. 456 (referring to Appellate Body Report, Brazil – Retreaded\nTyres, para. 228).\n144 Canada's appellant's submission, para. 457.\n145 Canada's appellant's submission, para. 460.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nArticle XX where there is no rational connection to the objective or if it goes against the\nobjective.\"146 In Canada's view, the chapeau analysis \"is not designed to assess whether a WTO\nMember has properly put forward a policy rationale that is not covered by one of the paragraphs of\nArticle XX\".147 Canada argues that the Panel erred \"by finding that discrimination arising from a\nregulatory distinction was justified despite the fact that the objective of that distinction had not\nbeen assessed to determine whether it fell within the scope of application of any of the paragraphs\nunder Article XX\".\n148 Canada further argues that the Panel also erred \"by failing to take into\naccount the fact that, not only is there no rational connection between the discrimination and the\npolicy objective of addressing the EU public moral concerns regarding seal welfare\", but also that\nthe exceptions in fact \"go against that objective by enabling IC and MRM-sourced seal products to\nbe sold on the EU market\".\n149\n2.41. In the event that the Appellate Body does not agree with Canada that the EU Seal Regime is\nnot provisionally justified under Article XX(a) of the GATT 1994, Canada requests the Appellate\nBody to reverse the Panel's intermediate finding that the discrimination against Canadian\ncommercial seal products arising from the IC exception is justifiable. 150 Canada requests the\nAppellate Body to complete the legal analysis on this specific point by applying the test set out in\nBrazil – Retreaded Tyres and to find that the discrimination between Canadian commercial seal\nproducts and IC seal products arising from the application of the EU Seal Regime is \"arbitrary and\nunjustifiable\".\n151 Should the Appellate Body disagree with its requests, Canada clarifies that its\nchallenge under the chapeau of Article XX of the GATT 1944 is restricted to the Panel's reasoning\nthereunder, and not its ultimate finding that the EU Seal Regime does not meet the requirements\nof the chapeau.\n152\n2.2 Claims of error by Norway – Appellant\n2.2.1 Article 2.2 of the TBT Agreement\n2.2.1.1 The Panel's identification of the objective of the EU Seal Regime\n2.42. Norway contends that the Panel erred in finding that the protection of the interests of\nindigenous communities, as reflected in the IC exception, and the promotion of the sustainable\nmanagement of marine resources, as reflected in the MRM exception, do not amount to\n\"objectives\" of the EU Seal Regime for purposes of Article 2.2 of the TBT Agreement. Norway\nchallenges the Panel's findings on several grounds.\n2.2.1.1.1 Reasons provided by the Panel\n2.43. Norway argues that the Panel gave erroneous reasons for finding that the protection of the\nIC and MRM interests do not amount to an objective of the EU Seal Regime within the meaning of\nArticle 2.2 of the TBT Agreement. Norway submit s that, even assuming that the Panel properly\nassessed the evidence before it, it nevertheless erred in its application of the law to the facts in\nfinding that the IC and MRM interests do not amount to an objective of the EU Seal Regime within\nthe meaning of Article 2.2. Specifically, Norway takes issue with four aspects of the Panel's\nreasoning that led the Panel to conclude that the interests accommodated in the IC and\nMRM exceptions do not amount to objectives of the EU Seal Regime.\n2.44. First, Norway agrees that the public conc erns regarding seal welfare must be distinguished\nfrom the policy interests targeted by the Euro pean Union in allowing the marketing of seal\nproducts derived from IC and MRM hunts. However, Norway emphasizes that \"the mere fact that\nthe three different policy interests pursued by the legislation (public concerns on seal welfare;\nprotection of IC communities; and promoting sust ainable marine resource management) must be\ndistinguished is not a valid reason for considering that two of the three interests do not amount to\n\n146 Canada's appellant's submission, para. 461 (referring to Appellate Body Report, Brazil – Retreaded\nTyres, para. 228).\n147 Canada's appellant's submission, para. 464.\n148 Canada's appellant's submission, para. 463.\n149 Canada's appellant's submission, para. 466.\n150 Canada's appellant's submission, para. 468.\n151 Canada's appellant's submission, para. 468.\n152 Canada's appellant's submission, para. 468.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n'objectives'.\"153 According to Norway, \"the need to distinguish the three legislative interests\npursued by the measure was merely an organizational issue for the Panel in structuring its analysis\nand reasoning\" and not a substantive reason to find that two of the interests are not objectives.154\n2.45. Second, Norway suggests that the Panel erred in assuming that, for an interest to amount\nto a regulatory objective, it must be \"grounded in the concerns of citizens\". 155 Norway emphasizes\nthat this need not necessarily be the case. For ex ample, an interest \"may be grounded in policy\ninterests raised by legislators or regulators that enjoy limited or no public support and do not\naddress citizens' concerns\".156\n2.46. Third, according to Norway, the Panel erre d by assuming that the IC and MRM exceptions\ncould not amount to objectives of the EU Seal Regime given that they were \"included in the course\nof the legislative process\".\n157 Norway submits instead that \"it is to be expected that the objectives\nof the legislative or regulating entity responsible for adopting the measure would arise 'in the\ncourse of the legislative process'.\"158\n2.47. Fourth, Norway alleges that the Panel erre d by relying on the Appellate Body report in\nBrazil – Retreaded Tyres to support its conclusion that the IC and MRM interests were not\n\"objectives\". Norway notes in particular that the exception at issue in Brazil – Retreaded Tyres \"did\nnot form part of the measure itself\" but was \"made effective through the application of the\nmeasure\" and followed from a ruling of the MERCOSUR tribunal. 159 According to Norway, \"[t]he\nfactual circumstances surrounding the adoption of that exception were, therefore, very different\nfrom the circumstances surrounding the adoption of the IC and [M]RM 'exceptions', which were\nincluded by the legislator at the time it adopted the measure.\"\n160 Norway adds that \"[t]he mere\nfact that the respondent in a different dispute did not argue that an exception under a different\nmeasure, adopted in unusual circumstances in a different country, had distinct policy objectives,\ndoes not mean that exceptions cannot have distinct policy objectives.\"\n161 Nor does it mean,\naccording to Norway, that \"the IC and MRM requirements – even if they were 'exceptions' – do not\nevidence distinct policy objectives.\" 162 Norway adds that, if a regulator adopts exceptions to\ngeneral rules, there is usually a policy reason for doing so – \"the exception will have some aim,\ntarget or goal, just as the IC and MRM requirements do\".163\n2.48. On this basis, Norway claims that the Panel erred under Article 2.2 of the TBT Agreement by\nproviding \"invalid reasons\" for concluding that the interests accommodated by EU legislators in the\nIC and MRM exceptions do not amount to objectives of the EU Seal Regime, and therefore requests\nthe Appellate Body to reverse the Panel's findings under Article 2.2 of the TBT Agreement.164\n2.2.1.1.2 The Panel's legal characterization of the objective of the measure\n2.49. In addition to challenging the reasoning provided by the Panel in paragraph 7.402 of the\nPanel Reports, Norway contends, as a separate matter, that the evidence before the Panel, as well\nas the Panel's own findings and the Panel's findings relating to the legislative history, text, and\nstructure, design, and expected operation of th e measure, do not support the Panel's overall\nconclusion that \"the EU Seal Regime pursues a single objective, and does not pursue objectives\nrelating to the IC and [M]RM requirements\". 165 According to Norway, since the task of the Panel\nunder Article 2.2 consisted of assessing the eviden ce before it for the purpose of identifying the\nobjectives of the measure, the Panel's errors in this regard constitute errors in the legal\ncharacterization of the facts. Norway challenges several aspects of the Panel's analysis.\n\n153 Norway's appellant's submission, para. 83.\n154 Norway's appellant's submission, para. 84. (emphasis original)\n155 Norway's appellant's submission, para. 85. (emphasis omitted)\n156 Norway's appellant's submission, para. 87.\n158 Norway's appellant's submission, para. 94.\n159 Norway's appellant's submission, para. 98 (referring to Appellate Body Report, Brazil – Retreaded\nTyres, para. 122 and fn 163 thereto; and quoting Panel Reports, fn 659 to para. 7.402).\n160 Norway's appellant's submission, para. 98.\n161 Norway's appellant's submission, para. 99.\n162 Norway's appellant's submission, para. 99.\n163 Norway's appellant's submission, para. 100.\n164 Norway's appellant's submission, paras. 108 and 109.\n165 Norway's appellant's submission, para. 114.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.50. First, with regard to the Panel's analysis of the legislative history of the EU Seal Regime,\nNorway argues that the Panel erred in finding that addressing EU public moral concerns regarding\nseal welfare was the \"principal\" objective of the EU Seal Regime, when, according to Norway, the\nlegislative history of the measure indicated that \"the interests of indigenous communities and\nsustainable resource management were also priorities in the minds of legislators when developing\nthe measure.\"\n166 In support of its position, Norway refers to the legislative proposal by the\nEuropean Commission for a regulation concerning trade in seal products167 (Commission Proposal),\nwhich not only makes reference to public concerns regarding seal welfare, but also includes\nprotecting IC interests as one of the \"[g]rounds for and objectives of the proposal\".168 According to\nNorway, the Panel failed to take this into account in its analysis. Norway also refers to the report\nof the Committee on the Internal Market and Consumer Protection on the Commission Proposal\n169\n(Parliament Report) and an opinion provided th erein by the Committee on Agriculture and Rural\nDevelopment of the European Parliament (AGRI), which, in Norway's view \"indicated the\nimportance to EU legislators of the policy objectives underlying the IC and [M]RM objectives\".\n170\nNorway further explains that the Committee on the Environment, Public Health and Food Safety of\nthe European Parliament (ENVI) proposed, in the Parliament Report, \"a full ban on trade in seal\nproducts with a limited exemption for Inuit communities\"\n171 and the Rapporteur of AGRI also\nsupported restrictions that excluded Inuit communities from the scope of the regulation. 172 In\naddition, referring to remarks made by Finland and Sweden within the Council of the European\nU n i o n , N o r w a y a r g u e s t h a t \" t h e a d o p t i o n o f t h e E U S e a l R e g i m e i n t h e p r e c i s e f o r m i t t o o k\nreflected a compromise attempt to incorporate a multitude of 'policy' aims and objectives proposed\nby the various stakeholders in the European Union's institutions: the Parliament, the Commission\nand the Council.\"\n173 For Norway, these goals were animal welfare, protection of Inuit interests, and\nmarine resource management.\n2.51. Norway submits that, despite this evidence, \"the vast majority of the Panel's reasoning on\nobjectives examines whether the evidence supported the objective asserted by the European\nUnion, namely that the measure addressed public concerns about seal welfare.\"\n174 Moreover, when\nit came to the objectives asserted by the complainants, the Panel made only \"selective\" references\nto some of the above evidence. 175 For example, according to Norway, the Panel \"did not …\nconsider the role played by passages from the same Proposal on the need to 'ensur[e]' that the\nregulation protected the Inuit interests, in inform ing the objective of the EU measure\" and did not\nmention the Parliament Report.176\n2.52. Regarding the Panel's analysis of the text of the EU Seal Regime, Norway asserts that the\nBasic Regulation reflects the fact that the IC an d MRM interests \"are prominently reflected in the\nmeasure in a manner that gives rise to a hierarchy of interests established in favour of\" the\ninterests accommodated in those exceptions. 177 In Norway's view, the design and structure of\nthose exceptions indicate that the legislator \"prioritized market access for products from qualifying\nhunts\".178 Norway further alleges that the Panel \"entirely overlooked\" the Implementing\nRegulation, noting simply that, \"while providing practical details necessary for the enforcement of\nthe Basic Seal Regulation, the Implementing Regulation does not in itself assist us in identifying\nthe objective of the measure.\"\n179 Norway points out that the Implementing Regulation is an\n\"integral part\" of the EU Seal Regime, and that \"detail with which the permissive elements are\n\n166 Norway's appellant's submission, para. 120.\n167 European Commission, Proposal for a regulation of the European Parliament and the Council\nconcerning trade in seal products (23 July 2008), COM(2008) 469 final (Panel Exhibit JE-9).\n168 Norway's appellant's submission, para. 121 (quoting Commission Proposal, p. 5).\n169 Committee on the Internal Market and Consumer Protection, Report on the proposal for a regulation\nof the European Parliament and of the Council concerning trade in seals products (5 March 2009),\nA6-0118/2009 (Panel Exhibit JE-4).\n170 Norway's appellant's submission, para. 123.\n171 Norway's appellant's submission, para. 124 (quoting Parliament Report, Opinion of ENVI, Short\nJustification, p. 33).\n172 Norway's appellant's submission, para. 125 (referring to Parliament Report, Opinion of AGRI, Short\nJustification, pp. 56 and 62).\n173 Norway's appellant's submission, para. 129.\n174 Norway's appellant's submission, para. 130.\n175 Norway's appellant's submission, para. 130.\n176 Norway's appellant's submission, para. 131.\n177 Norway's appellant's submission, para. 149.\n178 Norway's appellant's submission, para. 153.\n179 Norway's appellant's submission, para. 157 (quoting Panel Reports, fn 633 to para. 7.388).\nWT/DS400/AB/R • WT/DS401/AB/R\n\ndescribed and provided for illustrate that the IC and [M]RM concerns were prominent in the minds\nof the legislators.\"180\n2.53. Further, Norway claims that the Panel failed to consider and give appropriate weight to its\nown findings in other sections of the Panel Reports regarding the design, structure, and expected\noperation of the EU Seal Regime, which indicates that the IC and MRM exceptions amount to\nobjectives of the EU Seal Regime. In particular, Norway recalls that the Panel noted earlier in its\nReports that the EU Seal Regime is expected \"to operate in such a way that most of the products\nfrom Greenland and Sweden qualify under the IC requirements and are therefore permitted into\nthe EU market, whereas practically none of the seal products from Norway and Canada are\npermitted\".\n181 Norway adds that Greenland is expected to supply large quantities of the imported\nseal products and has the capacity to meet all of the European Union's demand. Thus, through the\ndesign and operation of the EU Seal Regime, seal products are not banned, but are instead\nallowed, through the IC and MRM exceptions. According to Norway, \"[t]he expected operation of\nthe measure therefore fulfills the aim of the regulators to ensure that products meeting the IC and\n[M]RM requirements have access to the EU market.\"\n182 Norway further claims that the Panel\n\"failed to draw the relevant legal conclusion, namely, that the operation of the measure reinforces\nits aim or goal of pursuing the IC, [M]RM, and personal use interests, and in fact undermines the\ndegree to which the measure addresses public concerns about seal welfare\".\n183\n2.54. Norway further emphasizes that, in any event, the issue is not whether the IC and\nMRM interests are more or less important than seal welfare; the issue is simply whether the\nobjectives of the measure include promoting IC and MRM interests.\n184 To be an objective, a policy\ninterest must form a regulatory goal or target, whether it is more, less, or equally important\ncompared to other goals. Norway argues that a panel may have regard to the ways in which\ndifferent interests are pursued and balanced, but it need not conclude that there is some absolute\nhierarchy among different objectives.\n2.2.1.1.3 Claims under Article 11 of the DSU\n2.55. Norway further claims that, through its tr eatment of the evidence relating to the design,\nstructure, and legislative history of the EU Seal R e g i m e , t h e P a n e l f a i l e d t o m a k e a n o b j e c t i v e\nassessment of the facts, as required under Articl e 11 of the DSU, in finding that the interests\npursued by the IC and MRM exceptions do not amo unt to separate and independent objectives of\nthe EU Seal Regime. Norway's claim that the Panel acted inconsistently with its obligations under\nArticle 11 of the DSU is based on four grounds.\n2.56. Norway contends, first, that the Panel di sregarded evidence provid ed by Norway showing\nthat the legislative objectives of the EU Seal Regime included protecting the economic and social\ninterests of indigenous communities, and separately promoting the sustainable management of\nmarine resources.\n185 Instead, the Panel undertook a \"selec tive\" and \"unbalanced\" review of the\nevidence of the legislative history, dedicating mo st of its analysis to addressing evidence that\nsupported the public morals objective asserted by the European Union. 186 In contrast, the Panel's\n\"discussion and consideration of the IC and [M]RM objectives asserted by Norway receive[d] a few\ncursory lines of commentary\".187 Norway emphasizes, however, that \"[a]n objective assessment of\nthe facts requires substantially more than 'notice' by a panel.\" 188 Norway further asserts that the\nPanel's \"imbalanced treatment of the evidence is highlighted by its selective reliance\" on the\nCommission Proposal. 189 In this regard, Norway notes that \"[t]he Panel referred to the\nCommission's Proposal to support the view that public concerns regarding seal welfare were to be\naddressed in the measure, quoting two full paragraphs of that Proposal.\" 190 Yet, according to\n\n180 Norway's appellant's submission, para. 158.\n181 Norway's appellant's submission, para. 164.\n182 Norway's appellant's submission, para. 164. (emphasis original)\n183 Norway's appellant's submission, para. 165. (emphasis original)\n184 Norway's opening statement at the oral hearing.\n185 Norway's appellant's submission, para. 180 (referring to Norway's first written submission to the\nPanel, paras. 591-630; and second written submission to the Panel, paras. 166-170).\n186 Norway's appellant's submission, para. 182.\n187 Norway's appellant's submission, para. 183.\n188 Norway's appellant's submission, para. 184.\n189 Norway's appellant's submission, para. 188 (referring to Commission Proposal, p. 5).\n190 Norway's appellant's submission, para. 188.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nNorway, \"the Panel failed to attribute equal (or for that matter any) weight in its discussion to\nother objectives highlighted in that very same document\" 191, namely that \"[t]he fundamental\neconomic and social interests of Inuit communities traditionally engaged in the hunting of seals\nshould not be adversely affected.\"\n192\n2.57. Second, Norway asserts that the Panel failed adequately to take into account the text of the\nEU Seal Regime, and in particular the Implementi ng Regulation for purposes of identifying the\nobjective of the EU Seal Regime. Norway argues that, in its consideration of the text of the EU Seal\nRegime, the Panel erred because it failed to appreciate the import of its own finding that the\npreamble of the Basic Regulation sets out three main considerations with equal prominence, which\nincluded those relating to IC and MRM interests. According to Norway, the Panel's failure to explain\nwhy, in the light of that finding, \"it still gave prom inence singularly to the seal welfare concerns of\nthe EU public, constitutes further error\".193\n2.58. Third, according to Norway, the Panel failed to account for the relevance of the measure's\noperation to discern the objective of the EU Seal Regime. More specifically, the Panel failed entirely\nto consider and give probative weight to its own findings in other sections of its Reports. According\nto Norway, these show that the EU Seal Regime will operate to allow into the EU market \"all, or\nvirtually all\" seal products from Greenland under the IC exception, and that seal products from\ncertain EU countries, including Sweden, would \"likely qualify\" under the MRM exception.\n194 Norway\nposits that this evidence concerning the expected operation of the EU Seal Regime \"confirms that\nthe goals expressed in the legislative history, and reflected in the text and hierarchy of the\nmeasure, are implemented in the measure's operation to a considerable practical extent\". 195 Thus,\nNorway contends that, together \"with the remaining evidence, these findings should have revealed\nto the Panel that the EU Seal Regime pursues objectives relating to the protection of IC and\n[M]RM interests\".\n196\n2.59. Fourth, Norway alleges that the Panel's reasoning in paragraph 7.402 of its Reports lacks\ncoherence to a degree that falls short of basic standards required under Article 11 of the DSU and\nis not supported by the evidence that was before the Panel. In this regard, Norway recalls its\nargument that the reasons given by the Panel for finding that protecting the IC and MRM interests\nwere not objectives of the EU Seal Regime were: (i) that the three interests pursued in the\nmeasure \"must be distinguished\"; (ii) that the IC and MRM interests are not grounded \"in the\nconcerns of EU citizens\"; (iii) that the IC and MRM \"exceptions\" were \"included in the legislative\nprocess\"; and (iv) that the exception in Brazil – Retreaded Tyres was not argued to constitute an\n\"objective\".\n197 In Norway's view, \"these reasons do not provide a coherent basis for the Panel's\nconclusion.\"198 Moreover, according to Norway, the Panel's reasoning fails to address the\n\"considerable evidence\" on the Panel record showin g that protection of the IC and MRM interests\nwere objectives of the measure.199\n2.2.1.2 The Panel's analysis of the contribution of the EU Seal Regime to its objective\n2.60. Norway claims that the Panel erred in finding that the EU Seal Regime was more trade\nrestrictive than necessary within the meaning of Article 2.2 of the TBT Agreement. Norway first\ndirects its challenge at the Panel's finding regarding the degree of contribution made by the\nEU Seal Regime to the protection of EU public mo rals. Norway asserts that the Panel's findings on\ncontribution were insufficiently clear and precise, and were not properly substantiated.\n\n191 Norway's appellant's submission, para. 188. (emphasis original)\n192 Norway's appellant's submission, para. 188 (quoting Commission Proposal, p. 5).\n193 Norway's appellant's submission, para. 198.\n194 Norway's appellant's submission, para. 204 (quoting Panel Reports, paras. 7.164 and 7.351,\nrespectively).\n195 Norway's appellant's submission, para. 205.\n196 Norway's appellant's submission, para. 206.\n198 Norway's appellant's submission, para. 209.\n199 Norway's appellant's submission, para. 209.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.2.1.2.1 Degree of contribution\n2.61. Norway contends that the Panel was required \"to state with sufficient clarity and precision\nthe degree or extent of the net overall positive contribution it found to be made by the EU Seal\nRegime\" to its objective. 200 Recognizing that a panel enjoys flexibility in conducting its analysis of\nthe degree of the contribution, Norway observes that \"the Panel opted for a methodology in which\nit considered the degree of positive, then negati ve, contribution made by the measure to each\naspect of the EU public morals objective\" before \"reaching an overall conclusion that there is a net\npositive contribution to the objective of the measure\". 201 Norway maintains that \"the Panel was\n[thus] required to articulate sufficiently clearly and precisely the degree of the contribution made\nby the measure to each aspect of the objective, so that it could conclude with sufficient precision\nand clarity\" that the measure made an overall net positive contribution to its objective.\n202 Because\nthe prohibitive and permissive aspects of the measure at issue \"counteract each other\" 203, Norway\nconsidered it particularly important that the Panel \"articulate with clarity and precision the degree\nto which the positive contributions made by the prohibitive elements exceeded the negative\ncontributions made by the permissive elements\".204 This, Norway adds, would provide an objective\nbasis on which to conclude that the measure makes an overall net positive contribution to its\nobjective, and provide a benchmark for purposes of comparison with the contribution of alternative\nmeasures.\n2.62. Norway maintains that the Panel failed to establish the degree of contribution made by\neither of the two aspects of the public morals ob jective of the EU Seal Regime identified by the\nPanel, namely: (i) whether the measure ensures that EU citizens do not participate as consumers\nin products derived from seals killed inhumanely; and (ii) reducing the incidence of the inhumane\nkilling of seals. Regarding the first aspect of the objective, Norway argues that, although the Panel\nconcluded that the prohibitive element of the measure prevents the EU public from purchasing seal\nproducts to the \"extent\" that the banned produc ts include products derived from seals killed\ninhumanely, the Panel never considered to what extent these hunts actually involved inhumane\nkilling.\n205 Moreover, Norway contends that the Panel failed in its assessment of the negative\ncontribution of the IC and MRM hunts by not articulating with any clarity the extent of the risk of\ninhumane killing in these hunts, particularly in relation to the banned hunts. Norway concludes\nthat the Panel, having failed to articulate the degree of the positive and negative contributions\nmade, \"had no basis to conclude that the measure actually makes a net positive contribution to\nthat aspect of the objective\". 206 Although the Panel concluded that the ban is capable of making a\ncontribution to the measure's objective, Norway argues that it never determined \"in what\ncircumstances will the capability of contributing be converted into an actual contribution\".\n207\n2.63. With regard to the second aspect of the objective, Norway first criticizes the Panel for failing\nto explain the basis for treating a reduction in demand for seal products as a proxy for a reduction\nin inhumane killing. According to Norway, \"[e]ven if demand were to fall, inhumane killing could\nincrease if the measure favours supply from a hunt with poorer animal welfare outcomes.\"\n208\nNorway contends that, under these circumstances, the supply of seal products derived from\ninhumanely killed seals would increase, which is what occurs under the EU Seal Regime. Norway\nargues that the Panel failed to articulate the ex tent of the positive contribution made by the\nprohibitive elements of the measure to this as pect of the objective. In particular, Norway\nmaintains that the EU Seal Regime is incapable of affecting consumer demand, and that the Panel\nitself acknowledged that it was unable to draw any concrete conclusions based on the available\ndata. Moreover, Norway considers that the Panel's conclusion that the measure \"may have\ncontributed\" to reducing EU demand is nothing more than a \"possibility\" that the measure did\nso.\n209\n\n200 Norway's appellant's submission, para. 262. (emphasis original)\n201 Norway's appellant's submission, para. 263.\n202 Norway's appellant's submission, para. 263.\n203 Norway's appellant's submission, para. 265.\n204 Norway's appellant's submission, para. 266. (emphasis original)\n205 Norway's appellant's submission, para. 273.\n206 Norway's appellant's submission, para. 281.\n207 Norway's appellant's submission, para. 284. (emphasis original)\n208 Norway's appellant's submission, para. 291.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.64. Norway argues that the Panel's articulation of the negative contribution made to the second\naspect of the measure is also inadequate. According to Norway, the Panel did not set out the\nextent of the negative contribution, or the extent to which that contribution is minimized by the\ninability of certain indigenous communities to benefit from the IC exception, or by commercial\nactivity occurring under one of the implicit exceptions. As it did in respect of the contribution of the\nfirst aspect of the measure, Norway concludes that the Panel had no basis to conclude that the\nmeasure actually makes an overall net contribution to that aspect of the objective, and in fact\nnever even stated that there was such a contribution.\n2.65. With regard to the Panel's conclusion concerning the measure as a whole, Norway echoes\nthe concerns it raises in respect of the Panel's intermediate findings. As Norway argues, the\nPanel's contribution findings \"are so beset with equivocation, vagueness, and imprecision that it is\nimpossible to form an understanding as to how the findings justify the overall conclusion that there\nis even 'some' contribution, much less what the Panel itself considered to be the degree or extent\nof that contribution\".\n210 Norway adds that there is, therefore, no basis for the Panel's finding that\nthe EU Seal Regime makes a contribution to its public morals objective, and requests that the\nPanel's finding be reversed.211\n2.66. Norway further argues that the fact that a qualitative assessment is chosen does not mean\nthat the specification of the extent of the contri bution may be vague and imprecise, as suggested\nby the European Union.212 Norway maintains that, despite the existence of qualitative assessments\nin Brazil – Retreaded Tyres and US – Tuna II (Mexico) , the panels in both of those cases\nnevertheless offered detailed qualitative explanations in support of their findings that a\ncontribution existed.\n2.2.1.2.2 Basis for a finding of contribution\n2.67. Norway claims that the Panel also erre d in applying Article 2.2 of the TBT Agreement\n\"to arrive at the conclusion that the measure makes 'some' net overall contribution to that\nobjective\".213 Norway focuses this aspect of its appeal on two features of the Panel's overall\nconclusion: (i) that the Panel undervalued the negative contribution of the permissive elements;\nand (ii) that it overvalued the positive contribu tion of the prohibitive elements. Norway considers\nthat \"neither the evidence before the Panel, nor its own findings, support the conclusion that the\nEU Seal regime makes a net overall positive contribution to the objective.\"\n214 Norway considers\nthat the Panel's errors constitute errors in the legal characterization of the facts, but also makes\nclaims under Article 11 of the DSU with respect to limited aspects of the Panel's assessment of the\nissue.\n2.68. Norway identifies six points that it considers the Panel undervalued in assessing the\nnegative contribution of the EU Seal Regime to the public morals objective. First, Norway refers to\nthe Panel's conclusions that virtually all seal products from Greenland and the European Union are\nlikely to be introduced on the EU market by virtue of the IC and MRM exceptions, whereas the vast\nmajority of Canadian and Norwegian seal products do not meet the requirements of either of these\nexceptions. Norway observes that these except ions \"impose no animal welfare conditions\nwhatsoever\"\n215, and recalls the Panel's finding that seal products may be sold on the EU market\nunder the IC and MRM exceptions \"regardless of wh ether they derive from seals killed humanely\"\nand without any quantitative limits.216\n2.69. Second, Norway takes note of the Panel's conclusion that EU public moral concerns\nregarding seal welfare appear to be related to seal hunts in general, not to particular types of seal\nhunts. Although the European Union had argued that certain interests prevailed over concerns in\nrespect of seal welfare, Norway claims that the Panel rejected this argument because it was\nunsupported by the evidence of record on the scope and content of the relevant public moral.\n217\n\n210 Norway's appellant's submission, para. 315. (emphasis original)\n211 Norway's appellant's submission, para. 315.\n212 Norway's opening statement at the oral hearing.\n213 Norway's appellant's submission, para. 316.\n214 Norway's appellant's submission, para. 317.\n215 Norway's appellant's submission, para. 325.\n217 Norway's appellant's submission, para. 333 (referring to Panel Reports, para. 7.442).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nThus, Norway argues, \"the moral standard found by the Panel applies to the IC and [M]RM hunts\nconducted in Greenland and the European Union as much as it does to other seal hunts.\"218\n2.70. Third, Norway criticizes the Panel for faili ng to make an assessment of the animal welfare\nrisks presented by the Greenlandic hunt in relati on to the banned hunts. Norway points to the\nPanel's conclusions that \"the use of rifles from boats in 'open water hunting' or trapping and\nnetting appear to be the main hunting methods for Greenlandic Inuit\", and that those hunting\nmethods contribute to seal welfare concerns.\n219 Norway also points to differences in compliance\nmonitoring efforts as between Greenland, and Canada and Norway. Norway argues that the Panel,\nhowever, \"failed to make any assessment of the animal welfare risks presented by the Greenlandic\nhunt in relation to the banned hunts\".220\n2.71. Fourth, Norway points to Panel findings and record evidence that, in its view, support the\nconclusion that the EU Seal Regime would lead to the substitution of Greenlandic seal products for\nimports previously derived from commercial hunt s in Canada and Norway. Norway argues that\nthese Panel findings and record evidence demonstrate that Greenlandic trade could by itself satisfy\nEU demand.221 Norway further argues that the data relied on by the European Union to show levels\nof Canadian imports into the European Union were overstated because they also include transit\ngoods that do not enter the EU market.\n222\n2.72. Fifth, Norway argues that the Panel wron gly concluded that indigenous communities have\nnot been able to benefit from the IC exception, a factor that the Panel considered to limit the\nnegative impact of the exceptions. Norway asserts that the Panel's finding was \"disingenuous\"\n223\nbecause no Greenlandic imports were possible under the IC exception until a Greenlandic body to\ncertify imports was recognized in April 2013, four days before the second Panel meeting. 224\nNorway argues that the Panel's conclusion demonstrates a selective treatment of the evidence and\na failure to refer to or reconcile its findings, in violation of Article 11 of the DSU.\n2.73. Sixth, Norway accuses the Panel of failing to assess the impact of the implicit exceptions\nunder the EU Seal Regime. Norway contends that, despite the fact that the Panel's findings\ndemonstrate that the implicit exceptions have commercial importance, and thus make an\nimportant negative contribution to countering the measure's objective, its significance \"is nowhere\nproperly taken into account or characterized by the Panel in arriving at its overall conclusion\".\n225\n2.74. In addition, Norway asserts two errors of the Panel that demonstrate its overvaluing of the\npositive contribution of the EU Seal Regime to th e public morals objective. First, Norway considers\nthat the Panel committed a \"recurring error\" by failing properly \"to characterize the consequences\nof the explicit and implicit 'exceptions' for the capability of the 'ban' to make an overall net positive\ncontribution\".226 Norway asserts that the Panel failed to reconcile the effects of the prohibitive and\npermissive aspects of the measure, and that it is impossible to understand on this basis how and\nwhy the Panel concluded that there is a net positive contribution to the measure's objective.\nMoreover, Norway asserts that, in terms of Articl e 11 of the DSU, \"the imprecision of the Panel's\nanalysis means that the Panel provide[d] an inadequate statement on how it weighed, balanced,\nand reconciled the competing evidence of positive and negative contributions\".\n227 Norway adds\nthat, \"[a]s the Panel failed to explain and reconcile the evidence in arriving at its conclusion,\nincluding in making its intermediate factual findings, there is no objective basis to comprehend\nhow it arrived at its net overall conclusion\".\n228 This, Norway contends, demonstrates a lack of\nobjectivity by the Panel, in violation of Article 11 of the DSU.\n\n218 Norway's appellant's submission, para. 334.\n220 Norway's appellant's submission, para. 344.\n221 Norway's appellant's submission, para. 356 (referring to Panel Reports, para. 7.315, in turn referring\nto COWI, Study on implementing measures for trade in seal products, Final Report (January 2010) (Panel\nExhibit JE-21) (COWI 2010 Report), p. 84).\n222 Norway's opening statement at the oral hearing.\n223 Norway's appellant's submission, para. 363.\n224 Norway's appellant's submission, para. 365 (referring to Panel Reports, fn 220 to para. 7.164).\n225 Norway's appellant's submission, para. 374.\n226 Norway's appellant's submission, para. 376.\n227 Norway's appellant's submission, para. 415. (emphasis original)\n228 Norway's appellant's submission, para. 418.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.75. Second, Norway maintains that the Panel erroneously found that the ban reduces demand\nfor seal products within the European Union and globally. With respect to the decline in demand\nwithin the European Union, Norway contends that \"[t]he Panel did not identify any features of the\nmeasure, by design or otherwise\", that affect the demand for seal products.\n229 In Norway's view,\nthe exceptions of the EU Seal Regime will ensure \"sufficient quantities of seal products … in the\nEU market to meet the entirety of EU demand\".230 Norway also contends that the reasons given by\nthe Panel for finding that the direct impact of the ban is a reduction of demand within the\nEuropean Union \"do not withstand scrutiny\". 231 Norway further asserts that, in terms of Article 11\nof the DSU, the Panel failed to substantiate its findings and engaged in selective treatment of the\nevidence demonstrating a lack of objectivity. Moreover, Norway argues that the Panel relied for its\nconclusion on trade data that do not pertain to EU or global demand, and that the Panel itself\nstated did not provide it with a basis to reach concrete conclusions. Accordingly, Norway argues,\nthe Panel's findings lack objectivity.\n2.2.1.2.3 Other issues regarding contribution\n2.76. Norway further contends that the Panel acted inconsistently with Article 11 of the DSU when\nit failed to address Norway's claim that the so-called \"non-profit\", \"non-systematic\", and \"sole\npurpose\" conditions of the MRM exception are unnecessary to the achievement of the seal welfare\nconsiderations underlying the public moral concerns found by the Panel, or to the achievement of\nsustainable resource management. As Norway argues, these three conditions \"establish a barrier\nto trade in seal products from Norway\"\n232 and thus form a critical part of Norway's claim under\nArticle 2.2 of the TBT Agreement. Norway maintains that, \"[b]y completely ignoring this element\nof Norway's claim\", the Panel failed in its duty under Article 11 of the DSU.233\n2.77. Finally, Norway contends that the Panel failed to address \"arbitrary or unjustifiable\ndiscrimination\" in its analysis of whether the EU Seal Regime is more trade restrictive than\nnecessary under Article 2.2. Norway contends that the sixth recital of the TBT Agreement reflects\nthat WTO Members \"have consciously carried over the qualifications in the chapeau to the\ndisciplines that regulate technical regulations\".\n234 Norway adds that, because the Appellate Body\npreviously found relevant contextual support in the sixth recital for its interpretation of Article 2.2,\nto \"give effect to this context\", a panel must as sess whether there is \"arbitrary or unjustifiable\ndiscrimination\", in the pursuit of the justifying objective, in determining whether trade restrictions\nare necessary to fulfil an objective.\n235 Norway claims that the Panel erred in its interpretation and\napplication of the legal standard under Article 2.2 of the TBT Agreement, and, by failing to address\nNorway's arguments in this regard, acted inconsistently with its duty under Article 11 of the DSU.\n2.2.1.3 The Panel's analysis of the alternative measure\n2.78. Norway then addresses the Panel's analysis of the proposed alternative measure. Norway\nclaims that, although the Panel identified the corre ct question in examining the contribution of a\nless trade-restrictive alternative measure, the Panel erred by \"focus[ing] on whether the\nalternative could fulfil completely the identified objective, as if the contested measure being\ncompared against the alternat ive were a comprehensive ban \".236 Norway contends that the Panel\nthus erred by holding the alternative measure up to a benchmark level of contribution that was\nhigher than the contribution achieved by the EU Seal Regime. This error, Norway argues,\ncompromised the Panel's analysis of whether the contribution of the alternative was equal to or\ngreater than the level actually achieved by the EU Seal Regime, and of whether the alternative\nwas reasonably available.\n2.79. Norway considers that the Panel's assessm ent is erroneously premised on a requirement\nthat the less-trade-restrictive alternative effectiv ely prevents exposure to products from seals\nkilled inhumanely. Norway finds evidence of the Pane l's error in its conclusion that, even if market\n\n229 Norway's appellant's submission, para. 381.\n230 Norway's appellant's submission, para. 382.\n231 Norway's appellant's submission, para. 384.\n232 Norway's appellant's submission, para. 507.\n233 Norway's appellant's submission, para. 508. (emphasis original)\n234 Norway's appellant's submission, para. 534.\n235 Norway's appellant's submission, para. 542.\n236 Norway's appellant's submission, para. 583. (emphasis original)\nWT/DS400/AB/R • WT/DS401/AB/R\n\naccess were limited to seal products that meet animal welfare requirements, those seal products\n\"would originate in hunts that may have caused poor animal welfare outcomes for some other\nnumber of seals\".\n237 Norway contends that the \"logical implication\" of this rationale is that \"the\ncurrent EU Seal Regime performs better than the alternative in this respect\". 238 According to\nNorway, the IC and MRM exceptions allow the market ing of seal products irrespective of animal\nwelfare considerations, and admit seal products from seal hunts, such as the Greenlandic hunt,\nthat permit and commonly use inhumane killing methods, such as netting. Norway thus argues\nthat \"unlimited quantities of seal products are already admitted to the EU market\" from hunts that\nhave caused poor animal welfare outcomes.\n239 In Norway's view, an alternative that conditions\nEU market access on a requirement that seal products be derived from seal hunts applying strict\nanimal welfare requirements \"can only be an im provement\" on the EU Seal Regime, since it has\nexceptions that admit seal products regardless of animal welfare outcomes.\n2.80. Norway also considers that the Panel similarly erred in its statement that the alternative\nmay \"have the consequence of subjecting a greate r number of seals to the animal welfare risks\nincidental to seal hunting\".\n240 In doing so, the Panel relied on a report that rejected a proposed\namendment during the legislative process on th e grounds that it did not meet EU citizens'\ndemands to end the trade in seal products. 241 As Norway argues, the Panel overlooked its own\nfindings since the EU Seal Regime focused not on ending the trade in seal products, but rather on\naddressing concerns about the welfare of seals. Norway considers that the Panel's approach \"holds\nthe alternative measure up to a standard of contribution that is much higher than that actually\nachieved by the EU Seal Regime\".\n242\n2.81. With respect to the availability of the al ternative measure, Norway argues that the Panel\nerred by considering the feasibility of an alternative measure that would completely fulfil the\nobjective at issue. Norway points to the Panel's consideration of the level of stringency required\nfrom animal welfare standards \"in order to genuinely assuage [animal welfare] concerns\".\n243\nIn Norway's view, the Panel's findings on the contribution of the EU Seal Regime show that the\nmeasure at issue does not genuinely assuage animal welfare concerns, because consumers are\nexposed to unlabelled seal products imported under the IC and MRM exceptions. By way of further\nexample, Norway considers that the Panel's assertion that stringent animal welfare standards are\nnot a reasonably available alternative because stringent standards might not be met relies on an\ninappropriate benchmark. In Norway's view, \"animal welfare requirements are already not being\nmet in the IC and [M]RM hunts\".\n244 According to Norway, \"the proposed alternative actually\nimposes animal welfare requirements, whereas the measure imposes none.\"245 Norway points to\nother errors it argues the Panel made in respec t of certification, labelling, and costs. Norway,\nmoreover, criticizes the Panel for its reliance on EC – Asbestos for the proposition that a\nresponding Member cannot be expected to employ an alternative measure that involves a\ncontinuation of the risk that the challenged measure seeks to halt.\n246 In Norway's view, this\nreliance by the Panel was misplaced, because the EU Seal Regime itself \"does not even 'seek to\nhalt' the animal welfare risks associated with seal hunting\", given that it admits seal products\nunder the IC and MRM exceptions.\n2.82. Finally, Norway submits that the Panel misapplied WTO jurisprudence, in particular by\nindicating that the significance of costs and tech nical difficulties relates to those borne by WTO\nMembers, not industry. Norway argues that efficien t suppliers will have an incentive to meet any\ncosts they bear, because they still are permitted to trade. In Norway's view, \"compliance costs do\nnot make the measure less 'reasonably available' to the regulating Member , since the cost of\n\n238 Norway's appellant's submission, para. 593. (emphasis original)\n239 Norway's appellant's submission, para. 594. (emphasis original)\n241 See Panel Reports, fn 772 to para. 7.482 (referring to Parliament Report, Justification for\nAmendment, p. 21).\n242 Norway's appellant's submission, para. 596.\n243 Norway's appellant's submission, para. 601 (quoting Panel Reports, para. 7.496). (emphasis added\nby Norway)\n244 Norway's appellant's submission, para. 602 (referring to Panel Reports, para. 7.496). (emphasis\noriginal)\n245 Norway's appellant's submission, para. 603. (emphasis original)\n246 Norway's appellant's submission, para. 611 (referring to Panel Report, EC – Asbestos, para. 7.502).\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncompliance could be borne by industry.\" 247 Moreover, Norway contends that the Panel\n\"fundamentally misunderstood\" the relevance of costs and technical difficulties addressed by the\nAppellate Body in Brazil – Retreaded Tyres and US – Gambling and, in doing so, \"laid down an\nimproper standard for less-restrictive alternatives to meet\".\n248 In Norway's view, it is clear from\nthese decisions that the Appellate Body \"was addressing the relevance of costs and technical\ndifficulties that would be borne by the responding Member under a proposed alternative measure\",\nand \"was not addressing the cost to be borne by industry\".249\n2.83. Norway further submits that the Panel acted in violation of Article 11 of the DSU by ignoring\ntwo further alternative measures it had proposed during the course of the Panel proceedings. First,\nNorway proposed an alternative that consisted of the removal of the restrictive conditions of the\nEU Seal Regime. Under this alternative, trad e would be permitted from hunts that, under the\nmeasure at issue, \"could not meet the conditions for market access under the IC, [M]RM or\nTravellers 'exceptions'\".\n250 The second alternative was the removal of three contested conditions\nfor access to the MRM exception – namely, the \"not-for-profit\", \"non-systematic\", and \"sole\npurpose\" conditions – leaving all the other el ements of the EU Seal Regime undisturbed. 251 In\nNorway's view, \"this alternative could include animal welfare, certification, and labelling\nrequirements on seal products that meet the two remaining [M]RM conditions\".\n252 According to\nNorway, \"these alternatives were completely ignored by the Panel\". 253 Norway contends that the\nPanel's failure to address the second alternative was \"egregious\" since the three conditions were\nfound to restrict access to the EU market.\n254 Norway asserts that \"the Panel's failure to assess\nwhether Norway's proposed alternative – which excludes these three restrictive conditions, but\nadds animal welfare requirements and labelling – could make an equivalent contribution to the\npublic morals objective is manifestly inadequate.\"255\n2.2.1.4 Request for completion of the analysis\n2.84. Finally, Norway requests, if the Appellate Body reverses the Panel's finding that the EU Seal\nRegime is not inconsistent with Article 2.2 of the TBT Agreement, that the Appellate Body\ncomplete the legal analysis. Norway explains that \"there may not be a sufficient basis in the Panel\nfindings and record to complete the analysis on all aspects of Norway's claim\".\n256 Norway thus\nrequests that the Appellate Body make \"limited findings\" in relation to the objectives of the\nEU Seal Regime and the legitimacy of the objectives, as well as a \"narrow finding\" of inconsistency\nin relation to certain conditions for market access under the MRM exception.\n257\n2.85. Norway requests the Appellate Body to complete the legal analysis in relation to three\nspecific points. First, Norway requests the Appellate Body to find that, in addition to addressing\nEU public moral concerns regarding seal welfare, the EU Seal Regime also includes two additional\nobjectives: protecting IC interests, and promoting marine resource management. 258 Second,\nNorway requests the Appellate Body to find that the MRM objective is legitimate, although it does\nnot request completion as to whether the objective of protecting IC interests is legitimate.\n259\nThird, Norway requests the Appellate Body to find that the EU Seal Regime is more trade\n\n247 Norway's appellant's submission, para. 614. (emphasis original)\n248 Norway's appellant's submission, para. 614.\n249 Norway's appellant's submission, para. 616. (emphasis original)\n250 Norway's appellant's submission, para. 621 (referring to Norway's first written submission to the\nPanel, paras. 776-778).\n251 Norway's appellant's submission, para. 622 (referring to Norway's first written submission to the\nPanel, paras. 782 and 912-917; opening statement at the first Panel meeting, para. 138; second written\nsubmission to the Panel, paras. 313-315; opening statement at the second Panel meeting, paras. 70-77; and\nresponse to Panel question No. 114, para. 81).\n252 Norway's appellant's submission, para. 622 (referring to Norway's opening statement at the second\nPanel meeting, para. 77; and responses to Panel question No. 114, para. 81, and Panel question No. 145,\nfn 204 to para. 214).\n253 Norway's appellant's submission, para. 623. (emphasis original)\n254 Norway's appellant's submission, para. 624.\n255 Norway's appellant's submission, para. 625.\n256 Norway's appellant's submission, para. 632. (emphasis original)\n257 Norway's appellant's submission, para. 632.\n258 Norway's appellant's submission, paras. 641-671.\n259 Norway's appellant's submission, paras. 672-680.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nrestrictive than necessary by virtue of three contested conditions of the MRM exception: namely,\nthe \"not-for-profit\", \"non-systematic\", and \"sole purpose\" conditions.260\n2.2.2 Article XX of the GATT 1994\n2.2.2.1 Aspects of the measure to be justified under Article XX(a)\n2.86. Norway asserts that the Panel identified two precise aspects of the EU Seal Regime that\nviolated the substantive provisions of the GATT 1994, namely, the IC exception and the\nMRM exception. According to Norway, although th e Panel purported to agree with the parties and\nthe relevant WTO jurisprudence that it is these \"specific provisions\"\n261 – i.e. the IC and\nMRM exceptions found to be GATT-inconsistent – that have to be provisionally justified under\nArticle XX(a), the Panel departed from this approach by expressly finding that \"the EU Seal Regime\ncan be provisionally deemed 'necessary' within the meaning of Article XX(a).\" 262 Norway highlights\nthat the Panel sought to draw a distinction between \"justifying\" the IC and MRM exceptions, on the\none hand, and \"considering\" or \"analysing\" the EU S e a l R e g i m e a s \" a w h o l e \" i n t h e p r o c e s s o f\n\"justifying\" the IC and MRM exceptions, on the other hand. 263 Norway does not consider such\ndistinction objectionable to the limited extent th e Panel \"consider[ed]\" and \"analy[sed]\" the \"ban\"\naspect of the EU Seal Regime to \"better underst and[]\" the IC and MRM exceptions, all with the\nultimate aim of assessing the provisional justification of these exceptions. 264 However, Norway\npoints out that the Panel instead assessed and found the EU Seal Regime \"as a whole\" to be\nprovisionally justified on the basis of the positive contribution of the ban, which allowed the Panel\nto \"mask\" and \"overcome\" the negative contribution of the exceptions.\n265 In this way, the Panel's\nconsideration of the ban went well beyond \"better understanding\" 266 the exceptions, as it allowed\naspects of the EU Seal Regime found to be WTO-consistent (i.e. the ban) to \"shield from scrutiny\"\nunder Article XX(a) those aspects of the measure found to be WTO-inconsistent (i.e. the\nexceptions).\n267\n2.87. Norway makes three arguments in support of its position. First, Norway refers to the\nGATT Panel report in US – Section 337 Tariff Act and the Appellate Body reports in Thailand –\nCigarettes (Philippines) and US – Gasoline to show \"consistent\" GATT and WTO jurisprudence that\nit is the \"particular aspect of the measure found to be inconsistent that must be justified under\nArticle XX\".268 With respect to US – Section 337 Tariff Act , Norway recalls that the GATT panel\nfound that \"the part of the measure found to be inconsistent with GATT obligations is the part that\nmust be justified\".\n269 The panel noted that, otherwise, contracting parties could introduce\nGATT-inconsistent provisions that are not \"necessary\", simply by making them part of a measure\nthat contained other elements that are \"necessary\". 270 Norway considers that this approach\nwas affirmed by the Appellate Body in Thailand – Cigarettes (Philippines) when it observed that,\n\"when Article XX(d) is invoked to justify an inconsistency with Article III:4, what must be shown to\nbe 'necessary' is the treatment giving rise to discrimination\". 271 Finally, with respect to\nUS – Gasoline , Norway notes that only the WTO-inconsistent part of the measure at issue in that\ncase – i.e. the \"baseline establishment rules\" – were found by the Appellate Body to be\nprovisionally justified under Article XX(g). 272 Norway maintains that, in that dispute, \"[t]he\nWTO-consistent non-degradation requirements were treated merely as 'context' for understanding\nwhether the WTO-inconsistent baseline establishmen t rules were 'related to' conservation\" within\n\n260 Norway's appellant's submission, paras. 681-746.\n261 Norway's appellant's submission, para. 787.\n262 Norway's appellant's submission, para. 788 (quoting Panel Reports, para. 7.639). (emphasis added\nby Norway)\n263 Norway's appellant's submission, para. 792 (referring to Panel Reports, paras. 7.618 and 7.624).\n264 Norway's appellant's submission, paras. 793 and 794.\n265 Norway's appellant's submission, para. 795.\n266 Norway's appellant's submission, para. 794.\n267 Norway's appellant's submission, para. 795.\n268 Norway's appellant's submission, para. 823.\n269 Norway's appellant's submission, para. 806 (referring to GATT Panel Report, US – Section 337 Tariff\nAct, para. 5.27).\n270 Norway's appellant's submission, para. 806 (referring to GATT Panel Report, US – Section 337 Tariff\nAct, para. 5.27).\n271 Norway's appellant's submission, para. 809 (quoting Appellate Body Report, Thailand – Cigarettes\n(Philippines), para. 177).\n272 Norway's appellant's submission, para. 818.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthe meaning of Article XX(g). 273 In Norway's view, \"although the Appellate Body considered the\nnon-degradation requirements as context, it asse ssed, and found, that the baseline establishment\nrules were themselves provisionally justified.\" 274 Norway submits that these cases establish that\nthe WTO-consistent parts of a measure play a \"limited role\", and can do no more than \"shed light\"\non understanding whether the WTO-inconsistent parts are justified under Article XX.\n2.88. Second, Norway takes issue with the Panel's finding that \"an exception to a general rule, by\ndefinition, would hardly be considered as 'necessa ry', when considered on its own, to achieve a\npolicy objective of the general rule\". 275 Norway sees no reason why a properly characterized\nexception, even if found to be WTO-inconsistent, cannot be justified as \"necessary\" to achieve a\npolicy objective as set out in one of these subparagraphs of Article XX, even if it is different from\nthe objective of the measure as a whole. For ex ample, Norway suggests that the European Union\ncould have sought to justify the MRM exception on the ground that they relate to the conservation\nof exhaustible natural resources. According to Norway, \"an unnecessary WTO- inconsistent\nprovision does not become necessary to achieve an objective, simply because the WTO- consistent\nprovisions are necessary to achieve that objective.\"\n276 If such a \"flawed approach\" were permitted,\nit would remove multilateral scrutiny of WTO-inconsistent provisions under Article XX only because\nthey are formally characterized as \"exceptions\".\n277\n2.89. Norway argues that the Panel's reliance on its findings under the TBT Agreement to justify\nits approach under Article XX of the GATT 1994 was misplaced, because the Panel did not explain\nthe precise relevance of these findings to the \"distinct analysis\" under Article XX.\n278 Specifically,\nNorway challenges the Panel's reliance on its fi ndings under Article 2.2 of the TBT Agreement,\nbecause the subject matter of the examinations under Article 2.2 and Article XX(a) are different.\nUnder Article 2.2, the Panel considered whether the technical regulation \"as a whole\" is more trade\nrestrictive than necessary.\n279 In so doing, the Panel weighed the positive contribution made by the\nban against the negative contribution made by the explicit and implicit exceptions of the measure.\nBy contrast, Norway submits that, under Article XX(a), the Panel was required to assess whether\nthe \"discriminatory IC and [M]RM 'exceptions' are 'necessary' to protect EU public morals\", and\ntherefore the necessity of the prohibitive ba n element and the contribution it makes are\n\"irrelevant\" to the analysis under Article XX(a). 280 Since the Panel found that the IC and\nMRM exceptions are \"rationally disconnected\" from the public moral concerns, and undermine its\nachievement, the exceptions cannot be found to be necessary to protect public morals.\n281 Norway\nrequests the Appellate Body to reverse the Panel's finding that the EU Seal Regime, as a whole,\nshould be provisionally justified under Article XX(a), and to complete the legal analysis to find that\nthe IC and MRM exceptions cannot be provisionall y justified under Article XX(a) of the GATT 1994.\nSpecifically, Norway argues that, since the Pane l found that the IC and MRM exceptions are not\n\"rationally connected\" to the objective of addressing the EU public moral concerns regarding seal\nwelfare\n282, and since the requirements under the two exceptions \"counteract and prejudice\" the\nachievement of the EU Seal Regime's objective 283, the IC and MRM exceptions \" could never\ncontribute, much less be 'necessary', to protect the public moral at issue\".284\n\n273 Norway's appellant's submission, para. 818 (referring to Appellate Body Report, US – Gasoline,\np. 19, DSR 1996:I, pp. 17-18).\n274 Norway's appellant's submission, para. 818.\n276 Norway's appellant's submission, para. 831. (emphasis original)\n277 Norway's appellant's submission, para. 833.\n278 Norway's appellant's submission, para. 835.\n279 Norway's appellant's submission, para. 857. (emphasis omitted)\n280 Norway's appellant's submission, para. 838. (emphasis omitted)\n281 Norway's appellant's submission, para. 839 (referring to Panel Reports, paras. 7.275 (IC exception)\nand 7.340 (MRM exception).\n282 Norway's appellant's submission, para. 845 (quoting Panel Reports, para. 7.340, and referring to\npara. 7.298).\n283 Norway's appellant's submission, para. 845 (referring to Panel Reports, paras. 7.447, 7.448, 7.451,\n7.452, 7.459, 7.460, and 7.638).\n284 Norway's appellant's submission, para. 848. (emphasis original)\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.2.2.2 The Panel's analysis of \"necessity\"\n2.90. In the event that the Appellate Body disa grees with Norway and finds that the Panel was\ncorrect in finding that it was the EU Seal Regime \"as a whole\" that should be provisionally justified\nas \"necessary\" under Article XX(a), Norway argues that the Panel erred in its finding that the\nEU Seal Regime contributes to the objective of protecting public morals regarding seal welfare.\n285\nThe Panel considered that only \"the 'contribution' made by the 'ban' aspect of the measure needed\nto be ' material', and that it was sufficient for the measure as a whole to contribute to ' a certain\nextent' to its objective of addressing EU public moral concerns\". 286 Norway highlights that,\nassuming that the Panel was correct in \"considering the provisional justification of the measure as\na whole (quod non), it was required to consider whether the contribution of the measure as a\nwhole was 'material'\".287 A \"material\" contribution is a \"signi ficant degree of contribution that\nexceeds the minimal level of contribution reflected in the Panel's finding that there is contribution\n'to a certain extent'\".288 Although the Panel referred to \"materiality\" as regards the \"ban\" aspect of\nthe measure, it did not consider that \"its task was to determine whether the measure as a whole\nmade a 'material' contribution to [the protection of] public morals.\"289\n2.91. Norway asserts that the Panel's findings \"reflect error in the application of the proper legal\nstandard under Article XX(a) for two reasons\". 290 First, the Panel's statement of the level of\ncontribution of the EU Seal Regime lacks clarity and precision. The Panel's conclusion that the\nEU Seal Regime as a whole contributes to a \"certain extent\" 291 to the protection of EU public\nmorals lacks the \"clarity and precision that is indispensable to a finding of contribution under the\n'necessity' analysis in Article XX\".\n292 According to Norway, as with the analysis under Article 2.2 of\nthe TBT Agreement, a \"clear and precise\" articulati on of the degree of contribution of the EU Seal\nRegime was required in order to establish whether the contribution meets the \"required legal\nstandard of contribution\", reflected in the notion of \"materiality\", and to provide an \"operable and\nobjective benchmark\" against which the contribution of Norway's less trade-restrictive alternative\nmeasures could be assessed.\n293\n2.92. Norway also contends that the factual find ings of the Panel do not support the conclusion\nthat the EU Seal Regime \"contributes either 'to a certain extent' – as the Panel found – or\n'materially' – as it was required to find under the proper legal standard\". 294 For the same reasons\nas its appeal with respect to the Panel's analysis under Article 2.2 of the TBT Agreement, Norway\nasserts that the Panel both overvalued the positive contribution of the ban aspect of measure and\nundervalued the negative contribution made by the permissive aspects of the measure. For the\nsame reasons as provided in its Article 2.2 appeal, Norway submits that the Panel's conclusion that\nthe EU Seal Regime contributes \"to a certain extent\" to its objective \"cannot be sustained\".\n295\nMoreover, as with its appeal under Article 2.2, Norway submits that the Panel's intermediate\nfindings with respect to the contributions of the prohibitive and permissive aspects, as well as the\noverall contribution of the EU Seal Regime, are \"not grounded in an objective assessment of the\nfacts\" and, therefore, are inconsistent with Article 11 of the DSU. 296 For these reasons, Norway\ncontends that \"there is simply no basis for a finding that the EU Seal Regime makes a 'material'\ncontribution to [the protection of] EU public morals.\"\n297\n\n285 Norway's appellant's submission, para. 851.\n286 Norway's appellant's submission, para. 854 (referring to Panel Reports, paras. 7.635-7.638).\n(emphasis original)\n287 Norway's appellant's submission, para. 855 (referring to Panel Reports, para. 7.636). (emphasis\noriginal)\n288 Norway's appellant's submission, para. 856 (quoting Panel Reports, para. 7.638). (emphasis added\nby Norway)\n289 Norway's appellant's submission, para. 856.\n290 Norway's appellant's submission, para. 857.\n292 Norway's appellant's submission, para. 859.\n293 Norway's appellant's submission, para. 859. (emphasis omitted)\n294 Norway's appellant's submission, para. 857.\n295 Norway's appellant's submission, para. 863.\n296 Norway's appellant's submission, para. 864.\n297 Norway's appellant's submission, para. 865.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.93. Norway notes that, having concluded that the EU Seal Regime contributed to \"a certain\nextent\" to its objective, the Panel recalled its \"less trade-restrictive alternative\" analysis under\nArticle 2.2 of the TBT Agreement, wherein it conc luded that the alternative measure proposed by\nthe complainants was not reasonably available to the European Union.\n298 For the same reasons set\nout in its appeal under Article 2.2 of the TBT Ag reement, Norway asserts that the Panel erred:\n(i) in concluding that the less trade-restrictive alternatives proposed by Norway were not\nreasonably available; and (ii) in failing to make an objective assessment of the facts, as required\nby Article 11 of the DSU.\n2.2.2.3 The Panel's analysis under the chapeau of Article XX\n2.94. In the event that the Appellate Body disagr ees with Norway that the Panel was incorrect in\ndetermining whether the EU Seal Regime as a whole was justified under Article XX(a) of the\nGATT 1994, Norway argues that, although it reached the correct conclusion, the Panel erred in the\nreasoning underpinning its finding that the EU Seal Regime is inconsistent with the requirements\nof the chapeau of Article XX. Specifically, Norway submits that the Panel erred in its analysis under\nthe chapeau because it failed to: (i) articulate the relevant legal standards under the chapeau; and\n(ii) apply the proper standard to the IC and MRM exceptions. As to the Panel's failure to articulate\nthe proper legal standard, Norway argues that th e Panel erroneously applied the same test under\nthe chapeau that it had adopted to address the \"legitimate regulatory distinction\" under Article 2.1\nof the TBT Agreement. Although the Appellate Body has explained that the GATT 1994 and the\nTBT Agreement are \"similar\", Norway asserts th at, \"when seeking to understand how the legal\nstandards under each Agreement are to be interpreted and applied, a panel must be faithful to the\nindependence of the analysis to be conducted under each Agreement.\"\n299\n2.95. Moreover, the legal standard developed by the Panel under Article 2.1 and applied by the\nPanel under the chapeau is contrary to the \"wel l-accepted\" jurisprudence on the requirements\nunder the chapeau. 300 According to Norway, WTO jurisprudence is clear that, in considering\nwhether WTO-inconsistent provisions of a measure comply with the chapeau, \"a panel must assess\nwhether there is any discrimination that runs counter to, or is otherwise rationally disconnected\nfrom, the objective that the measure pursues under one of the sub-paragraphs of Article XX .\"\n301\nNorway adds that, if the rationale or reason for discrimination \" goes against, or otherwise bears\nno rational relationship to, even to a small extent, the objective assessed under one of the\nsub-paragraphs, it is arbitrary and unjustifiable.\" 302 Norway argues that, instead of applying this\nlegal standard, the Panel erroneously applied its \"three-step test\" developed in the context of its\n\"legitimate regulatory distinction\" analys is under Article 2.1 of the TBT Agreement. 303 Norway\nnotes that \"step 1\" of the Panel's analysis under Article 2.1 – namely, that the regulatory\ndistinctions drawn between commercial and IC/MRM hunts must be rationally connected to the\nobjective of the EU Seal Regime – \"bears some resemblance\" to the legal test developed by the\nAppellate Body under the chapeau.\n304\n2.96. By contrast, Norway argues that \"step 2\" of the Panel's analysis under Article 2.1 – \"which\nserve[d] for the Panel to justify a regulatory distinction in a measure that is rationally\ndisconnected to the objective of the measure\" – \"represents a subversion of the structure of\nArticle XX\".305 Norway highlights that the Appellate Bo dy has \"never allowed the discrimination\nunder the chapeau to be justified by reference to an objective (cause or rationale) that had not\nprovided the basis for provisional justification under one of the sub-paragraphs of Article XX\". 306\nNorway notes that, although the Panel rejected the European Union's argument that the IC and\nMRM exceptions were also provisionally justified under Article XX(a), rather than drawing the\n\"obvious consequence\" from the European Union's failure to secure provisional justification of the\nIC and MRM exceptions under one of the subparagraphs of Article XX, the Panel's \"step 2\" analysis\n\n299 Norway's appellant's submission, para. 897 (referring to Appellate Body Report, US – Tuna II\n(Mexico), para. 405).\n300 Norway's appellant's submission, para. 898.\n301 Norway's appellant's submission, para. 891. (emphasis original)\n302 Norway's appellant's submission, para. 891. (emphasis original)\n303 Norway's appellant's submission, para. 876 (referring to Panel Reports, paras. 7.649 and 7.650).\n304 Norway's appellant's submission, para. 904 (referring to Appellate Body Report, Brazil – Retreaded\nTyres, para. 227).\n305 Norway's appellant's submission, para. 906. (emphasis original)\n306 Norway's appellant's submission, para. 911\nWT/DS400/AB/R • WT/DS401/AB/R\n\n\"simply excused the European Union from that burden \".307 Such an approach, in Norway's view,\nundermines the \"interpretive harmony\" between the chapeau and the subparagraphs of Article XX,\nwhich requires that the discrimination be rationally connected \" to the objective that provides the\nbasis for provisional justification under a sub-paragraph \", since, under the chapeau analysis, a\npanel must \"verify\" whether the provisional justification under a given subparagraph of Article XX\nis \"not lost because the Member seeks … 'abuse or illegitimate use of the exceptions' to justify the\nWTO-inconsistent aspects\".308\n2.97. Turning to \"step 3\" of the Panel's analys is under Article 2.1, which sought to determine\nwhether the discriminatory aspects of the measure are applied in an even-handed manner with\nregard to the additional cause or rationale used to \"justify\" it under \"step 2\", Norway submits that,\nalthough a panel may consider even-handedness with respect to the pursuit of the objective found\nto be provisionally justified under a subparagraph of Article XX, \"there is simply no basis for the\nconsequential third step of assessing whether this additional objective (cause or rationale) is\npursued in an even-handed manner.\"\n309 For these reasons, Norway asserts that the three-step test\ndeveloped by the Panel under Article 2.1 of the TBT Agreement is \"erroneous\" in the context of the\nchapeau of Article XX of the GATT 1994.310\n2.98. As a consequence of the erroneous legal standard adopted by the Panel for its Article XX\nanalysis, Norway argues that the Panel erred in its reasoning as to why the IC and MRM exceptions\ndo not meet the chapeau requirements. To the ex tent that Norway acknowledges the similarities\nbetween \"step 1\" of the Panel's analysis under Article 2.1 and the legal standard under the\nchapeau of Article XX, Norway asserts that the Panel should have found that the distinction\nbetween the IC and MRM hunts, on the one hand, and the commercial hunts subject to the ban, on\nthe other hand, was not rationally connected to the objective of the EU Seal Regime. 311 For these\nreasons, Norway requests the Appellate Body to mo dify the Panel's reasoning and to find that the\nIC and MRM exceptions are not justified under th e chapeau of Article XX of the GATT 1994 for the\naforementioned reasons.312\n2.3 Arguments of the European Union – Appellee\n2.3.1 Article 2.1 of the TBT Agreement\n2.99. In response to Canada's argument th at the Panel articulated the wrong test under\nArticle 2.1 of the TBT Agreement, the European Un ion argues that the Panel in fact conducted a\nproper two-step analysis. According to the Europe an Union, the Panel first examined whether the\nregulatory distinction between commercial and IC hunts was \"'justifiable' in the abstract\", \"without\nlooking into the particular features of the IC exception as contained in the EU Seal Regime\". 313\nHaving found this to be the case, the Panel then turned to examine whether that regulatory\ndistinction between commercial and IC hunts \"was 'indeed' designed and applied in an\neven-handed manner and did not reflect discrimination\". 314 According to the European Union, the\nPanel thus sought to establish whether the objective or rationale pursued by the regulatory\ndistinction was justifiable, and in that case, whether the measure at issue was designed and\napplied in an even-handed manner. The Europe an Union emphasizes that the Panel did not\nconsider these two elements in isolation, but instead conducted an overall analysis as to whether\nthe detrimental impact stemmed from a legitimate regulatory distinction. The European Union\nargues that the Panel did not err in structuring its analysis in this way. The European Union\nsubmits that the analysis of the rationale of a regulatory distinction \"could be made in the\nabstract … or in the context of examining the design and application of the particular measure at\nissue\".\n315 For the European Union, \"[t]he key point is that such an analysis of the alleged rationale\n\n307 Norway's appellant's submission, para. 913. (emphasis original)\n308 Norway's appellant's submission, paras. 917-922 (referring to Appellate Body Report, US – Gasoline,\np. 25, DSR 1996:I, p. 23; and Panel Report, Brazil – Retreaded Tyres, para. 7.221). (emphasis original)\n309 Norway's appellant's submission, para. 926. (emphasis original)\n310 Norway's appellant's submission, para. 927.\n311 See Norway's appellant's submission, paras. 929-932 (referring to Panel Reports, paras. 7.274,\n7.275, and 7.337-7.339).\n312 Norway's appellant's submission, para. 934.\n313 European Union's appellee's submission, para. 56.\n314 European Union's appellee's submission, para. 57.\n315 European Union's appellee's submission, para. 61.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nor justification must be conducted as part of the analysis.\" 316 Thus, the European Union\ncharacterizes Canada's arguments as \"formalistic and rigid\".317\n2.100. The European Union responds to Canada's appeal of the Panel's finding that the distinction\nbetween commercial and IC hunts is justifiable even though the rationale of the distinction \"goes\nagainst\" the objective of the EU Seal Regime 318 by highlighting the case-specific nature of the\nPanel's finding.319 The European Union submits that the Panel's conclusion is both legally correct\nand reasonable on substantive terms, given that \"exceptions are precisely 'exceptions' because\nthey go against the general rule\". 320 The European Union acknowledges that an exception \"may\npursue an objective that detracts from the main objective of the general rule in view of other\nlegitimate regulatory concerns or rational explanations/justifications\".\n321 The European Union\nconsiders that, where a measure \"clearly shows the weighing of opposing interests with the main\nobjective\", the regulatory distinction embodied in the measure could be found to be non-arbitrary\nand justifiable \"even if the exception under mines the main objective of the measure\". 322 The\nEuropean Union notes that this view finds support in the Appellate Body report in US – Clove\nCigarettes, where the Appellate Body examined the ju stifications provided by the defending\nMember, even though it had already found that there was no rational connection between the\nobjective of the measure at issue and the exception.\n323\n2.101. In response to Canada's argument that the Panel improperly relied on \"international\ninstruments extraneous to the case\"324 to justify the distinction between IC and commercial hunts,\nthe European Union recalls that the Panel did not rely only on the existence of international\ninstruments recognizing the interests of indigenous peoples, but also found such recognition in the\nlegislative history of the EU Seal Regime and in measures adopted by other WTO Members,\nincluding Canada. 325 Moreover, the European Union submits that the Panel was referring to\ninternational instruments as \"evidence\" – in line with the practice of the Appellate Body – and not\nas instruments setting out legal obligations that would conflict with the WTO agreements. 326 The\nEuropean Union further argues that, in finding that the distinction between commercial and\nIC hunts was justifiable, the Panel took into account the balance between the protection of\nIC interests and the principal objective of the measure as reflected in the EU Seal Regime.\nAccording to the European Union, it was only logical for the Panel to assess the merits of\nprotecting the interests of indigenous peoples by reference to international instruments. Finally,\nthe European Union notes that the Appellate Body has recognized that a technical regulation may\npursue several purposes, including purposes which are not listed in the sixth recital of the\nTBT Agreement.\n327\n2.102. With respect to Canada's allegation that the Panel failed to examine whether giving effect\nto the IC exception will actually fulfil the rationale of protecting Inuit interests, the European Union\nnotes that, while the Panel found evidence that Inuit communities have been adversely affected by\nthe EU Seal Regime as a whole, the Panel also found that Greenland was currently benefiting from\nthe IC exception. According to the European Union, this shows that the IC exception does serve to\nprotect the interests of the Inuit communities engaged in seal hunting. The European Union further\nargues that, in any event, the opposition of some Inuit communities to the EU Seal Regime does\nnot demonstrate that the purpose of the IC exception, i.e. to protect IC interests, is not fulfilled by\nthe regulatory distinction, given that, without the IC exception, seal products derived from\nIC hunts would fall under the general ban and would thus not be permitted to be placed on the\nEU market. The European Union acknowledges that Inuit sealing communities would be better off\n\n316 European Union's appellee's submission, para. 61.\n317 European Union's appellee's submission, para. 66.\n318 European Union's appellee's submission, para. 176 (referring to Canada's appellant's submission,\nparas. 78 and 79).\n319 European Union's appellee's submission, para. 76.\n320 European Union's appellee's submission, para. 79.\n321 European Union's appellee's submission, para. 79.\n322 European Union's appellee's submission, para. 80.\n323 European Union's appellee's submission, para. 82 (referring to Appellate Body Report, US – Clove\nCigarettes, paras. 225 and 236).\n324 Canada's appellant's submission, heading B.a), at p. 27.\n325 European Union's appellee's submission, para. 88 (referring to Panel Reports, paras. 7.292-7.298).\n326 European Union's appellee's submission, para. 90 (referring, as examples, to Appellate Body Reports,\nUS – Shrimp, para. 168; and US – Shrimp (Article 21.5 – Malaysia), paras. 127 and 128).\n327 European Union's appellee's submission, para. 92 (referring to Appellate Body Report, US – Tuna II\n(Mexico), para. 213).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nabsent any regulation of the placing on the EU market of seal products; however, the IC exception\nseeks to mitigate the necessarily adverse impact of the EU Seal Regime on the Inuit and other\nindigenous communities.\n2.103. The European Union submits that Canada's argument that the Panel focused its analysis of\neven-handedness on the wrong comparison and fa iled to examine the arbitrary aspects of the\ndistinction between commercial and IC hunts is based on a misreading of how the Panel conducted\nthe analysis of whether the detrimental impact that it had found to exist stemmed from a\nlegitimate regulatory distinction. As the European Union sees it, the Panel had already examined\nthe arguments raised by Canada in the context of its analysis of whether the regulatory distinction\nis justified.\n328 To the European Union, it appears logical that the Panel did not need to repeat the\nsame analysis in the context of its assessment of the even-handedness of the distinction. At the\nsame time, the European Union recalls that, in its other appellant's submission, it expresses the\nview that the Panel misinterpreted and misa pplied Article 2.1 of the TBT Agreement when\nexamining the even-handedness in the desi gn and application of the IC exception. 329 According to\nthe European Union, the Panel should have examin ed whether the IC exception under the EU Seal\nRegime was designed and applied in a reasonable, impartial, and harmonious manner, having\nregard to the objective it pursues.\n2.104. With respect to Canada's argument that the distinction between commercial and Inuit\nhunts is \"illusory\" in the light of the strong commercial dimension of the Inuit hunt in Greenland,\nthe European Union maintains that the extent of development of the commercial aspect in the\nmarketing of by-products from Inuit communities in Greenland is irrelevant for assessing the\neven-handedness of the IC exception. The European Union submits that, as long as the relevant\ncriteria to qualify as a legitimate indigenous subsistence activity are met and subsistence thus\nremains the primary objective of the hunts, the exte nt to which some of the by-products of these\nhunts are sold through commercial channels is irrelevant for assessing even-handedness. Hence,\nthis does not show any arbitrariness in the de sign and application of the IC exception. The\nEuropean Union also argues that the Panel did not find Greenland's hunt to be commercial in\nnature. Rather, the Panel found that, while the commercial aspect of seal hunting in Greenland has\nbeen developed to a degree that is comparable to that of commercial hunts, Greenland's hunts\nremain \"subsistence\"/IC hunts. The European Union underscores that seal hunts in Greenland are\nprimarily conducted for subsistence purposes, \"even if they may have a commercial aspect\".\n330\n2.105. For the aforementioned reasons, the European Union requests the Appellate Body to reject\nCanada's allegations that the Panel erred in its findings relating to Canada's claim under Article 2.1\nof the TBT Agreement.\n331\n2.106. The European Union further submits that Canada's allegations of error under Article 11 of\nthe DSU should be dismissed for several reasons. First, the European Union argues that Canada\nhas failed to explain how the Panel's alleged failure to consider the evidence put forward by\nCanada affected the objectivity of the Panel's as sessment. Second, the European Union notes that\nthe Panel summarized the arguments raised by Canada in the Panel Reports 332, and that the Panel\ndistinguished commercial and IC hunts on the basis of their \"primary purpose\". 333 Third, the\nEuropean Union submits that the alleged simila rities between Canada's east coast hunt and\nIC hunts are irrelevant. The European Union notes that Canada never contested that the majority\nof seal hunts conducted in Canada are commercial hunts with the sole or primary purpose of\nmaking a profit. Finally, the European Union recalls the Panel's finding that the type of the hunter\n(Inuit versus non-Inuit) is also relevant for the regulatory distinction at issue. According to the\nEuropean Union, the similarities between commercial and IC hunts mentioned by Canada \"are\nirrelevant insofar as the hunter in question does not belong to the Inuit or other indigenous\ncommunities\".\n334\n\n328 European Union's appellee's submission, para. 101 (referring to Panel Reports, paras. 7.256-7.300).\n329 European Union's appellee's submission, para. 102 (referring to European Union's other appellant's\nsubmission, section 4).\n330 European Union's appellee's submission, para. 104; see also fn 92 thereto.\n331 European Union's appellee's submission, para. 121.\n332 European Union's appellee's submission, para. 113 (referring to Panel Reports, paras. 7.226-7248).\n333 European Union's appellee's submission, para. 114.\n334 European Union's appellee's submission, para. 118.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.3.2 Article 2.2 of the TBT Agreement\n2.3.2.1 The Panel's identification of the objective of the EU Seal Regime\n2.107. The European Union maintains that the Panel correctly found that the main objective of the\nEU Seal Regime is to address EU public moral concerns regarding seal welfare. 335 The European\nUnion explains that, as found by the Panel, the te xt of the Basic Regulation, its drafting history,\nand its design and structure, establish that the EU Seal Regime was adopted in order to respond to\nEU public moral concerns regarding seal welfare.\n2.108. The European Union agrees with the Panel's finding that the objectives of the IC exception\nand the MRM exception are not \"independent\" of the main objective of the EU Seal Regime. 336\nInstead, they seek to accommodate other interests that the EU legislators deemed \"morally\nsuperior to the welfare of seals in certain circumstances and under certain conditions\" identified by\nthe EU legislators.\n337 By providing for such exceptions, the EU legislators were hence not\nundermining the public morals objective of the EU Seal Regime, \"but instead giving effect to the\nbasic moral standard that underlies the EU Seal Regime and, more generally, all EU legislation on\nanimal welfare\".338 The European Union adds that the scope of the IC and MRM exceptions was,\nnevertheless, \"carefully circumscribed, so as to preserve, to the extent possible, the contribution\nof the EU Seal Regime to the objective of improving the welfare of seals\".\n339\n2.109. The European Union submits that, if the EU legislators' objective had been \"to protect the\ninterests of the Inuit and other indigenous communities or the objective that Norway ascribes to\nthe MRM exception, they would have refrained fr om adopting the EU Seal Regime in the first\nplace\".\n340 According to the European Union, \"[t]hose objectives would be best served by removing\nall restrictions to the marketing of seal products.\"341\n2.110. The European Union further emphasizes that \"[t]he IC exception does not seek to promote\nexports of seal products by the Inuit and other indigenous communities, but rather to mitigate the\nnecessary adverse effects of the EU Seal Regime on those communities to the extent compatible\nwith the main objective of addressing the public moral concerns with regard to the welfare of\nseals.\"\n342 According to the European Union, there is evidence of such adverse effects. 343 The\nEuropean Union further recalls that the IC exception was part of the Commission Proposal for a\nregulation concerning trade in seal products, and a similar exception is found in the European\nCouncil Directive concerning imports of certain seal pup skins and products\n344 (EC Seal Pups\nDirective), in the national bans enacted by some EU member States prior to the EU Seal Regime,\nand in the measures banning trade in seal products adopted by other Members, both before and\nafter the adoption of the EU Seal Regime. 345 According to the European Union, this shows the\nexistence of a \"broad consensus\" regarding the duty to take into account the special needs of the\nInuit and other indigenous communities. 346 In all those legal instruments, however, the provisions\nin favour of the Inuit and other indigenous communities operate as \"exceptions from the\nrestrictions generally applied with regard to the marketing of seal products\".\n347\n\n335 European Union's appellee's submission, para. 138.\n336 European Union's appellee's submission, para. 140 (referring to Panel Reports, para. 7.402).\n337 European Union's appellee's submission, para. 140.\n338 European Union's appellee's submission, para. 140.\n339 European Union's appellee's submission, para. 140.\n340 European Union's appellee's submission, para. 141.\n341 European Union's appellee's submission, para. 141 (referring to Norway's appellant's submission,\npara. 621).\n342 European Union's appellee's submission, para. 142.\n343 European Union's appellee's submission, para. 142 (referring to Canadian Department of Fisheries\nand Oceans, Canadian Commercial Seal Harvest Overview 2011, Statistical and economic analysis series\n(October 2012) (Panel Exhibit JE-27) (Canadian Seal Harvest Overview), Table 14; Greenland 2012 Seal\nManagement Report, pp. 31-36, and Table 4, at p. 33; and Nunavut 2012 Report, p. 3).\n344 Council Directive No. 83/129 of 28 March 1983 concerning the importation into Member States of\nskins of certain seal pups and products derived therefrom, Official Journal of the European Communities,\nL Series, No. 91 (9 April 1983), pp. 30-31 (Panel Exhibit CDA-12).\n345 European Union's appellee's submission, para. 142.\n346 European Union's appellee's submission, para. 142.\n347 European Union's appellee's submission, para. 142.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.111. The European Union further notes that, un like the IC exception, the MRM exception was\nnot envisaged in the Commission Proposal. Nor is a similar exception provided for in the EC Seal\nPups Directive or in any of the measures taken by the EU member States or other WTO Members\nin order to restrict trade in seal products. Instead, the MRM exception was introduced in the\nEU Seal Regime towards the end of the legislative process in response to the concerns raised by\nsome EU member States with regard to small-scale hunts conducted exclusively for MRM purposes.\nThe European Union further explained that \"the MRM exception was subjected to strict conditions\nthat define very narrowly its scope\" in order to avoid creating a loophole allowing the marketing of\nproducts from large-scale commercial hunts.\n348 The European Union adds that, in 2011, only\n96 seals qualified for the MRM exception. On this basis, the European Union does not agree with\nNorway that the objective pursued by the MRM exception would be more \"prominent\" than the\nobjective of addressing EU public moral concerns regarding seal welfare.\n349\n2.112. For the European Union, although \"it is in the nature of all exceptions to derogate from the\ngeneral rule\", this does not mean that, \"for that reason, the objective of the exception should be\nregarded as being equally important, or even mo re important, than the objective of the general\nrule.\"350\n2.113. As a separate matter, the European Union argues that, having found that the objectives of\nthe IC and MRM exceptions are not \"independent\" of the main objective of the EU Seal Regime,\nthe Panel should have proceeded to find that both objectives are \"rationally connected\" because\nthey stem from the same standard of morality.\n351 In the European Union's view, it was\n\"contradictory\" for the Panel to maintain that the objective pursued by the IC exception is not\n\"independent\" of the public morals objective pursued by the EU Seal Regime and, at the same\ntime, that the IC exception does not bear any \"rational relationship\" to that objective. 352 Thus, in\nthe event that the Appellate Body were to reject the European Union's other appeal concerning this\naspect of the Panel's findings 353, the European Union submits th at the Appellate Body should\nuphold Norway's claim that the Panel erred by fa iling to identify the objective pursued by the\nIC exception as one of the objectives of the EU Seal Regime to be examined under Article 2.2 of\nthe TBT Agreement. 354 The European Union explains in this regard that \"the mere fact that the\npublic morals objective is the 'main' objective of a measure does not have the implication that\nother, less important, but 'rationally disconnected' objectives of the same measure become\nirrelevant under Article 2.2 of the TBT Agreement.\"\n355 Thus, on the assumption that the objective\nof the IC exception was not \"rationally connected\" to the public morals objective of the EU Seal\nRegime, it should, according to the European Union, have been identified by the Panel as a\nseparate objective of the EU Seal Regime, albeit one of lesser importance than the public morals\nobjective.\n2.3.2.2 The Panel's analysis of the contribution of the EU Seal Regime to its objective\n2.114. The European Union submits that Cana da's and Norway's arguments are \"unfounded\"\n356,\nbecause the TBT Agreement does not prescribe the manner in which the contribution to the\nfulfilment of the measure's legitimate objective should be assessed, nor how specific that\nassessment should be.\n357 The European Union argues that the Appellate Body in Brazil – Retreaded\nTyres clarified that there is no requirement to quan tify the contribution to the achievement of the\nmeasure's objective, and that panels may rely on a qualitative analysis. 358 The European Union\nmaintains that the Panel's analysis is in line with this guidance, and that, because the quantitative\n\n348 European Union's appellee's submission, para. 143.\n349 European Union's appellee's submission, para. 143.\n350 European Union's appellee's submission, para. 144.\n351 European Union's appellee's submission, para. 145.\n352 European Union's appellee's submission, para. 145.\n353 European Union's appellee's submission, para. 146 (referring to European Union's Notice of Other\nAppeal, paras. 5-8).\n354 European Union's appellee's submission, para. 147.\n355 European Union's appellee's submission, para. 148.\n356 European Union's appellee's submission, para. 165.\n357 European Union's appellee's submission, para. 166.\n358 European Union's appellee's submission, paras. 167 and 168 (referring to Appellate Body Report,\nBrazil – Retreaded Tyres, paras. 145-147).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nevidence available did not permit a precise quanti fication of the contribution, \"the Panel had no\nalternative but to resort to qualitative reasoning.\"359\n2.115. The European Union contends that the Pane l's findings were no less specific than those\nreached by other panels conducting a \"necessity\" test. 360 The European Union further contends\nthat the analysis by the Appellate Body in US – COOL contradicts the position of the complainants\nin these disputes. In particular, the European Union refers to the Appellate Body's reliance on the\nfact that the measure in those disputes contributed to the objective \"at least to some degree\".\n361\nThe European Union adds that, although the Appellate Body alluded to the panel's failure to specify\nthe degree of contribution among the reasons that prevented it from completing the legal analysis,\nthis was not the only obstacle cited by the Appe llate Body. According to the European Union, the\nAppellate Body's analysis in US – COOL \"shows that it is not possible to determine, in the abstract,\nwhether a finding of contribution is sufficiently specific\", and that such a determination \"can only\nbe made taking into account the circumstances of each dispute\".362\n2.116. The European Union argues that the complainants' claim that the Panel's contribution\nfinding was unsubstantiated is premised entirely on the contention that imports from Norway and\nCanada will be replaced by imports from Green land under the IC exception. As a preliminary\nmatter, the European Union submits that the errors alleged by the complainants raise factual\nissues and should have been submitted under Ar ticle 11 of the DSU, and requests the Appellate\nBody to consider whether these claims should be examined as a legal characterization of the facts\nor under Article 11.\n363\n2.117. The European Union argues that the complainants' main piece of evidence – a statement\nby the Danish-based international consulting grou p COWI that \"[t]he Greenlandic trade is more\nthan enough to cover EU demand364 – \"is not supported by any evidence or reasoning and it is not\npossible to know on what basis COWI came to that view\". 365 The European Union identifies other\nfacts that, in its view, contradict the complainants' position: (i) the number of seals hunted in\nCanada and Norway has traditionally exceeded the number of catches in Greenland; (ii) unlike in\nCanada and Norway, a large part of the seal skin s in Greenland are consumed domestically rather\nthan traded internationally; (iii) a large part of the seal skins are exported from Greenland to\nmarkets outside the European Union; (iv) Greenland can also export seal skins under Inuit\nexceptions to seal product bans in other countries; (v) the assumption that global demand for seal\nproducts will remain unchanged at currently depressed levels; (vi) the IC exception is subject to\nconditions that constrain Greenland's ability to expand supply more than traditional levels;\n(vii) Greenland's supply capacity is declining; and (viii) Greenlandic export data show declining\nexports to the European Union.\n366\n2.118. The European Union contends that this evidence demonstrates that, due to depressed\nglobal demand and prices produced in part by the EU Seal Regime, imports from Greenland \"have\nnot even returned to their usual level\" before seal product bans were first introduced in the\nEuropean Union in 2007. 367 The European Union also maintains that Norway's assertion that\nGreenland's supply of 80,000 seal skins per year can easily supply the European Union's average\nimports of 20,000 skins \"is deeply flawed\".\n368 These data, the European Union argues, only cover\ntanned skins, whereas Canada's principal exports to the European Union consisted of raw skins.\nNoting that Canada exported more than 100,000 raw skins to the European Union in 2006, the\n\n359 European Union's appellee's submission, para. 170.\n360 European Union's appellee's submission, paras. 171-173 (referring to Appellate Body Reports,\nBrazil – Retreaded Tyres, paras. 136 and 137; US – Tuna II (Mexico), para. 327; and US – Gambling,\npara. 301; each referring in turn to the respective Panel Reports, Brazil – Retreaded Tyres, para. 7.148; US –\n361 European Union's appellee's submission, para. 174 (quoting Appellate Body Reports, US – COOL,\npara. 473). (emphasis added by the European Union)\n362 European Union's appellee's submission, para. 175. (emphasis original)\n363 European Union's appellee's submission, para. 180.\n364 European Union's appellee's submission, para. 184 (quoting COWI 2010 Report, p. 84).\n365 European Union's appellee's submission, para. 184.\n366 European Union's appellee's submission, paras. 186-195.\n367 European Union's appellee's submission, para. 196.\n368 European Union's appellee's submission, para. 199.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nEuropean Union asserts that Norway's own estimates show that \"Greenland could not supply that\nvolume on its own, even if it were to discontinue its exports to all other countries.\"369\n2.119. The European Union also argues that th e evidence before the Panel supports the finding\nthat the Inuit have been adversely affected by the EU Seal Regime and have not always been able\nto benefit from the IC exception. According to the European Union, the EU Seal Regime has a\ndepressing effect on global prices and demand, including on seal products from the IC hunts, and\n\"this negative impact is one of the main reasons why the Complainants' speculative allegations\nthat imports from Greenland will simply replace imports into the European Union from Canada and\nNorway are unfounded.\"\n370 The European Union also challenges as \"thoroughly misguided\"\nNorway's assertion that the only reason the indigenous communities have not been able to benefit\nfrom the IC exception, as the Panel found, was because Greenland did not have an established\nrecognized body at the time of the Panel proceedings.\n371 Noting that the Panel was \"well aware\nthat Greenland had benefitted effectively from the IC exception since 2010\", the European Union\nargues that the Panel must be understood as refe rring to difficulties faced by Inuit and other\nindigenous communities in Canada, not Greenland.\n372\n2.120. The European Union submits that, contrary to the complainants' allegations, the evidence\nbefore the Panel supported the Panel's finding that the EU Seal Regime contributes to reducing\nEU demand for seal products, as well as global demand. The European Union asserts that \"[i]t is\nbeyond dispute that the EU Seal Regime has effectively limited imports of seal products resulting\nfrom the commercial hunts in Canada and Norway.\"\n373 Although the Panel found that the statistics\nare incomplete because they do not track separately all categories of seal products, the European\nUnion considers that \"this does not mean that those statistics are unreliable.\" 374 The European\nUnion thus considers that the Panel was correct in concluding that the statistics \"show a general\ntrend that seal product imports from the comp lainants into the EU Market have decreased\nsignificantly over the last few years\".\n375 The European Union again rejects the \"speculative\nprediction\" underlying the complainants' arguments that the EU Seal Regime does not contribute\nto reduce the demand for seal products within the EU market because imports from Canada and\nNorway will be replaced by imports from Greenland.\n376\n2.121. The European Union further maintains that , because EU demand for seal products is a\ncomponent of the global demand for such products, reducing EU demand also contributes to\nreducing global demand. Accordingly, while othe r factors may contribute to reducing global\ndemand, \"the reduction in EU demand would still entail a reduction in potential global demand.\"\n377\nAccording to the European Union, this is supported by trade statistics that showed a decline in\nCanada's exports and a \"precipitous reduction in the number of seals hunted\".\n378 The European\nUnion moreover observes that Canada acknow ledged the \"negative impacts\" and \"depressing\neffects\" of the EU Seal Regime on the EU seal product market, and that the Panel found that a\nconnection exists, even if it could not be precisely quantified, between the EU Seal Regime and the\nnumber of seals hunted.\n379\n2.122. The European Union considers wrong on two counts the complainants' allegations that the\nPanel failed to establish any link between a reduction in global demand and the number of\ninhumanely killed seals. First, the European Union maintains that neither it nor the Panel ever\nsought, in referring to the \"incidence of inhumane killing\" of seals, to ascribe any meaning to that\nterm other than that relating to the number of such inhumanely killed seals.\n380 Second, the\nEuropean Union argues that \"the Panel was entitled to assume that a reduction in the number of\n\n369 European Union's appellee's submission, para. 199.\n370 European Union's appellee's submission, para. 205.\n371 European Union's appellee's submission, para. 206.\n372 European Union's appellee's submission, para. 206 (referring to Panel Reports, para. 7.452).\n373 European Union's appellee's submission, para. 208.\n374 European Union's appellee's submission, para. 209 (referring to Norway's appellant's submission,\npara. 442).\n375 European Union's appellee's submission, para. 209 (quoting Panel Reports, para. 7.456).\n376 European Union's appellee's submission, para. 212.\n377 European Union's appellee's submission, para. 214. (emphasis original)\n378 European Union's appellee's submission, para. 219.\n379 European Union's appellee's submission, paras. 220 and 221, respectively.\n380 European Union's appellee's submission, para. 224 (referring to Canada's appellant's submission,\npara. 193).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nseals killed would entail necessarily a reduction of the number of seals being killed inhumanely\" on\nthe basis of its factual findings regarding the welfare risks inherent in all seal hunts.381\n2.123. The European Union also rebuts the compla inants' claims under Article 11 of the DSU. The\nEuropean Union does not separately address most of these claims, as it considers them \"largely\nduplicative of those previously made\" by the complainants in their claims of error in the legal\napplication of Article 2.2 of the TBT Agreement. 382 With regard to Norway's claim that the Panel\nacted inconsistently with Article 11 of the DSU by failing to examine the contribution of certain\nconditions of the MRM exception to meeting the EU public moral concerns regarding seal welfare,\nthe European Union argues that \"this claim is entirely dependent\" on Norway's previous appeal of\nthe Panel's finding that MRM interests are not an objective of the EU Seal Regime. The European\nUnion adds that, by examining the contribution of the EU Seal Regime as a whole to the objective\nof addressing EU public moral concerns with re gard to seal welfare, the Panel \"examined the\ncontribution of the conditions attached to the MRM exception to that objective\".\n383\n2.124. The European Union rejects Canada's contention that the Panel failed to assess the risks of\nnon-fulfilment and to conduct a \"relational\" analysis before considering the proposed less\ntrade-restrictive alternative. The European Union maintains that the Panel conducted its\nassessment of the risks of non-fulfilment at para graphs 7.465 and 7.466 of its Reports before\nproceeding to assess the less trade-restrictive alternative. The European Union contends that the\ncomparison with a proposed less trade-restrictive alternative \"is a more sophisticated and reliable\nconceptual tool for assessing the necessity of a measure in the light of the relevant weighing\nfactors than the type of relational analysis\" suggested by Canada.\n384 Given that the Appellate Body\nstated in US – Tuna II (Mexico) that a comparison with the proposed less trade-restrictive\nalternative is required in most cases, the European Union argues that panels are not required to\nmake an explicit and motivated finding justif ying why they proceed to such a comparison.\n385 The\nEuropean Union adds that such a justification \"is required only in the exceptional cases where a\npanel decides not to perform a comparison with the proposed [less trade-restrictive\nalternative]\".386\n2.125. The European Union also rejects Norway's argument that the Panel erred by failing to\nconsider \"arbitrary or unjustifiable discrimination\" under Article 2.2. According to the European\nUnion, Norway's interpretation has no basis in the text of Article 2.2 or in recent Appellate Body\nreports concerning Article 2.2.\n387 The European Union further contends that the proviso in the last\npart of the sixth recital alludes to Article 2.1, but \"does not justify reading the same requirement\ninto Article 2.2\". 388 The European Union considers that Norway's interpretation would be\n\"superfluous because it would prohibit what is already prohibited by Article 2.1\". 389 The\nEuropean Union goes on to reject the distinction Norway draws between origin-based\ndiscrimination under Article 2.1 versus other types of discrimination captured under Article 2.2.\nAs the European Union explains, Article 2.2 is designed to address measures \"that are not\ndiscriminatory, but nevertheless create unnecessary obstacles to trade\".\n390 Moreover, the\nEuropean Union explains, \"if a measure found justified under Article 2.2 is applied in a\ndiscriminatory manner, such discriminatory application can be challenged under Article 2.1.\"\n391\n\n381 European Union's appellee's submission, para. 226.\n382 European Union's appellee's submission, para. 232.\n383 European Union's appellee's submission, para. 235.\n384 European Union's appellee's submission, para. 300.\n385 European Union's appellee's submission, paras. 300 and 302 (referring to Appellate Body Report,\n386 European Union's appellee's submission, para. 302. (emphasis original)\n387 European Union's appellee's submission, para. 315 (referring to Appellate Body Reports, US –\nTuna II (Mexico); US – COOL; and US – Clove Cigarettes).\n388 European Union's appellee's submission, para. 317.\n389 European Union's appellee's submission, para. 318.\n390 European Union's appellee's submission, para. 321.\n391 European Union's appellee's submission, para. 321.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.3.2.3 The Panel's analysis of the alternative measure\n2.126. The European Union argues that the comp lainants' allegations that the Panel assessed the\ncontribution made by the proposed less trade-restrictive alternative against the wrong benchmark\n\"misrepresent the analysis conducte d by the Panel and are unfounded\".\n392 The European Union\ncontends that the Panel did not ignore its findings regarding the exceptions, and that, even if it did\nnot expressly repeat its findings with regard to the exceptions, \"those findings are reflected in the\nPanel's overall assessment of the contribution\".\n393 The European Union maintains that, because the\ncomplainants failed to articulate a sufficiently precise less trade-restrictive alternative, the Panel\n\"had to assess instead the degree of contribution and the reasonable availability of two distinct\nhypothetical regimes within the scope of the broad [less trade-restrictive alternative] proposed by\nthe Complainants\". 394 The European Union recalls the Panel's conclusions that, while \"more\nstringent regimes\" would make a positive contribution to the objective, they were not \"reasonably\navailable\"; by contrast, \"more lenient regimes\" we re \"reasonably available\", but would \"call into\nquestion the degree to which the alternative measure can contribute to the welfare of seals\".395\n2.127. The European Union maintains that, although the complainants sought to establish that a\nmore lenient regime was possible, they \"failed to specify the content of such a 'more lenient\nregime' before the Panel, let alone provide any me aningful assessment of its contribution to the\nmeasure's objective\".396 The European Union adds that, although the Panel could have dismissed\nthe claim on that basis alone, it \"made considerable efforts to examine the degree of contribution\nand reasonable availability of different hypothetical regimes spanned by the broad [less trade-\nrestrictive alternative] proposed\".\n397 The European Union rejects as \"unsupported speculation\" the\ncomplainants' claims that the negative impact descr ibed by the Panel would be offset by the fact\nthat seal products currently covered by the IC exception would be excluded from the EU market by\nvirtue of a more lenient regime. 398 The European Union adds that much would depend on the\nspecific welfare requirements and certification methods of the more lenient regime, but that the\ncomplainants failed to specify any such requirements and methods before the Panel.\n2.128. The European Union also addresses the complainants' claim that the Panel improperly\nrelied on dictum from EC – Asbestos . The European Union argues that the quoted language\n\"reflects the basic and undisputed principle that , both under Article XX of the GATT and under\nArticle 2.2 of the TBT Agreement, the proposed [le ss trade-restrictive alternative] must achieve at\nleast the same degree of contribution as the challenged measure\". 399 The European Union further\nargues that \"[t]he mere fact that the measure at issue in EC – Asbestos provided for a more\ncomprehensive ban on trade in the product concerned than the EU Seal Regime is wholly\nimmaterial.\"\n400 What matters, the European Union adds, \"is that in both cases the defending\nMember cannot be forced to adopt alternative measures that would fail to achieve the same\ndegree of contribution to its objective\".401\n2.129. The European Union rejects Canada's claim that the Panel failed to take into account\ncertain measures applied by the European Union in other areas in its analysis. The European Union\nargues that Korea – Various Measures of Beef does not support such a comparison if it does not\naddress behaviour of the same kind for like or at least similar products. 402 According to the\nEuropean Union, the Panel recognized that \"seal hunting gives rise to specific welfare risks\".403 The\nEuropean Union also maintains that, \"even if the Panel had found that the welfare risks of seal\nhunting were sufficiently similar\" to other situatio ns, \"the European Union would still have been\n\n392 European Union's appellee's submission, para. 245.\n393 European Union's appellee's submission, para. 249.\n394 European Union's appellee's submission, para. 260.\n395 European Union's appellee's submission, para. 260.\n396 European Union's appellee's submission, para. 261.\n397 European Union's appellee's submission, para. 261.\n398 European Union's appellee's submission, para. 265.\n399 European Union's appellee's submission, para. 269 (referring to Appellate Body Report, EC –\nAsbestos, para. 174).\n400 European Union's appellee's submission, para. 269.\n401 European Union's appellee's submission, para. 269.\n402 European Union's appellee's submission, paras. 270-272 (referring to Appellate Body Report, Korea –\nVarious Measures on Beef, para. 172; and Canada's appellant's submission, paras. 278-290).\n403 European Union's appellee's submission, para. 273.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nentitled to apply different measures with regard to seal products\". 404 The European Union adds\nthat the objective \"pursued by the EU Seal Regime is to address public moral concerns with regard\nto the welfare of seals, rather than protecting the welfare of seals as such.\"\n405\n2.130. The European Union also takes issue with the argument by the complainants that Brazil –\nRetreaded Tyres requires that consideration of any \"prohibitive costs or substantial technical\ndifficulties\" must be those borne by the Member. 406 According to the European Union, that dispute\nsimply identifies an example of a situation wher e the proposed less trade-restrictive alternative\nwould not be reasonably available, and there \"can be other circumstances where a measure would\nnot be available because it would be 'merely theoretical in nature'\". 407 The European Union refers\nto the Panel's various findings regarding the challenges presented by a \"more stringent regime\".408\nThe European Union also notes that, despite the Panel's conclusion regarding the greater\nexpenditure and practical challenges of implementa tion, the costs of such a regime was \"just one\nof the obstacles mentioned by the Panel and, by no means, the most important\".409\n2.131. The European Union disagrees with Canada that the Panel failed to make an objective\nassessment under Article 11 of the DSU by finding that the less trade-restrictive alternative could\nresult in an increase in the number of inhumanely killed seals. The European Union contends that\nthe Panel's finding \"can be reasonably inferred from the Panel's findings regarding the inevitability\nof certain risks of inhumane killing arising from the conditions and circumstances of the seal\nhunts\".\n410\n2.132. The European Union also rejects Norway's argument that the Panel committed a violation\nof Article 11 of the DSU by failing to address two other less trade-restrictive alternatives put\nforward by Norway. The European Union notes that one of these proposed less trade-restrictive\nalternatives consisted of removing all of the re quirements of the EU Seal Regime, and \"amounted\neffectively to repealing the EU Seal Regime\". 411 Because Norway's proposal was premised on the\nassumption that the EU Seal Regime made no contribution to its objective, the European Union\nargues that the Panel implicitly rejected this claim. The European Union notes that the other less\ntrade-restrictive alternative put forward by Norway was the removal of three conditions attached\nto the MRM exception (the \"not-for-profit\", \"non-s ystematic\", and \"sole purpose\" conditions). The\nEuropean Union argues that, although the Panel did not expressly address this proposal, it is\nclearly implicit in the Panel's reasoning and findings that this less trade-restrictive alternative\nwould also fail to make an equivalent contribution to the measure's objective.\n2.133. For the above reasons, the European Union requests the Appellate Body to reject the\nclaims raised by Canada and Norway under Articl e 2.2 of the TBT Agreement with regard to the\ncontribution made by the EU Seal Regime to it objective and the Panel's analysis of the proposed\nless trade-restrictive alternatives.\n412 The European Union further requests the Appellate Body to\nuphold the Panel's finding that the EU Seal Regime is not inconsistent with Article 2.2 of the\nTBT Agreement.\n413\n\n404 European Union's appellee's submission, para. 276.\n405 European Union's appellee's submission, para. 277 (referring to, as examples, European Union's\nresponses to Panel question Nos. 9, 10, 11, and 104; and second written submission to the Panel,\nparas. 271-276).\n406 European Union's appellee's submission, paras. 278 and 279 (referring to Panel Reports,\n407 European Union's appellee's submission, para. 279 (quoting Appellate Body Report, Brazil –\nRetreaded Tyres, para. 156).\n408 European Union's appellee's submission, para. 281 (referring to Panel Reports, para. 7.496 and\nfn 801 to para. 7.497).\n409 European Union's appellee's submission, para. 281.\n410 European Union's appellee's submission, para. 291.\n411 European Union's appellee's submission, para. 306.\n412 European Union's appellee's submission, paras. 236 and 308.\n413 European Union's appellee's submission, para. 474.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.3.3 Article XX of the GATT 1994\n2.3.3.1 Aspects of the measure to be justified under Article XX(a)\n2.134. The European Union requests the Appellate Body to reject Norway's appeal against the\nPanel's findings with respect to the aspect of the EU Seal Regime to be justified under Article XX(a)\nof the GATT 1994. According to the European Unio n, contrary to what Norway alleges, WTO\njurisprudence on the issue \"is not as clear cut and rather suggests that an artificial separation of\ncertain provisions from the remainder of the me asure at issue … is not conducive to a proper\nunderstanding of the measure and can affect the correctness of the analysis under Article XX\".\n414\n2.135. Responding to Norway's criticism of the Panel's reliance on US – Gasoline , the European\nUnion points out that the Appellate Body in US – Gasoline was of the view that \"not only the\nprovisions relating to importers and blenders, but also those related to domestic refiners had to be\nconsidered in determining whether the measure [– i.e. the Gasoline Rule –] [could] be\njustified\".415 This is because, in that case, the less favourable treatment found to be in violation of\nArticle III:4 of the GATT 1994 \"resulted from the interplay between the provisions relating to\nbaselines for domestic refiners and the provisions relating to baselines for blenders and importers\nof gasoline\".416 The Panel's approach in the present case is similar to the approach adopted by the\nAppellate Body in US – Gasoline since, under the EU Seal Regime, \"the less favourable treatment\nalleged by the Complainants results from the interplay between the General Ban and the IC and\nMRM exceptions and not from the exceptions alone.\" 417 The Panel was, therefore, correct in\nconcluding that the ban and the exceptions under the EU Seal Regime are \"closely connected to\neach other and could not operate in isolation\". 418 The European Union adds that the approach of\nthe Appellate Body in US – Gasoline was \"echoed subsequently\" in the Panel report in Argentina –\nHides and Leather.419\n2.136. With respect to Norway's reliance on the Appellate Body report in Thailand – Cigarettes\n(Philippines), the European Union submits that, contrary to what Norway alleges, the Appellate\nBody's observations in that dispute indicate that, when less favourable treatment results from\ncertain regulatory treatment of imports, \"the an alysis under the exceptions of Article XX should\nfocus on whether such 'regulatory differences' ar e 'necessary' in order to achieve the objectives\nset out in either of those two provisions at th e level of protection chosen by the responding\nMember.\"420\n2.137. Based on these cases, the European Union asserts that the aspect of the measure to be\njustified should not be defined so narrowly as to make it impossible correctly to understand the\nmeasure, and that the focus of the analysis under Article XX should be on \"regulatory\ndifferences\".421 In the present case, the Panel was correct in not limiting its analysis to the IC and\nMRM exceptions, since the discrimination found to be inconsistent with the GATT 1994 resulted\nfrom the \"interplay\" between the ban and the exceptions.422\n2.138. In response to Norway's criticism of the Panel's reasoning that an \"exception\", when\nconsidered alone, could never be \"necessary\" to achieve the objective of a ban, the European\nUnion posits that \"the mere fact that the exception is considered together with the general rule in\nthe context of the analysis of the design and structure of the measure under a paragraph of\nArticle XX in no way means that the exception is altogether 'removed from scrutiny'\".\n423 Instead,\nthe exception \"critically informs the design and stru cture\" of the measure, particularly \"the extent\n\n414 European Union's appellee's submission, para. 389.\n415 European Union's appellee's submission, para. 393 (referring to Appellate Body Report, US –\nGasoline, p. 16, DSR 1996:I, p. 15).\n416 European Union's appellee's submission, para. 393.\n417 European Union's appellee's submission, para. 395.\n418 European Union's appellee's submission, para. 395 (referring to Panel Reports, para. 7.620).\n419 European Union's appellee's submission, para. 396 (referring to Panel Report, Argentina – Hides and\nLeather, paras. 11.303-11.305).\n420 European Union's appellee's submission, para. 404 (quoting Appellate Body Report, Thailand –\nCigarettes (Philippines), para. 177).\n421 European Union's appellee's submission, para. 404.\n422 European Union's appellee's submission, para. 407.\n423 European Union's appellee's submission, para. 412 (referring to Panel Reports, para. 7.638).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nto which the measure contributes to the stated objective\", which then affects the Article XX\nanalysis.424 Finally, the European Union contends that the Panel did not err in making a reference\nto its analysis under the TBT Agreement in its assessment of the measure with respect to\nArticle XX. If at all, the Panel's \"consistent an d coherent analysis between the TBT Agreement and\nthe GATT 1994 … further supports the correctness of [its] approach\".\n425\n2.139. In the event that the Appellate Body agrees with Norway that the Panel erred in\nconsidering whether the EU Seal Regime as a whole was provisionally justified under Article XX(a),\nthe European Union notes its other appeal of the Panel's finding that the objective of the\nIC exception is rationally disconnected from the EU Seal Regime objective.426 If the Appellate Body\nagrees with the European Union and reverses the Panel's finding that the IC exception does not\nbear a rational relationship to the objective of addressing EU public moral concerns regarding seal\nwelfare, \"in completing the analysis following No rway's appeal, the Appellate Body would need to\nbase its analysis on the finding that there is a rational connection between the IC exception and\nthe objective of the EU Seal Regime.\"\n427 If the Appellate Body upholds the Panel's finding that the\nIC exceptions does not bear a rational relationship with the objective of the EU Seal Regime, the\nEuropean Union submits that the Appellate Body \"should uphold Norway's claim that the Panel\nerred by failing to identify the objective pursued by the IC exception as an independent objective\nof the EU Seal Regime\".\n428 In completing the analysis under Article XX(a) in such circumstances,\nthe European Union requests the Appellate Body to take into account \"the modified Panel's\nanalysis as to the objective of the IC exception an d its contribution to its fulfilment and find that\nthe IC exception is justified\" under Article XX(a) of the GATT 1994.429\n2.3.3.2 Scope of Article XX(a)\n2.140. The European Union disagrees with Canada's claim that the Panel erred in finding that the\nEU Seal Regime falls within the scope of applicat ion of Article XX(a) of the GATT 1994. Contrary to\nCanada's arguments, the European Union submits that there is no requirement to assess the \"risk\"\nto public morals in order to determine whether a measure falls within the scope of Article XX(a).\nInstead, such examination must be undertaken as part of the \"necessity\" analysis because, where\nthe risks that a measure purports to address are shown to be \"inexistent or negligible\", the\nmeasure will be found \"unnecessary\".\n430 Relying on a statement by the Appellate Body in Korea –\nVarious Measures on Beef , the European Union argues that \"all that must be shown in order to\nestablish that a measure falls within the scope of Article XX(a) is that the measure is designed to\nprotect public morals.\"431 The European Union points out that Canada has not appealed the Panel's\nfinding that the EU Seal Regime pursued a \"public morals objective\". On the basis of this finding,\nthe European Union considers that \"the Panel was entitled to conclude that the EU Seal Regime\nwas designed to protect public morals and, therefore, fe ll within the scope of Article XX(a) of the\nGATT 1994.\"\n432\n2.141. The European Union submits that Canada's interpretation of Article XX(a) would\n\"effectively introduce … a strict consistency test\", which would impose on Members the burden of\nproving \"that the relevant standard of morality is consistently applied by them in each and every\nsituation involving similar risks.\"\n433 According to the European Union, WTO jurisprudence shows\nthat the application of a measure in one area is \"only of a limited relevance\" to an Article XX\nanalysis.434 The European Union adds that introducing a \"consistency\" test into Article XX would\nlimit Members' \"regulatory autonomy and, in particular, their right to select an appropriate level of\n\n424 European Union's appellee's submission, para. 412.\n425 European Union's appellee's submission, para. 414 (referring to Appellate Body Report, US – Clove\nCigarettes, paras. 90 and 91).\n426 European Union's appellee's submission, para. 415 (referring to European Union's other appellant's\nsubmission, paras. 91-123).\n427 European Union's appellee's submission, para. 416.\n428 European Union's appellee's submission, para. 417.\n429 European Union's appellee's submission, para. 417.\n430 European Union's appellee's submission, para. 342.\n431 European Union's appellee's submission, para. 344 (referring to Appellate Body Report, Korea –\nVarious Measures on Beef, para. 157). (emphasis original)\n432 European Union's appellee's submission, para. 346. (emphasis original)\n433 European Union's appellee's submission, para. 347.\n434 European Union's appellee's submission, para. 349.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nprotection in different situations\". 435 Such a limitation, the European Union maintains, cannot be\neasily presumed absent clear text, since, when the drafters intended to provide for a consistency\nobligation, they did so expressly, such as in Ar ticle 5.5 of the Agreement on the Application of\nSanitary and Phytosanitary Measures (SPS Agreement).\n436\n2.142. The European Union also takes issue with Canada's argument that the EU Seal Regime\ndoes not address genuine risks to public morals on animal welfare on the ground that the\nEuropean Union \"tolerates\" a similar degree of animal suffering in slaughterhouses and terrestrial\nwildlife hunts.\n437 The European Union highlights that the Panel gave detailed reasons for its\nfindings on the uniqueness and distinctiveness of the welfare risks associated with seal hunts, and\nthat these findings have not been challenged by Canada. The European Union reiterates that\ncomparing seal hunts with those activities would be \"of limited value\" given the differences in the\nanimals involved, the killing methods, and the physical environment.\n438 Owing to these\ndifferences, and the \"limited value\" accorded to comparisons with terrestrial hunts, the\nEuropean Union argues that the Panel was not bound to address Canada's evidence concerning the\npoor welfare outcomes in terrestrial wildlife hunts.\n2.143. Finally, with respect to Canada's claim that the Panel failed to make an objective\nassessment of the matter, contrary to Article 11 of the DSU, by failing to take into account\nevidence relating to environmental conditions and risks in other situations, such as wildlife hunts,\nthe European Union notes that Canada misstates the Panel's finding. According to the\nEuropean Union, the Panel did not simply distinguish the physical environmental conditions of seal\nhunts from the conditions in wildlife hunts, but rather distinguished between \"hunts occurring\nwithin or near Arctic and sub-Arctic regions, on the one hand, and terrestrial wild life hunts, on the\nother hand\".\n439 The European Union submits that the differences between Arctic and semi-Arctic\nmarine habitats and the terrestrial habitats of animals are \"self-evident\". 440 A s t o C a n a d a ' s\nargument that the Panel failed thoroughly to assess the EFSA Scientific Opinion, the European\nUnion submits that, contrary to Canada's arguments, the EFSA Scientific Opinion \"stressed that the\nmethods for killing wild animals and their efficacy vary considerably\" and \"cautioned that 'care\nshould be taken when comparing their efficacy because of the great variation in environmental\nconditions concerned'\".\n441 With respect to the Panel's alleged failure to consider the risks to animal\nwelfare in terrestrial wildlife hunts in determining whether such risks exist for seal hunts, the\nEuropean Union points out that the Panel found comparisons with terrestrial hunts to be \"of limited\nvalue\" and, therefore, it was not necessary fo r the Panel to address the evidence cited by\nCanada.\n442\n2.3.3.3 The Panel's analysis of \"necessity\"\n2.144. The European Union asserts that the complainants' arguments with respect to the Panel's\n\"contribution\" analysis are based on a misreadi ng of the Appellate Body's observations in Brazil –\nRetreaded Tyres. The European Union clarifies that the Appellate Body in that case left open \"the\npossibility that, exceptionally, an import ba n may be considered necessary even when the\ncontribution is not 'material'\".443 Moreover, the European Union adds, in using the phrase \"material\ncontribution\", the Appellate Body \"did not purpor t to define a minimum legal requirement to be\nenforced by panels as a mandatory component of the necessity test\". 444 Instead, the Appellate\nBody simply made a \"prediction about the likely legal characterization of a certain factual\nscenario\", which provides useful guidance, but should not be taken as a legal requirement. 445 The\n\n435 European Union's appellee's submission, para. 352.\n436 European Union's appellee's submission, para. 352.\n437 European Union's appellee's submission, para. 353 (quoting Canada's appellant's submission,\npara. 395).\n438 European Union's appellee's submission, paras. 354 and 378 (quoting Panel Reports, fn 300 to\npara. 7.206).\n439 European Union's appellee's submission, para. 370 (referring to Panel Reports, para. 7.187).\n(emphasis original)\n440 European Union's appellee's submission, para. 371.\n441 European Union's appellee's submission, para. 376 (quoting EFSA Scientific Opinion, p. 36).\n442 European Union's appellee's submission, para. 378 (quoting Panel Reports, fn 300 to para. 7.206).\n443 European Union's appellee's submission, para. 423 (referring to Appellate Body Report, Brazil –\nRetreaded Tyres, para. 510).\n444 European Union's appellee's submission, para. 423.\n445 European Union's appellee's submission, para. 423.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nEuropean Union considers that the interpretation advanced by the complainants would contradict\nthe interpretation of the contribution requirem ent under Article 2.2 of the TBT Agreement as\napplied in US – COOL , in which \"the Appellate Body rebuked the panel for having considered it\nnecessary for the COOL measure to meet some minimum level of fulfilment\". 446 The European\nUnion also highlights that, unlike the measure at issue in Brazil – Retreaded Tyres , the EU Seal\nRegime does not provide for \"a complete import ban\", as the complainants themselves appear to\nhave acknowledged.\n447\n2.145. In any event, the European Union maintains that, in Brazil – Retreaded Tyres , the\nAppellate Body held that \"a contribution should be deemed 'material' provided that it is not\n'marginal or insignificant'.\"\n448 In this case, the European Union claims that both the Panel's\nfindings and the evidence on record \"demonstrate that the contribution of the EU Seal Regime is\nclearly more than 'marginal or insignificant', even if it cannot be quantified precisely\". 449 For these\nreasons, the European Union requests the Appellate Body to reject Canada's and Norway's claims\nand arguments on appeal with regard to the nece ssity of the EU Seal Regime under Article XX(a)\nof the GATT 1994.\n2.3.3.4 The Panel's analysis under the chapeau of Article XX\n2.146. The European Union submits that the Appellate Body should reject Canada's claims of legal\nerror with respect to the Panel's reasoning under the chapeau of Article XX of the GATT 1994.\nAccording to the European Union, the Panel's approach of taking into account its \"legitimate\nregulatory distinction\" analysis under Article 2. 1 of the TBT Agreement for the purposes of its\nassessment of \"arbitrary or unjustifiable discrimination\" under the chapeau is legally correct.\n450\nThe European Union asserts that the complainants' \"rigid interpretation\" of the term \"arbitrary or\nunjustifiable discrimination\" as embodying a requirement that the reasons for discrimination be\n\"rationally connected\" to the policy objective of the measure is not reflected in the text of the\nchapeau or past Appellate Body jurisprudence.\n451 While the European Union agrees that\ndetermining whether the discrimination at issue is \"arbitrary or unjustifiable\" usually involves an\ninvestigation of the reason underlying the discrimination, in its view, investigating the cause\nunderlying the discrimination is not necessarily limited to determining whether such cause is\n\"rationally connected\" to the objective of the measure. Moreover, as reflected in prior Appellate\nBody jurisprudence, determining the cause of the discrimination may involve the consideration of\nother factors.\n452\n2.147. The European Union considers that its position is supported by Brazil – Retreaded Tyres ,\nwhere the Appellate Body found that, under the specific circumstances of that case, the\nMERCOSUR arbitral ruling was \"not an acceptab le rationale for the discrimination, because it\n[bore] no relationship to the legitimate objective pursued by the Import Ban that [fell] within the\npurview of Article XX(b), and even [went] against this objective\".\n453 The European Union\nemphasizes that, unlike the EU Seal Regime, the measure in Brazil – Retreaded Tyres was a health\nmeasure, which was provisionally justified under Article XX(b). According to the European Union,\nthe \"line of equilibrium\" that the Appellate Body found with respect to the health measure in\nBrazil – Retreaded Tyres under the specific circumstances of that case does not apply to the\nEU Seal Regime, which requires a different \"bal ancing exercise\" between public moral concerns\nand other interests.\n454 The European Union contends that the Panel, therefore, correctly based its\nconclusion on the justification of the regulatory distinction on the specific circumstances of these\ndisputes.\n\n446 European Union's appellee's submission, para. 424.\n447 European Union's appellee's submission, para. 427.\n448 European Union's appellee's submission, para. 429.\n449 European Union's appellee's submission, para. 429.\n450 European Union's appellee's submission, para. 442.\n451 European Union's appellee's submission, paras. 443-447 (referring to Appellate Body Reports, US –\nGasoline, p. 23, DSR 1996:I, p. 21; and US – Shrimp, paras. 158 and 159).\n452 European Union's appellee's submission, paras. 448-456 (referring to Appellate Body Reports, US –\nGasoline, pp. 28-29, DSR 1996:I, p. 27; and US – Shrimp, paras. 161, 165, 166, 173, 175, and 180-184).\n453 European Union's appellee's submission, para. 451 (quoting Appellate Body Report, Brazil –\nRetreaded Tyres, para. 228).\n454 European Union's appellee's submission, para. 453 (quoting Appellate Body Report, US – Shrimp,\npara. 159).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.148. The European Union further maintains th at the Panel based its conclusion about the\njustification of the regulatory distinction on its finding that, in the EU Seal Regime, \"the interests\nunderlying the IC exception are 'balanced agai nst the objective of the measure at issue.'\"\n455 The\nEuropean Union adds that, by contrast, in Brazil – Retreaded Tyres, the Appellate Body did not find\n\"any such balancing\" in the measure at issue, since, in that case, there was a \"complete\ndissociation of objectives\". 456 Finally, the European Union notes that the nature of the exceptions\nin the two cases differ significantly. In the present case, the IC exception is \"based on a broad\nrecognition of the unique interests of Inuit and other indigenous communities\", whereas in Brazil –\nRetreaded Tyres, the exception at stake had \"a mere economic objective, i.e. implementing the\nmarket access concessions contained in the MERCOSUR free trade agreement\". 457 Given the\n\"relevant differences\" between the present case and Brazil – Retreaded Tyres, the European Union\nsubmits that the Panel's approach to not \"exclusively focus\" on the rational connection between\nthe cause of the exceptions and the main objective of the measure \"appears correct\".458\n2.149. The European Union also submits that the approach proposed by the complainants also\nconflicts with the purpose of Article XX, which is \"to balance the substantive obligations established\nin the GATT 1994 with certain important and legitimate policy objectives\". 459 The European Union\nunderscores that the \"[e]xceptions are often not 'rationally connected' to the main purpose of a\nmeasure\", and when they are \"inserted to achi eve a balance between the main objective … and\nconflicting other legitimate objectives, there will typically be a 'disconnect' between their rationale\nand the main objective pursued\".\n460 The approach proposed by the complainants would preclude\nMembers from carrying out such a balancing exercise, when there is nothing \"arbitrary or\nunjustifiable\" in \"striking a balance between animal welfare and these other objectives\". 461 Finally,\nthe European Union contends that the \"rigid interpretation\" proposed by the complainants also\ndisregards the context provided by the TBT Ag reement to the chapeau of Article XX of the\nGATT 1994, and that the Panel rightly attemp ted to achieve a \"coherent and consistent\ninterpretation\" by taking into account its analysis under Article 2.1 of the TBT Agreement.\n462 For\nthese reasons, the European Union requests the Appellate Body to reject Canada's and Norway's\nallegations of errors concerning the Panel's findings under the chapeau of Article XX of the\nGATT 1994.463\n2.150. In the event that the Appellate Body accepts Canada's and Norway's appeals, the\nEuropean Union notes its other appeal of the Panel's finding that \"the IC exception does not bear a\nrational relationship to the objective of addressing the moral concerns of the public on seal\nwelfare.\"464 According to the European Union, if the Ap pellate Body modifies the Panel's reasoning\nfollowing successful appeals by Canada and Norway as regards the interpretation of the chapeau,\nthe Appellate Body \"should not base its analysis on a finding of a lack of rational connection\nbetween the IC exception and the objective of the EU Seal Regime\".465\n2.4 Claims of error by the European Union – Other appellant\n2.4.1 Annex 1.1 to the TBT Agreement\n2.151. The European Union contends that the Pane l erred in its interpretation and application of\nthe terms \"product characteristics\" and \"applicable administrative provisions\" in the definition of a\n\"technical regulation\" under Annex 1.1 to the TBT Agreement, and consequently requests the\nAppellate Body to reverse the Panel's conclusion that the EU Seal Regime constitutes a \"technical\n\n455 European Union's appellee's submission, para. 454 (quoting Panel Reports, para. 7.296).\n456 European Union's appellee's submission, para. 454 (referring to Appellate Body Report, Brazil –\nRetreaded Tyres, paras. 228 and 234).\n457 European Union's appellee's submission, para. 455 (referring to Panel Reports, para. 7.298).\n458 European Union's appellee's submission, para. 456.\n459 European Union's appellee's submission, para. 457 (referring to Appellate Body Report, US – Shrimp,\npara. 121).\n460 European Union's appellee's submission, para. 457.\n461 European Union's appellee's submission, para. 458.\n462 European Union's appellee's submission, para. 458 (referring to Appellate Body Report, US – Clove\n463 European Union's appellee's submission, para. 461.\n464 European Union's appellee's submission, para. 459 (referring to European Union's other appellant's\nsubmission, paras. 91-123).\n465 European Union's appellee's submission, para. 460.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nregulation\" and to declare moot and of no legal effect the Panel's findings and conclusions under\nArticle 2.1, 2.2, 5.1.2, and 5.2.1 of the TBT Agreement.466\n2.152. First, with respect to the Panel's interpretation of the term \"applicable administrative\nprovisions\", the European Union submits that the Panel erred in considering that the word\n\"applicable\" pertains to \"products\" rather than \"product characteristics or their related processes\nand production methods\" (PPMs). 467 Pointing to the text of Annex 1.1, the European Union\nobserves that \"[t]he reference to 'applicable administrative provisions' immediately follows the\nmention of 'product characteristics or their relate d [PPMs]'\", with the two categories being linked\nby \"the conjunctive term 'including'\". 468 Regarding the measure at issue, the European Union\nasserts that, while the procedural requirements contained in the Implementing Regulation might\nbe described as administrative provisions, they \"do not directly pertain to … what the Panel\nconsidered as a product characteristic laid down in the negative form, namely that the products\nmust not contain seal\". 469 Instead, they regulate trade in seal products. For the European Union,\nthey cannot therefore be considered as being \"app licable\" to a product characteristic within the\nmeaning of Annex 1.1.\n2.153. Second, the European Union alleges that th e Panel erred in its interpretation of the term\n\"product characteristics\" by relying only on \"a fragment of the Appellate Body's analysis in\nEC – Asbestos \" on the ordinary meaning of \"product characteristics\". 470 In particular, the Panel\nerred in relying on EC – Asbestos to find support for its finding that any \"objectively definable\nfeatures\" of a product constitute product characteristics. 471 This led the Panel to find that the\ncriteria established under the Implementing Regu lation concerning the type of hunter and/or\nqualifying hunts amount to \"product characteristics\" within the meaning of Annex 1.1. Under the\nPanel's interpretation of Annex 1.1, \"virtually anyt hing\" that bears a relation to a product could be\nconstrued as a product characteristic\". 472 The European Union adds that the Panel's reading of\nAnnex 1.1 renders redundant, at least in part, the inclusion of \"related [PPMs]\", as the two\nconcepts overlap in scope. It also contradicts th e object and purpose of the TBT Agreement, which\n\"was designed to elaborate on the disciplines of Ar ticle III of the [GATT] for a very specific subset\nof measures\" rather than to cover \"all government regulatory actions affecting products\" or \"all\ninternal measures covered by Article III:4 of the GATT 1994\". 473 The European Union further\nargues that the negotiating history of the TBT Agreement reflects the intent to narrow the scope of\nthe TBT Agreement, as negotiators only agreed to include PPMs \" related to product\ncharacteristics\".\n474\n2.154. On this basis, the European Union submits that the conditions imposed under the EU Seal\nRegime – the IC, MRM, and Travellers exceptions – \"do not concern the intrinsic characteristics or\nfeatures that are related to the products\". 475 Specifically, the IC exception deals with \"the identity\nof the hunters, the traditions of their communities and the purpose of the hunt\" 476; the\nMRM exception relates to \"the size, intensity and purpose of the hunt and the marketing conditions\n(i.e. non-profit and non-systematic) of the products\" 477; and the Travellers exception pertains to\n\"the use of the products and the circumstances of their importation\". 478 None of these conditions,\nargues the European Union, set out any intrinsic or related features of the products.\n2.155. Finally, referring to the Appellate Body's findings in EC – Asbestos , the European Union\nrecalls that the proper legal characterization of the measure at issue cannot be determined unless\nthe measure is examined \"as a whole\". 479 The European Union adds, however, that the Appellate\n\n466 European Union's other appellant's submission, paras. 88-90 and 332.\n467 European Union's other appellant's submission, para. 53.\n468 European Union's other appellant's submission, para. 55.\n469 European Union's other appellant's submission, para. 58.\n470 European Union's other appellant's submission, para. 61.\n471 European Union's other appellant's submission, para. 65 (quoting Panel Reports, para. 7.110).\n472 European Union's other appellant's submission, para. 66.\n473 European Union's other appellant's submission, paras. 68 and 69, respectively (quoting Appellate\n474 European Union's other appellant's submission, para. 70. (emphasis original)\n475 European Union's other appellant's submission, para. 71.\n476 European Union's other appellant's submission, para. 72.\n477 European Union's other appellant's submission, para. 73.\n478 European Union's other appellant's submission, para. 74.\n479 European Union's other appellant's submission, para. 76 (referring to Appellate Body Report, EC –\nAsbestos, para. 64).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nBody did not suggest in that case that \"it is sufficient for one component to meet the criteria for a\ntechnical regulation for a measure as a whole to be considered\" as such. 480 Thus, it was incorrect\nfor the Panel to conclude that a measure as a whole can be deemed a technical regulation \"simply\nbecause one of its components meets the criterion for a technical regulation\".\n481 In the European\nUnion's view, since not all of the components of the EU Seal Regime meet the criteria for a\ntechnical regulation, the Panel should have instead based its determination on consideration of \"all\ncomponents of the measure and their respective role in [its] operation and object and purpose\".\n482\nIn this regard, the European Union argues that the Panel failed to address how the ban on\nproducts consisting exclusively of seal impacts on the legal characterization of the measure as a\nwhole.\n483 The European Union further highlights that, while the exceptions in the measure at issue\nin EC – Asbestos \"permitted certain products which were identified according to their intrinsic\ncharacteristics\"484, none of the conditions under which seal-containing products may enter the\nEuropean Union market \"relate to intrinsic or related product characteristics\". 485 Thus, if the\nprohibition contained in the EU Seal Regime is examined in the light of the IC, MRM, and Travellers\nexceptions, the measure \"cannot be reduced to the simple negative intrinsic product characteristic\nthat products may not contain seal\".486 Nor does the EU Seal Regime, when considered as a whole,\nlay down \"product characteristics\" within the meaning of Annex 1.1 to the TBT Agreement.\n2.4.2 Article 2.1 of the TBT Agreement\n2.156. The European Union appeals the Panel's finding that \"the IC exception does not bear a\nrational relationship to the objective of addressing the moral concerns of the public on seal\nwelfare\".\n487 The European Union submits that this finding was \"based on an incorrect interpretation\nof the notion of 'public morals'\", according to which a Member claiming that a measure pursues a\npublic morals objective has to show that the measure is supported by a majority of its\npopulation.\n488 Alternatively, the European Union submits that, in reaching its conclusion that the\nEU public does not support the IC exception, the Panel failed to make an objective assessment of\nthe evidence before it as required by Article 11 of the DSU.\n2.157. The European Union observes that the Pane l cited with approval the interpretation of the\nnotion of \"public morals\" made by the panels in US – Gambling and China – Publications and\nAudiovisual Products, but argues that, in its reasoning, the Panel disregarded the interpretation\ndeveloped in these previous disputes. 489 According to the European Union, the Panel held that the\nIC exception was not related to the public morals objective of the EU Seal Regime because it was\nnot \"grounded in the concerns of EU citizens\", a fi nding that it had in turn inferred from evidence\n\"consisting exclusively of opinion polls and a public consultation\". 490 The European Union takes\nissue with the Panel's finding on the basis that the \"standards of right and wrong\" that make up a\nM e m b e r ' s p u b l i c m o r a l s \" d o n o t n e c e s s a r i l y h a v e t o b e h e l d b y a m a j o r i t y o f m e m b e r s o f a\ncommunity\".491 Instead, the European Union argues that these standards \"can be set by a\nMember's authorities on behalf of a community, in accordance with that Member's own system of\ngovernment\".492 The European Union submits that \"[i]t is … the task of legislators and regulators\nto translate the broader moral concerns of the public into precise requirements, by relying on their\n\n480 European Union's other appellant's submission, para. 77.\n481 European Union's other appellant's submission, para. 79 (referring to Panel Reports, para. 7.100).\n482 European Union's other appellant's submission, para. 81.\n483 European Union's other appellant's submission, para. 83 (referring to Panel Reports, fn 153 to\npara. 7.106). In its opening statement at the oral hearing, the European Union explained that the purpose of a\nban is not to set out product characteristics or related PPMs, compliance with which would allow certain\nproducts to have access to the market. The purpose of a ban, thus, fundamentally differs from the purpose of a\ntechnical regulation. The European Union noted that, like a ban, a technical regulation may have as a\nconsequence the exclusion of certain products from the market; however, unlike a ban, a technical regulation\nalso ensures that conforming products, which possess the required product characteristics or related PPMs, are\ngiven access to the market.\n484 European Union's other appellant's submission, para. 87 (referring to Appellate Body Report, EC –\nAsbestos, para. 74).\n485 European Union's other appellant's submission, para. 88.\n486 European Union's other appellant's submission, para. 88.\n487 European Union's other appellant's submission, para. 91 (quoting Panel Reports, para. 7.275).\n488 European Union's other appellant's submission, para. 92.\n489 European Union's other appellant's submission, para. 107.\n490 European Union's other appellant's submission, para. 107 (quoting Panel Reports, para. 7.402).\n491 European Union's other appellant's submission, para. 108.\n492 European Union's other appellant's submission, para. 108. (emphasis original)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nsuperior knowledge of the specific factual circumstances.\" 493 This means, according to the\nEuropean Union, that, even if it could be concluded that the IC exception is not \"grounded in the\nconcerns of EU citizens\", this would not imply that the IC exception is \"rationally disconnected\"\nfrom the public morals objective pursued by the EU Seal Regime.\n494\n2.158. The EU Seal Regime, according to the European Union, reflects the \"moral standard\" that\n\"humans ought not to inflict suffering upon animals without a sufficient justification\". 495 The\nEuropean Union claims that the IC exception reflects a \"balancing of interests which is an integral\npart of that moral standard\". 496 The European Union finds the Panel's conclusion to be \"all the\nmore difficult to understand\" in view of the fact that the Panel, in reaching its earlier finding that\npublic concerns regarding the welfare of seals were \"moral\" in nature, had found ample evidence\nfor the existence of a \"well-established moral doctrine\" grounding these concerns.\n497 According to\nthe European Union, the Panel totally disregarde d that evidence when considering whether the\nIC exception was rationally connected to the public morals objective of the EU Seal Regime.\nNevertheless, the European Union claims that the IC exception is in fact the outcome of the\napplication of that moral doctrine in the context of seal hunting.\n2.159. The European Union further explains that the fundamental tenet of the moral doctrine of\n\"animal welfarism\" is that it is morally acceptable to inflict suffering upon animals where\nsufficiently justified by human needs.\n498 The European Union notes that none of the laws on animal\nwelfare cited by the Panel stipulate an absolute prohibition on inflicting suffering upon animals;\nrather, all of them provide for exceptions based on overriding human needs. The European Union\nfurther submits that the evidence before the Pane l confirmed that the IC exception was the result\nof a proper application of the moral standard in voked by the European Union. The European Union\npoints to the Panel's finding that \"seal hunting represents a vital element of the tradition, culture,\nand livelihood of Inuit and indigenous populati ons\", and submits that the EU legislators could\nreasonably have concluded that these specific circumstances rendered the IC exception\nnecessary.\n499\n2.160. The European Union submits that the Panel misinterpreted and misapplied Article 2.1 of\nthe TBT Agreement when examining whether the IC exception is even-handed in its design and\napplication. According to the European Union, the Panel should have examined whether the\nIC exception was designed and applied \"in a reasonable, impartial and harmonious manner\",\nhaving regard to its objective, namely, to protect the interests of Inuit and other indigenous\ncommunities traditionally engaged in seal hunting for subsistence purposes.\n500 Instead, the Panel\ndetermined that the IC exception was de facto available exclusively to Greenland, without\nexamining the actions and omissions of the relevant Canadian authorities and operators. The\nEuropean Union further submits that the Panel wrongly focused on the greatest similarities\nbetween seal hunts in Greenland and commercial hunts, which is irrelevant for the assessment of\neven-handedness, given that the Panel had al ready found that seal hunts in Greenland are\nIC hunts conducted for subsistence purposes.\n501\n2.161. More specifically, the European Union recalls that the IC exception makes a distinction\nbetween IC and commercial hunts in view of their pu rposes – i.e. subsistence versus primarily or\nsolely for profit – and that the requirements to qualify under the IC exception are \"reasonable,\ntailor-made and harmonious with the objective\" of the IC exception – i.e. the protection of Inuit\ninterests. The European Union further argues that the operation and application of the\nIC exception is fair, impartial, and harmonious with its objective, in that only seal products derived\nfrom hunts conducted by Inuit communities for subsistence purposes can benefit from the\nexception. The European Union notes that any entity within the Inuit communities in Canada or\nelsewhere can meet the requirements to become a recognized body for the purposes of assessing\nconformity with the IC exception. The European Un ion submits that the fact that, so far, only an\n\n493 European Union's other appellant's submission, para. 109.\n494 European Union's other appellant's submission, para. 107 (quoting Panel Reports, para. 7.402).\n495 European Union's other appellant's submission, para. 110.\n496 European Union's other appellant's submission, para. 110.\n497 European Union's other appellant's submission, para. 111.\n498 European Union's opening statement at the oral hearing.\n499 European Union's other appellant's submission, para. 143 (referring to Panel Reports, para. 7.295).\n500 European Union's other appellant's submission, para. 151.\n501 European Union's other appellant's submission, para. 151 (referring to Panel Reports, paras. 7.288\nand 7.289).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nentity in Greenland has become a recognized body results from the decisions of the relevant\nauthorities and operators in other countries, and cannot be attributed to the EU Seal Regime. The\nEuropean Union argues that, contrary to what the Panel found, there is no \"inherent flaw\" or\npermanent defect in the IC exception that prevents Inuit communities, other than those in\nGreenland, from taking advantage of it.\n502\n2.162. The European Union further submits that the Panel's focus on the de facto exclusivity of\nthe IC exception to Greenland, where the Inuit hunt bears the greatest similarities to commercial\nhunts, is misdirected. According to the Euro pean Union, the Panel wrongly assessed the\neven-handedness of the IC exception by looking at the effects of the measure in a particular period\nof time. The European Union underscores that, while Canada and its Inuit communities have not\ntaken any steps to benefit from the IC exception despite numerous efforts made by the\nEU authorities, they could do so at any time in the future, if and when they so wish, based on their\nassessment of whether exports to the European Union are desirable. In the European Union's view,\nthe fact that the Canadian authorities purchase Inuit products under a targeted programme means\nthat they have, in principle, a convenient and easy means to identify the seal products qualifying\nfor the IC exception.\n2.163. With respect to the Panel's findings on the degree of the commercial aspect in seal hunts\nin Greenland, the European Union expresses its understanding that the Panel did not find that seal\nhunts in Greenland should be characterized as \"commercial hunts\" – i.e. as hunts having as their\nsole or primary purpose to make a profit out of selling seal products on the market. The European\nUnion submits that, as long as these hunts meet the criteria to qualify as a legitimate indigenous\nsubsistence activity, and are thus \"'subsistence'/IC hunts\", the extent to which some of the\nby-products of these hunts are sold through commercial channels by Inuit communities in\nGreenland is irrelevant for assessing even-handedness in the design and application of the\nIC exception.\n503 The European Union notes that the commercial aspect of subsistence hunts \"by\ndefinition\" resembles the commercial characteristics of commercial hunts. 504 The European Union\nargues that, given that the Panel accepted the legi timacy of an exception to the sales ban for the\nmarketing of by-products of indigenous subsistence hunting, the fact that such marketing then\n\"actually happen[ed]\" cannot invalidate that legitimacy on the basis of a lack of even-\nhandedness.\n505 For the European Union, the Panel's reference to the degree of commercialization\nof seal products in Greenland is, therefore, \"logically erroneous\".506\n2.4.2.1 Claims under Article 11 of the DSU\n2.164. The European Union maintains that the evid ence on which the Panel relied – consisting of\nopinion polls and a public consultation – lend s no support to the Panel's finding that the\nIC exception is not \"grounded in the concerns of EU citizens\". 507 Before the Panel, the European\nUnion had argued that two opinion polls referenced in the 1986 Report of the Royal Commission on\nseals and sealing in Canada508 (Royal Commission Report) confirmed that the EU public's concerns\nvaried according to the purpose of the hunt, and more specifically, that the public was less\nconcerned with the hunts conducted by the Inuit for subsistence purposes than with commercial\nhunts. In the first poll – conducted by the Royal Commission (RC poll) – respondents were asked\nwhich, if any, of various types of seal hunts they found acceptable. According to the European\nUnion, the results showed that only a very small percentage of respondents found commercial seal\nhunts acceptable, while a very large percentage found seal hunting by indigenous communities for\nfood and clothing acceptable. The European Union contends that, while the percentage of\nrespondents who found Inuit seal hunting for cash or to finance hunting for food acceptable was\nsignificantly smaller, it was still much higher than the percentage of respondents who found\nacceptable either the purely commercial hunts or all hunts.\n509 In the second poll – conducted by\n\n502 European Union's other appellant's submission, para. 193.\n503 European Union's other appellant's submission, paras. 206 and 207 (referring to Panel Reports,\nparas. 7.285, 7.287, and 7.288).\n504 European Union's other appellant's submission, para. 208.\n505 European Union's other appellant's submission, para. 208.\n506 European Union's other appellant's submission, para. 208.\n507 European Union's other appellant's submission, para. 112 (quoting Panel Reports, para. 7.402).\n508 Report of the Royal Commission, Seals and Sealing in Canada (1986), Vol. I, Chapter 11, \"Public\nOpinion on Sealing\" (Panel Exhibit EU-48).\n509 European Union's other appellant's submission, para. 114 (citing information taken from Royal\nCommission Report, Table 11.6, at p. 169).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthe Canadian Sealers Association (CSA poll) – re spondents were asked under which conditions the\nkilling of animals would be acceptable. The European Union points out that 90% of respondents\nagreed with the statement that \"the killing of wild animals is acceptable if a person's survival or\nlivelihood depends on it\".\n510\n2.165. The European Union submits that the Panel did not claim that these polls support its\nfinding, but rather characterized them as \"unreliable\". 511 The European Union argues that, in\nreaching this conclusion, the Panel \"disregard ed\" or \"distorted\" the findings of the Royal\nCommission.512 Although the Panel noted that the Royal Commission identified \"two uncertainties\"\nabout the result of the polls, the European Union argues that these uncertainties did not lead the\nRoyal Commission to question the \"reliability\" of the CSA poll. 513 Instead, the Royal Commission\nconcluded that the CSA poll \"at least, supports the view that there is strong public approval of\ntaking seals for subsistence purposes\". 514 In the European Union's view, it is \"impossible to\nreconcile\" this finding of the Royal Commission with the Panel's finding that EU public concerns\nregarding seal welfare do not vary depending on the purpose of the hunt.\n515 In addition, although\nthe Panel relied on the observation of the Royal Commission that the responses to the RC poll\n\"may perhaps imply little general understanding of the essential economic structure\" of Inuit\nhunts516, the European Union contends that the Royal Commission went on to conclude that both\nthe RC poll and the CSA poll \"showed that the purpose behind the hunt may have a great effect on\npublic reaction to it\".517 In the European Union's view, the public's relatively low level of knowledge\nas to the economic realities of Inuit hunts would not render \"unreliable\" the opinions expressed by\nthe public or the underlying moral views.\n518\n2.166. Regarding the public consultation conducted by the EU Commission in connection with the\nadoption of the EU Seal Regime, the European Union took note of the Panel's observation that\n62% of respondents stated that seals should not be hunted for any reason, whereas 18% stated\nthat hunting is most acceptable when the hunter belongs to a traditional seal culture/community\nor depends on the seal hunt for his main income.\n519 The European Union also notes the comment\nby COWI that the consultation showed that there is a \"greater level of acceptance of the hunt if it\nis embedded in a traditional seal hunting culture\" 520, and further observes that the\nrepresentativeness of the respondents was limited, and that there are \"clear indications\" that the\nconsultation underestimates the actual percentage of members of the public who regard traditional\nhunts conducted for subsistence purposes as more acceptable than other hunts.\n521\n2.167. In the alternative, the European Union alleges that the Panel acted inconsistently with\nArticle 11 of the DSU in finding that: (i) the text, legislative history, and application of the\nIC exception indicate that the IC exception is available de facto exclusively to Greenland; and\n(ii) the commercial aspect of seal hunts in Greenland is comparable to that of commercial hunts.\nThe European Union further claims that the Panel's finding that \"the text of the IC exception, its\nlegislative history, and the actual application of the IC exception, cast serious doubt on the\neven-handedness of the design and application of the IC exception\" is inconsistent with the Panel's\nduty under Article 11 of the DSU to make an objective assessment of the facts.\n522 The\n\n510 European Union's other appellant's submission, para. 115 (citing information taken from Royal\nCommission Report, p. 160).\n511 European Union's other appellant's submission, para. 116 (referring to Panel Reports, fn 676 to\npara. 7.410).\n512 European Union's other appellant's submission, para. 116.\n513 European Union's other appellant's submission, para. 116 (quoting Panel Reports, fn 676 to\npara. 7.410).\n514 European Union's other appellant's submission, para. 117 (quoting Royal Commission Report,\np. 185).\n515 European Union's other appellant's submission, para. 117.\n516 European Union's other appellant's submission, para. 118 (quoting Royal Commission Report,\np. 168).\n517 European Union's other appellant's submission, para. 118 (quoting Royal Commission Report,\np. 185).\n518 European Union's other appellant's submission, para. 118.\n519 European Union's other appellant's submission, para. 119 (referring to Panel Reports, fn 652 to\npara. 7.398 and fn 676 to para. 7.410, in turn referring to COWI, Assessment of the potential impact of a ban\nof products derived from seal species (April 2008) (Panel Exhibit JE-20) (COWI 2008 Report), pp. 124-127).\n520 European Union's other appellant's submission, para. 121 (quoting COWI 2008 Report, pp. 126-127).\n521 European Union's other appellant's submission, para. 122 (quoting COWI 2008 Report, p. 125).\n522 European Union's other appellant's submission, para. 223 (quoting Panel Reports, para. 7.317).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nEuropean Union submits that the Panel failed to provide reasoned and adequate explanations,\nlacked a sufficient evidentiary basis, and provid ed incoherent reasoning in arriving at this\nconclusion.\n2.168. With respect to the text of the IC except ion, the European Union notes the Panel's finding\nearlier in its analysis that, \"[b]ased on the text, we consider that the requirements of the\nIC exception are generally linked to the characteristics of IC hunts\". 523 For the European Union,\nthis means that the Panel \"did not find anything wrong with the requirements\" attached to the\nIC exception.524 The European Union, therefore, fails to understand how the Panel could have\nrelied on the text of the IC exception as a ba sis for finding a lack of even-handedness. The\nEuropean Union submits that, by doing so, the Pane l provided incoherent reasoning and failed to\nprovide an adequate explanation for its finding.\n2.169. With respect to the legislative history of the IC exception, the European Union notes the\nPanel's observation that the COWI 2008 and 2010 Reports 525 \"anticipated\" that Greenland would\nbe the only beneficiary of the IC exception, as well as the Panel's finding that the fact that\nGreenland is the only beneficiary of the IC exception is \"not merely an incidental effect\" of the\napplication of the exception. 526 According to the European Union, the Panel based its conclusion\nthat the IC exception was drafted with the knowledge that only Greenland could benefit from it on\nthe two COWI Reports, as well as the Parliament Report on the proposal for a regulation\nconcerning trade in seal products. 527 The European Union submits that the Panel's reliance on\nthose documents was \"unwarranted\", and that the Panel lacked an evidentiary basis for its\nfinding.\n528 According to the European Union, neither the COWI Reports nor the Parliament Report\nlends support to the conclusion that \"only Greenland could benefit from the IC exception\".529\n2.170. With respect to the COWI 2010 Report on the study on implementing measures for trade\nin seal products, the European Union asserts that the Panel took certain statements by COWI out\nof context, and that they were in any event uns upported by any evidence. For example, the COWI\nstatement that the Panel relied upon was made in the context of assessing the impact of adopting\nstricter, as compared to less stringent, systems of traceability of seal products. The European\nUnion notes that COWI merely found that \"[t]he more stringent the implementing rules (i.e. the\ntraceability system), the more likely this would result in the diversion of all exempted trade to\nGreenland.\"\n530 The European Union further submits that the Panel ignored a number of statements\ncontained in the COWI 2010 Report that indicated that the IC exception was potentially available\nto many Inuit communities. 531 The European Union further notes that the Panel gave an\ninappropriate value to COWI's statements. The European Union underscores that COWI did not\nhave the authority, the qualifications, or the mandate to engage in the legal interpretation of the\nBasic Regulation. Moreover, the European Union highlights that the Implementing Regulation,\nwhich specifies the conditions for qualifying for the IC exception, was adopted well after the\nCOWI 2010 Report was issued. The statement contained in the COWI 2010 Report was thus \"mere\nspeculation\".\n532 With respect to the Parliament Report and the COWI 2008 Report on the\nassessment of the potential impact of a ban of products derived from seal species, the European\nUnion claims that it is unable to identify how these sources lend support to the Panel's findings, as\nthe propositions that the Panel attributes to those sources cannot be found in them. The European\nUnion, therefore, submits that the Panel failed to provide reasoned and adequate explanations,\nand that these sources do not support the Panel's conclusion.\n2.171. With respect to the actual application of the IC exception, the European Union argues that\nthe fact that the Danish customs authorities, ba sed on their interpretation of the Implementing\nRegulation, processed imports based on certificates issued by the Greenlandic authorities prior to a\nGreenlandic entity obtaining recognized body status, says very little as to whether the\n\n523 European Union's other appellant's submission, para. 224 (quoting Panel Reports, para. 7.308).\n524 European Union's other appellant's submission, para. 225.\n525 See supra, fns 221 and 520.\n526 European Union's other appellant's submission, para. 226 (quoting Panel Reports, para. 7.315).\n527 European Union's other appellant's submission, para. 227.\n528 European Union's other appellant's submission, para. 228.\n529 European Union's other appellant's submission, para. 228.\n530 European Union's other appellant's submission, para. 236; COWI 2010 Report, p. 84.\n531 European Union's other appellant's submission, para. 237 (referring to COWI 2010 Report, pp. v, 24,\n27, 30, and 33).\n532 European Union's other appellant's submission, para. 239.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nIC exception only benefits imports from Greenland. The European Union notes that it took more\nthan two years for the EU authorities to process Greenland's request to become a recognized body.\nFurther, the EU authorities issued explicit invitations and made substantial efforts so that entities\nin Canada could also become recognized bodies, and the Canadian Inuit could benefit from the\nIC exception. The European Union argues that this shows that the application of the IC exception\ndoes not reveal that the IC exception could on ly benefit Greenland. The European Union submits\nthat the above errors made by the Panel in its assessment of the even-handedness of the\nIC exception were material and that the Panel's reasoning and ultimate conclusion cannot stand.\n2.172. The European Union alleges that the Panel erred in finding that \"the degree of the\ncommercial aspect of [Greenland's IC] hunts is comparable to that of the commercial hunts\", and\nthat \"the Inuit hunt [in Greenland] bears the greatest similarities to the commercial characteristics\nof commercial hunts.\"\n533 The European Union notes that these Panel findings rested on three\nfactors: (i) the level of development of the commercial aspect of Greenlandic seal hunts; (ii) the\nvolume of sealskins trade in Greenland; and (iii ) the integrated nature of the seal product\nindustries in Greenland, Canada, and Norway. The European Union submits that the Panel wrongly\nassessed these factors and provided incoherent reasoning, thus failing to make an objective\nassessment of the facts.\n534\n2.173. The European Union submits that, with respect to the development of the commercial\naspect of Greenlandic seal hunts, the Panel made \"a fundamental mistake\".535 The European Union\npoints out that the source on which the Panel relied for its statement that \"over 50 per cent of the\nhunted seals in Greenland are sold to the tannery of Great Greenland A/S\"\n536 actually states that\n\"the skins from just over half of all caught seals are sold by the hunters to the tannery of Great\nGreenland A/S\".537 The European Union emphasizes that, while half of the skins are sold, the other\nparts of the seals hunted by Inuit in Greenland are still consumed by them. For the European\nUnion, this indicates that the commercial aspect of Greenland's hunts is not comparable to that of\ncommercial hunts, where 100% of the seals hunted are sold in their entirety.538\n2.174. With respect to the volume of sealskins traded in Greenland, the European Union points\nout that the volumes in Greenland are relatively constant, whereas the volumes in Canada reflect\nmarket conditions. For the European Union, the relative inelasticity of the production of seal\nproducts in Greenland is an \"important difference\" that the Panel ignored when relying on the\nvolume of the hunts in Greenland as a basis to conclude that such a volume \"was comparable to\nthat of commercial … hunts in Canada\".\n539 The European Union further alleges that the Panel\ndisregarded the fact that Greenland provides subsidies to support Inuit hunters in order to support\nthe subsistence of Inuit communities and allow them to preserve their cultural identity. Finally, the\nEuropean Union points to the fact that the volume of seals hunted in commercial hunts is produced\nby a few hunters killing many seals in a short period of time, whereas the volume of seals hunted\nby Inuit communities derives from a large population that hunts throughout the year. The\nEuropean Union submits that, in ignoring these factors, the Panel wrongly assessed the relevance\nof the volume of sealskins traded in Greenland.\n2.175. With respect to the allegedly integrated nature of the seal product industries in Greenland,\nCanada, and Norway, the European Union alleges th at the Panel's findings are not supported by\nthe evidence on the record. The European Union no tes that, in response to the question asked by\nthe Panel on this issue, the complainants recognized that there was \"little direct cooperation\"\nbetween their industries and Greenland.\n540 Moreover, the European Union points out that the one\nexample of integration that the Panel mentions – the purchase of sealskins from Canada by Great\nGreenland A/S – was a \"one-off situation in the rather distant past\", and was not based on general\n\n533 European Union's other appellant's submission, para. 248 (quoting Panel Reports, paras. 7.313\nand 7.317, respectively).\n534 European Union's other appellant's submission, para. 248.\n535 European Union's other appellant's submission, para. 250.\n536 European Union's other appellant's submission, para. 249 (quoting Panel Reports, para. 7.309).\n537 European Union's other appellant's submission, para. 250 (quoting Greenland 2012 Seal\nManagement Report, p. 25). (emphasis added by the European Union)\n538 European Union's other appellant's submission, para. 251 (referring to Panel Reports, para. 7.240;\nand Nunavut Economy Fact Sheet (Panel Exhibit CDA-102), p. 1).\n539 European Union's other appellant's submission, para. 257 (quoting Panel Reports, para. 7.310).\n540 European Union's other appellant's submission, para. 264; Canada's and Norway's responses to\nPanel question No. 152.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncommercial considerations, but rather on an attempt to deal with a temporary crisis in a way that\navoided laying off local workforce.541\n2.176. Finally, the European Union submits that th e Panel's conclusion that \"the purpose of seal\nhunts in Greenland has characteristics that are closely related to that of commercial hunts\"\ncontradicts its earlier conclusion that the primary purpose of seal hunts conducted by Inuit\ncommunities, including in Greenland, was the \"subsistence\" of those communities in terms of their\nculture and tradition as well as their livelihood. 542 According to the European Union, the Panel's\nreasoning is therefore incoherent.\n2.177. Consequently, the European Union requests the Appellate Body to find that the Panel failed\nto make an objective assessment of the matter, co ntrary to Article 11 of the DSU, and to reverse\nthe Panel's finding that the IC exception was not designed and applied in an even-handed\nmanner.543\n2.4.3 Article I:1 and Article III:4 of the GATT 1994\n2.178. The European Union requests the Appellate Body to reverse the Panel's finding that the\nlegal standard for the non-discrimination obligati on under Article 2.1 of the TBT Agreement does\nnot \"equally apply\" to claims under Articles I:1 and III:4 of the GATT 1994. 544 In addition, the\nEuropean Union requests the Appellate Body to reverse the Panel's conclusion that the measure at\nissue is inconsistent with Article I:1 of the GATT 1994 because it does not \"immediately and\nunconditionally\" extend the same market access advantage to Canadian and Norwegian seal\nproducts compared to seal products originating from Greenland.\n545\n2.179. The European Union submits that the Panel' s interpretation of Articles I:1 and III:4 is in\nerror for the following reasons: (i) it is contrary to established Appellate Body jurisprudence under\nArticle III:4 of the GATT 1994; (ii) it fails to take account of the context provided by Article III:1 of\nthe GATT 1994; and (iii) it is incoherent with the interpretation of Article 2.1 of the TBT Agreement\nand renders that provision irrelevant.\n2.180. The European Union contends that, in Dominican Republic – Import and Sale of Cigarettes,\nthe Appellate Body clarified that a detrimental effect on imports alone does not indicate a de facto\n\"less favourable treatment\" of imports under Article III:4.\n546 This finding, according to the\nEuropean Union, is in line with the Appellate Body's earlier finding in EC – Asbestos that \"a\nMember may draw distinctions between products which have been found to be 'like', without, for\nthis reason alone, according to the group of 'lik e' imported products 'less favourable treatment'\nthan that accorded to the group of 'like' domestic products.\"\n547 The European Union observes that,\nin US – Clove Cigarettes , the Appellate Body clarified that, in Dominican Republic – Import and\nSale of Cigarettes, a violation of Article III:4 was not established because the detrimental impact\non competitive opportunities for \"like\" imported products was not attributable to the specific\nmeasure at issue. 548 For the European Union, this confirms that the analysis under Article III:4\ngoes beyond a consideration of whether there has been a detrimental impact on the competitive\nopportunities for \"like\" imported products.\n2.181. The European Union submits further that the Panel erred in its interpretation of Articles I:1\nand III:4 because it failed to take into account the context of Article III:1 of the GATT 1994. In\nthis regard, the European Union points out that, in Japan – Alcoholic Beverages II , the Appellate\nBody considered that the general principle reflected in Article III:1 – that internal measures should\n\n541 European Union's other appellant's submission, para. 269.\n542 European Union's other appellant's submission, para. 272 (quoting Panel Reports, para. 7.313).\n543 European Union's other appellant's submission, para. 275.\n544 European Union's other appellant's submission, para. 310; Panel Reports, para. 7.586.\n545 European Union's other appellant's submission, paras. 314 and 315 (referring to Panel Reports,\npara. 7.600).\n546 European Union's other appellant's submission, paras. 292 and 293 (quoting Appellate Body Report,\nDominican Republic – Import and Sale of Cigarettes, para. 96).\n547 European Union's other appellant's submission, para. 294 (quoting Appellate Body Report, EC –\nAsbestos, para. 100).\n548 European Union's opening statement at the oral hearing.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nnot be applied so as to afford protection to domestic production – informs the rest of Article III. 549\nFurther, in EC – Asbestos , the Appellate Body confirmed the relevance of Article III:1\nfor the interpretation of Article III:4. 550 The European Union notes that the Appellate Body has\nfound that a determination of whether a measure is applied so as to afford protection to domestic\nproduction – within the meaning of Article III:1 – requires an inquiry into the design, architecture,\nand revealing structure of a measure. Moreover, panels should, in conducting this inquiry, give full\nconsideration to all the relevant facts and circumstances of a given case.\n551 The European Union\nsubmits that this test \"corresponds to the second step of the de facto discrimination analysis\" that\nthe Appellate Body has found to be requir ed under Article 2.1 of the TBT Agreement. 552 Thus, the\nPanel's suggestion that this analysis is unnecessary for a finding of de facto discrimination under\nArticles III:4 and I:1 \"clearly fails to take account\" of the context of Article III:1.553\n2.182. The European Union also contends that th e Panel's interpretation of Articles I:1 and III:4\nfundamentally misunderstands the contextual relationship between the GATT 1994 and the\nTBT Agreement. Relying on the Appellate Body's finding in US – Clove Cigarettes that the\nGATT 1994 and the TBT Agreement should be interp reted in a coherent and consistent manner,\nthe European Union argues that the Panel failed to put forward any convincing reason as to why\nthe interpretation of Articles III:4 and I:1 should be \"clinically isolated from the context given by\nArticle 2.1 of the TBT Agreement\", and lead to diverging results with regard to de facto\ndiscrimination.\n554\n2.183. According to the European Union, under the Panel's interpretation, a technical regulation\ncould be considered non-discriminatory under the agreement specifically addressing these types of\nmeasures, but still violate the GATT 1994 addressing goods-related measures. The European Union\nexplains that the list of possible legitimate objectives that may factor into an analysis under\nArticle 2.1 of the TBT Agreement is open, in contrast to the closed list of objectives enumerated\nunder Article XX of the GATT 1994. Thus, the Panel's \"divergent approach to de facto\ndiscrimination\" could lead to a situation where, under Article 2.1 of the TBT Agreement, a technical\nregulation that has a detrimental impact on import s would be permitted if such detrimental impact\nstems from a legitimate regulatory distinction, while, under Articles I:1 and III:4 of the\nGATT 1994, the same technical regulation would be prohibited if its objective did not fall within the\nsubparagraphs of Article XX of the GATT 1994.\n555 The European Union concedes that such an\n\"asymmetrical outcome\" would not arise in the context of these disputes \"since the Panel rightly\nconsidered that the objective of the EU Seals Regime fell within the list of objectives of\nArticle XX\".556 However, under the Panel's interpretation of Articles I:1 and III:4, the regulatory\nspace under the TBT Agreement could, in other case s, be \"significantly\" wider than the regulatory\nspace under the GATT 1994.557 This would \"render Article 2.1 of the TBT Agreement irrelevant\" as\ncomplainants would have a strong incentive not to invoke Article 2.1 of the TBT Agreement, and,\ninstead, to bring claims under the GATT 1994, even if the measure at issue qualified as a technical\nregulation.558\n2.184. Finally, the European Union notes that its proposed interpretation of Articles I:1 and III:4\nof the GATT 1994 requiring, in respect of de facto discrimination claims, a determination of\nwhether any detrimental impact on imports resulting from the measure stems exclusively from a\nlegitimate regulatory distinction leaves \"significant space\" for Article XX, which would remain\n\n549 European Union's other appellant's submission, paras. 295-297 (referring to Appellate Body Report,\nJapan – Alcoholic Beverages II, p. 18, DSR 1996:I, p. 111).\n550 European Union's other appellant's submission, paras. 295-297 (referring to Appellate Body Report,\nEC – Asbestos, para. 100).\n551 European Union's other appellant's submission, para. 299 (referring to Appellate Body Report,\nJapan – Alcoholic Beverages II, p. 29, DSR 1996:I, p. 120).\n552 European Union's other appellant's submission, para. 300 (referring to Appellate Body Report, US –\nClove Cigarettes, para. 182).\n553 European Union's other appellant's submission, para. 300.\n554 European Union's other appellant's submission, para. 304.\n555 European Union's other appellant's submission, para. 307.\n556 European Union's other appellant's submission, para. 307.\n557 European Union's other appellant's submission, para. 307.\n558 European Union's other appellant's submission, para. 308.\nWT/DS400/AB/R • WT/DS401/AB/R\n\napplicable to provisions not relating to discrimination, for example, Article XI and to de jure\ndiscrimination claims.559\n2.185. With regard to the Panel's finding th at the requirements of the IC exception are\ninconsistent with Article I:1 of the GATT 1994, the European Union contends that this finding is\nbased on the Panel's incorrect interpretation of the legal standards under Articles I:1 and III:4 of\nthe GATT 1994. Consequently, the European Union requests the Appellate Body to reverse the\nPanel's finding that the measure at issue is inconsistent with Article I:1 of the GATT 1994 because\nit does not immediately and unconditionally exte nd the same market access advantage accorded\nto seal products of Greenlandic origin to like seal products of Canadian and Norwegian origin.\n560\n2.4.4 Article XX of the GATT 1994\n2.4.4.1 The Panel's analysis under the chapeau of Article XX\n2.186. In the event that the Appellate Body upholds the Panel's finding that the IC exception is\ninconsistent with Article I:1 of the GATT 1994, the European Union appeals the Panel's finding that\nthe IC exception was not justified under Article XX(a) of the GATT 1994 because it fails to meet\nthe requirements of the chapeau.\n561 Given that, in its analysis under the chapeau of Article XX,\n\"the Panel applied mutatis mutandi the analysis that it had conducted in the context of Article 2.1\nof the TBT Agreement\"562, the European Union refers to its other appeal of the Panel's findings of\neven-handedness under Article 2.1 of the TBT Agreement. 563 The European Union requests, if the\nAppellate Body accepts its arguments with respect to Article 2.1 and reverses the Panel's finding\nthat the IC exception was not designed and appl ied in an even-handed manner, that it also\nreverse the Panel's finding under the chapeau of Article XX(a).\n564 Finally, since the IC exception is\n\"applied in a reasonable, impartial and harmonious manner, where all Inuit communities can\nequally benefit from the IC exception\", the Eu ropean Union requests the Appellate Body to\ncomplete the legal analysis under the chapeau of Article XX(a) and find that the IC exception\nmeets the requirements under Article XX(a) of the GATT 1994, including its chapeau.565\n2.4.4.2 The Panel's analysis under Article XX(b)\n2.187. In the event that the Appellate Body upholds the Panel's finding that the EU Seal Regime is\ninconsistent with Article I:1 of the GATT 1994, and reverses the Panel's finding that the EU Seal\nRegime is provisionally justified under Article XX(a) of the GATT 1994, the European Union appeals\nthe Panel's finding that \"the European Union has failed to establish a prima facie case for its claim\nunder Article XX(b)\".\n566 The European Union takes issue with the three reasons provided by the\nPanel in support of its appealed finding, and claims that the Panel failed to conduct an objective\nassessment of the matter as required by Article 11 of the DSU. First, the European Union considers\nthat the Panel's statement that \"the European Union never submitted in this dispute that the\nprotection of seal welfare was as such the objective of the EU Seal Regime\" is \"factually\ninaccurate\".\n567 The European Union asserts that it \"identified the objective of contributing to the\nwelfare of seals as being 'simultaneously a legitimate objective on its own and one of the\ninstruments to achieve the first, broader and overarching, objective.'\" 568 Second, the European\nUnion argues that the Panel could \"hardly justify its finding that the European Union failed to\nestablish a prima facie case\" merely on the basis that it found the objective of the EU Seal Regime\nwas to address EU public moral concerns regarding seal welfare, and that this objective fell within\n\n559 European Union's other appellant's submission, para. 309.\n560 European Union's other appellant's submission, para. 314 (referring to Panel Reports, para. 7.600).\n561 European Union's other appellant's submission, para. 316 (referring to Panel Reports, para. 7.650).\n562 European Union's other appellant's submission, para. 317 (referring to Panel Reports, para. 7.649).\n563 European Union's other appellant's submission, para. 318.\n564 European Union's other appellant's submission, para. 318.\n565 European Union's other appellant's submission, fn 336 to para. 319 (referring to ibid., paras. 191\nand 192).\n566 European Union's other appellant's submission, para. 320 (quoting Panel Reports, para. 7.640).\n567 European Union's other appellant's submission, paras. 326 and 328, respectively (referring to\nEuropean Union's second written submission to the Panel, para. 273).\n568 European Union's other appellant's submission, para. 328 (quoting European Union's second written\nsubmission to the Panel, para. 273). (emphasis added by the European Union in its other appellant's\nsubmission)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthe scope of Article XX(a). 569 The European Union notes the Panel's recognition that a measure\nmay pursue more than one objective, adding that there is not any reason why a measure cannot\nbe justified \"simultaneously under more than on e of the grounds listed in Article XX of the\nGATT\".\n570 According to the European Union, this reason, \"[a]t most\", could have justified\nexercising judicial economy with respect to its defence under Article XX(b).571\n2.188. The European Union further submits that the Panel's observation on the \"limited\" extent of\nthe European Union's argument is also \"incorrect as a matter of fact\" 572, because, with respect to\nArticle XX(b), the European Union \"cross-referred to arguments and evidence previously submitted\nunder Article 2.2 [of the TBT Agreement] and … Article XX(a) [of the GATT 1994]\". 573 The\nEuropean Union contends that the arguments and evidence analysed by the Panel for its\n\"contribution\" analysis under Article 2.2 \"would have allowed the Panel to determine whether the\nEU Seal Regime was 'necessary' to attain the objective mentioned under … Article XX(b) [of the\nGATT 1994]\".\n574 Similarly, the European Union adds, the arguments and evidence examined by the\nPanel under its chapeau analysis are equally relevant, \"irrespective of whether the EU Seal Regime\nis deemed necessary to achieve the objective mentioned under letter a) and/or under letter b)\nof … Article XX [of the GATT 1994]\". 575 For these reasons, in the event that the two conditions for\nits other appeal under Article XX(b) are met, the European Union requests the Appellate Body to\nreverse the Panel's finding that the European Union failed to establish a prima facie case under\nArticle XX(b) and to complete the legal analysis and find that the EU Seal Regime is justified under\nArticle XX(b) of the GATT 1994.\n576\n2.5 Arguments of Canada – Appellee\n2.5.1 Annex 1.1 to the TBT Agreement\n2.189. Canada requests the Appellate Body to uphold the Panel's finding that the EU Seal Regime\nis a \"technical regulation\" within the meaning of Annex 1.1 to the TBT Agreement. Canada agrees\nwith the Panel's interpretation of the terms \"product characteristics\" and \"applicable administrative\nprovisions\" and considers that the Panel correctly applied Annex 1.1 to the TBT Agreement to the\nfacts of the case in finding that the measure at issue constitutes a \"technical regulation\".\n2.190. Canada submits that the European Union \"incorrectly characterizes the Panel's conclusion\nas being that 'any document containing administrative provisions relating to identifiable products'\nwill constitute applicable administrative provisions under Annex 1.1\".\n577 Instead, Canada argues,\nthe Panel correctly found that the EU Seal Regime \"[lays] down a product characteristic in the\nnegative form by requiring that 'all products not contain seal'\". 578 Moreover, the Panel correctly\nfound that, in order to place seal-containing products on the EU market, \"the requirements of the\nIC and MRM exceptions had to be met and certain administrative provisions (such as the criteria to\nbe met to qualify for an exception and the production of an attesting document) had to be\nfollowed.\"\n579 I n C a n a d a ' s v i e w , t h e a d m i n i s t r a t i v e p r o v i s i o n s i n t h e E U S e a l R e g i m e \" a p p l y t o\nproduct characteristics in the sense that the administrative provisions operate to ensure that\nproducts that exhibit the product characteristic of containing seal satisfy the criteria set out in the\nexceptions\".580 According to Canada, the European Union was, therefore, \"misguided\" in its\nconcern that the Panel's reasoning leads to an \"over-inclusive\" characterization of \"applicable\n\n569 European Union's other appellant's submission, para. 329.\n570 European Union's other appellant's submission, para. 329 (referring to Panel Reports, para. 7.400).\n571 European Union's other appellant's submission, para. 329.\n572 European Union's other appellant's submission, para. 330.\n573 European Union's other appellant's submission, para. 330.\n574 European Union's other appellant's submission, para. 330.\n575 European Union's other appellant's submission, para. 330.\n576 European Union's other appellant's submission, para. 331.\n577 Canada's appellee's submission, para. 34 (quoting European Union's other appellant's submission,\npara. 53).\n578 Canada's appellee's submission, para. 37 (quoting Panel Reports, para. 7.106, in turn referring to\nNorway's second written submission to the Panel, paras. 154 and 155).\n579 Canada's appellee's submission, para. 39.\n580 Canada's appellee's submission, para. 40 (referring to European Union's other appellant's\nsubmission, para. 55).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nadministrative provisions\", as the administrative provisions under the EU Seal Regime apply to\n\"products that contain seal\" that meet the requirements of one of the exceptions.581\n2.191. Canada further argues that, by focusing on a single sentence in paragraph 7.110 of the\nPanel Reports, the European Union fails to take into account the broader context of the Panel's\ninterpretation of \"product characteristics\", which includes, in Canada's view, \"the Panel's findings\nthat the exceptions define the scope of the prohib itive aspects of the EU Seal Regime, and … also\nset out the 'administrative provisions with which compliance is mandatory'\". 582 Canada maintains\nthat the Panel described the criteria under the exceptions as identifying the seal products that may\nbe placed on the EU market \"by defining the categories of seal that can be used as an input\". 583 In\nCanada's view, the Panel \"carefully considered th e interplay among these various elements of the\nEU Seal Regime\" prior to finding that the measure as a whole lays down product characteristics. 584\nThe European Union's focus on the Panel's reference to the criteria under the exceptions as\nconstituting \"objectively definable features\" of seal products is therefore, according to Canada, a\nmischaracterization of the Panel's overall analysis of the role played by the exceptions in the\nEU Seal Regime.\n585\n2.192. Lastly, Canada argues that the Panel correctly recalled the Appellate Body's conclusion in\nEC – Asbestos that a measure must be examined as \"an integrated whole\" to determine whether it\nconstitutes a technical regulation. 586 Canada agrees with the Panel that the Appellate Body report\nin EC – Asbestos \"does not suggest that for a measure consisting of a ban and certain exceptions\nto qualify as a technical regulation, both the prohibition and the exceptions must individually lay\ndown product characteristics or their related PPMs\".\n587 In addition, Canada maintains that the\nPanel was correct in relying on the measure at issue in EC – Asbestos to describe the EU Seal\nRegime, which \"operates as a ban on seal products, combined with an exception and two\nderogations, forming three conditions prescribed in Article 3 of the Basic Regulation\".\n588\n2.193. In Canada's view, the EU Seal Regime and the measure at issue in EC – Asbestos are\n\"essentially the same in all material respects relevant to determining whether a measure\nis a technical regulation\".\n589 According to Canada, both measures: (i) prohibit \"pure\"\nproducts – i.e. asbestos fibres or seal products containing only seal inputs; (ii) prohibit products\nfrom exhibiting an intrinsic characteristic – i.e. containing asbestos fibres or seal inputs, thus\nlaying down product characteristics in a negative form; (iii) contain exceptions to the prohibition\nthat set out criteria to be met to qualify for mark et access – i.e. the absence of a safer substitute\nfor asbestos fibres, or the identity of the hunter and purpose of the hunt for seal products; and\n(iv) set out administrative provisions with which compliance is mandatory to allow a product\ncontaining the proscribed characteristic to be placed on the relevant market. Canada notes that\n\"the exceptions under both the Asbestos measure and the EU Seal Regime do not themselves set\nout product characteristics\" but ,rather, \"merely set out criteria that must be met in order for the\nproduct to contain the otherwise proscribed characteristic\".\n590 In Canada's view, the Panel properly\nengaged in a thorough examinatio n of the discrete elements of the EU Seal Regime, including the\nprohibitive and permissive aspects of the measure, the criteria to be applied to determine whether\na given product is permitted to contain seal inputs, and the administrative provisions, in order to\nreach its conclusion on whether the EU Seal Regime constitutes a technical regulation.\n\n581 Canada's appellee's submission, para. 41 (referring to European Union's other appellant's\nsubmission, para. 56).\n582 Canada's appellee's submission, para. 44.\n584 Canada's appellee's submission, para. 46 (referring to Panel Reports, para. 7.111).\n585 Canada's appellee's submission, para. 47.\n589 Canada's appellee's submission, para. 62 (referring to European Union's other appellant's\nsubmission, para. 85; Panel Reports, fn 153 to para. 7.106, and paras. 7.108 and 7.109; and Appellate Body\nReport, EC – Asbestos, paras. 72-74).\n590 Canada's appellee's submission, para. 60.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.194. In the event that the Appellate Body were to reverse the Panel's finding that the EU Seal\nRegime lays down product characteristics and/or applicable administrative provisions, Canada\nrequests the Appellate Body to complete the lega l analysis and find that the EU Seal Regime\nconstitutes a \"technical regulation\" within the meaning of Annex 1.1 to the TBT Agreement.\n591\n2.5.2 Article 2.1 of the TBT Agreement\n2.195. With respect to the European Union's appeal of the Panel's finding that the IC exception\ndoes not bear a rational relationship to the objective of addressing the EU public moral concerns\nregarding seal welfare, Canada submits that the problem with the European Union's conception of\na \"moral norm\" is that \"it is open-ended, and therefore not a standard at all.\" 592 Canada argues\nthat, \"[i]f it is simply left to the legislator to decide when the suffering of animal[s] is justified, the\ncontent of the so-called moral standard becomes inherently subjective and therefore arbitrary.\"\n593\nAs Canada sees it, the Panel found that the IC exception is not grounded in public moral concerns,\nbut in a decision of the legislator that the pursuit of the public morals objective should not damage\nthe interests of Inuit and other indigenous communities.\n2.196. Canada further submits that the European Union does not accurately characterize the\nprevious jurisprudence on the notion of \"public morals\".\n594 Canada highlights that a panel is only\nrequired to give some scope to a Member's definition of its public morals. Finally, Canada notes\nthat the Panel did not look directly to moral doctrine to determine the objective of the EU Seal\nRegime, but instead based its determination on th e evidence presented by the European Union.\nAccording to Canada, this evidence persuaded the Panel to find that animal welfare is an issue of\nan ethical and moral nature in the European Union, but did not demonstrate that protecting the\ninterests of Inuit and other indigenous communities also fell within the scope of the objective of\naddressing the EU public moral concerns regarding seal welfare.\n2.197. Canada responds to the European Union's appeal of the Panel's conclusion that the\nIC exception is not designed and applied even-h andedly by arguing that \"the European Union's\nconception of the \"even-handedness\" test is not reflected in the jurisprudence.\"\n595 Canada further\nconsiders that the terminology introduced by the European Union does not add anything to, or\nclarify, the legal standard as established by the Appellate Body. 596 Canada also takes issue with\nthe European Union's suggestion that the test of even-handedness focuses on the relationship\nbetween the regulatory distinction and the objectiv e that the distinction pursues. Canada argues\nthat the question is instead whether the regulatory distinction can be shown to be rationally\nconnected to the objective of the measure. At the same time, Canada acknowledges that the\nPanel's finding of a lack of even-handedness in this case was based on its consideration of \"the\nrationale or cause of the exception\", namely, the subsistence of Inuit and other indigenous\ncommunities.\n597 According to Canada, the Panel contrasted this rationale with its finding that the\nIC exception, as designed and applied, is de facto available exclusively to Greenland, and thus\neffectively allows only large-scale, sophisticated Inuit sealing operations to take advantage of the\nmarket access it offers. According to Canada, this approach is entirely consistent with the\nAppellate Body's analysis in previous disputes , which focused on the question of whether the\ndesign and application of the measure effectively addressed the specific problem or concern that\nthe responding party claimed to be addressing.\n598\n2.198. With respect to the European Union's argument that the Panel erred by discounting the\nlack of action by Canadian authorities and Canadian Inuit authorities to seek access to the\nEU market under the IC exception, Canada submits that the Panel did in fact consider the\nbehaviour of the Canadian authorities. Canada further alleges that the European Union has\nmisunderstood the thrust of the Panel's reasonin g. According to Canada, the Panel's concerns\n\n591 Canada's appellee's submission, para. 66.\n592 Canada's appellee's submission, para. 84.\n593 Canada's appellee's submission, para. 84.\n594 Canada's appellee's submission, para. 85 (referring to European Union's other appellant's\nsubmission, para. 106, in turn referring to Panel Reports, US – Gambling, para. 6.461; and China –\n595 Canada's appellee's submission, para. 120. (fn omitted)\n596 Canada's appellee's submission, para. 120.\n598 Canada's appellee's submission, para. 127 (referring to Appellate Body Reports, US – Clove\nWT/DS400/AB/R • WT/DS401/AB/R\n\nabout the design and application of the IC exception did not relate to whether Canadian Inuit seal\nproducts formally qualified for EU market access under the IC exception, but rather to the question\nof whether they could benefit from it in practice. As Canada sees it, the Panel concluded that they\ncould not because the IC exception was designed and applied in such a way that only large-scale,\ncommercially oriented seal-hunting operations possess the wherewithal to do so. Canada\nhighlights the Panel's reference to a statement by the Canadian Inuit that their hunt is too small to\n\"generate market interest alone on an international scale\", and that \"market realities are ꞌmajor\nfactors contributing to the ineffectiveness of the Inuit exemption to the EU seal ban ꞌ\".\n599 According\nto Canada, the Panel agreed that there is \"little point\" in Canadian Inuit applying for the\nIC exception if, due to its design and applicat ion, they are unable to take advantage of it.\n600\nCanada alleges that, more generally, the actions of a WTO Member or private actors should not\nform the basis for an assessment of whether the challenged measure discriminates against that\nWTO Member.\n2.199. With respect to the European Union's argument that the Panel erred by relying on the\ndegree of similarities of the seal hunt in Greenland with commercial hunts, Canada submits that\nthe Panel conducted this examination as a means to assess what would be required for a given\nInuit hunt to be able to take advantage of the IC exception. Canada faults the European Union for\nequating access with formal compliance with the criteria set out in the IC exception. Canada\nargues that, for the Panel, this was not sufficien t, as even-handedness required equal access in\npractice. Canada submits that the factors examined by the Panel relate to the ability of Inuit\ncommunities to get their products to the EU market, and that these factors – in particular the\ndegree of commercialization of the seal hunt in Greenland – are highly relevant to determine the\neven-handedness of the regulatory distinction.\n2.200. Canada responds that the European Union mischaracterizes the Panel's approach to the\narguments and evidence concerning the scope of the EU public's moral concerns. Canada argues\nthat, contrary to what the European Union suggests, the Panel did not rely \"exclusively\" on the two\nopinion polls and the public consultation cited by the European Union.\n601 Rather, the Panel based\nits conclusion on \"all the evidence before it\".602 According to Canada, the Panel found that the polls\nwere of \"limited probative value\", and that the \"r eliability of the results\" had not been clearly\ndemonstrated.603\n2.201. Canada notes that the European Union does not challenge the finding that the polls cited in\nthe Royal Commission Report have limited probative value. Instead, Canada argues, the European\nUnion selectively identifies aspects from the two polls that, in its view, do not support the Panel's\nfinding that the EU public's concerns about seal welfare relate to seal hunting in general and not to\nany particular type of hunt. Canada submits that the results of the RC poll are \"unclear\" and \"not\nevidently reliable\".\n604 Canada also points to the fact that the RC poll was conducted in 1985 and\nonly included respondents from three EU member States. Canada asserts that the RC poll provides\n\"no information on the EU public's views on the mo ral concerns with respect to different types of\nseal hunts\".605\n2.202. With respect to the CSA poll, Canada notes that the specific results in the poll cited by the\nEuropean Union are responses to the question that the Royal Commission found to raise\n\"uncertainties\".606 In response to the European Union's argument that the Panel failed explicitly to\nstate that these uncertainties rendered the CSA poll unreliable, Canada submits that the Panel's\nfinding was due to the failure of the European Union to demonstrate the reliability of the results.\nCanada claims that, as the European Union had presented the Royal Commission Report in support\nof its factual claim, it was incumbent on the European Union to explain why the Panel should\ndisregard the uncertainties.\n\n599 Canada's appellee's submission, para. 133 (quoting Nunavut 2012 Report, p. 9).\n600 Canada's appellee's submission, para. 136.\n601 Canada's appellee's submission, para. 96.\n602 Canada's appellee's submission, paras. 96 and 97, respectively. (fn omitted)\n603 Canada's appellee's submission, para. 97 (referring to Panel Reports, fn 676 to para. 7.410).\n604 Canada's appellee's submission, para. 104. (fn omitted)\n605 Canada's appellee's submission, para. 104 (referring to Canada's opening statement at the second\nPanel meeting, para. 75).\n606 Canada's appellee's submission, para. 106.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.203. With respect to the Panel's reliance on the results of public surveys, Canada submits that\nthe fact that 62% of the respondents stated that seals should not be hunted for any reason is\nconsistent with the Panel's finding that the EU public's moral concerns about the hunt do not vary\naccording to the type of seal hunt. At the same time, Canada argues that the Panel did not rely on\nthe evidence from the public consultation to support its \"basic\" finding on whether the EU public's\nconcerns on seal welfare varied with the type of hunt.\n607 Canada further submits that the fact that\nthe Panel did not explicitly address COWI's comment on the results of the consultation was\n\"reasonable in the circumstances\", and was within its discretion as the trier of fact.608\n2.204. Canada responds that the European Unio n's claims that the Panel committed material\ninaccuracies that led to erroneous factual determinations and incoherent reasoning are without\nmerit. First, Canada submits that the Panel did not say that each of the elements that it\nconsidered – the text, legislative history, and a pplication of the IC exception – demonstrated a\nlack of even-handedness. Instead, according to Ca nada, the Panel only stated that it considered\nthese three elements. With respect to the text of the IC exception, Canada notes that the\nEuropean Union fails to mention the Panel's observation that the \"scope and meaning of the\n'subsistence' criterion under the requirements [o f the IC exception] is not defined under the\nmeasure\", as well as the Panel's reference to an observation in the COWI 2010 Report to the effect\nthat, in order to fall into the \"subsistence\" ca tegory, a hunt must not be \"organized on a large\nscale\".\n609 According to Canada, the Panel's scrutiny of the text of the IC exception established a\n\"crucial element\" in its analytical framework.610\n2.205. With respect to the Panel's examination of the legislative history of the IC exception,\nCanada submits that the European Union misconstrues the findings of the COWI 2010 Report.\nAccording to Canada, COWI's comments to the effect that Greenland would be the only Inuit\ncommunity that would be able to make use of the IC exception were based not only on the\npotential stringency of the compliance regime, but also on the relative sizes of the Canadian and\nGreenlandic Inuit hunts. Moreover, even though COWI could not have known at that time which\ncompliance regime the European Union would even tually adopt, Canada submits that the Panel\ncould rely on COWI's statements given that it had \"full knowledge\" of the actual compliance\nregime that the European Union had put in place.\n611 Canada also disputes the European Union's\nclaim that other statements in the COWI 2010 Report express the view that the Canadian Inuit will\nbenefit from the IC exception. According to Cana da, those statements only suggest that Canadian\nInuit products might be able to comply with the requirements of the IC exception. Canada submits\nthat those statements were, therefore, not probative considerations in the Panel's assessment of\neven-handedness.\n2.206. With respect to the actual application of the IC exception, Canada also contests the\nEuropean Union's claim that the Panel wrongly suggested that the European Union had favoured\nGreenlandic seal products in applying the exception. According to Canada, the Panel made no such\nsuggestion. Canada submits that the Panel merely considered the uncontroverted fact that\nGreenlandic seal products had been processed in advance of obtaining approval to enter the\nEU market in order to confirm that Greenland is a de facto beneficiary of the IC exception. Canada\nargues that, since the evidence does not contradict the Panel's finding, there is no violation of\nArticle 11 of the DSU. In sum, Canada submit s that the Panel did not incorrectly assess the\nevidence and that, even if there were errors, they were not material.\n2.207. Canada considers that the European Union's challenge to the Panel's findings concerning\nthe commercial aspects of Greenland's hunts is entirely without merit. With respect to the level of\ndevelopment of the commercial aspect of Greenland's hunts, Canada takes issue with the way in\nwhich the European Union contrasts the fact that only seal skins are processed on an industrial\nscale in Greenland with the conditions in commercial hunts. Canada alleges that it is also true for\ncommercial hunts that only certain parts of the seal are commercialized.\n612 Canada notes, for\nexample, that seal meat has been commercialized only to a very limited extent. 613 Canada adds\n\n607 Canada's appellee's submission, para. 110.\n608 Canada's appellee's submission, para. 112.\n609 Canada's appellee's submission, para. 152 (quoting Panel Reports, para. 7.308 and fn 486 thereto).\n610 Canada's appellee's submission, para. 152.\n611 Canada's appellee's submission, para. 157.\n612 Canada's appellee's submission, para. 167 (referring to Canadian Seal Harvest Overview, pp. 3-4).\n613 Canada's appellee's submission, para. 167 (referring to Canada's first written submission to the\nPanel, paras. 68-70; and Canadian Seal Harvest Overview, p. 5).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthat, to the extent that commercial sealers retain the meat from seal carcasses, they have done so\nlargely for personal consumption.\n2.208. With respect to the volume of sealskins traded, Canada also alleges that the reasons why\nGreenland's seal product exports are limited to seal skins have less to do with the diversion of\nother products towards subsistence, and more to do with the fact that the Greenlandic seal\nindustry faces logistical challenges in collecting fresh blubber quickly enough to refine it into oil. 614\nCanada further asserts that commercialized seal products are not limited to skins, given that teeth\nand claws are used to make products for the tour ist industry, and the meat, blubber, and offal are\nsold in local markets and restaurants, as well as in larger supermarkets.615\n2.209. Canada further points out that the European Union neglects to address the many other\nconsiderations that led the Panel to describe the Greenlandic seal hunt as exhibiting characteristics\nthat are closely related to those of commercial hunts. In this regard, Canada notes the Panel's\nfinding that Greenland has 2,100 paid full-time hunters, who are licensed professionals and who\nkill roughly 80% of all seals hunted in Greenland.\n616 Canada further points to the presence of the\ngovernment-owned Great Greenland A/S, which operates a state-of-the-art processing facility, as\nwell as manufacturing, design, and marketing facilities in Greenland. 617 In sum, Canada submits\nthat the range of seal products sold by Greenland does not change the commercial characteristics\nof the Greenlandic hunt so that it no longer resembles a commercial hunt.\n2.210. In response to the European Union's argument that the Panel wrongly assessed the\nrelevance of the volume of seal skins traded in Greenland, Canada recalls the Panel's finding that\nthe scale of a hunt is important in determining what a commercial hunt is.\n618 Canada submits that\nthe fact that Greenland subsidizes the seal hu nt does not mean that there is a qualitative\ndifference in the volume of seals killed in Greenland. Canada points to the Greenlandic\ngovernment's intention to provide subsidies in response to \"world market prices\" as evidence of\nthe commercial characteristics of the Greenlandic hunt.619\n2.211. With respect to the Panel's findings regarding the allegedly integrated nature of the seal\nproduct industries in Greenland, Canada, and No rway, Canada submits that the European Union\nmisrepresents the complainants' submissions on this issue. According to Canada, the fact that\nthere is \"little direct cooperation\" between the Canadian industry and Greenland does not mean\nthat the seal product industries are not integrated.\n620 Canada also argues that the Panel's finding\nwith respect to the integrated nature of the se al industry is but one element in its overall\nconclusion that the Greenlandic seal industry exhibits characteristics closely related to commercial\nhunts.\n2.212. Canada responds to the European Union's argument that the Panel provided incoherent\nreasoning in attributing commercial characteristics to what it had previously found to be a\nsubsistence hunt by alleging that the European Union fails to take into account the Panel's\nexplanation of what is a subsistence hunt. Canada recalls the Panel's finding that the subsistence\npurpose of IC hunts encompasses not only direct use and consumption of seal products, but also a\ncommercial component. Thus, Canada submits that a finding that an Inuit hunt has characteristics\nclosely related to those of commercial hunts is not inconsistent with the Panel's characterization of\nwhat constitutes a subsistence hunt. In conclusion, Canada asserts that the Panel did not err in its\nfindings regarding the commercial aspect of Greenland's hunts. Canada claims that none of the\nEuropean Union's allegations have merit and, even if factually correct, they do not rise to the level\nof a violation by the Panel of Article 11 of the DSU.\n621\n\n614 Canada's appellee's submission, para. 168 (referring to COWI 2010 Report, p. 44).\n615 Canada's appellee's submission, para. 169 (referring to COWI 2010 Report, p. 29).\n616 Canada's appellee's submission, para. 170 (referring to Panel Reports, para. 7.309; and\nGreenland 2012 Seal Management Report, Figure 14, at p. 25).\n617 Canada's appellee's submission, para. 170 (referring to Panel Reports, para. 7.309; and COWI 2010\nReport, p. 43).\n618 Canada's appellee's submission, para. 173 (referring to Panel Reports, para. 7.310).\n619 Canada's appellee's submission, para. 174 (quoting Greenland 2012 Seal Management Report,\np. 26).\n620 Canada's appellee's submission, para. 176.\n621 Canada's appellee's submission, para. 184.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.5.3 Article I:1 and Article III:4 of the GATT 1994\n2.213. Canada submits that the Panel was correct in finding that the legal standard with respect\nto the non-discrimination obligations under Arti cle 2.1 of the TBT Agreement does not equally\napply to claims under Articles I:1 and III:4 of the GATT 1994. 622 Therefore, Canada requests the\nAppellate Body to dismiss the European Union's appeal of the Panel's interpretation of Articles I:1\nand III:4 of the GATT 1994. In th e event that the Appellate Body reverses the Panel's\ninterpretation of Articles I:1 and III:4, Canada requests the Appellate Body to complete the legal\nanalysis and find that the measure at issue is inconsistent with Articles I:1 and III:4 of the\nGATT 1994.623\n2.214. Turning to the European Union's argument that the Panel's interpretation of Articles I:1\nand III:4 is not supported by the Appellate Bo dy's jurisprudence, Canada notes that the\nEuropean Union relies largely on jurisprudence developed under Article III:4 to support its\ninterpretation of both Articles I:1 and III:4. In doing so, the European Union fails to take account\nof the fact that Article I:1 does not refer to \"treatment no less favourable\", but rather requires that\n\"any advantage, favour, privilege or immunity granted to any product originating in or destined to\nanother WTO Member be granted immediately and unconditionally to the like product of every\nother WTO Member.\"\n624 Canada submits that the Appellate Body has expressly excluded\nconsideration of the policy rationale underlying the challenged measure for the purpose of an\nanalysis under Article I:1. Instead, the Appella t e B o d y \" h a s b e e n c l e a r \" t h a t d i s c r i m i n a t i o n\nbetween like products originating from different WTO Members is inconsistent with Article I:1\nunless the obligation has been waived or the measure falls within one of the exceptions set out in\nthe GATT 1994.\n625\n2.215. In addition, Canada submits that the Appellate Body's findings in Dominican Republic –\nImport and Sale of Cigarettes and EC – Asbestos do not support the European Union's\ninterpretation of Articles I:1 and III:4 of the GATT 1994. Canada points out that, in US – Clove\nCigarettes, the Appellate Body rejected an argument that its finding in Dominican Republic –\nImport and Sale of Cigarettes stood for the proposition that, similar to Article 2.1 of the\nTBT Agreement, under Article III:4 of the GATT 1994, a panel is required to inquire into the\nrationale of a measure causing detrimental impact to imported products. 626 Instead, the Appellate\nBody found in US – Clove Cigarettes that the \"'treatment no less favourable standard' under\nArticle III:4 … prohibits WTO Members from modifying the conditions of competition in the\nmarketplace to the detriment of the group of imported products vis-à-vis the group of domestic\nlike products\".627\n2.216. Canada considers that the European Union's reading of the Appellate Body report\nin EC – Asbestos is also incorrect. That report, according to Canada, indicates that, while a\ndistinction between products in itself will not automatically result in a finding of less favourable\ntreatment under Articles I:1 and III:4, a distinction that modifies the conditions of competition in\nthe relevant market to the detriment of imported products will result in such a finding.\n628 For\nCanada, the Appellate Body was referring to distinctions between products that do not themselves\nresult in less favourable treatment of imported products. However, Canada points out that, in the\ncurrent disputes, the Panel's factual findings indicate that there is a direct relationship between the\nmeasure and the detrimental impact on competitive opportunities for Canadian and Norwegian seal\nproducts.\n629 The Panel was therefore correct in not considering, under Articles I:1 and III:4,\n\n622 Canada's appellee's submission, para. 194 (referring to Panel Reports, para. 7.586).\n623 Canada's appellee's submission, para. 256.\n624 Canada's appellee's submission, para. 211. (emphasis original)\n625 Canada's appellee's submission, para. 215 (referring, as example, to Appellate Body Report, EC –\nBananas III, paras. 191 and 206).\n626 Canada's appellee's submission, para. 201 (referring to Appellate Body Reports, Dominican\nRepublic – Import and Sale of Cigarettes, para. 96; and US – Clove Cigarettes, fn 372 to para. 179).\n627 Canada's appellee's submission, para. 203 (quoting Appellate Body Report, US – Clove Cigarettes,\npara. 179, in turn referring to Appellate Body Report, Dominican Republic – Sale and Import of Cigarettes,\npara. 96).\n628 Canada's appellee's submission, para. 208 (referring to Appellate Body Report, EC – Asbestos,\npara. 100).\n629 Canada's appellee's submission, para. 209 (referring to Panel Reports, paras. 7.159, 7.164,\nand 7.168).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nwhether the detrimental impact on imported products stems from a legitimate regulatory\ndistinction.\n2.217. Turning to the European Union's argument that the Panel's interpretation of Articles I:1\nand III:4 disregards the context provided by Ar ticle III:1, Canada submits that the European\nUnion misinterprets the Appellate Body's comments in Japan – Alcoholic Beverages II on the\nrelevance of Article III:1 for the interpretation of the legal standard under Article III:2, second\nsentence.630 In Canada's view, the Appellate Body simply recognized that, under Article III:2,\nsecond sentence, panels should consider the relevant circumstances, including the design,\nstructure, operation, and application of the measure at issue in determining whether the measure\nat issue results in de facto discrimination. The Appellate Body did not, according to Canada,\n\"suggest this to mean that discrimination under Article III could be justified by regulatory\ndistinctions\".\n631\n2.218. Canada considers as unfounded the European Union's argument that the Panel's\ninterpretation of Articles I:1 and III:4 of the GATT 1994 is incoherent with the interpretation of\nArticle 2.1 of the TBT Agreement. In Canada's view, the European Union is suggesting that the\nlegal standards under Articles I:1 and III:4 of th e GATT 1994, on the one hand, and Article 2.1 of\nthe TBT Agreement, on the other hand, should be the same. Canada submits, however, that this is\nnot supported by the text, context or jurisprudence of Articles I:1 or III:4.\n2.219. Canada observes that, in setting out the \"alleged incoherency\" between the de facto\ndiscrimination standards under the GATT 1994 an d the TBT Agreement, the European Union\n\"incorrectly compares\" Article 2.1 of the TBT Agreement with Articles I:1 and III:4 of the\nGATT 1994.632 In Canada's view, the proper comparison is between, on the one hand, Article 2.1\nof the TBT Agreement, as interpreted in the light of the preamble of the TBT Agreement, and, on\nthe other hand, Articles I:1, III:4, and XX of th e GATT 1994. Canada submits that the Appellate\nBody confirmed in US – Clove Cigarettes that the balance between the pursuit of trade\nliberalization under Articles I:1 and III:4 and the right to regulate under Article XX \"corresponds\nto\" the balance found in Article 2.1 itself, read in the light of the context and object and purpose of\nthe TBT Agreement.\n633\n2.220. Canada disagrees with the European Union's argument that, because the list of possible\nlegitimate objectives under the TBT Agreement is open while the list of objectives under Article XX\nof the GATT 1994 is closed, accepting the Panel's approach would result in divergent outcomes\nunder the TBT Agreement and the GATT 1994, in respect of the same measure. 634 Noting the\nAppellate Body's statement in US – Clove Cigarettes that the TBT Agreement and the GATT 1994\nshould be \"interpreted in a coherent and consistent manner\", Canada submits that \"the more\nreasonable view with respect to the scope or range of objectives that may be considered legitimate\nfor the purposes of the TBT Agreement is that it mirrors the scope of Article XX of the\nGATT 1994\".\n635\n2.221. Finally, Canada submits that the European Union's argument that the Panel's interpretation\nof Articles I:1 and III:4 of the GATT 1994 would render Article 2.1 of the TBT Agreement irrelevant\nis entirely speculative. Further, Canada asserts that this interpretation cannot justify ignoring the\ntextual and contextual differences between th e TBT Agreement and the GATT 1994 simply to\nprevent the possibility that Members may choose no t to invoke Article 2.1 of the TBT Agreement,\nand instead proceed solely under the GATT 1994 in challenging technical regulations.\n\n630 Canada's appellee's submission, paras. 218 and 219 (referring to European Union's other appellant's\nsubmission, paras. 299 and 300; and Appellate Body Report, Japan – Alcoholic Beverages II, p. 29,\nDSR 1996:I, pp. 120-121).\n631 Canada's appellee's submission, para. 220.\n632 Canada's appellee's submission, para. 231.\n633 Canada's appellee's submission, para. 236 (referring to Appellate Body Report, US – Clove\nCigarettes, paras. 95, 96, and 109).\n634 Canada's appellee's submission, para. 238 (referring to European Union's other appellant's\nsubmission, para. 307).\n635 Canada's appellee's submission, para. 240 (referring to and quoting Appellate Body Report, US –\nClove Cigarettes, para. 91).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.222. Canada, therefore, requests the Appellat e Body to dismiss the European Union's appeal\nthat the Panel erred in its interpretation and application of the legal tests under Article I:1 and\nArticle III:4 of the GATT 1994. If, ho wever, the Appellate Body reverses the Panel's finding that\nArticles I:1 and III:4 of the GATT 1994 do not incl ude a \"legitimate regulatory distinction\" test,\nand consequentially reverses the Panel's findings of violations under these two provisions, Canada\nrequests the Appellate Body to complete the legal analysis to find that the detrimental impact to\nthe competitive opportunities of Canadian seal products caused by the IC and MRM exceptions\ndoes not stem exclusively from a legitimate regula tory distinction, and that , therefore, the IC and\nMRM exceptions violate Articles I:1 and III:4 of the GATT 1994.\n636\n2.5.4 Article XX of the GATT 1994\n2.5.4.1 The Panel's analysis under the chapeau of Article XX\n2.223. Canada requests the Appellate Body to reject the European Union's other appeal that the\nIC exception is justified under Article XX(a) of the GATT 1994 because it meets the requirements\nof the chapeau. Canada refers to the arguments set out in its appellant's submission to assert that\n\"[t]the Panel's transposition of the ['legitimate regulatory distinction'] test into the chapeau\nanalysis is incorrect as a matter of law.\"\n637 According to Canada, the European Union's other\nappeal requests the Appellate Body to repeat this error, while disregarding the proper test under\nthe chapeau. 638 Even if the Appellate Body reverses the Panel's finding with respect to the\n\"legitimate regulatory distinction\" test under Ar ticle 2.1 of the TBT Agreement, Canada asserts\nthat the Appellate Body must undertake an inde pendent assessment, based on the proper test\nunder the chapeau of Article XX, to determine wh ether the IC exception meets the requirements\nunder the chapeau. For these reasons, should the Appellate Body reverse the Panel's findings\nunder Article 2.1 of the TBT Agreement, and the chapeau of Article XX of the GATT 1994, Canada\nrequests the Appellate Body to complete the legal analysis under the chapeau and find that the\nIC exception does not meet its requirements \"because it arbitrarily and unjustifiably discriminates\nbetween Canadian seal products and Greenlandic seal products\".639\n2.5.4.2 The Panel's analysis under Article XX(b)\n2.224. Canada requests the Appellate Body to reject the European Union's conditional claims of\nerror with respect to the Panel's findings under Article XX(b) of the GATT 1994. Specifically,\nCanada argues that the European Union fails to show that the Panel exceeded the bounds of its\ndiscretion as the initial trier of facts under Article 11 of the DSU.\n640 Canada points out that,\ncontrary to the European Union's arguments on appeal, its written submissions to the Panel did\nnot clearly identify the welfare of seals as an independent objective for the purpose of\nArticle XX(b). Canada asserts that the European Union's second written submission to the Panel\ninstead referred to the objectives of the measure under Article 2.2 of the TBT Agreement.\n641\nCanada adds that, in the European Union's first written submission to the Panel, it \"merely referred\nto the EU Seal Regime as making 'a substantial contribution to the welfare of seals'\", which is\n\"entirely consistent\" with the Panel's finding that seal welfare is one aspect of the moral concerns\nin question, rather than a second objective of the EU Seal Regime. 642 C a n a d a a r g u e s t h a t t h e\nPanel \"carefully considered the European Union's varied articulations of the policy objective\"643 and\n\"did not find that '… the protection of seal welfare as such was the objective of the EU Seal\nRegime'\".644 Canada argues that the Panel considered the European Union's arguments with\n\n636 Canada's appellee's submission, paras. 255 and 256.\n637 Canada's appellee's submission, para. 264.\n638 Canada's appellee's submission, para. 264.\n639 Canada's appellee's submission, para. 266.\n640 Canada's appellee's submission, para. 280.\n641 Canada's appellee's submission, para. 275 (referring to European Union's second written submission\nto the Panel, para. 273).\n642 Canada's appellee's submission, para. 276 (quoting European Union's first written submission to the\n643 Canada's appellee's submission, para. 277.\n644 Canada's appellee's submission, para. 277 (quoting Panel Reports, para. 7.640). (emphasis added by\nCanada)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nrespect to the objective, and \"rejected the idea that the EU Seal Regime pursued any objectives\nother than EU public moral concerns on seal welfare\".645\n2.225. Finally, Canada considers that the European Union's claim that the Panel erred in finding\nthat its arguments under Article XX(b) were \"limited\" is \"equally ill-founded from the standpoint of\nthe legal standard under Article 11\". 646 Canada maintains that the European Union's first and\nsecond written submissions to the Panel dealt with Article XX(b) in one paragraph and two\nparagraphs, respectively.\n647 Although the European Union made several cross-references to other\nparts of its submissions in these paragraphs, Canada notes that those cross-references \"were\ngeneral and made no attempt to situate the content of the cross-referenced sections in the specific\ncontext of the elements that together make up Article XX(b)\". 648 For these reasons, Canada\nasserts that the European Union has failed to establish that the Panel acted inconsistently with\nArticle 11 of the DSU, and, therefore, requests the Appellate Body to dismiss the European Union's\nclaim of error with respect to Article XX(b) of the GATT 1994.649\n2.5.5 Non-violation nullification or impairment in the sense of Article XXIII:1(b) of the\nGATT 1994\n2.226. Canada recalls that it had presented arguments and evidence before the Panel to\ndemonstrate that, if the EU Seal Regime was not found to be inconsistent with either the\nTBT Agreement or the GATT 1994, the measure's application nevertheless nullifies or impairs\nbenefits that would otherwise accrue to Canada in the sense of Article XXIII:1(b) of the\nGATT 1994. Canada points to its arguments before the Panel that the EU Seal Regime has upset\nthe competitive relationship between Canadian seal products and seal products from the European\nUnion and Greenland, thereby frustrating Canada's legitimate market access expectations arising\nfrom concessions granted by the European Union in the Tokyo and Uruguay Rounds.\n650\n2.227. Canada notes that, having found the IC an d MRM exceptions to be inconsistent with the\nEuropean Union's obligations under the TBT Agreement and the GATT 1994, the Panel considered\nit unnecessary to address Canada's non-violation claim under Article XXIII:1(b) of the GATT 1994.\nAccording to Canada, the Panel thereby left Canada's claim \"unresolved\".\n651\n2.228. In the light of the European Union's claims of error in these appeals, and in the event that\nthe Appellate Body reverses the Panel's findings that the EU Seal Regime is inconsistent with the\nTBT Agreement and the GATT 1994, Canada requests the Appellate Body to complete the legal\nanalysis under Article XXIII:1(b) of the GATT 1994.\n652 In this regard, Canada points the Appellate\nBody to the arguments and evidence that it had submitted to the Panel with respect to its claim\nunder Article XXIII:1(b).653\n2.6 Arguments of Norway – Appellee\n2.6.1 Annex 1.1 to the TBT Agreement\n2.229. Norway requests the Appellate Body to reject the appeal of the European Union with\nrespect to the legal characterization of the EU Seal Regime as a \"technical regulation\" within the\nmeaning of Annex 1.1 to the TBT Agreement.\n\n645 Canada's appellee's submission, para. 278.\n646 Canada's appellee's submission, para. 279.\n647 Canada's appellee's submission, para. 279 (referring to European Union's other appellant's\nsubmission, paras. 322 (referring to European Union's second written submission to the Panel, paras. 272\nand 273) and 323).\n648 Canada's appellee's submission, para. 279.\n649 Canada's appellee's submission, para. 280.\n650 Canada's appellee's submission, para. 281 (referring to Canada's first written submission to the\nPanel, paras. 734-751; second written submission to the Panel, paras. 345-358; and response to Panel\nquestion No. 51, paras. 197-220).\n651 Canada's appellee's submission, para. 284.\n652 Canada's appellee's submission, para. 286.\n653 Canada's appellee's submission, para. 287 (referring to Canada's first written submission to the\nPanel, paras. 735bis-751; second written submission to the Panel, paras. 345-358; and response to Panel\nquestion No. 51, and Panel Exhibits referred to therein).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.230. Norway agrees with the Panel's finding that the EU Seal Regime \"prescribes 'applicable\nadministrative provisions' for products with certain objective characteristics\". 654 The administrative\nprovisions under the measure at issue in EC – Asbestos applied to products possessing the\nregulated product characteristic of containing chrysotile asbestos 655, while the exceptions under\nthe EU Seal Regime include administrative provisions that \"'apply' to products possessing the\nregulated product characteristic\" of containing seal. 656 Thus, these administrative provisions are\n\"inextricably linked to the mandatory requirements regarding product characteristics laid down in\nthe measure\".657 According to Norway, \"the close nexus between 'administrative provisions' and\n'product characteristics' arises because the products exhibit or possess the 'product characteristic'\nlaid down in the document in question.\" 658 For Norway, the products subject to the administrative\nprovisions are identifiable not just as products in general but because they possess the regulated\nproduct characteristic.\n2.231. Norway further agrees with the Panel's characterization of the EU Seal Regime as a\nmeasure that \"lays down, in positive and negative terms, characteristics for all products, namely,\nwhen and under what conditions products may, and may not, contain seal inputs\". 659 Like the\nmeasure at issue in EC – Asbestos, the EU Seal Regime contains permissive elements that form an\n\"integral part of the measure\", as they \"defin e the scope of the prohibitive elements\" without\nhaving an \"independent meaning in the absence\" thereof. 660 These permissive elements \"appl[ied]\nto products possessing defined objective characteristics (i.e. products containing chrysotile\nasbestos or seal)\", and \"operate[d] on the basis of a defined set of criteria\".\n661 In Norway's view,\nthe EU Seal Regime, \"through the combination of the prohibitive and permissive elements\", lays\ndown product characteristics in the negative form for all products that might contain seal. 662\nNorway adds that the \"criteria for determining when and under what conditions a product may\ncontain a particular input lay down an 'intrinsic' feature of the subject products\" and this, in turn,\ndefines \"an aspect of product 'composition'\".\n663\n2.232. Lastly, like Canada, Norway considers that \"the prohibition and exceptions need not\n'individually' lay down product characteristics, so long as, as a whole, they did so.\" 664 In Norway's\nview, the Panel's finding that the EU Seal Regime constitutes a technical regulation was based on a\nholistic examination of the \"ban\" and the \"excepti ons\" components of the measure. Norway adds\nthat the Panel correctly found that the EU Seal Regime, through its exceptions, lays down\napplicable administrative provisions. As to the European Union's argument that the ban on \"pure\nseal products\" does not lay down product characteristics, Norway contends that seal products are\nnot in their \"naturally occurring state\" as \"'live' seals or 'dead' seal carcasses\", but rather involve\nsome form of processing, such as in the prepar ation of skins, blubber, oil, meat, or further\nprocessed seal products.\n665 Moreover, Norway recalls that \"the majority of seal products subject to\nthe measure are mixed products that include non-seal inputs\", and \"the extent of pure seal\nproducts is so limited\" that it does not affect the overall finding that the EU Seal Regime, through\nthe combination of its prohibitive and permissive elements, lays down product characteristics for\nall products that might contain seal inputs.\n666 Norway adds that the mere fact that the EU Seal\nRegime applies to pure seal products does not preclude the measure from being characterized as a\ntechnical regulation, considering that it lays down characteristics for all products containing seal\ninputs.\n\n654 Norway's appellee's submission, para. 63.\n655 Norway's appellee's submission, para. 61 (referring to Appellate Body Report, EC – Asbestos,\npara. 73).\n656 Norway's appellee's submission, para. 63.\n657 Norway's appellee's submission, para. 63.\n658 Norway's appellee's submission, para. 80. (emphasis original)\n659 Norway's appellee's submission, para. 44. (fn omitted)\n660 Norway's appellee's submission, para. 57.\n661 Norway's appellee's submission, para. 57.\n662 Norway's appellee's submission, para. 58.\n663 Norway's appellee's submission, para. 45 (referring to Norway's second written submission to the\nPanel, para. 146; and response to Panel question No. 127).\n664 Norway's appellee's submission, para. 88 (referring to Panel Reports, para. 7.100).\n665 Norway's appellee's submission, paras. 93 and 94, respectively (referring to European Union's other\nappellant's submission, paras. 82 and 83).\n666 Norway's appellee's submission, para. 96.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.233. In concluding, Norway argues that the European Union \"concedes that the measure lays\ndown product characteristics by prohibiting products from containing seal inputs\". 667 According to\nNorway, the European Union also concedes that th e exceptions in the EU Seal Regime \"define the\nscope of the prohibitions\". 668 Norway submits that, rather than accepting the \"consequences of\nthese admissions\", the European Union takes issue with \"fragments of the Panel's analysis\" and\nfocusses \"on a small minority of products consisting exclusively of seal\". 669 According to Norway,\nthe European Union's \"objections to the Panel's reasoning do not alter the 'fundamental thrust and\neffect', and 'centre of gravity', of the measure as a whole.\" 670 Norway requests, on this basis, that\nthe Appellate Body uphold the Panel's finding that the EU Seal Regime constitutes a \"technical\nregulation\" within the meaning of Annex 1.1 to the TBT Agreement.\n2.234. In the event that the Appellate Body reverses the Panel's finding that the EU Seal Regime\nlays down product characteristics and/or applicable administrative provisions, Norway requests the\nAppellate Body to complete the legal analysis and to find that the measure is a \"technical\nregulation\" within the meaning of Annex 1.1 to the TBT Agreement.\n671\n2.6.2 Article I:1 and Article III:4 of the GATT 1994\n2.235. Norway requests the Appellate Body to re ject the European Union's appeal of the Panel's\ninterpretation of Articles I:1 and III:4 of the GATT 1994. With regard to the Panel's application of\nArticle I:1 and its legal conclusion thereunder, Norway notes that the European Union \"raises no\nadditional argument\" as to why the Panel's conclusion under Article I:1 should not be upheld by\nthe Appellate Body, beyond its arguments concerning the alleged errors in the Panel's\ninterpretation of that provision.\n672 According to Norway, because the Panel did not err in its\ninterpretation of Article I:1, the Appellate Bo dy should reject the European Union's appeal\nregarding the Panel's conclusion under that provision.\n2.236. Turning to the specific arguments raised by the European Union, Norway disagrees with\nthe European Union's assertion that the Panel's interpretation of these provisions is not supported\nby the Appellate Body reports in Dominican Republic – Import and Sale of Cigarettes and\nEC – Asbestos. With respect to the European Union's reliance on Dominican Republic – Import and\nSale of Cigarettes , Norway points out that, in US – Clove Cigarettes , the Appellate Body clarified\nthat, in the former dispute, it had rejected the complainant's claim under Article III:4 for reasons\nother than any justification given for the detrimental impact caused by the measure on imported\nproducts. Thus, the Appellate Body confirmed that the focus of the analysis under Article III:4 is\non whether the measure at issue \"modif[ies] the conditions of competition in the marketplace to\nthe detriment of the group of imported products vis-à-vis the group of domestic like products\".\n673\n2.237. Norway contends that the European Union's reliance on EC – Asbestos is also misplaced.\nFor Norway, the Appellate Body merely explained in that dispute that \"Article III:4 is not violated\nfor the sole reason that objective distinctions are drawn between like products.\" 674 According to\nNorway, \"[t]he mere fact that a regulating Member may draw objective distinctions, under\nArticle III:4, between like products does not mean that, if the distinction gives rise to a\ndetrimental impact on imports, the regulating Member may justify those distinctions under\nArticle III:4.\"\n675\n\n667 Norway's appellee's submission, para. 98 (referring to European Union's other appellant's\nsubmission, para. 85).\n668 Norway's appellee's submission, para. 98 (quoting European Union's other appellant's submission,\npara. 87).\n669 Norway's appellee's submission, para. 98.\n670 Norway's appellee's submission, para. 98 (referring to Appellate Body Reports, Korea – Various\nMeasures on Beef, fn 44 to para. 142; US – FSC (Article 21.5 – EC), para. 215; and China – Auto Parts,\npara. 171).\n671 Norway's appellee's submission, para. 101.\n672 Norway's appellee's submission, para. 327.\n673 Norway's appellee's submission, para. 266 (quoting Appellate Body Report, US – Clove Cigarettes,\npara. 179).\n674 Norway's appellee's submission, para. 272.\n675 Norway's appellee's submission, para. 273.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.238. Norway further disagrees with the European Union's argument that, by failing to apply the\nsame test developed under Article 2.1 of the TBT Agreement to Articles I:1 and III:4 of the\nGATT 1994, the Panel overlooked the context provided by Article III:1 of the GATT 1994. The\nAppellate Body has emphasized that the role of Article III:1 in interpreting the remaining\nparagraphs of Article III depends on whether Article III:1 is expressly invoked in the particular\nparagraph of Article III.\n676 Norway notes in this regard that Article III:1 is not expressly invoked in\nArticle III:4, and that the Appellate Body clar ified that the legal requirements set out in\nArticle III:4 are themselves an application of the general principle set forth in Article III:1. Thus, in\nassessing whether there is less favourable treatment of imports under Article III:4, a panel is\nrequired to examine whether the measure has a de trimental or \"adverse impact on competitive\nopportunities for imported versus like domestic products\".\n677 Norway asserts that, if it does, the\nmeasure will not be in accordance with the \"general principle\" expressed in Article III:1, which is\n\"to ensure equality of competitive conditions between imported and like domestic products\".678\n2.239. Noting the European Union's argument that the test under Article III:2, second sentence,\nof the GATT 1994 \"'corresponds to the second step of the de facto discrimination analysis' under\nArticle 2.1 of the TBT Agreement\", Norway submit s that the European Union misunderstands the\nlegal standard under Article III:2, second sentence. 679 According to Norway, under Article III:2,\nsecond sentence, a panel is not required to ente rtain \"a justification for a tax measure that has\nbeen found to have a detrimental impact\" on the equality of competitive conditions for imported\nproducts.\n680 Instead, if dissimilar taxation results in such detrimental impact, then the respondent\nmay justify that detrimental impact under Article XX of the GATT 1994.\n2.240. Norway further disagrees with the European Union's argument that the Panel's\ninterpretation of Articles I:1 and III:4 of the GATT 1994 is incoherent with Article 2.1 of the\nTBT Agreement. First, Norway considers th at the Appellate Body's statement, in US – Clove\nCigarettes, that the TBT Agreement and the GATT 1994 \"should be interpreted in a coherent and\nconsistent manner\" does not mean that the provisions of the two agreements should be given the\nsame meaning.\n681 Norway notes in this regard the Appellate Body's statement in US – Tuna II\n(Mexico) that the scope and content of Article 2.1 of the TBT Agreement and of Articles I:1\nand III:4 of the GATT 1994 are not the same.682\n2.241. Second, Norway disagrees with the Europe an Union's argument that, because the list of\nlegitimate policy objectives under Article 2.1 of the TBT Agreement is open, in contrast to the\nclosed list of objectives under Article XX of the GATT 1994, the Panel's interpretation could lead to\ndiverging results under the two agreements. In No rway's view, the European Union overstates the\nsupposed gap between the list of policy interests that may justify a detrimental impact on imports\nunder the TBT Agreement and the GATT 1994. A ccording to Norway, although the range of\nlegitimate interests that may be pursued under Article 2.1 is wider than the range of interests\nunder Article XX, it is not wider than the range of interests reflected in all provisions of the covered\nagreements. Even assuming, for the sake of argument, that there is some policy interest that may\nbe pursued under the TBT Agreement, but not under the GATT 1994, \"it would not be appropriate\nto circumvent the drafters' decision by allowing a policy interest not reflected in the GATT 1994 to\njustify a trade-restrictive measure under that Agreement.\"\n683\n\n676 Norway's appellee's submission, para. 279 (referring to Appellate Body Report, Japan – Alcoholic\nBeverages II, p. 18, DSR 1996:I, p. 111).\n677 Norway's appellee's submission, para. 286 (quoting Appellate Body Report, Thailand – Cigarettes\n(Philippines), para. 134).\n678 Norway's appellee's submission, para. 286 (quoting Appellate Body Report, Canada – Periodicals,\np. 18, DSR 1997:I, p. 464, in turn referring to GATT Panel Reports, US – Tobacco, para. 99; US – Malt\nBeverages, para. 5.6; Canada – Provincial Liquor Boards (EEC), para. 5.6; US – Section 337 Tariff Act,\n679 Norway's appellee's submission, para. 282 (quoting European Union's other appellant's submission,\npara. 300).\n680 Norway's appellee's submission, para. 283. (emphasis omitted)\n681 Norway's appellee's submission, para. 288 (quoting European Union's other appellant's submission,\npara. 302, in turn quoting Appellate Body Report, US – Clove Cigarettes, para. 91).\n682 Norway's appellee's submission, para. 289 (referring to Appellate Body Report, US – Tuna II\n(Mexico), para. 405).\n683 Norway's appellee's submission, para. 300.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.242. Finally, in response to the European Union's argument that the Panel's interpretation of\nArticles I:1 and III:4 of the GATT 1994 renders Article 2.1 of the TBT Agreement irrelevant,\nNorway contends that the European Union ignores the \"fundamental interpretative principle\" that\nthe obligations in the different WTO covered agreements are cumulative. 684 Thus, \"[a]bsent an\nexpress statement modifying the cumulative application of the TBT Agreement and the GATT 1994,\nthere are no grounds to conclude that a measure could not be consistent with … Article 2.1 of the\nTBT Agreement[] and inconsistent with … Article III:4 of the GATT 1994\".\n685\n2.6.3 Article XX of the GATT 1994\n2.243. In its appellee arguments under Article XX of the GATT 1994, Norway addresses certain of\nthe European Union's claims on appeal, including those concerning Article 2.1 of the\nTBT Agreement. Norway submits, for instance, th at the European Union's appeal of the Panel's\nfinding that the IC exception does not bear a rational relationship to the measure's objective of\naddressing the EU public moral concerns regarding seal welfare must be dismissed on the basis\nthat the European Union has not linked its argument that \"the Panel erred in interpreting the term\n'public morals' to the language of Arti cles 2.1 and 2.2\" of the TBT Agreement.\n686 According to\nNorway, a party that alleges an error in a panel's \" interpretation of the existing provisions of a\ncovered agreement … must somehow tie its claims and arguments to the words that are used in\nthe treaty.\" 687 Norway, therefore, requests the Appellat e Body to dismiss the European Union's\ninterpretative appeal insofar as it relates to Articles 2.1 and 2.2 of the TBT Agreement.688\n2.244. With respect to the notion of \"public morals\" under Article XX of the GATT 1994, Norway\nargues that a panel cannot \"simply accept the respondent's assertions on the precise and specific\ncontent of an alleged moral that purportedly justifies a GATT-inconsistent measure, even when the\nmeasure is adopted by the Member's 'representative institutions'\". 689 Norway notes that\n\"[a] respondent could easily tailor the scope of an alleged moral norm to fit the precise contours of\nthe … legal norm that its legislator has adopted.\" 690 Norway is concerned that, if \"the legislator's\nadoption of the contested measure, effectively, becomes proof of the measure's asserted moral\nobjective\", then \"the respondent's justification of the measure becomes entirely circular\", since the\nmeasure is \"ultimately justified by its own adoption\".\n691\n2.245. Norway further asserts that \"[t]he Panel engaged in careful scrutiny of the evidence and\nrejected the view that the public moral at stake varied according to the type of seal hunt.\" 692\nAccording to Norway, \"the Panel saw no evidentiary basis to conclude that the adoption of the\nIC requirements by the EU legislator reflected the establishment of a public moral that IC interests\nare morally more important than seal welfare.\" 693 In sum, Norway submits that \"the European\nUnion was unable to substantiate its assertion that the EU legislator acted on the basis of, or\nestablished, a public moral in adopting the IC requirements.\"694\n2.6.3.1 The Panel's analysis under the chapeau of Article XX\n2.246. Norway also addresses in its appellee's submission the Panel's analysis of\neven-handedness of the IC exception in the contex t of Article 2.1 of the TBT Agreement. Norway\nnotes that the European Union's appeal under the chapeau of Article XX of the GATT 1994 is\n\"closely intertwined\" with its appeal under Article 2.1 of the TBT Agreement.\n695 Norway argues\nthat, in the light of its own appeal under Article XX, the Appellate Body need not consider the\nEuropean Union's other appeal under the chapeau.696 In the event that the Appellate Body were to\n\n684 Norway's appellee's submission, para. 304.\n685 Norway's appellee's submission, para. 310.\n686 Norway's appellee's submission, para. 145. (emphasis original)\n687 Norway's appellee's submission, para. 144. (emphasis original)\n688 Norway's appellee's submission, para. 147.\n689 Norway's appellee's submission, para. 167 (quoting European Union's other appellant's submission,\npara. 109). (emphasis omitted)\n690 Norway's appellee's submission, para. 168.\n691 Norway's appellee's submission, para. 170.\n692 Norway's appellee's submission, para. 177.\n693 Norway's appellee's submission, para. 182.\n694 Norway's appellee's submission, para. 186.\n695 Norway's appellee's submission, para. 332.\n696 Norway's appellee's submission, paras. 335 and 370.\nWT/DS400/AB/R • WT/DS401/AB/R\n\naddress its other appeal, Norway submits that th e appeal should be dismissed because, when\nconsidered on its own terms, the Panel was correct in finding that the IC exception is not designed\nand applied in an even-handed manner.\n697\n2.247. Norway submits that, in its arguments on appeal, \"the European Union misses the\nrationale underpinning the Panel's finding.\" 698 According to Norway, the Panel's assessment of the\neven-handedness of the IC exception did not rely so lely on the formal written requirements of the\nexception, but also on the actual and expected operation of these requirements. As Norway sees\nit, the Panel viewed the fact that only the Greenlandic hunt, which \"bears all the hallmarks of a\nlarge-scale commercial hunt\", could benefit from the IC exception as an indication of a certain\n\"inherent flaw\" in the IC requirements.\n699 Norway further submits that, while the Panel accepted\nthat \"a degree of commercialization could be accommodated under the subsistence hunts\nqualifying as IC hunts, this commercial aspect could not transform the hunt [in]to, in essence, a\ncommercial hunt.\"700 Norway recalls that, during the legislative process leading up to the adoption\nof the EU Seal Regime, \"much narrower definitions of 'subsistence'\" than the current formulation of\nthe IC requirements, which do not \"specify the degree to which the hunt must be for 'subsistence'\npurposes\", were proposed and rejected by the EU legislators. 701 Norway submits that \"the\nGreenlandic hunt, which more closely resembles a commercial hunt, thereby benefits from the\nabsence of any definition in the measure that would ensure that qualifying hunts are truly\nsubsistence hunts.\"702\n2.248. Norway further argues that the Panel di d not err in relying on its finding that the\nIC exception is de facto only available to Greenland in drawing its conclusion on the\neven-handedness of the IC exception. According to Norway, \"the Panel explicitly acknowledged\nthat the fact that Greenland has so far been the only beneficiary under the IC requirements was\nnot … sufficient to establish arbitrariness in the design or application of the IC requirements\", but\nwas \"merely 'an indication' that had to be considered with other factors\".\n703 Norway further\nsubmits that \"the Panel adequately examined the implications\" of the actions and omissions of the\nCanadian authorities and operators.\n704 Norway highlights the Panel's observation that \"it is not\ncost effective under the current circumstances to segregate [Canadian] Inuit products from other\nproducts\".705 Norway also underscores the Panel's suggestion that this result had been anticipated\nby the EU legislator. Norway submits that the Eu ropean Union cannot claim that the requirements\nof the IC exception do not discriminate against Cana dian Inuit when the EU legislator in fact knew\nthat this would be the case. According to Norway, it is because of the terms of the measure that\nCanadian Inuit, who truly pursue a subsistence hunt, are effectively denied the choice to benefit\nfrom the IC exception. Norway asserts that th e European Union is, therefore, wrong when it\nargues that \"the failure of the Canadian Inuit to de facto qualify under the IC requirements cannot\nbe 'attributed' to the EU Seal Regime, or the European Union\".\n706\n2.249. Norway also takes issue with what it understands as the European Union's assertion that\nthe extent of the commercialization of the Greenlandic hunt is immaterial in determining\neven-handedness, so long as the hunt satisfies the formal criteria for an IC hunt. Norway alleges\nthat, for the Panel, \"the extent of commercialization of the Greenland hunt called into question the\nvery basis on which the distinction between th e IC and commercial hunt is supposedly drawn.\"\n707\nNorway submits that the Panel was right in focusing on the paradoxical result of the operation of\nthe IC requirements, namely, the fact that \"ge nuine subsistence hunts were not benefitting from\nthe IC requirements, whereas the Greenlandic hunt, which more closely resembles a commercial\n\n697 Norway's appellee's submission, paras. 336 and 372.\n698 Norway's appellee's submission, para. 382.\n699 Norway's appellee's submission, para. 384 (quoting Panel Reports, para. 7.306). (emphasis omitted)\n700 Norway's appellee's submission, para. 388.\n701 Norway's appellee's submission, para. 390 (referring to Parliament Report, pp. 34-35).\n702 Norway's appellee's submission, para. 390.\n703 Norway's appellee's submission, para. 394. (emphasis omitted)\n704 Norway's appellee's submission, para. 395.\n706 Norway's appellee's submission, para. 402.\n707 Norway's appellee's submission, para. 406. (emphasis omitted)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nhunt, was.\"708 In Norway's view, the Panel did not err in finding that these factors \"'cast serious\ndoubt' on the even-handedness of the design and application\" of the IC exception.709\n2.250. Norway submits that the Panel was within its discretion as the trier of fact to weigh the\nevidence and find that the European Union had no t met its burden of proving that the EU public\nmoral concerns regarding seal welfare vary according to the type of hunt. Norway agrees with\nCanada that \"[t]he Panel made its finding that 'the EU public concerns on seal welfare appear to be\nrelated to seal hunts in general, not any particular type of seal hunts'\" not solely on the basis of\nthe two polls and the public consultation, but rath er in \"'light of the evidence before' it as a\nwhole\".710 Norway notes that this evidence included non-governmental organization surveys that\nindicated the absence of support for the proposition that the EU public's animal welfare concerns\nvary according to the type of hunt, or that substantiated the opposite conclusion.\n711\n2.251. Norway further alleges that the European Union misreads a footnote in the Panel Reports\nthat explains why the Panel chose not to ascribe probative weight to the two polls and the public\nconsultation.\n712 Norway argues that the Panel did not rely on these three pieces of evidence to\nreach its finding, let alone exclusively rely on this evidence, as Norway understands the European\nUnion to be suggesting. In Norway 's view, the Panel inserted this footnote \"to describe the basis\non which it [had] found that the European Union's evidence did not carry probative weight\". 713\nNorway submits that the European Union has failed to show that the Panel exceeded the bounds of\nits discretion in doing so.\n2.252. In response to the European Union's argument that the Panel failed to make an objective\nassessment of the facts in finding that the text of the IC exception, its legislative history, and its\nactual operation cast doubt on the even-hande dness of the design and application of the\nexception, Norway submits that the Panel made no error in assessing these elements. Norway\nargues that the Panel was correct in examining the text of the IC exception as the starting point of\nits analysis. For Norway, the European Union's arguments regarding the Panel's assessment of the\nlegislative history of the IC exception miss the point. According to Norway, in this part of its\nanalysis, the Panel observed that the EU legislat or was aware of \"these important differences\"\nbetween the Greenlandic hunt and the Canadian Inuit hunt in respect of their scale and their\ncapability to make the investments that are required to benefit, as a matter of fact, from the\nIC exception.\n714 Norway submits that the Panel made no error, in reviewing the facts, in reaching\nthis view. Norway also sees no error in the Pane l's consideration of the fact that Danish customs\nauthorities allowed imports from Greenland before the Greenlandic authorities had obtained the\nstatus of a recognized body. For Norway, this fact illustrates that the IC exception has benefitted\nGreenland in practice. Norway submits that the Panel made no error in its objective assessment by\nweighing this fact, together with other facts, to find that the IC requirements lack\neven-handedness.\n2.253. In respect of the European Union's claim that the Panel erred in assessing the level of\ndevelopment of the commercial aspect of the Greenlandic hunt, Norway submits that the European\nUnion's argument is \"absurd\" because \"[t]he facts before the Panel regarding the commercial focus\nof a large proportion of the … Greenlandic hunt we re compelling and the Panel made no error in\nweighing them\".\n715 Norway notes that the volume of seal skins caught in Greenland that are sold\nto Great Greenland A/S – at 95,000 skins annually – \"dwarfs the size of the Norwegian\n'commercial' seal hunt[s], all other indigenous hunts, and also represents an important amount of\ntotal world trade\".\n716 Norway further highlights that only full-time hunters may sell seal skins to\n\n708 Norway's appellee's submission, para. 407.\n709 Norway's appellee's submission, para. 412.\n710 Norway's appellee's submission, para. 207 (quoting Panel Reports, para. 7.410, in turn referring to\nRoyal Commission Report; and European Union's response to Panel question No. 31).\n711 Norway's appellee's submission, para. 208 (referring to the public opinion surveys contained in Panel\nExhibits EU-49 to EU-59, in particular, EU-52 and EU-53).\n712 Norway's appellee's submission, para. 209 (referring to Panel Reports, fn 676 to para. 7.410).\n713 Norway's appellee's submission, para. 210. (emphasis omitted)\n714 Norway's appellee's submission, paras. 429 and 430 (referring to Panel Reports, para. 7.315).\n715 Norway's appellee's submission, para. 437.\n716 Norway's appellee's submission, para. 438 (referring to Panel Reports, para. 7.457; COWI 2010\nReport, pp. 23-36; and European Union's other appellant's submission, Table 3-1, at para. 256).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nGreat Greenland A/S, which for Norway means that \"the internationally traded seal skins are\nproduced as part of a supply chain that is necessarily commercial in nature\".717\n2.254. Norway further submits that the fact that the Greenland hunt is subsidized does not render\nit non-commercial. According to Norway, producers benefiting from subsidies \"still form part of the\ncommercial marketplace\".718 Norway also points out that the European Union's position that the\nscale of a hunt is irrelevant for a qualitative assessment of the commercial aspect of a hunt is\ninconsistent with the European Union's argument before the Panel that scale had a fundamental\nimportance in distinguishing hunts under the rules of morality asserted by the European Union.\nWith respect to the European Union's argument that the Panel erred in finding a degree of\nintegration between the seal industries in Greenland, Canada, and Norway, Norway asserts that\nthe material presented by the European Union in its appeal itself supports the Panel's finding, as it\ndocuments various interactions between the sealing industries in the three countries.\n719 Norway\nalso does not see incoherent reasoning in the Panel's finding, on one hand, that \"the purpose of\nseal hunts in Greenland has characteristics that are closely related to that of commercial hunts\"\nand, on the other hand, what the European Union understands to be the Panel's finding that the\nGreenlandic hunt has a \"subsistence\" character.\n720 Norway notes that the degree of the\ncommercial aspect varies between indigenous hunts, and asserts that, in Greenland, the hunt is\ncommercial to a significant degree, \"reaching levels that more [closely] resemble commercial\nhunts\".721 Accordingly, Norway sees no contradiction or incoherency in the Panel's reasoning.\n2.6.3.2 The Panel's analysis under Article XX(b)\n2.255. Norway requests the Appellate Body to reject the European Union's conditional claims of\nerror with respect to the Panel's findings under Article XX(b) of the GATT 1994. Norway submits\nthat, contrary to the European Union's arguments, the Panel made an objective assessment of the\nfacts as required by Article 11 of the DSU in finding that the European Union did not make a\nprima facie case under Article XX(b). Norway highlights that, while the European Union identifies\nthree alleged factual errors by the Panel, it does not explain why these errors are \"failures by the\nPanel to objectively assess the facts, pursuant to the standard laid down by Article 11 of the DSU,\nsuch that they may invalidate the entire conclusion of the Panel\".\n722 To the contrary, Norway\ncontends the Panel's statements were \"accurate\" and \"within the bounds of its discretion\". 723\nNorway argues that the European Union \"never submitted\" that it pursued a \"separate and distinct\nobjective of promoting seal welfare\". 724 Rather, Norway adds, the paragraph to which the\nEuropean Union referred addresses the objectives of the measure under Article 2.2 of the\nTBT Agreement, and is contained in a section in which the European Union \"emphatically states\"\nthat the EU Seal Regime pursued a \"single public morals objective\".\n725 Norway argues that the\nPanel's finding of the \"limited extent\" of the European Union's arguments with respect to\nArticle XX(b) is also \"accurate\" and within the bounds of the Panel's discretion. Norway observes\nthat, even in its other appellant's submission, the European Union refers to only three paragraphs\nof its second written submission to the Panel. According to Norway, \"[b]y any measure, this is\nindeed an argument of 'limited extent', particularly one where the European Union bore the burden\nof proof.\"726\n2.256. Norway compares the European Union's failure to make a prima facie case under\nArticle XX(b) to the failure of Thailand to make a prima facie case under Article XX(d) in Thailand –\nCigarettes (Philippines). Specifically, Norway takes issue with the \"erroneous\", \"ineffective\"\ncross-referencing by the European Union to other parts of its first written submission to the Panel,\nand notes that the Appellate Body used ineffect ive or erroneous cross-referring as a basis for\n\n717 Norway's appellee's submission, para. 438.\n718 Norway's appellee's submission, para. 441.\n719 Norway's appellee's submission, para. 447.\n720 Norway's appellee's submission, para. 449. (fns omitted)\n721 Norway's appellee's submission, para. 450.\n722 Norway's appellee's submission, para. 471. (emphasis original)\n723 Norway's appellee's submission, para. 472.\n724 Norway's appellee's submission, para. 472.\n725 Norway's appellee's submission, para. 472 (referring to European Union's second written submission\nto the Panel, paras. 271-276). (emphasis original)\n726 Norway's appellee's submission, para. 473.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ndisposing of claims by the complainants in Thailand – Cigarettes (Philippines).727 In referring to its\narguments that the EU Seal Regime was \"n ecessary\" to protect \"public morals\" under\nArticle XX(a), Norway considers that the European Union failed to demonstrate how the arguments\nand evidence with respect to public morals under Article XX(a) was relevant to claims regarding\nanimal health and life under Article XX(b). Norway submits that it is no \"substitute\" for a claim\nunder Article XX(b) to give \"passing and scant reference\" to arguments about public morals in\nArticle XX(a).\n728 Moreover, Norway notes that the European Union, through its cross-referencing,\nfailed to provide legal arguments and evidence, based on the proper legal standard of necessity,\nas to how the discriminatory aspects of the measure – i.e. the IC and MRM exceptions – are\nnecessary under Article XX(b). In Norway's view, the European Union's arguments before the\nPanel dealing with the \"necessity\" analysis under Article XX(a) of the GATT 1994 and\nArticle 2.2 of the TBT Agreement address \"solely\" the necessity of the prohibitive features\nof the measure – i.e. the ban – and not the discrimination that has arisen from the IC and\nMRM exceptions.\n729 Finally, Norway notes that the European Union failed to identify or explain in\nmore than a \"few lines\" how the EU Seal Regime was justified under the chapeau, even assuming\nthat the EU Seal Regime pursued an independent objective under Article XX(b). 730 In particular,\nNorway claims, since the risk of inhumane treatment of seals is the same in all countries where\nseals are hunted, the European Union never explained how the distinction between IC and\nMRM hunts, on the one hand, and the Norwegian and Canadian hunts, on the other hand, is not\n\"arbitrary and [un]justifiable discrimination between countries where the same conditions prevail\"\nunder the chapeau.\n731\n2.257. Even if the Appellate Body were to reverse the Panel's finding under Article XX(b), and\nproceed to complete the legal analysis, Norway requests the Appellate Body to find that the\nEU Seal Regime is not justified under Article XX(b) of the GATT 1994.\n732 Norway considers that,\nunder the proper legal test, the European Union has to show that the discriminatory aspects of the\nmeasure – i.e. the IC and MRM exceptions – are necessary to protect the life and health of seals\nunder Article XX(b).\n733 Norway contends that the EU Seal Regime, by providing market access to\nseal products from the Greenlandic hunts, which has the worst animal welfare outcomes,\n\"undermines\" seal welfare, even when considered \"as a whole\".734\n2.6.4 Non-violation nullification or impairment in the sense of Article XXIII:1(b) of the\nGATT 1994\n2.258. Norway conditionally requests the Appella te Body to complete the legal analysis of\nNorway's claim of non-violation nullification or im pairment in the sense of Article XXIII:1(b) of the\nGATT 1994.735 Norway's request is conditional upon findings by the Appellate Body to the effect\nthat the EU Seal Regime is either not a technical regulation or not inconsistent with Article 2.2 of\nthe TBT Agreement, and that the EU Seal Regime is not inconsistent with the GATT 1994. Norway\nrefers to the materials set forth in its submissions before the Panel with respect to its claim under\nArticle XXIII:1(b) of the GATT 1994. Norway co nsiders that these materials provide sufficient\nuncontested evidence for the Appellate Body to complete the analysis.736\n\n727 Norway's appellee's submission, para. 482 (referring to Appellate Body Report, Thailand – Cigarettes\n(Philippines), para. 180).\n728 Norway's appellee's submission, para. 484.\n729 Norway's appellee's submission, para. 487. (emphasis omitted)\n730 Norway's appellee's submission, paras. 489 and 490 (referring to European Union's first written\n731 Norway's appellee's submission, para. 490 (quoting European Union's first written submission to the\nPanel, para. 590).\n732 Norway's appellee's submission, paras. 492 and 493.\n733 Norway's appellee's submission, para. 493.\n734 Norway's appellee's submission, para. 494.\n735 Norway's appellee's submission, para. 497.\n736 Norway's appellee's submission, para. 502 (referring to Norway's first written submission to the\nPanel, section VIII; response to Panel question No. 51, paras. 266-285; second written submission to the\nPanel, section VIII; opening statement at the second Panel meeting; as well as to all of the evidence referred\nto in these sections of Norway's submissions to the Panel).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.7 Arguments of the third participants\n2.7.1 Ecuador\n2.259. Pursuant to Rule 24(4) of the Working Procedures, Ecuador chose not to submit a third\nparticipant's submission, but it did make an open ing statement at the oral hearing. Due to its\nsystemic interest in the interpretation of Article 2.1 of the TBT Agreement, Ecuador wishes to\naddress the Panel's finding that the distinction between commercial and IC hunts is justified.\nEcuador supports the Panel's consideration of subsistence as including income generating activities\nnecessary to support traditional forms of life for indigenous communities, and its reference to\ninternational instruments to inform its analysis. Ecuador moreover considers that the Panel was\ncorrect to evaluate the relevant distinction through a case-by-case approach.\n2.7.2 Iceland\n2.260. Iceland focuses on the test established by the Panel for ascertaining whether a measure\naims to address a \"public morals\" concern, namely: (i) whether the concern in question exists in\nthe society of the regulating Member; and (ii) whether this concern falls within the scope of \"public\nmorals\" as defined and applied by the regulating Member \"in its territory, according to its own\nsystems and scales of values\".\n737 Iceland argues that this test differs significantly from previous\nWTO jurisprudence and results \"in a considerable extension\" of what constitutes \"public morals\"\nwithin the meaning of Article 2.2 of the TBT Agreement. 738 Iceland also maintains that the Panel\nfailed to explain what \"standard of right and wr ong conduct\" exists in the European Union that\nmakes selling seal products a public morals concern. 739 Iceland further emphasizes that the\nexceptions under the EU Seal Regime appear seriously to undermine the same moral principle that\nthe measure allegedly aims to protect. 740 Thus, Iceland suggests that the reference to the\nprotection of the life and health of animals under Article 2.2 is sufficient to address concerns\nrelated to animal welfare, and there is no need to make the \"public morals\" provision a \"catch-all\"\nexception.741\n2.261. With respect to Article XX(a) of the GATT 1994, Iceland takes issue with the Panel's test on\nhow to assess whether a measure aims to address a \"public morals\" concern. 742 Iceland highlights\nthat the Panel's approach in the present disputes differs from the approach taken by the panel in\nUS – Gambling , because, in that case, the panel based its conclusion that public moral concerns\nexisted on the \"prior associations between the co ncern in question (gambling) and the concept of\n'public morals', particularly in the context of earlier multilateral trade negotiations\". 743 By contrast,\nIceland notes that the present Panel adopts a two-pronged test, which seeks to determine:\n(i) whether a concern exists in the society in question; and (ii) whether that concern, according to\nthe system and scale of values in the Member concerned, falls within the scope of \"public\nmorals\".\n744 This approach, Iceland contends, provides \"l ittle in terms of actually clarifying the\nscope of 'public morals'\", because the Panel's reasoning is \"tautolog[ical]\", as it appears to suggest\nthat the European Union's claim of acting to addr ess the concerns of its public was \"proof enough\"\nthat it was acting out of public concern. 745 Moreover, Iceland argues that \"[t]he Panel only\nprovide[d] a general statement to the effect that animal welfare is a matter of ethical or moral\nnature in the European Union.\"\n746 In Iceland's view, the Panel's test suggests that it is \"sufficient\nto declare that a measure was taken because a 'concern' existed, and establish a link between this\n'concern' and an abstract moral issue\".747\n\n737 Iceland's third participant's submission, para. 7 (quoting Panel Reports, para. 7.383).\n738 Iceland's third participant's submission, para. 9.\n739 Iceland's third participant's submission, para. 13.\n740 Iceland's third participant's submission, para. 15.\n741 Iceland's third participant's submission, para. 17.\n742 Iceland's third participant's submission, para. 7 (referring to Panel Reports, para. 7.383).\n743 Iceland's third participant's submission, para. 8 (referring to Panel Reports, US – Gambling,\n744 Iceland's third participant's submission, para. 10 (referring to Panel Reports, para. 7.383).\n745 Iceland's third participant's submission, para. 11 (referring to Panel Reports, para. 7.389).\n746 Iceland's third participant's submission, para. 13.\n747 Iceland's third participant's submission, para. 13.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.262. Iceland submits that the Panel erred when it stated that \"the exceptions to the EU Seal\nRegime must be distinguished from the main objective of the measure as a whole\" because, if a\nmeasure is supposed to serve a \"moral principle\", then the existence of such a principle \"must be\nassessed on the basis of the measure as a whole, including its exceptions\".\n748 Furthermore,\nIceland submits that there is \"no need to rely on the notion of 'public morals' to justify measures\ntaken to meet animal welfare concerns\", and Article 2.2 of the TBT Agreement and Article XX(b) of\nthe GATT 1994 are \"entirely sufficient\" to address animal welfare concerns.\n749 In Iceland's view,\nthe \"public morals\" provisions, such as Article XX(a), should not be a \"catch-all\" exception that\nMembers can rely on when they cannot justify their measures under other provisions. 750 Finally,\nIceland takes issue with the Panel's approach to the less trade-restrictive alternative measures\nproposed by the complainants. According to Icelan d, the Panel considered that \"the alternative\nmeasures should be assessed on the basis of the professed objective of the measure\", and not the\n\"actual contribution\" of a measure \"in reality\".\n751 According to Iceland, the \"problem\" with such an\napproach is \"not only that a guarantee of this sort would be hard to meet in any trade with animal\nproducts, but that the EU Seal Regime itself pate ntly does not prevent marketing of seal products\nthat may be derived from sealing with poor animal welfare outcomes\". 752 Instead, Iceland\nsuggests that the alternative measures should be assessed on the basis of the \"actual\ncontribution\" of the EU Seal Regime to its objective.753 Under such an approach, Iceland concludes,\nCanada's and Norway's proposed alternatives would \"easily meet\" the requirement of making an\n\"equivalent or greater\" contribution to the fulfilment of the EU Seal Regime's objective.\n754\n2.7.3 Japan\n2.263. Japan submits that, in order to analyse whether the regulatory distinction that gives rise to\na detrimental impact on imported products is ev en-handed or legitimate, the Panel should have\ncarried out an analysis involving the following four steps: (i) an examination of whether the\nregulatory distinction is rationally connected to the objective of the measure; (ii) if this is not the\ncase, an examination of whether there is any other rationale that can justify the regulatory\ndistinction; (iii) an analysis of whether the distinction is rationally connected to this rationale; and\n(iv) an inquiry into whether the distinction is actually calibrated towards the rationales or\nobjectives pursed by the distinction.\n755 Japan considers that a regulatory distinction that\nundermines the stated objective of a measure can manifestly not be justified on the basis of the\nalleged legitimacy of that objective. Unless the regulatory distinction is justifiable under a different\nrationale, there would then be a presumption that such a regulatory distinction cannot be\nconsidered as legitimate.\n2.264. Japan submits that a \"conflict\" between th e regulatory distinction and the stated objective\nof a measure would seem \"impossible to justify\" unless it is the \"necessary consequence\" of the\nneed to protect certain justifiable policy object ives that would otherwise be impaired by the\nmeasure.\n756 Japan considers that any such policy objectives must themselves be justifiable as\n\"separate legitimate objectives\" 757, and that there must be a \"rational connection\" between the\npolicy objective and the regulatory distinction at issue. 758 Moreover, Japan suggests that the\nregulatory distinction must be calibrated to the rationale or objective that it pursues.\n2.265. Japan considers that, in the present disputes, the analysis under Article 2.1 should focus\non the regulatory distinction between commercial hunts, on the one hand, and IC and MRM hunts,\non the other hand, since this is the distinction that causes the detrimental impact on the\ncompetitive opportunities of imported seal products. In Japan's view, the Panel erred when it\nanalysed the even-handedness of the distinction by comparing the treatment of seal products from\nIC hunts in Canada and Greenland. Japan underscores that it is the regulatory distinction between\n\n748 Iceland's third participant's submission, para. 15 (referring to Panel Reports, para. 7.402).\n749 Iceland's third participant's submission, para. 17.\n750 Iceland's third participant's submission, para. 17.\n751 Iceland's third participant's submission, para. 20.\n752 Iceland's third participant's submission, para. 19 (referring to European Union's appellee's\nsubmission, para. 127).\n753 Iceland's third participant's submission, para. 20.\n754 Iceland's third participant's submission, para. 20.\n755 Japan's third participant's submission, para. 8.\n756 Japan's third participant's submission, para. 13.\n757 Japan's third participant's submission, para. 14.\n758 Japan's third participant's submission, para. 17.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncommercial hunts and IC hunts that causes the detrimental impact, not the differences in\napplication of the IC exception to seal products derived from different IC hunts. In Japan's view,\nthe Panel should have examined instead whether th e similarities and differences in characteristics\nof commercial hunts and IC hunts are such that the distinction drawn by the European Union\nallows the differentiation among seal products according to the two conflicting objectives of\naddressing the moral concerns of the EU public regarding the welfare of seals while protecting\nIC interests. According to Japan, such a calibratio n exercise requires a detailed examination of the\nsimilarities between IC hunts and commercial hunts and the identification of the aspects of\nIC hunts that are necessary to ensure the subsistence of indigenous communities.\n759\n2.266. Japan further comments in its submission on two issues under Article 2.2 of the\nTBT Agreement: (i) the degree of contribution to the legitimate objective of the measure at issue\nand the alternative measures; and (ii) the \"arbitrary and unjustifiable discrimination\" test. First,\nJapan asserts that the Panel's finding that the EU Seal Regime makes \"some contribution\" or\ncontributes \"to a certain extent\" to the legitimate objective does not reveal the actual \"degree\" of\ncontribution of the measure to its objective.\n760 Given that it failed to ascertain this degree of\ncontribution, the Panel could not have properly reached a conclusion as to whether the alternative\nmeasure could make an \"equivalent or greater\" contribution to the objective.\n761\n2.267. Second, Japan argues that, contrary to Norway's contention, the requirement that a\ntechnical regulation does not give rise to an \"arbitrary or unjustifiable discrimination\" is provided\nunder the sixth recital of the preamble of the TB T Agreement, and can neither be transposed to,\nnor read as a separate and independent test from, Article 2.2. The wording of Article 2.2 already\nreflects the balance between trade-liberalization and the Members' right to regulate trade by\nconcerning itself with \"restrictions on internationa l trade that exceed what is necessary to achieve\nthe degree of contribution that a technical regula tion makes to the achievement of a legitimate\nobjective\".\n762 Being an aspect separate from the issue of a measure's consistency with the\nTBT Agreement, the text of the sixth recital canno t, according to Japan, be made part of such\ninquiry.\n2.268. In its opening statement at the oral hearing, Japan made submissions concerning the\nEuropean Union's other appeal of the Panel's interpretation of Articles I:1 and III:4 of the\nGATT 1994. With regard to the European Union's appeal of the Panel's finding that the legal\nstandard for the non-discrimination obligations under Article 2.1 of the TBT Agreement does not\napply equally to claims under Articles I:1 and III:4, Japan observes that there are textual\ndifferences between Articles I:1 of the GATT 1 994 and Article 2.1 of the TBT Agreement. In\naddition, Japan notes that the \"legitimate regulato ry distinction\" test under Article 2.1 has been\ndeveloped primarily in the context of the national treatment obligation, and having regard to the\ntext of Article III:4 but not of Article I:1.\n2.269. Japan further notes the European Union's argument that, because the list of possible\nlegitimate objectives that may factor into an analysis under Article 2.1 is open, in contrast to the\nclosed list of objectives enumerated under Article XX of the GATT 1994, the Panel's interpretation\nmight lead to a situation where a technical regulation could be considered non-discriminatory\nunder Article 2.1 of the TBT Agreement, but still violate Article III:4 of the GATT 1994, because\nthe legitimate objective it pursues is not covered under Article XX.\n763 Japan agrees that the\nobjectives that can justify a measure under Article XX are limited. Japan submits, however, that\nthe legitimate objectives to be considered under Article 2.1 are not unlimited. In this connection,\nJapan points out that, in the context of Article 2.2 of the TBT Agreement, the Appellate Body, in\nUS – Tuna II (Mexico), considered several factors that may inform what might be considered to be\na legitimate objective under Article 2.2. These factors, Japan submits, also inform what might be\nconsidered to be a legitimate objective under Article 2.1.\n\n759 Japan's third participant's submission, para. 20.\n760 Japan's third participant's submission, para. 25 (referring to Panel Reports, paras. 7.443 and 7.460).\n761 Japan's third participant's submission, para. 27 (referring to Panel Reports, paras. 7.446 and 7.479).\n762 Japan's third participant's submission, para. 36 (quoting Appellate Body Report, US – Tuna II\n(Mexico), para. 319).\n763 Japan's opening statement at the oral hearing.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n2.270. Japan considers further that an argument in favour of the European Union's interpretation\nof Article III:4 of the GATT 1994 is that Article 2.1 of the TBT Agreement provides relevant context\nfor the interpretation of Article III:4 when the measure at issue is a technical regulation. 764 Japan,\nhowever, expresses some concerns with this approach. First, Japan notes that this approach does\nnot appear to be consistent with the existing case law of the Appellate Body under which\n\"treatment no less favourable\", within the meaning of Article III:4, is assessed by examining\nwhether a measure modifies the conditions of competition in the relevant market to the detriment\nof like imported products. Second, Japan adds that, \"if some flexibility\" were introduced into\nArticle III:4, the question would arise as to whether this would render Article XX of the GATT 1994\nmeaningless.\n765\n2.271. Regarding the Panel's analysis under Article XX of the GATT 1994, Japan considers that the\nAppellate Body's observations in Thailand – Cigarettes (Philippines) \"imply that what a panel needs\nto focus on in an Article XX examination is the aspects leading to a finding of less favourable\ntreatment\".\n766 Japan notes, however, that, in Brazil – Retreaded Tyres , the Appellate Body\nsuggested that the panel \"might have opted for a more holistic approach\" by examining the import\nban at issue in combination with the MERCOSUR exemption, and whether the \"combined measure\"\nor the \"resulting partial import ban\" could be considered necessary within the meaning of\nArticle XX(b) invoked in that case. 767 In the present case, Japan understands the Panel to have\nfollowed such a \"more holistic\" approach. 768 According to Japan, it was \"essential to take into\naccount the ban together with the IC and MRM exceptions\".769\n2.272. With respect to the \"necessity\" test under Article XX(a), Japan notes that, although both\nArticle 2.2 of the TBT Agreement and Article XX of the GATT 1994 require a determination of the\ncontribution of the measure to the achievement of a particular objective, the legal standard or\n\"test\" under the two provisions is \"clearly different\". 770 Under Article 2.2, Japan notes that the\nanalysis is not focused on whether a technical regulation is \"necessary\" to achieve the legitimate\nobjective identified, but on whether \"the technical regulation is not 'more trade-restrictive than\nnecessary to fulfil the legitimate objective'\".\n771 Japan adds that, under Article 2.2, a technical\nregulation is not required to achieve a \"certain degree of contribution\" to the legitimate\nobjective.772 Japan considers that, under Article XX(a), when examining whether a measure is\n\"necessary to protect public morals\", the issue is not whether a measure makes \"a\" or \"some\"\ncontribution to the protection of public morals, but, instead, whether the measure at issue \"is\ncloser to the pole of indispensable rather than simply making a contribution to protect public\nmorals\".\n773 In Japan's view, to the extent that the \"necessity\" test under Article XX(a) requires\nthat a measure must \"make[] a material contribution\" to its objective, it appears that the Panel's\nfinding of \"some contribution\" or a contribution \"to a certain extent\", with respect to the EU Seal\nRegime's contribution, would not meet the \"necessity\" requirement under Article XX(a).774\n2.273. Japan also disagrees with the Panel's reliance on its \"legitimate regulatory distinction\"\nanalysis under Article 2.1 of the TBT Agreement in its analysis under the chapeau of Article XX for\ntwo reasons. First, Japan notes that the Panel's \"extrapolation\" of its Article 2.1 analysis to its\nassessment under the chapeau of Article XX does not include any analysis of the text of the two\nprovisions.\n775 Second, Japan considers that, to the extent that the \"legitimate regulatory\ndistinction\" test involves \"taking into account rationales other than the one which has been\n\n764 Japan's opening statement at the oral hearing.\n765 Japan's opening statement at the oral hearing.\n766 Japan's third participant's submission, para. 45 (referring to Appellate Body Report, Thailand –\nCigarettes (Philippines), para. 177).\n767 Japan's third participant's submission, para. 45 (quoting Appellate Body Report, Brazil – Retreaded\nTyres, para. 126).\n768 Japan's third participant's submission, para. 46.\n769 Japan's third participant's submission, para. 47.\n770 Japan's third participant's submission, para. 49 (referring to Appellate Body Report, US – Tuna II\n(Mexico), para. 317).\n771 Japan's third participant's submission, para. 50.\n772 Japan's third participant's submission, para. 50.\n773 Japan's third participant's submission, para. 52 (referring to Appellate Body Report, Brazil –\nRetreaded Tyres, para. 141, in turn referring to Appellate Body Report, Korea – Various Measures on Beef,\npara. 161).\n774 Japan's third participant's submission, para. 53 (quoting Panel Reports, paras. 7.637, 7.460,\nand 7.638, respectively).\n775 Japan's third participant's submission, para. 61.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nprovisionally justified under one of the paragraphs of Article XX\", it is contrary to the test under\nthe chapeau as developed in WTO jurisprudenc e, namely that the rationale or cause of\ndiscrimination be rationally connected to the objective of the measure.776\n2.7.4 Mexico\n2.274. Mexico agrees with the participants and the Panel that, under Annex 1.1 to the\nTBT Agreement, \"the proper legal character of the measure should be determined by examining\nthe measure as a whole, in a holistic manner.\" 777 At the same time, Mexico disagrees with what it\nsees as a \"mechanistic test\" proposed by the European Union that would seem \"to require a\ndifferent type of analysis when not every component of the measure at issue meet[s] the definition\nof a 'technical regulation' in isolation\".778\n2.275. Mexico recalls that the Appellate Body established a two-step test for discrimination under\nArticle 2.1 of the TBT Agreement. This test invo lves, first, an assessment of whether the measure\nat issue modifies the conditions of competition to the detriment of imported products and, second,\nan inquiry as to whether this detrimental impact stems exclusively from a legitimate regulatory\ndistinction. Mexico takes issue with the Panel's deci sion to divide the second step of the analysis\ninto three separate questions. Mexico agrees with Canada that the questions of whether a\ndistinction is rationally connected to the objective of a measure or whether it is otherwise justified\nshould be part of the overall assessment of th e even-handedness of the relevant regulatory\ndistinction.779\n2.276. Mexico further observes that the Panel appears to equate even-handedness to the absence\nof arbitrary or unjustifiable discrimination. Mexico submits that the Appellate Body has not limited\nthe meaning of even-handedness in this way, but instead has considered the presence of arbitrary\nand unjustifiable discrimination as an example of a lack of even-handedness. 780 In Mexico's view,\nany fact that could indicate a lack of even-handedness is relevant to the examination, including a\nconsideration of whether a measure is a disguised restriction on trade, or whether it is fair,\nimpartial, reasonable, and harmonious, having regard to the objective it pursues.\n2.277. Mexico agrees with Canada that the Panel should have included \"the risks non-fulfilment\nwould create\" – namely, \"the nature of the risks at issue and gravity of consequences that would\narise from non-fulfilment of the objective[s] pursued by the Member through the measure\" – as\nthe third factor in its assessment of \"necessity\" under Article 2.2 of the TBT Agreement.\n781 Further,\nMexico argues that, in the comparative analysis of the challenged measure and the possible\nalternative, ascertaining the degree of contribution of the latter \"means more than simply 'having\nthe same result' or a similar narrow definition that would apply to 'equivalent contribution' when\nviewed in isolation\".\n782 Thus, Mexico contends that, in such a comparative analysis, the degree of\ncontribution of the alternative measure to the legitimate objective does not have to be the same\nas that of the challenged measure, but could also be of a lesser degree if it is justified in the light\nof the risks non-fulfilment would create. In Mexico's view, \"[t]his interpretation is consistent with\nthe concept of proportionality.\"\n783\n2.278. Mexico submits that the European Union's interpretation of Articles I:1 and III:4 of the\nGATT 1994 would undermine the scope and application of these provisions. In Mexico's view, a\nmeasure accords less favourable treatment to imported products compared to like domestic\nproducts under Article III:4 where it modifies the conditions of competition in the relevant market\nto the detriment of the like imported products. Noting the Appellate Body's statement that the\n\n776 Japan's third participant's submission, para. 62 (referring to Appellate Body Report, Brazil –\nRetreaded Tyres, paras. 225-228).\n777 Mexico's third participant's submission, para. 6.\n778 Mexico's third participant's submission, para. 6 (referring to the European Union's other appellant's\nsubmission, para. 77).\n779 Mexico's third participant's submission, para. 9 (referring to Canada's appellant's submission,\npara. 66).\n780 Mexico's third participant's submission, para. 10 (referring to Appellate Body Reports, US – Clove\nCigarettes, paras. 95 and 271; and US – COOL, paras. 272, 293, 340, and 341).\n781 Mexico's third participant's submission, para. 18 (referring to Canada's appellant's submission,\nparas. 303-306; and quoting Appellate Body Reports, US – COOL, para. 378).\n782 Mexico's third participant's submission, para. 22.\n783 Mexico's third participant's submission, para. 23.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nterm \"treatment no less favourable\" in Article 2.1 of the TBT Agreement is to be interpreted in the\nlight of the specific context provided by that ag reement, Mexico agrees with the Panel that the\nadditional element that the Appellate Body considered as necessary to complete an analysis under\nArticle 2.1 reflects the absence in the TBT Agreement of a general exceptions clause equivalent to\nthat of Article XX of the GATT 1994.\n784 In Mexico's view, because of this difference between the\nTBT Agreement and the GATT 1994, there is no le gal basis to introduce into Article III:4 the\ntwo-step approach that has been developed for determining de facto less favourable treatment\nunder Article 2.1 of the TBT Agreement.\n2.7.5 Namibia\n2.279. Pursuant to Rule 24(4) of the Working Procedures, Namibia chose not to submit a third\nparticipant's submission, but it did make an opening statement at the oral hearing. Namibia\nsubmits that the Panel erred under Article 2.2 of the TBT Agreement. In Namibia's view, there is\nno logical connection for upholding the ban under the EU Seal Regime in order to protect public\nmorals. Namibia contends that, by allowing the ban for seals emanating from outside the European\nUnion, while animal welfare or public moral considerations are not applied to seal products\noriginating in the European Union, the Panel's ruling condones for the European Union what it\ncondemns for others. Namibia further contends that \"public morals\" is not a legitimate objective\nwithin the meaning of Article 2.2, and that, given th at it is an important issue, the drafters would\nhave listed it in the list of legitimate objectives under Article 2.2 if they had wanted to include it.\nIn addition, the travaux préparatoires make no reference to \"public morals\". Namibia expresses its\nconcern that, absent an explicit reference to pu blic morals in a challenged measure, a Member\nmay seek ex post facto to adjust the content of the objective to justify the measure.\n2.280. Namibia also criticizes the Panel for not referring to legislation and regulations of Namibia\nthat illustrate that compliance and monitoring in respect of seal harvesting can be achieved.\nNamibia urges the Appellate Body to take into account the stringent measures that Namibia has\nput in place for the protection of animal welfare, including the protection of seal welfare.\n2.7.6 United States\n2.281. The United States argues that, within the meaning of Annex 1.1 to the TBT Agreement,\n\"[a] measure that simply prohibits the sale of a product does not prescribe a product\ncharacteristic.\"\n785 Instead, a measure with different aspects \"would need to be analyzed separately\nfor purposes of the definition in the TBT Agreement\".786\n2.282. The United States observes that WTO Members may ban the sale of products for various\nreasons, and, as part of the effort to prevent the sale of those products, a WTO Member \"may also\nban the sale of products containing the banned product\".\n787 It is not clear to the United States\nwhy, under the Panel's logic, this action \"would result in a finding every time that the ban should\nbe considered to be a technical regulation\".788 For the United States, the Panel's finding that a ban\nprescribes product characteristics in the negative – \"no product sold can contain the banned\nproduct\" – does not appear to be consistent with the text of the Annex 1.1 to the TBT Agreement,\nread in its context, and in the light of the object and purpose of the Agreement.789 Referring to the\n1991 sixth edition of the ISO/IEC general terms and definitions concerning standardization 790\n(ISO/IEC Guide), the United States points out that the focus of standards, as well as technical\nregulations, \"is on ensuring that a product is fit for its purpose or aim\".791 By contrast, the purpose\nof a technical regulation \"is not to ban a product but to ensure that the product possesses or does\nnot possess a product characteristic that makes it usable, compatible, safe, protective of the\nenvironment or health, etc.\" 792 Consequently, \"to the extent that a measure bans the sale of a\n\n784 Mexico's third participant's submission, para. 29 (referring to Panel Reports, para. 7.585).\n785 United States' third participant's submission, para. 30.\n786 United States' third participant's submission, para. 31.\n787 United States' third participant's submission, para. 32.\n788 United States' third participant's submission, para. 32.\n789 United States' third participant's submission, para. 32 (referring to Panel Reports, para. 7.106).\n790 International Organization for Standardization/International Electrotechnical Commission,\nGuide 2:1991 – General terms and their definitions concerning standardization and related activities, 6th edn.\n791 United States' third participant's submission, para. 35 (referring to ISO/IEC Guide, definitions for\n\"standardization\", \"aims of standardization\", and \"product standard\").\n792 United States' third participant's submission, para. 35.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nproduct, rather than prescribing that the pr oduct possess or not possess a certain product\ncharacteristic, the measure is not a technical regulation.\"793\n2.283. Moreover, the United States submits that the criteria under the exceptions provide that\nany seal inputs in a product \"must result from certain processes or production methods\" 794, which,\nin the United States' view, \"are unrelated to the characteristics of the product\". 795 The\nUnited States underscores that the PPMs referred to in the definition of a \"technical regulation\" are\nthose that relate to product characteristics. Th e United States notes that, under Annex 1.1, the\nadministrative provisions must apply to product characteristics or their related PPMs. For the\nUnited States, it is therefore important to ascertain whether the administrative provisions at issue\napply to product characteristics or PPMs that ar e related to product characteristics, \"or whether\nthey instead apply to PPMs that are not related to product characteristics, such as the nature of\nthe hunt involved\".\n796 The United States further argues that the EU Seal Regime bans seal\nproducts based not on the characteristics of the products, but on the type of hunt that resulted in\nthe seal product.\n797 Consequently, according to the United States, the EU Seal Regime would not\nappear to be a \"technical regulation\".\n2.284. The United States submits that, because the \"critical phrases\" of Article III:4 of the\nGATT 1994 and Article 2.1 of the TBT Agreement ar e \"identically worded\", the two provisions\nmust, under the customary rules of interpretation of public international law, have the same\nordinary meaning.798 The United States contends that neit her the context of these provisions, nor\nthe object and purpose of the agreements in whic h they appear, indicates that the identical terms\nin these provisions should have different meanings. For the United States, the second recital of the\npreamble of the TBT Agreement – \"Desiring to further the objectives of the GATT 1994\" – also\nindicates that Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement should be\ninterpreted in the same way.799\n2.285. The United States further contends that th e Panel's interpretations of Articles I:1 and III:4\nof the GATT 1994 create an incoherent and incons istent relationship between the TBT Agreement\nand the GATT 1994. Noting that the Appellate Body has concluded that the TBT Agreement and the\nGATT 1994 \"should be interpreted in a coherent and consistent manner\", the United States\nmaintains that the Panel's interpretations of Arti cle III:4 of the GATT 1994 and Article 2.1 of the\nTBT Agreement are contrary to the principle that Article III:4 serves as relevant context for the\ninterpretation of Article 2.1.\n2.286. In the United States' view, the Appellate Body's finding in US – Clove Cigarettes that\nArticle 2.1 of the TBT Agreement does not prohib it technical regulations reflecting \"solely\"\nlegitimate regulatory distinctions \"followed naturally\" from the context of past Appellate Body\nreports examining Article III:4 of the GATT 1994.\n800 Thus, interpreting Article III:4 and Article 2.1\nas setting forth different legal standards would be contradictory, given the origin of the Appellate\nBody's approach to the interpretation of Article 2.1.\n801\n2.287. The United States rejects Canada's suggestion that the EU Seal Regime fails to make any\ncontribution to its objective because it does not completely prevent consumers from being exposed\nto seal products from inhumanely killed seals.\n802 In the view of the United States, a challenged\nmeasure is not inconsistent with Article 2.2 of the TBT Agreement merely because it does not fulfil\nits legitimate objective completely. The United States adds that a proposed alternative must then\nbe assessed to determine whether it would achieve the legitimate objective at the level chosen by\nthe Member. The United States further contends that Canada conflates the legal tests under\n\n793 United States' third participant's submission, para. 38.\n794 United States' third participant's submission, para. 39.\n795 United States' third participant's submission, para. 40.\n796 United States' third participant's submission, para. 43.\n797 United States' opening statement at the oral hearing.\n798 United States' third participant's submission, paras. 5 and 6, respectively.\n799 United States' third participant's submission, para. 6 (referring to Appellate Body Report, US – Clove\nCigarettes, para. 91).\n800 United States' third participant's submission, para. 15 (referring to Appellate Body Reports, US –\nClove Cigarettes, paras. 91 and 100; US – Tuna II (Mexico), paras. 214 and 215; and US – COOL, para. 269).\n801 United States' third participant's submission, para. 16 (referring to Appellate Body Report, US –\nClove Cigarettes, para. 91).\n802 United States' opening statement at the oral hearing.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nArticle 2.2 of the TBT Agreement and Article XX of the GATT 1994. According to the United States,\nArticle 2.2 is not about whether the measure is necessary to achieve the designated objective, but\nrather whether the trade-restrictiveness of the measure is greater than necessary. Additionally,\nthe United States maintains that Norway conflates these two provisions by arguing that Article 2.2\nprohibits arbitrary or unjustifiable discrimination. The United States asserts that Article 2.2 is not\nabout discrimination, but rather about whether a measure is more trade restrictive than necessary.\n2.288. The United States submits further that th e Panel's interpretation of Article III:4 of the\nGATT 1994 \"establishes the illogical possibility that a technical regulation could be found to be\nconsistent with the national treatment obligation\" of the TBT Agreement, but \"inconsistent with the\nsame national treatment language in the more general agreement, the GATT 1994\".\n803 According\nto the United States, \"[t]he Panel's interpretation would yield this result for a whole class of\nmeasures, namely technical regulations that pursue objectives that fall outside of the scope of\nArticle XX\" of the GATT 1994, and that \"result in a detrimental impact\" on imported products that\n\"stems exclusively from legitimate regulatory distinctions\".804\n2.289. The United States submits that the Panel' s interpretation of Article III:4 of the GATT 1994\n\"contradicts the principle that the [TBT Agreemen t and the GATT 1994] strike the same balance\"\nbetween trade-liberalization and Me mbers' right to regulate trade. 805 The United States explains\nthat the list of possible legitimate objectives that may justify a technical regulation is \"open and\nbroad\" under Article 2.1 of the TBT Agreement, while Article XX of the GATT 1994 presents a\nclosed list of legitimate objectives. 806 Thus, under the Panel's interpretation of Article III:4 of the\nGATT 1994, the balance between Members' right to regulate trade and the general interest of\ntrade-liberalization would be completely different under the GATT 1994 and the TBT Agreement.\nUnder Article 2.1 of the TBT Agreement, technical regulations serving objectives that fall outside\nthe scope of Article XX of the GATT 1994 could be justified, while, under the Panel's interpretation\nof Article III:4, measures serving these same objectives could not be justified.\n2.290. With respect to Article XX of the GATT 1994, the United States submits that Article XX(a)\ndoes not require some prescribed degree of consistency between public moral concerns in different\nsituations.807 As regards the Panel's reliance upon its assessment under Article 2.1 of the\nTBT Agreement for the purposes of its analysis und er the chapeau of Article XX, the United States\nsubmits that the question under Article 2.1 is whether the measure discriminates, while the\nquestion under the chapeau is whether any discrimination is arbitrary or unjustifiable. According to\nthe United States, while the analysis under Article 2.1 can end once discrimination is found, this is\nonly the \"starting point\" for the analysis under the chapeau of Article XX, and the chapeau\nbecomes relevant only once discrimination has been found. Finally, the United States expresses its\nconcern about Canada's and Norway's reading of the Appellate Body report in Brazil – Retreaded\nTyres, and submits that the chapeau does not limit the justification for discrimination only to a\njustification based on the objective under the relevant subparagraph of Article XX, rather than\nother \"legitimate and non-protectionist\" objectives.\n\n803 United States' third participant's submission, para. 19.\n804 United States' third participant's submission, para. 20.\n805 United States' third participant's submission, para. 22 (referring to Appellate Body Report, US –\nClove Cigarettes, para. 109).\n806 United States' third participant's submission, para. 23.\n807 United States' opening statement at the oral hearing.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n3 ISSUES RAISED IN THESE APPEALS\n3.1. The following issues are raised in these appeals:\na. whether the Panel erred in finding that the EU Seal Regime constitutes a \"technical\nregulation\" within the meaning of Annex 1.1 to the TBT Agreement (raised by the\nEuropean Union);\nb. with respect to the Panel's analysis under Article 2.1 of the TBT Agreement:\ni. whether the Panel erred in formulating and applying the legal test under Article 2.1\n(raised by Canada);\nii. whether the Panel erred in finding that the IC exception bears no \"rational\nrelationship\" to the objective of the EU Seal Regime (raised by the European Union);\niii. whether the Panel erred in finding that the regulatory distinction between\ncommercial and IC hunts is justifiable (raised by Canada);\niv. whether the Panel erred in finding that the EU Seal Regime is inconsistent with\nArticle 2.1 because the IC exception is not designed and applied even-handedly\n(raised by the European Union); and\nv. whether the Panel acted inconsistently with Article 11 of the DSU in its analysis of:\n- whether the IC exception is designed and applied even-handedly (raised by the\nEuropean Union);\n- the relationship between the IC except ion and the objective of the EU Seal\nRegime (raised by the European Union); and\n- whether commercial hunts and IC hunts can be distinguished on the basis that\nIC hunts are primarily for the purpose of subsistence (raised by Canada).\nc. with respect to the Panel's identification of the objective of the EU Seal Regime, whether\nthe Panel erred under Article 2.2 of the TBT Agreement, and acted inconsistently with\nArticle 11 of the DSU, in finding that the obje ctive of the EU Seal Regime is to address\nEU public moral concerns regarding seal welfare (raised by Norway);\nd. with respect to the Panel's analysis under Article 2.2 of the TBT Agreement:\ni. whether the Panel erred under Article 2.2, and acted inconsistently with Article 11 of\nthe DSU, in its relational analysis, including with respect to the contribution of the\nEU Seal Regime to its objective, and the less trade-restrictive alternatives (raised by\nCanada and Norway), and the risks that non-fulfilment would create (raised by\nCanada); and\nii. whether the Panel erred in failing to address \"arbitrary or unjustifiable\ndiscrimination\" in its analysis under Article 2.2 (raised by Norway);\ne. with respect to the Panel's analysis under Article I:1 and Article III:4 of the GATT 1994,\nwhether the Panel erred:\ni. in finding that the legal standard of the non-discrimination obligations under\nArticle 2.1 of the TBT Agreement does not apply equally to claims under Article I:1\nand Article III:4 (raised by the European Union); and\nWT/DS400/AB/R • WT/DS401/AB/R\n\nii. in finding that the EU Seal Regime is inconsistent with Article I:1 because, through\nthe IC exception, it does not \"immediately and unconditionally\" extend the same\nmarket access advantage accorded to seal products of Greenlandic origin to like seal\nproducts of Canadian and Norwegian origin (raised by the European Union);\nf. with respect to the Panel's analysis under Article XX(a) of the GATT 1994, whether the\nPanel erred in:\ni. concluding that the analysis under Article XX(a) of the GATT 1994 should examine\nthe prohibitive and permissive aspects of the EU Seal Regime (raised by Norway);\nii. concluding that the objective of the EU Seal Regime falls within the scope of\nArticle XX(a) (raised by Canada); and\niii. in finding that the EU Seal Regime is provisionally deemed necessary within the\nmeaning of Article XX(a) (raised by Canada and Norway);\ng. if the Appellate Body were to uphold the Panel's finding under Article I:1 of the\nGATT 1994, and were to reverse the Panel's finding under Article XX(a) of the\nGATT 1994, then whether the Panel acted inconsistently with Article 11 of the DSU in\nfinding that the European Union has failed to establish a prima facie case in respect of its\nclaim under Article XX(b) of the GATT 1994 (raised by the European Union); and\nh. with respect to the Panel's analysis under the chapeau of Article XX, whether the Panel\nerred:\ni. by applying the test developed under Arti cle 2.1 of the TBT Agreement to determine\nthe existence of arbitrary or unjustifiable discrimination (raised by Canada and\nNorway); and, if so, whether the Panel erred in finding that \"the IC exception does\nnot bear a rational relationship to the objective of addressing the moral concerns of\nthe public on seal welfare\" (raised by the European Union);\nii. in finding that the distinction between commercial and IC hunts is justifiable (raised\nby Canada); and\niii. in finding that the manner in which the IC exception is designed and applied does not\nmeet the requirements of the chapeau (raised by the European Union).\n4 BACKGROUND AND OVERVIEW OF THE MEASURE AT ISSUE\n4.1. Before addressing the participants' claims on appeal, we provide an overview of the measure\nat issue in these disputes.\n808 As noted by the Panel, the measure consists of the following two legal\ninstruments:\na. Regulation (EC) No. 1007/2009 of the Euro pean Parliament and of the Council of\n16 September 2009 on trade in seal products809 (Basic Regulation); and\nb. Commission Regulation (EU) No. 737/2010 of 10 August 2010 laying down detailed rules\nfor the implementation of Regulation (EC) No. 1007/2009 of the European Parliament\nand of the Council on trade in seal products810 (Implementing Regulation).\n\n808 For additional details on the measure at issue, recourse should be had to paragraphs 7.10 to 7.24 of\nthe Panel Reports.\n809 Official Journal of the European Union, L Series, No. 286 (31 October 2009) (Panel Exhibit JE-1).\n810 Official Journal of the European Union, L Series, No. 216 (17 August 2010) (Panel Exhibit JE-2).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n4.2. Before the Panel, the parties agreed th at the Basic Regulation and the Implementing\nRegulation should be treated as a single measure and the Panel, accordingly, examined the two\ninstruments as an \"integrated whole\".\n811 Following the terminology employed by the parties and\nthe Panel, we refer to these legal instru ments, together, as the \"EU Seal Regime\". 812 Pursuant to\nArticle 8 of the Basic Regulation and Article 12 of the Implementing Regulation, the EU Seal\nRegime entered into force on 20 August 2010.\n4.3. The EU Seal Regime does not have a specific section setting forth the objective of the\nEU Seal Regime. As noted by the Panel, the preamble of the Basic Regulation, comprising\n21 recitals, refers to the EU public's concerns about seal welfare issues (recitals 1, 4, 5, 10, 11)\nand the need to preserve the economic and social interests of Inuit communities engaged in seal\nhunting and to define the conditions for the exceptions under the EU Seal Regime (recitals 14\nand 17).\n813\n4.4. The EU Seal Regime establishes rules co ncerning the placing on the market of seal\nproducts.814 The term \"seal products\" is defined by the Basic Regulation as \"all products, either\nprocessed or unprocessed, deriving or obtained fr om seals, including meat, oil, blubber, organs,\nraw fur skins and fur skins, tanned or dressed, including fur skins assembled in plates, crosses and\nsimilar forms, and articles made from fur skins\".\n815\n4.5. Article 3 of the Basic Regulation sets out rules regarding \"conditions for placing on the\nmarket\" of seal products:\nArticle 3\nConditions for placing on the market\n1. The placing on the market of seal products shall be allowed only where the seal\nproducts result from hunts traditionally conducted by Inuit and other indigenous\ncommunities and contribute to their subsistence. These conditions shall apply at the\ntime or point of import for imported products.\n2. By way of derogation from paragraph 1:\n(a) the import of seal products shall also be allowed where it is of an occasional\nnature and consists exclusively of goods for the personal use of travellers or their\nfamilies. The nature and quantity of such goods shall not be such as to indicate that\nthey are being imported for commercial reasons;\n(b) the placing on the market of seal prod ucts shall also be allowed where the seal\nproducts result from by-products of hunting that is regulated by national law and\nconducted for the sole purpose of the sustainable management of marine resources.\nSuch placing on the market shall be allowed only on a non-profit basis. The nature\nand quantity of the seal products shall not be such as to indicate that they are being\nplaced on the market for commercial reasons.\nThe application of this paragraph shal l not undermine the achievement of the\nobjective of this Regulation. …\n\n811 See Panel Reports, paras. 7.8 and 7.26.\n812 See Panel Reports, paras. 2.1, 2.3, 3.7, 7.1, and 7.8.\n813 Panel Reports, paras. 7.386 and 7.387.\n814 Basic Regulation, Article 1.\n815 Basic Regulation, Article 2(2).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n4.6. As noted by the Panel, Article 3 of the Ba sic Regulation starts with a paragraph prescribing\nthat the placing on the market 816 of seal products shall be allowed only where the seal products\nresult from hunts traditionally conducted by Inuit817 and other indigenous communities818 (referred\nto by the Panel as \"IC\"), and contribute to their subsistence. 819 The word \"subsistence\" is not\ndefined in the EU Seal Regime. 820 Article 3(1) also states that the conditions in the first paragraph\nshall apply at the time or point of import for imported products.821\n4.7. The second paragraph of Article 3 begins with the phrase \"by way of derogation from\nparagraph 1\" and provides for two situations where derogation from paragraph 1 is allowed. First,\nArticle 3(2)(a) allows the import of seal products where: (i) the act of import is of an occasional\nnature; and (ii) the goods at issue are for the \"personal use of travellers or their families\". 822\nSecond, Article (3)(2)(b) allows the placing on the market of seal products where: (i) the seal\nproducts result from by-products of hunting that is regulated by national law; (ii) the hunting is\nconducted for the sole purpose of the sustainable management of marine resources (also referred\nto by the Panel as \"marine resource management\" or \"MRM\"); and (iii) the placing on the market\nis only on a non-profit basis.\n823 Both provisions contain a final sentence stipulating that \"[t]he\nnature and quantity of [such goods/the seal products] shall not be such as to indicate that they\nare being [imported/placed on the market] for commercial reasons.\" The EU Seal Regime does not\nprovide a definition for the terms \"commercial\" or \"commercial reasons\".\n824\n4.8. As noted by the Panel, \"the practical implication of Article 3 is that seal products derived from\nhunts other than IC or MRM hunts cannot be imported and/or placed on the EU market\" except to\nthe extent that the Travellers exception permits limited imports for personal use.\n825 Furthermore,\nas the Panel observed, the EU Seal Regime creates \" implicit exceptions f o r s e a l p r o d u c t s f o r\ntransit, inward processing, and importation for auction and re-export\".826\n\n816 The Basic Regulation defines \"placing on the market\" as \"introducing onto the Community market,\nthereby making available to third parties, in exchange for payment\". (Basic Regulation, Article 2(3))\n817 The Basic Regulation defines \"Inuit\" as \"indigenous members of the Inuit homeland, namely those\narctic and subarctic areas where, presently or traditionally, Inuit have aboriginal rights and interests,\nrecognised by Inuit as being members of their people and includes Inupiat, Yupik (Alaska), Inuit, Inuvialuit\n(Canada), Kalaallit (Greenland) and Yupik (Russia)\". (Basic Regulation, Article 2(4))\n818 The Implementing Regulation defines \"other indigenous communities\" as:\n[C]ommunities in independent countries who are regarded as indigenous on account of their\ndescent from the populations which inhabited the country, or a geographical region to which the\ncountry belongs, at the time of conquest or colonisation or the establishment of present State\nboundaries and who, irrespective of their legal status, retain some or all of their own social,\neconomic, cultural and political institutions.\n(Implementing Regulation, Article 2(1)) Neither the Basic Regulation nor the Implementing Regulation defines\nthe meaning of \"subsistence\".\n819 The Panel referred to this provision as setting out the \"IC exception\". (See e.g. Panel Reports,\nparas. 7.53 and 7.377) We do the same in these Reports.\n820 Panel Reports, para. 7.283 (referring to COWI, Study on implementing measures for trade in seal\nproducts, Final Report (January 2010) (Panel Exhibit JE-21) (COWI 2010 Report), p. 9).\n821 The Basic Regulation defines \"import\" as \"any entry of goods into the customs territory of the\nCommunity\". (Basic Regulation, Article 2(5))\n822 The Panel referred to this exception as the \"Travellers exception\". (See e.g. Panel Reports,\npara. 7.53) We do the same in these Reports.\n823 The Panel referred to this exception as the \"MRM exception\". (See e.g. Panel Reports, paras. 7.53\nand 7.377) We do the same in these Reports. The Implementing Regulation defines \"placing on the market on\na non-profit basis\" as \"placing on the market for a price less than or equal to the recovery of the costs borne\nby the hunter reduced by the amount of any subsidies received in relation to the hunt\". (Implementing\nRegulation, Article 2(2))\n824 Panel Reports, para. 7.41 (referring to European Union's response to Panel question No. 123,\npara. 84).\n825 Panel Reports, para. 7.45.\n826 Panel Reports, para. 7.53 (referring to European Union's response to Panel questions Nos. 75, 101,\n131, and 177; and Canada's and Norway's comments on European Union's response to Panel questions\nNos. 75, 101, 131, and 177). (emphasis original)\nWT/DS400/AB/R • WT/DS401/AB/R\n\n4.9. The Implementing Regulation sets out deta iled rules concerning the operation of the Basic\nRegulation. Article 3 of the Implementing Regulati on provides that, for placing on the market of\nseal products pursuant to Article 3(1) of the Basic Regulation, the seal products must originate\nfrom seal hunts that satisfy three conditions:\na. the seal hunt was conducted by Inuit or other indigenous communities that have a\ntradition of seal hunting in the community and in the geographical region;\nb. the products of the seal hunt are at least partly used, consumed or processed within the\ncommunities according to their traditions; and\nc. the seal hunt contributes to the subsistence of the community.\n4.10. Article 4 of the Implementing Regulation states that, in order to qualify under the Travellers\nexception in Article 3(2)(a) of the Basic Regulati on, one of the following three requirements must\nbe fulfilled:\na. the seal products are either worn by the travellers, or carried or contained in their\npersonal luggage;\nb. the seal products are contained in the personal property of a natural person transferring\nhis normal place of residence from a third country to the European Union; or\nc. the seal products are acquired on site in a third country by travellers and imported by\nthose travellers at a later date, provided that, upon arrival in the EU territory, those\ntravellers present to the customs author ities of the member State concerned the\nfollowing documents:\ni. a written notification of import; and\nii. a document giving evidence that the products were acquired in the third country\nconcerned.\n4.11. Finally, Article 5 of the Implementing Regula tion provides that, in order to qualify under the\nderogation set out in Article 3(2)(b), the seal products at issue must originate from seal hunts that\nsatisfy three conditions:\na. the seal hunt was conducted under a national or regional natural resources management\nplan that uses scientific population models of marine resources and applies the\necosystem-based approach;\nb. the seal hunt did not exceed the total allowable catch (TAC) quota established in\naccordance with the national or regional natural resources management plan referred to;\nand\nc. the by-products of the seal hunt can only be placed on the market in a non-systematic\nway on a non-profit basis.\n4.12. Besides these specific requirements, Articles 3(2) and 5(2) of the Implementing Regulation\nstipulate that, in cases of seal products from IC and MRM hunts, the seal products must be\naccompanied by the attesting documents prescribed in Article 7(1) of the Implementing Regulation\nat the time of the placing on the market. Pursuant to Article 7(1), such attesting documents shall\nbe issued by a \"recognized body\". Article 6 of the Implementing Regulation lays down the\nsubstantive and procedural requirements that must be fulfilled for an entity to be included in \"a list\nof recognized bodies\".\n4.13. The Panel used the terms \"IC hunts\" and \"MRM hunts\" to refer to seal hunts conforming to\nthe requirements of the IC and MRM exceptio ns, respectively, whereas it used the term\n\"commercial hunts\" to refer to hunts that do not conform to the IC and MRM requirements.\n827\n\n827 Panel Reports, paras. 7.13 and 7.14.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nDuring the interim review stage, Norway asserted that use of the terms \"commercial hunts\" and\n\"IC and MRM hunts\" could be taken to reflect a \"m oral judgement\" with respect to the different\nhunts, and that the Panel's own findings demonstrate \"the falseness of the distinction created by\nthe Panel between 'commercial' and the other types of hunts\".\n828 Norway suggested that the Panel\nadopt instead \"neutral language\" to reflect the basis for its distinction, such as \"non-conforming\nhunts\", or the \"Canadian East Coast hunt\" and \"Norwegian West Ice hunt\". 829 Canada suggested\nthat the phrase \"non-conforming hunts\" be used instead of \"commercial hunts\". 830 In rejecting the\nparties' requests, the Panel explained that the te rminology it employed was without prejudice to\nany findings on \"the existence of a commercial element in IC and MRM hunts\".831\n4.14. The EU Seal Regime does not expressly distinguish between \"commercial\" and\n\"non-commercial\" seal hunts. Instead, it dist inguishes between IC hunts and MRM hunts, on the\none hand, and all other hunts, on the other hand. Only seal products originating from the former\ntwo types of hunts can be placed on the EU market , provided that they comply with the relevant\nrequirements. In these Reports, we refer, as did the Panel, to hunts other than IC or MRM hunts as\n\"commercial hunts\" for ease of reference and without prejudice to the existence of a commercial\nelement in IC and MRM hunts.832\n5 ANALYSIS OF THE APPELLATE BODY\n5.1 Legal characterization of the EU Seal Regime – Annex 1.1 to the TBT Agreement\n5.1.1 Introduction\n5.1. Before the Panel, Canada and Norway challenged the consistency of the EU Seal Regime with\nvarious provisions of the GATT 1994 and the TBT Agreement.\n833 The Panel determined that it\nwould first examine the complainants' claims under the TBT Agreement. Before proceeding to\naddress the substance of these claims, the Panel ad dressed the threshold question of whether, as\ncontended by Canada and Norway, the measure at issue constitutes a \"technical regulation\" within\nthe meaning of Annex 1.1 to the TBT Agreement. In its analysis of this question, the Panel referred\nto what it described as a \"three-tier test\" and made three intermediate findings. 834 First, the Panel\nfound that the measure applies to an \"identifiable group of products\" 835, namely, seal products.\nSecond, the Panel determined that the EU Seal Re gime \"lays down characteristics for all products\nthat might contain seal\" as well as \"applicable administrative provisions for certain products\ncontaining seal inputs that are exempted from the prohibition under the measure [at issue]\".\n836\nThird, the Panel found that the measure imposes mandatory compliance.837\n5.2. The European Union does not contest the Panel's finding that the measure applies to an\n\"identifiable group of products\".838 Nor does it take issue with the Panel's determination839 that the\nmeasure imposes mandatory compliance. Instead, the European Union's appeal focuses on the\nPanel's finding that the measure lays down product characteristics, including the applicable\nadministrative provisions, and the Panel's conclusion that the EU Seal Regime is a technical\n\n828 Panel Reports, para. 6.7 (referring to Norway's comments on the Interim Panel Reports, paras. 37\nand 38).\n829 Panel Reports, para. 6.7.\n830 Panel Reports, para. 6.7.\n831 Panel Reports, para. 6.9.\n832 Panel Reports, paras. 6.7-6.9 and 7.179 (referring to Norway's comments on the Interim Panel\nReports, paras. 37 and 38).\n833 Specifically, both complainants brought claims under Articles I:1, III:4, XI:1, and XXIII:1(b) of the\nGATT 1994, and Articles 2.2, 5.1.2, and 5.2.1 of the TBT Agreement. Additionally, Canada presented a claim\nunder Article 2.1 of the TBT Agreement. Norway also brought a claim under Article 4.2 of the Agreement on\nAgriculture.\n834 Panel Reports, para. 7.85 (referring to Appellate Body Report, EC – Sardines, para. 176, in turn\nreferring to Appellate Body Report, EC – Asbestos, paras. 66-70; and Appellate Body Reports, US – Clove\nCigarettes; US – Tuna II (Mexico); and US – COOL).\n835 Panel Reports, para. 7.117 (quoting Appellate Body Report, EC – Asbestos, para. 70; and referring to\nAppellate Body Report, EC – Sardines, para. 180).\n836 Panel Reports. para. 7.111.\n837 Panel Reports, para. 7.125.\n838 European Union's other appellant's submission, para. 38 (referring to Panel Reports, para. 7.117).\n839 Panel Reports, para. 7.125.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nregulation.840 In reaching this conclusion, the Panel determined that the prohibition on\nseal-containing products lays down a product characteristic in the negative form by requiring that\nproducts placed on the EU market not contain seal.\n841 The Panel also found that the EU Seal\nRegime sets out, through its exceptions, the applic able administrative provisions for products with\n\"certain characteristics\".842 In the light of these findings, the Panel considered it unnecessary to\nexamine whether the EU Seal Regime also lays down \"related\" processes and production\nmethods.\n843\n5.3. On appeal, the European Union argues that the Panel erred by construing the term\n\"applicable administrative provisions\" as relating to \"products\" rather than \"product characteristics\nor their related processes and production methods\".\n844 The European Union underscores that the\nprocedural requirements contained in the EU Seal Regime do not directly pertain to \"what the\nPanel considered as a product characteristic laid down in the negative form, namely that the\nproducts must not contain seal\".845 Consequently, they cannot be considered as being \"applicable\"\nto a product characteristic within the meaning of Annex 1.1. The European Union further argues\nthat the Panel erred in finding that the criteria under the exceptions of the EU Seal Regime lay\ndown \"product characteristic[s]\". 846 Instead, they impose requiremen ts relating to the identity of\nthe hunter or the type or purpose of the hunt. A ccording to the European Union, the EU Seal\nRegime differs in this respect from the measure at issue in EC – Asbestos, where the exceptions\nthemselves laid down product characteristics. 847 The European Union cautions that, under the\nPanel's reasoning, \"virtually anything that [bears] any relation to a product\" could be construed as\na product characteristic, and be potentially cons idered a technical regulation subject to the\ndisciplines of the TBT Agreement.\n848 This, in the European Union's view, would \"subsume\n[processes and production methods] into product characteristics\" and mean that non-product\nrelated processes and production methods (P PMs) would fall within the ambit of the\nTBT Agreement.\n849\n5.4. The European Union further claims that the Panel erred in limiting its analysis of whether the\nmeasure lays down product characteristics to it s finding that the EU Seal Regime lays down\ncharacteristics of a product in a negative form, by providing that all products may not contain seal.\nReferring to the Appellate Body's findings in EC – Asbestos , the European Union recalls that the\nproper legal characterization of the measure at i ssue requires that it be examined \"as a whole\". 850\nThus, it was incorrect for the Panel to assume that a measure can be deemed a technical\nregulation \"simply because one of its components meets the criterion for a technical regulation\".851\nThe Panel should, instead, have based its determination on a consideration of all components of\nthe measure and their respective role in the operation and purpose of the EU Seal Regime.\n852 In\nthis regard, the European Union highlights that, if the prohibition contained in the EU Seal Regime\nis examined in the light of the IC, MRM, and Travellers exceptions, the measure \"cannot be\nreduced to the simple negative intrinsic product characteristic that products may not contain\nseal\".853 Nor does the EU Seal Regime, when considered as a whole, lay down \"product\ncharacteristics\" within the meaning of Annex 1.1 to the TBT Agreement.854\n5.5. Canada and Norway consider that the Pane l properly interpreted the scope of Annex 1.1 and\nrightly characterized the EU Seal Regime as a technical regulation. Canada maintains that the\n\"administrative provisions\" in the EU Seal Regime \"apply\" to product characteristics because the\nrelevant provisions in the Implementing Regulation operate to ensure that products containing seal\n\n840 European Union's other appellant's submission, para. 89.\n841 Panel Reports, para. 7.106.\n842 Panel Reports, para. 7.108.\n843 Panel Reports, para. 7.112.\n844 European Union's other appellant's submission, para. 53.\n845 European Union's other appellant's submission, para. 58.\n846 European Union's other appellant's submission, para. 66.\n847 European Union's other appellant's submission, para. 59.\n848 European Union's other appellant's submission, para. 66.\n849 European Union's other appellant's submission, para. 67.\n850 European Union's other appellant's submission, para. 76 (referring to Appellate Body Report, EC –\nAsbestos, para. 64).\n851 European Union's other appellant's submission, para. 79 (referring to Panel Reports, para. 7.100).\n852 European Union's other appellant's submission, para. 81.\n853 European Union's other appellant's submission, para. 88.\n854 European Union's other appellant's submission, para. 88.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nsatisfy the criteria under the exceptions. 855 In Canada's view, this is not different from the\nsituation in EC – Asbestos, where the administrative provisions in question established a procedure\nto ensure that the criteria set ou t in the exception were satisfied. 856 For Canada, the European\nUnion's concern that the Panel's approach will lead to an \"over-inclusive\" interpretation of\n\"applicable administrative provisions\" is unwarranted. 857 Canada further argues that the Panel\nproperly examined and based its determination on the relevant elements of the EU Seal Regime,\nincluding the prohibitive and permissive aspects of the measure, and the administrative\nprocedures. According to Canada, the Panel carefully considered the interplay among the various\nelements of the EU Seal Regime in reaching its conclusion.\n858\n5.6. For its part, Norway argues that the criter ia set out in the exceptions under the EU Seal\nRegime lay down an \"intrinsic\" feature of the su bject products because they determine \"when and\nunder what conditions a product may contain a particular input\". 859 Norway emphasizes that the\nlegal situation in these disputes is very similar to the one confronted by the Appellate Body in EC –\nAsbestos, and that the Panel closely followed the Appellate Body's reasoning in that dispute. 860\nNorway argues that the basis for the Panel's find ing that the EU Seal Regime lays down product\ncharacteristics was that the prohibitive elemen ts of the measure, in conjunction with the\npermissive elements that define their scope, lay down a product characteristic in the negative form\nby requiring that all products not contain seal. 861 Norway further submits that the administrative\nprovisions in the EU Seal Regime are applicable to certain products because these products exhibit\nor possess the \"product characteristic\" of containing seal inputs.\n862 I n t h a t s e n s e , a c c o r d i n g t o\nNorway, these administrative provisions \"apply, pertain and relate to the product characteristic\".863\nFinally, Norway maintains that the Panel conducted a \"holistic analysis\" of the EU Seal Regime 864,\nand correctly understood the import of EC – Asbestos to mean that \"the prohibition and exceptions\nneed not 'individually' lay down product characteristics, so long as, as a whole, they [do] so.\"865\n5.7. We turn to review the text of Annex 1.1 in the light of the various issues implicated by the\nEuropean Union's appeal.\n5.1.2 Interpretation of Annex 1.1 to the TBT Agreement\n5.8. Article 1.2 of the TBT Agreement stipulates that \"for the purposes of this Agreement the\nmeaning of the terms given in Annex 1 applies\". The first paragraph of Annex 1.1 defines the term\n\"technical regulation\" as follows:\nDocument which lays down product characteristics or their related processes and\nproduction methods, including the applicable administrative provisions, with which\ncompliance is mandatory. It may also include or deal exclusively with terminology,\nsymbols, packaging, marking or labelling re quirements as they apply to a product,\nprocess or production method.\n5.9. Annex 1.1 describes a technical regulation by reference to a \"document\". As noted by the\nAppellate Body in US – Tuna (II) (Mexico) , the use of the term \"document\" could \"cover a broad\nrange of instruments or apply to a variety of measures\".\n866\n\n855 Canada's appellee's submission, para. 40.\n856 Canada's appellee's submission, para. 40.\n857 Canada's appellee's submission, para. 41 (quoting European Union's other appellant's submission,\npara. 56).\n858 Canada's appellee's submission, para. 46 (referring to Panel Reports, para. 7.111).\n859 Norway's appellee's submission, para. 45 (referring to Norway's second written submission to the\nPanel, para. 146; and Norway's response to Panel question No. 127).\n860 Norway's appellee's submission, paras. 46-64.\n861 Norway's appellee's submission, para. 69 (referring to Panel Reports, paras. 7.106 and 7.111).\n862 Norway's appellee's submission, para. 83.\n863 Norway's appellee's submission, para. 80.\n864 Norway's appellee's submission, para. 89.\n866 Appellate Body Report, US – Tuna II (Mexico), para. 185.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.10. The first sentence of Annex 1.1 delineates the scope of measures that can be characterized\nas a technical regulation by referring to a document that \"lays down product characteristics or\ntheir related processes and production methods, including the applicable administrative\nprovisions\".\n867 The verb \"lay down\" is defined as \"establish, formulate definitely (a principle, a\nrule); prescribe (a course of action, limits, etc.)\". 868 Annex 1.1 further describes a technical\nregulation by reference to a \"document\" and makes clear that it is \"compliance\" with the content\nof the document laying down product characteristi cs or their related PPMs that must be found to\nbe \"mandatory\". Accordingly, the scope of Anne x 1.1 appears to be limited to those documents\nthat establish or prescribe something and thus have a certain normative content.\n5.11. The first sentence of Annex 1.1 refers to \"product characteristics\" or \"their related processes\nand production methods\". Looking first at the meaning of \"product characteristics\", in EC –\nAsbestos, the Appellate Body explained that the \"chara cteristics\" of a product include \"objectively\ndefinable 'features', 'qualities', 'attributes', or other 'distinguishing mark' of a product\".\n869 The\nAppellate Body added that such \"product characteristics\" might relate, inter alia, to \"a product's\ncomposition, size, shape, colour, texture, hardne ss, tensile strength, flammability, conductivity,\ndensity, or viscosity\". 870 The Appellate Body described these characteristics as \"features and\nqualities intrinsic to the product itself\", adding th at \"product characteristics\" within the meaning of\nAnnex 1.1 may also include \"related 'characteristics'\". 871 As the Appellate Body has noted, a\ntechnical regulation may lay down \"only one or a few 'product characteristics'\".872\n5.12. The definition of a technical regulation further provides that such a regulation may prescribe\n\"product characteristics or their related [PPMs]\". The use here of the disjunctive \"or\" indicates that\n\"related [PPMs]\" may play an additional or alternative role vis-à-vis \"product characteristics\" under\nAnnex 1.1. The noun \"process\" is ordinarily understood to refer to \"a course of action, a\nprocedure, a series of actions or operations directed to some end, as in manufacturing\".\n873 We\nfurther note that the dictionary defines the term \"production\" as \"[t]he process of being\nmanufactured commercially, esp. in large quantities\" 874, while the word \"method\" is defined as \"a\n(defined or systematic) way of doing a thing\". 875 The ordinary meaning of the term \"related\" is\n\"[h]aving relation; having mutual relation; connected\". 876 A plain reading of Annex 1.1 thus\nsuggests that a \"related\" PPM is one that is \"connected\" or \"has a relation\" to the characteristics of\na product. The word \"their\", which immediately precedes the words \"related processes and\nproduction methods\", refers back to \"product ch aracteristics\". Thus, in the context of the first\nsentence of Annex 1.1, we understand the reference to \"or their related processes and production\nmethods\" to indicate that the subject matter of a technical regulation may consist of a process or\nproduction method that is related to product characteristics. In order to determine whether a\nmeasure lays down related PPMs, a panel thus wi ll have to examine whether the processes and\nproduction methods prescribed by the measure have a sufficient nexus to the characteristics of a\nproduct in order to be considered related to those characteristics.\n5.13. Continuing with our review of the first sentence of Annex 1.1, we note the reference to\n\"applicable administrative provisions\", which is linked to the words \"product characteristics or their\nrelated processes and production methods\" by the conjunctive \"including\". The word \"provision\" is\nrelevantly defined as \"a legal or formal statement providing for some particular matter\".\n877 The\n\n867 Appellate Body Report, US – Tuna II (Mexico), para. 185.\n868 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 1, p. 1562.\n869 Appellate Body Report, EC – Asbestos, para. 67.\n870 Appellate Body Report, EC – Asbestos, para. 67.\n871 Appellate Body Report, EC – Asbestos, para. 67. In that appeal, the Appellate Body considered that\nsuch \"related\" characteristics may pertain to \"the means of identification, the presentation and the appearance\nof a product\". (Ibid.)\n872 Appellate Body Report, EC – Asbestos, para. 67.\n873 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 2, p. 2356.\n874 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 2, p. 2359.\n875 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 1, p. 1767.\n876 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 2, p. 2519.\n877 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 2, p. 2384.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nadjective \"administrative\", in turn, is defined as \"[p]ertaining to management of affairs\". 878 The\nterm \"applicable\" in this context indicates that the relevant \"administrative provisions\" must\n\"refer\" to or be \"relevant\" to the product characteristics or their related PPMs as prescribed in the\nrelevant document.\n879 The word \"including\" suggests that, where a mandatory document laying\ndown product characteristics or their related processes and production methods also contains\n\"administrative provisions\" that refer to those \"product characteristics\" or \"related processes and\nproduction methods\", those administrative provisions are to be considered as an integral part of\nthe technical regulation and are thus subject to the substantive provisions of the TBT Agreement.\nIn the context of Annex 1.1, we understand th e appositive clause \"including the applicable\nadministrative provisions\" to refer to provisions to be applied by virtue of a governmental mandate\nin relation to either product characteristics or their related processes and production methods.\n5.14. The second sentence of Annex 1.1 further enumerates specific elements that technical\nregulations \"may also include or deal exclusively with\", namely, \"terminology, symbols, packaging,\nmarking or labelling requirements\" as they apply to a product, process or production method. The\nuse of the words \"also include\" and \"deal exclusively with\" at the beginning of the second sentence\nindicates that the second sentence includes elemen ts that are additional to, and may be distinct\nfrom, those covered by the first sentence of Annex 1.1.\n5.15. Having reviewed the text of Annex 1.1, we turn to examine whether the Panel erred in its\napplication of Annex 1.1 to the facts of this case when it found that the EU Seal Regime constitutes\na technical regulation. We consider it useful to begin by recalling the relevant aspects of the\nmeasure that the Panel found in this case to constitute a \"technical regulation\" within the meaning\nof Annex 1.1 to the TBT Agreement.\n5.1.3 Whether the EU Seal Regime constitutes a technical regulation\n5.1.3.1 Overview of the EU Seal Regime\n5.16. As noted by the Panel, the EU Seal Regime establishes \"rules concerning the placing on the\nmarket of seal products\".\n880 Specifically, Article 3(1) of the Basic Regulation prescribes that the\nplacing on the market of seal products is allowed \"only where the seal products result from hunts\ntraditionally conducted by Inuit and other indigenous communities and contribute to their\nsubsistence\".881 Article 3(2) of the Basic Regulation sets out two \"derogations\" from Article 3(1).\nFirst, Article 3(2)(a) allows the importation of a seal product by a traveller under certain\nconditions. Second, Article 3(2)(b) allows the placing on the market of seal products where: (i) the\nseal products result from by-products of hunting that is regulated by national law; (ii) the hunting\nis conducted for the sole purpose of the sustainable management of marine resources; and (iii) the\nplacing on the market is only on a non-profit basis. Specific requirements for each of the three\nconditions for importing and/or placing seal pr oducts on the market are elaborated in the\nImplementing Regulation.\n882\n5.17. Referring to the IC, MRM, and Travellers ex ceptions, the Panel noted that the conditions set\nout under the EU Seal Regime, together, both allo w and prohibit the placing of seal products on\nthe market. The Panel therefore correctly considered that the EU Seal Regime does not constitute\na \"total\" or \"general\" ban on seal products, but instead \"consists of both prohibitive and permissive\ncomponents and should be examined as such\".\n883\n\n878 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 1, p. 28.\n879 See Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 1, p. 103.\n880 Panel Reports, para. 7.40 (referring to Basic Regulation, Article 1).\n881 Panel Reports, para. 7.13 (quoting Basic Regulation, Article 3(1)).\n882 See supra, paras. 4.9-4.11.\n883 Panel Reports, para. 7.54.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.1.3.2 Preliminary remarks\n5.18. We wish to make three preliminary remarks before we examine the European Union's claims\nregarding the Panel's characterization of the measure at issue under Annex 1.1 to the\nTBT Agreement.\n5.19. First, the Appellate Body has emphasized that a determination of whether a measure\nconstitutes a technical regulation \"must be made in the light of the characteristics of the measure\nat issue and the circumstances of the case\".\n884 As the Appellate Body has explained, this analysis\nshould give particular weight to the \"integral and essential\" aspects of the measure. 885 In\ndetermining whether a measure is a technical regulation, a panel must therefore carefully examine\nthe design and operation of the measure while s eeking to identify its \"integral and essential\"\naspects.\n886 It is these features of the measure that are to be accorded the most weight for\npurposes of characterizing the measure, and, ther eby, for determining whether it is subject to the\ndisciplines of the TBT Agreement. The ultimate conclusion as to the legal characterization of the\nmeasure must be made in respect of, and having considered, the measure as a whole.\n5.20. Second, the issue of how best to characterize a measure at issue which comprises several\ndifferent elements is one that arises in many disput es. The question is of particular significance in\ncases where the inclusion or exclusion of certain elements in the definition of the measure can\naffect the legal characterization, or substantive analysis of the measure. A panel may, in some\ncases, find it appropriate to treat several domestic legal instruments together as a single measure\nin order to facilitate its analysis of that measure in the light of the claims raised or defences\ninvoked.\n887 Conversely, there may be instances where a panel may choose to consider different\nelements set out in a single legal instrument as different \"measures\", for purposes of its\nanalysis.888 As regards the measure at issue in the present disputes, the Panel noted that: (i) the\nBasic Regulation and the Implementing Regulation \"operate in conjunction with each other in\ngoverning the importation and the placing of seal products on the EU market\" 889; (ii) the\npermissive and the prohibitive elements of th e measure are intertwined within the EU Seal\nRegime890; and (iii) the parties agreed that the EU Seal Regime should be treated as a single\nmeasure.891 For the purpose of Annex 1.1, we therefore consider it appropriate to draw\nconclusions regarding the legal characterization of the EU Seal Regime as a whole on the basis of\nan integrated analysis of the constituent parts of the measure.\n5.21. Third, regarding the scope of this aspect of the European Union's appeal, we recall that the\nEuropean Union does not contest the Panel's findin g that the measure applies to an \"identifiable\ngroup of products\"\n892 or the Panel's determination that the measure imposes mandatory\ncompliance.893 We consider it useful nonetheless to note, as did the Panel, that the product scope\nof the EU Seal Regime is defined in Article 2(2) of the Basic Regulation as \"all products, either\nprocessed or unprocessed, deriving or obtained fr om seals, including meat, oil, blubber, organs,\nraw fur skins and fur skins, tanned or dressed, including fur skins assembled in plates, crosses and\nsimilar forms, and articles made from fur skins\". This confirms that the measure at issue applies to\nan identifiable group of products, that is, seal products as defined in Article 2(2).\n\n884 Appellate Body Report, US – Tuna II (Mexico), para. 188 (referring to Appellate Body Reports, EC –\nAsbestos, para. 64; and EC – Sardines, paras. 192 and 193).\n885 Appellate Body Report, EC – Asbestos, para. 72.\n886 Appellate Body Report, EC – Asbestos, para. 72.\n887 For example, in EC – Bananas III, the EC Banana Regime comprised the Council Regulation\n(EEC) 404/931 \"and the subsequent EC legislation, regulations and administrative measures, including those\nreflecting the provisions of the Framework Agreement on Bananas, which implemented, supplemented and\namended that regime\". (Panel Reports, EC – Bananas III, para. 1.1) Treating multiple legal instruments as a\nsingle measure does not preclude a complainant from challenging different aspects of such a measure under\ndifferent provisions of the WTO covered agreements.\n888 See e.g. Appellate Body Report, Brazil – Retreaded Tyres, paras. 126 and 127.\n889 Panel Reports, para. 7.26.\n890 For example, in the case of the IC exception, Article 3(1) of the Basic Regulation prescribes that the\nplacing on the market of seal products is allowed \"only where the seal products result from hunts traditionally\nconducted by Inuit and other indigenous communities and contribute to their subsistence\". (emphasis added)\n891 Panel Reports, para. 7.26 (referring to parties' responses to Panel question No. 2).\n892 Panel Reports, para. 7.117.\n893 Panel Reports, para. 7.125.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.22. Moreover, the EU Seal Regime is mandatory in the sense that it prescribes rules concerning\nthe placing on the market of seal products \"in a binding or compulsory fashion\".894 Specifically, the\nEU Seal Regime prohibits seal products from the EU market, except in cases where they meet the\nconditions prescribed in Article 3 of the Basic Re gulation and Articles 3 and 5 of the Implementing\nRegulation. The mandatory nature of the EU Seal Regime is therefore found in the conditions that\ngovern the placing on the EU market of seal pr oducts, as defined in Article 2(2) of the Basic\nRegulation.\n5.23. Although the Panel's findings regarding these features of the EU Seal Regime have not been\nappealed, they may nonetheless assist us in determining whether, in the light of the design and\noperation of the EU Seal Regime, the Panel properly determined that the measure lays down\nproduct characteristics, including the applicable administrative provisions, and, therefore,\nconstitutes a \"technical regulation\" within the meaning of Annex 1.1.\n5.24. With these considerations in mind, we turn to examine the Panel's analysis of the EU Seal\nRegime in the light of the European Union's appeal.\n5.1.3.3 Whether the EU Seal Regime lays down product characteristics including the\napplicable administrative provisions\n5.1.3.3.1 The Panel's approach\n5.25. Referring to the Appellate Body report in EC – Asbestos , the Panel stated that it would\n\"proceed to examine the prohibitive and permissive aspects of the EU Seal Regime with a view to\ndetermining whether the EU Seal Regime, taken as a whole, lays down product characteristics or\ntheir related PPMs within the meaning of Annex 1.1\".\n895 The Panel recalled the Appellate Body's\nfinding in EC – Asbestos that the prohibition on asbestos fibres \"as such\" did not lay down \"product\ncharacteristics\" because it simply banned asbestos fibres in their natural state.896 The Panel further\nnoted, however, that the prohibition on asbestos-containing products was found by the Appellate\nBody \"to lay down a product characteristic in the negative form by requiring that all products must\nnot contain asbestos\". 897 Turning to the measure at issue in the instant disputes, the Panel\nobserved that the EU Seal Regime \"prohibits all seal products, whether they are made exclusively\nof seal or contain seal as an input\" and that it makes an exception \"with regard to the import\nand/or placing on the market of seal products in three situations, namely when they result from\nIC hunts, MRM hunts, or in the case of Travellers imports\". 898 Based on the text of the measure,\nand in the light of the reasoning of the Appellate Body in EC – Asbestos, the Panel concluded:\n[W]e believe that the prohibition on seal-containing products under the EU Seal\nRegime lays down a product characteristic in the negative form by requiring that all\nproducts not contain seal.[*]\n899\n[*fn original] 153 We note that such conclusion is not affected by the fact that the prohibition of\nseals \"in their natural state\" might not, in itself, prescribe or impose any \"characteristics\". In this\nregard, Norway argues that the appropriate analog ues to the \"raw mineral form\" of asbestos in\nthe context of the EU Seal Regime would be live seals or unprocessed seal carcasses. In\nNorway's view, the majority of seal products ar e in fact \"mixed\" products, i.e. they must be\ncombined with other products derived from other sources. (Norway's second written submission,\nparas. 154-155).\n\n894 Appellate Body Report, EC – Asbestos, para. 68.\n895 Panel Reports, para. 7.102. See also para. 7.99 (referring to Appellate Body Report, EC – Asbestos,\npara. 64).\n896 Panel Reports, para. 7.104 (referring to Appellate Body Report, EC – Asbestos, para. 71). See also\nPanel Reports, para. 7.99.\n897 Panel Reports, para. 7.104.\n898 Panel Reports, para. 7.105 (referring to Basic Regulation, Articles 3(1), 3(2)(a), and 3(2)(b)).\n899 Panel Reports, para. 7.106.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.26. On appeal, the European Union recalls that the proper legal character of the measure at\nissue cannot be determined unless the measure is examined \"as a whole\". 900 According to the\nEuropean Union, if the prohibition contained in the EU Seal Regime is examined in the light of the\nIC, MRM, and Travellers exceptions, the measure \"cannot be reduced to the simple negative\nintrinsic product characteristic that products may not contain seal\".\n901\n5.27. The Panel's reasoning on the issue of whether the EU Seal Regime lays down product\ncharacteristics is limited to the brief passage set out above. Moreover, the conclusion the Panel\nreached in paragraph 7.106 of the Panel Reports pertains to the \"prohibition on seal-containing\nproducts\".902 The Panel then proceeded to find, in paragr aph 7.108, that the EU Seal Regime sets\nout, through its exceptions, \"applicable administrative provisions\" without assessing the weight\nthat should properly be ascribed to those elemen ts of the measure in identifying the essential and\nintegral aspects of the measure. Subsequently, in paragraph 7.111 of its Reports, the Panel stated,\nwithout further reasoning, that the EU Seal Regime \"considered as a whole\" lays down\ncharacteristics for all products that might contain seal.\n5.28. We disagree with the approach adopted by the Panel. The Panel stated that the EU Seal\nRegime \"consists of both prohibitive and permi ssive components and should be examined as\nsuch\"\n903, explaining that the \"prohibitive\" component of the EU Seal Regime \"operates as a ban on\nseal products\", while the \"permissive\" component consists of \"an exception and two derogations,\nforming three conditions prescribed in Article 3 of the Basic Regulation (i.e. seal products obtained\nfrom IC hunts, MRM hunts, and those imported under the Travellers imports category)\".\n904\nAlthough the Panel set out to \"examine the prohibitive and permissive aspects of the EU Seal\nRegime with a view to determining whether the EU Seal Regime, taken as a whole, lays down\nproduct characteristics or their relate d PPMs within the meaning of Annex 1.1\" 905, it appears that\nthe Panel's conclusion that the measure lays down product characteristics rests on its assessment\nof a single component of the measure. In other words, having compartmentalized its assessment\nof the various components of the EU Seal Regime in this manner, the Panel seemed satisfied once\nit had found that the prohibition on seal-containing products laid down product characteristics in\nthe negative form. The Panel then proceeded to find that other components of the measure,\ni.e. the exceptions under the EU Seal Regime, constitute \"applicable administrative provisions\"\nbecause they \"define the scope of the prohibition\" of the EU Seal Regime; and that the \"nature of\nthe exceptions is to allow products containing seal\" subject to \"strict administrative requirements\"\nbased on a \"set of criteria\".\n906 It is not apparent from its Reports that the Panel conducted a\nholistic assessment of the weight and relevance of each of the relevant components of the EU Seal\nRegime before reaching a conclusion as to the legal characterization of the measure \"as a whole\".\n5.29. As noted, the Appellate Body has emphasized that a determination of whether a measure\nconstitutes a technical regulation \"must be made in the light of the characteristics of the measure\nat issue and the circumstances of the case\".\n907 In EC – Asbestos , the Appellate Body placed\nparticular emphasis on the \"integral and essential\" aspects of the measure908, \"taking into account,\nas appropriate, the prohibitive and the permissive elements that are part of it\". 909 In order to\ndetermine the proper legal characterization of the EU Seal Regime, the Panel should therefore\nhave examined the design and operation of the me asure while seeking to identify its \"integral and\nessential\" aspects before reaching a final conclusion as to the legal characterization of the measure\n\n900 European Union's other appellant's submission, para. 76 (referring to Panel Reports, para. 7.101).\n901 European Union's other appellant's submission, para. 88.\n902 Panel Reports, para. 7.106.\n903 Panel Reports, para. 7.54.\n904 Panel Reports, para. 7.56.\n905 Panel Reports, para. 7.102.\n906 Panel Reports, para. 7.108. We further note in this regard that the Panel found that the criteria\nunder the exceptions of the EU Seal Regime constitute \"objectively definable features\" of the seal products and\n\"consequently lay down particular 'characteristics' of the final products\". (Panel Reports, para. 7.110)\n907 Appellate Body Report, US – Tuna II (Mexico), para. 188 (referring to Appellate Body Reports, EC –\nAsbestos, para. 64; and EC – Sardines, paras. 192 and 193).\n908 Appellate Body Report, EC – Asbestos, para. 72.\n909 Appellate Body Report, EC – Asbestos, para. 64. In reaching this conclusion, the Appellate Body took\ninto account the content of Canada's request for the establishment of a panel (i.e. Canada's identification of\nthe Decree concerned as \"the measure at issue\") as well as the content of the measure itself (consisting of\nprohibitions and limited exceptions). The Appellate Body then examined each component (i.e. prohibitions and\nexceptions) of the measure before making an overall assessment of whether the measure, viewed as an\nintegrated whole, was a \"technical regulation\" within the meaning of Annex 1.1.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nin respect of, and having considered, the measure as a whole. Although a measure that comprises,\namong other elements, a prohibition of seal-containing products may include a component that\nappears to prescribe product characteristics, we consider the Panel to have erred, to the extent it\nreached a final conclusion as to the legal character of the measure on the basis of an examination\nof the aspect of the EU Seal Regime that sets out a \"prohibition on seal-containing products\" taken\nalone.\n910 The Panel could not have properly reached a conclusion as to the legal character of the\nmeasure at issue without analysing the weight and relevance of the essential and integral\nelements of the measure as an integrated whole.\n5.30. Having expressed our concern regarding the overall approach adopted by the Panel, we turn\nto address the participants' arguments as they relate to the three specific aspects of the EU Seal\nRegime: (i) the prohibition on products consisting exclusively of seal (pure seal products); (ii) the\nprohibition on seal-containing products (\"mixed\" products); and (iii) the conditions under the\nIC/MRM/Travellers exceptions. Then, to the extent necessary, we address the participants'\narguments regarding the applicable administrative provisions. We do so in order to assess\nwhether, and to what extent, these aspects of the measure have features prescribing product\ncharacteristics while seeking to identify the e ssential and integral features of the measure.\nFollowing our examination of the EU Seal Regime as a whole, we draw a conclusion as to whether\nthe Panel erred in finding that the measure lays down product characteristics including applicable\nadministrative provisions in the sense of Annex 1.1 to the TBT Agreement.\n5.1.3.3.2 Prohibitive and permissive elements\n5.31. We note, first, that the Appellate Body has previously explained that a measure \"may\nprovide, positively, that products must possess certain 'characteristics'\", or it \"may require,\nnegatively, that products must not possess certain 'characteristics'\".\n911 As the Appellate Body has\nexplained, the legal result is the same in both cases: \"the document 'lays down' certain binding\n'characteristics' for products, in one case affirmatively, and in the other by negative\nimplication.\"912\n5.32. The European Union observes that one aspect of the EU Seal Regime consists of a\nprohibition on pure seal products.913 According to the European Union, the Panel erred by failing to\ntake into account that such a ban on pure seal products does not set out product characteristics.\nThe European Union adds that this aspect of the measure is similar to the prohibition of asbestos\nfibres \"as such\" in EC – Asbestos , which the Appellate Body found did not constitute a technical\nregulation.\n914\n5.33. Norway counters that the mere fact that th e EU Seal Regime applies to pure seal products\ndoes not preclude the measure from being characterized as a technical regulation, considering that\nit lays down characteristics for all products containing seal inputs. 915 Norway adds that the\nmajority of seal products subject to the EU Seal Regime are \"mixed products\" that include\nnon-seal inputs, such as \"tanned seal fur skin; boots with seal fur skins; slippers with seal fur skin;\nrefined seal oil; omega-3 oil capsules; and processed seal meat\".\n916 According to Norway, \"the\nextent of pure seal products is so limited\" that it does not affect the overall finding made by the\nPanel that the EU Seal Regime lays down product characteristics for all products that might contain\nseal inputs.\n917\n\n910 Panel Reports, para. 7.106.\n911 Appellate Body Report, EC – Asbestos, para. 69. (emphasis original)\n912 Appellate Body Report, EC – Asbestos, para. 69.\n913 The Panel concluded on the basis of its examination of the text and legislative history of the EU Seal\nRegime, as well as other evidence pertaining to its design, structure, and operation, that the objective of the\nEU Seal Regime is \"to address the moral concerns of the EU public with regard to the welfare of seals\". (Panel\nReports, para. 7.410)\n914 European Union's other appellant's submission, para. 33 (referring to Appellate Body Report, EC –\nAsbestos, paras. 71 and 72).\n915 Norway's appellee's submission, para. 95.\n916 Norway's appellee's submission, para. 96 (referring to Norway's first written submission to the Panel,\nparas. 85-102).\n917 Norway's appellee's submission, para. 96.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.34. In EC – Asbestos , the Appellate Body observed that the measure at issue prohibited\nasbestos fibres in their raw form.918 The Appellate Body found that if a measure consisted only of a\nprohibition on a product in its natural state, it might not constitute a technical regulation.\nSpecifically, the Appellate Body stated:\nThe first and second paragraphs of Article 1 of the Decree [96-1133] impose a\nprohibition on asbestos fibres, as such. This prohibition on these fibres does not, in\nitself, prescribe or impose any \"characteristics\" on asbestos fibres, but simply bans\nthem in their natural state. Accordingly, if this measure consisted only of a prohibition\non asbestos fibres, it might not constitute a \"technical regulation\".\n919\n5.35. We agree with the European Union that a prohibition of pure seal products does not\nprescribe or impose any \"characteristics\" on such products. Unlike in EC – Asbestos, where it was\nundisputed that asbestos fibres had \"n o known use in their raw mineral form\" 920, products\nconsisting exclusively of seal are used, consumed and traded to a considerable extent even though\ntrade in \"mixed products\" has surpassed trade in seal products in recent years.\n921\n5.36. We agree with the European Union that the Panel should therefore have assessed the\nrelevance of this aspect of the measure in order to determine whether it was a part of the integral\nand essential aspects of the measure and, if so, what weight it should ascribe to it in determining\nwhether the EU Seal Regime, as a whole, lays do wn product characteristics. As noted, however,\nrather than conducting such an assessment, the Panel simply stated in footnote 153 of its Reports,\nthat its conclusion that the measure lays down product characteristics is \"not affected by the fact\nthat the prohibition of seals 'in their natural state' might not, in itself, prescribe or impose any\n'characteristics'\".\n922 This does not, in our view, show sufficient consideration of the integral and\nessential aspects of the measure as a whole.\n5.37. We turn next to examine the EU Seal Regime as it applies to products containing seal as an\ninput. With regard to products containing seal and other ingredients (\"mixed\" products), the\nEuropean Union argues that the Panel should have also taken into account, together with the\nprohibition on seal-containing products, the exceptions under the measure, \"because it is the\npermissive elements, together with the prohibition, that determine the situations where seal\nproducts may be placed on the European Union market\".\n923 In response, Canada argues that the\nPanel correctly found that the EU Seal Regime \"[lays] down a product characteristic in the negative\nform by requiring that 'all products not contain seal'\".\n924\n5.38. For its part, Norway argues that the Pane l took the exceptions under the EU Seal Regime\n\"into account in finding that the measure as a whole lays down product characteristics\". 925 Norway\nnotes, in particular, that the Panel reasoned that the exceptions \"define the scope of the\nprohibition\" of the EU Seal Regime and that the \"nature of the exceptions is to allow products\ncontaining seal\" subject to \"strict administrative requirements\" under the measure.926\n5.39. In EC – Asbestos , the Appellate Body found that an \"integral and essential aspect of the\nmeasure [was] the regulation of ' products containing asbestos fibres '\".927 The Appellate Body\nattached importance to the fact that the measure at issue in that case effectively prescribed\n\"certain objective features, qualities or 'characteristics' on all products\".\n928 The prohibition on\nseal-containing products as such may be seen as imposing certain \"objective features, qualities or\ncharacteristics\" on all products by providing that they may not contain seal. Yet, that prohibition is\nbut one of the components of the EU Seal Regime and has to be analysed together with other\n\n918 Appellate Body Report, EC – Asbestos, para. 71.\n919 Appellate Body Report, EC – Asbestos, para. 71. (emphasis original)\n920 Appellate Body Report, EC – Asbestos, para. 72 (referring to Panel Report, EC – Asbestos,\nparas. 3.418 and 3.439).\n921 Panel Reports, paras. 7.240 and 7.241.\n922 Panel Reports, fn. 153 to para. 7.106 (quoting Appellate Body Report, EC – Asbestos, para. 71).\n923 European Union's other appellant's submission, para. 34 (referring to European Union's first written\nsubmission to the Panel, para. 216). (emphasis original)\n924 Canada's appellee's submission, para. 37 (referring to Panel Reports, para. 7.106).\n925 Norway's appellee's submission, para. 49.\n927 Appellate Body Report, EC – Asbestos, para. 72. (emphasis original)\n928 Appellate Body Report, EC – Asbestos, para. 72. (emphasis omitted)\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncomponents of the measure before reaching a conclusion under Annex 1.1. As the Appellate Body\nhas previously noted, \"the proper legal character of the measure at issue cannot be determined\nunless the measure is examined as a whole.\"\n929 Moreover, the Appellate Body in EC – Asbestos did\nnot conclude that the relevant French Decree qualified as a technical regulation merely on the\nbasis of its intermediate finding that the aspect of the measure setting out a prohibition on \"mixed\nproducts\" prescribed \"certain objective features, qualities or 'characteristics' on all products\". 930\nRather, the Appellate Body reached its conclusion only after further examining other aspects of the\nmeasure (i.e. certain exceptions to such prohibition). Given that the EU Seal Regime \"consists of\nboth prohibitive and permissive components\" 931, we consider it necessary further to examine the\npermissive elements of the measure before drawing, on the basis of all relevant components of the\nEU Seal Regime, an overall conclusion as to whether the measure prescribes product\ncharacteristics.\n5.40. As noted, Article 1 of the Basic Regulation, entitled \"Subject matter\", states that the\nRegulation establishes \"rules concerning the placing on the market of seal products\". Article 3, the\nkey substantive provision of the Basic Regulation, entitled \"Conditions for placing on the market\",\nstarts with a paragraph prescribing that the plac ing on the market of seal products shall be\nallowed only where the seal products result from hunts traditionally conducted by Inuit and other\nindigenous communities and contribute to their subsistence. 932 The second paragraph of Article 3\nprovides for two situations where derogation from paragraph 1 is allowed. First, the placing on the\nmarket of seal products on a non-profit basis is allowed where a seal product is derived from\nMRM hunts and is not being placed on the market for \"commercial reasons\" (Article 3(2)(b)).\n933\nSecond, the import by travellers of a seal product is allowed to the extent that it is not for\n\"commercial reasons\" (Article 3(2)(a)). Specific requirements for each of the three conditions for\nimporting and/or placing seal products on the ma rket are elaborated in other parts of the Basic\nRegulation and the Implementing Regulation.\n934\n5.41. Before turning to examine the conditions under the exceptions, we consider it helpful to\nobserve the different features of the measures at issue in EC – Asbestos and in these disputes.\nFirst, we note that, under the French Decree, asbestos-containing products were regulated\ndue to the carcinogenicity or toxicity of the physical properties of the subject products\n– i.e. the fact that those products contained asbestos fibres. By contrast, the EU Seal Regime does\nnot prohibit seal-containing products merely on the basis that such products contain seal as an\ninput. Rather, such prohibition is imposed subject to conditions based on criteria relating to the\nidentity of the hunter or the type or purpose of the hunt from which the product is derived.\nIn EC – Asbestos, by contrast, the identity of the producer or manufacturer, or the type or purpose\nof manufacturing, did not feature in the French Decree as conditions for the prohibition or\npermission to place asbestos products on the market. Moreover, the prohibition of products\ncontaining asbestos set out in Article 1, paragraphs I and II of the French Decree, was an \"integral\nand essential aspect\" of the measure at issue in EC – Asbestos .\n935 On the other hand, under the\nEU Seal Regime, in particular, Article 3 of the Basic Regulation, the prohibition on the products\ncontaining seal seems to be derivative of the three (IC/MRM/Travellers) market access conditions,\nthat is, the permissive component of the measure.\n5.42. In addition, we note the difficulty of verifying precisely whether a particular product contains\nseal as an input.\n936 This may suggest, albeit indirectly, that the regulation of the \"mixed products\"\nis not an equally important feature of the EU Seal Regime as far as the operation of the measure is\nconcerned, as it was the case for the regulation of products containing chrysotile asbestos fibres\nunder the measure at issue in EC – Asbestos. Finally, we note that, with respect to the exceptions\nregarding crysotile asbestos fibres, pursuant to Article 2 of the French Decree at issue\nin EC – Asbestos , the exceptions under that measure applied on \"an exceptional and temporary\n\n929 Appellate Body Report, EC – Asbestos, para. 64.\n930 Appellate Body Report, EC – Asbestos, para. 72. (emphasis omitted)\n931 Panel Reports, para. 7.54.\n932 Panel Reports, para. 7.13.\n933 Article 3(2)(b) of the Basic Regulation states, at the end: \"The nature and quantity of the seal\nproducts shall not be such as to indicate that they are being placed on the market for commercial reasons.\"\n(emphasis added)\n934 See supra, paras. 4.9-4.11.\n935 Appellate Body Report, EC – Asbestos, para. 72.\n936 European Union's response to questioning at the oral hearing.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nbasis\"937 and the Appellate Body referred to these as \"limited exceptions\" 938, which is not the case\nfor the exceptions under the EU Seal Regime.\n5.43. We now turn to examine whether the cond itions under the exceptions of the EU Seal\nRegime have features prescribing product characteristics.\n5.44. The complainants confirmed at the oral hear ing that they did not allege that the exceptions\nunder the EU Seal Regime, when considered alone, lay down product characteristics. 939 The\nEuropean Union asserts, however, that the Panel did make such a finding, and points to the\nfollowing reasoning by the Panel:\n[O]nly seals obtained from the specific type of hunter and/or the qualifying hunts may\nbe used in making final products. These criteria in our view constitute \"objectively\ndefinable features\" of the seal products that are allowed to be placed on the\nEU market and consequently lay down particular \"characteristics\" of the final products.\nTherefore, as was the case in EC – Asbestos, the exceptions under the EU Seal\nRegime identify a group of products with particular \"characteristics\" through a\nnarrowly defined set of criteria.\n940\n5.45. The Panel's discussion cited above gives the impression that the Panel treated the identity\nof the hunter, the type of hunt, and the purpose of the hunt as \"product characteristics\" within the\nmeaning of Annex 1.1. In particular, we note that the Panel referred to these as \"objectively\ndefinable features\" of seal products that \"lay down particular 'characteristics' of the final\nproducts\".\n941 We consider the Panel to have erred in this regard. We see no basis in the text of\nAnnex 1.1, or in prior Appellate Body reports, to suggest that the identity of the hunter, the type\nof hunt, or the purpose of the hunt could be viewed as product characteristics. 942 Nor do we see a\nbasis to find that the market access conditions under the exceptions to the EU Seal Regime exhibit\nfeatures setting out product characteristics.\n5.46. We now turn to examine the participants' arguments regarding the \"applicable\nadministrative provisions\".\n5.1.3.3.3 Applicable administrative provisions\n5.47. As noted by the Panel, Articles 6 thro ugh 10 of the Implementing Regulation prescribe\nprocedural requirements that must be met to pl ace seal products on the market. For example,\nunder Article 7 of the Implementing Regulation, for a seal product to be placed on the market, it\nmust be accompanied by an attesting document is sued by a recognized body, and a reference to\nthe attesting document number must be included in any further invoice.\n943 Competent authorities\ndesignated by the EU member States may verify the certificates accompanying imported products,\nand monitor the issuing of certificates by recognized bodies established in their territory. 944\nSimilarly, with regard to the Travellers exceptio n, the EU Seal Regime includes a requirement to\npresent, for products imported to the European Un ion, a written notification of import to customs\nauthorities.945\n5.48. The Panel found that the EU Seal Regime sets out, through its exceptions, the \"applicable\nadministrative provisions\" \"for products with certain objective 'characteristics'\". 946 The Panel\nexplained in this regard that the exceptions und er the EU Seal Regime constitute \"applicable\n\n937 Appellate Body Report, EC – Asbestos, para. 2 (quoting French Decree, Article 2).\n938 Appellate Body Report, EC – Asbestos, para. 73.\n939 Canada's and Norway's responses to questioning at the oral hearing.\n940 Panel Reports, para. 7.110.\n941 Panel Reports, para. 7.110.\n942 We note in this regard that Article 2.9 of the TBT Agreement envisages that technical regulations\nhave \"technical content\". While the term \"technical\" can have a range of meanings, it does not appear\nplausible that a measure that purportedly distinguishes between seal products on the basis of criteria relating\nto the identity of the hunter and the purpose of the hunt would be \"technical\" in nature or have \"technical\"\ncontent.\n943 Implementing Regulation, Article 7.\n944 Implementing Regulation, Article 9(1).\n945 Implementing Regulation, Article 4(3).\n946 Panel Reports, para. 7.108.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nadministrative provisions\" because they \"define the scope of the prohibition\" of the EU Seal\nRegime.947 The Panel further noted that the \"nature of the exceptions is to allow products\ncontaining seal\" subject to \"strict administrative requirements\" based on a \"set of criteria\".948\n5.49. The European Union argues on appeal that the Panel erred in considering that the word\n\"applicable\" pertains to products rather than \"product characteristics or their related processes and\nproduction methods\". 949 Pointing to the text of Annex 1.1, the European Union observes that\n\"[t]he reference to 'applicable administrative provisions' immediately follows the mention of\n'product characteristics or their related processes and production methods'\", with the two\ncategories being linked by \"the conjunctive term 'including'\". 950 Regarding the measure at issue,\nthe European Union contends that, while the procedural requirements contained in the\nImplementing Regulation might be described as ad ministrative provisions, they \"do not directly\npertain to … what the Panel considered as a product characteristic laid down in the negative form,\nnamely that the products must not contain seal\". 951 Instead, they regulate trade in seal\nproducts.952 For the European Union, they cannot therefore be considered as being \"applicable\" to\na product characteristic within the meaning of Annex 1.1.\n5.50. Canada counters that the administrative provisions in the EU Seal Regime \"apply to product\ncharacteristics in the sense that the administrative provisions operate to ensure that products that\nexhibit the product characteristic of containing seal satisfy the criteria set out in the exceptions\".953\nAccording to Canada, the European Union was therefore \"misguided\" in its concern that the Panel's\nreasoning leads to an \"over-inclusive\" characterization of \"applicable administrative provisions\".\n954\n5.51. Norway agrees with the Panel's finding that the EU Seal Regime \"prescribes 'applicable\nadministrative provisions' for products with certain objective characteristics\". 955 The administrative\nprovisions under the measure at issue in EC – Asbestos applied to products possessing the\nregulated product characteristic of containing chrysotile asbestos 956, while the exceptions under\nthe EU Seal Regime include administrative provisions, which \"'apply' to products possessing the\nregulated product characteristic\" of containing seal. 957 According to Norway, \"the close nexus\nbetween 'administrative provisions' and 'product characteristics' arises because the products\nexhibit or possess the 'product characteristic' laid down in the document in question.\"958\n5.52. As noted above, we read the clause \"including the applicable administrative provisions\" in\nAnnex 1.1 to refer to provisions to be applied by virtue of a governmental mandate in relation to\neither product characteristics or their related processes and production methods. To the extent\nthat the essential and integral aspects of the EU Seal Regime that were identified above do not set\nout product characteristics, it follows that their related administrative provisions cannot be\ncharacterized as being applicable to product characteristics.\n5.53. We further note that the EU Seal Regime differs from the measure at issue in EC – Asbestos\nin the sense that the exceptions contained in the latter measure were found by the Appellate Body\nto involve product characteristics, and the Appellate Body could therefore find that the\n\"administrative provisions\" in that dispute applied to such product characteristics. Specifically, in\nEC – Asbestos, the Appellate Body found that the nature of the exceptions in that case was to\npermit \"the use of certain products containing chrysotile asbestos fibres , subject to compliance\nwith strict administrative requirements\".\n959 The Appellate Body added that \"[t]he scope of the\n\n947 Panel Reports, para. 7.108.\n948 Panel Reports, para. 7.108.\n949 European Union's other appellant's submission, para. 53 (referring to Panel Reports, para. 7.108).\n950 European Union's other appellant's submission, para. 55.\n951 European Union's other appellant's submission, para. 58.\n952 European Union's other appellant's submission, para. 58.\n953 Canada's appellee's submission, para. 40 (referring to the European Union's other appellant's\nsubmission, para. 55).\n954 Canada's appellee's submission, para. 41 (quoting the European Union's other appellant's\nsubmission, para. 56).\n955 Norway's appellee's submission, para. 63 (referring to Panel Reports, para. 7.109).\n956 Norway's appellee's submission, para. 61 (referring to Appellate Body Report, EC – Asbestos,\npara. 73).\n957 Norway's appellee's submission, para. 63.\n958 Norway's appellee's submission, para. 80. (emphasis original)\n959 Appellate Body Report, EC – Asbestos, para. 73. (emphasis added)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nexceptions [was] determined by an 'exhaustive list' of products that are permitted to contain\nchrysotile asbestos fibres \".960 It is uncontested that the conditions governing the exception\nin EC – Asbestos applied to products possessing defined objective characteristics – i.e. products\ncontaining chrysotile asbestos fibres. Moreover, the inclusion of a product in the list of exceptions\ndepended \"on the absence of an acceptable alternative fibre for incorporation into a particular\nproduct, and the demonstrable provision of 'all technical guarantees of safety'\". 961 We further note\nthat, under the measure at issue in EC – Asbestos, the alternative fibre, the absence of which gave\nrise to the exception, was designed to be incorporated into a particular product and provide all\ntechnical guarantees of safety, which would seem to be features closely related to product\ncharacteristics.\n5.54. Ultimately, the Appellate Body considered that, through these exceptions , the measure at\nissue in EC – Asbestos set out \" applicable administrative provisions \" for products with particular\ncharacteristics.\n962 Unlike the measure at issue in EC – Asbestos , the EU Seal Regime does not\nprohibit (or permit) the importation or placing on the EU market of products depending on whether\nor not they contain seal as an input. Instead, as the Panel observed:\n[I]n order to fall under the IC or MRM exceptions, products containing seal must meet\ninter alia the following criteria relating to seal hunts from which the seals used as their\ninput are derived: the identity of the hunt er (Inuit or indigenous); the type of hunt\n(traditional Inuit hunts); the purpose of the hunt (subsistence or marine resource\nmanagement); and the way in which the products are marketed (non-systematically\nand on a non-profit basis).\n963\n5.55. In this way, the measure conditions market access on the type and purpose of the seal\nhunt, and the identity of the hunter. 964 As we pointed out above, such criteria do not constitute\nproduct characteristics in the sense of Annex 1.1.\n5.56. Referring to Articles 3(2), 5(2), and 7(1) of the Implementing Regulation, the Panel noted\nthat, under the EU Seal Regime:\nAny person wishing to import and/or place seal products on the market under these\nexceptions must have such products certified by a recognized body as meeting the\nnecessary criteria under each exception. Furthermore, the products must be\naccompanied by an attesting document at the time of placing on the market. In\naddition, with respect to the particular unit of seal products for which it is issued, the\nattesting document indicates whether the products result from hunts conducted by\nInuit or other indigenous communities, or from hunts for the sustainable management\nof marine resources.\n965\n5.57. Although the administrative provisions under the EU Seal Regime \"apply\" to products\ncontaining seal, this does not, in our view, mean that the measure at issue amounts to a technical\nregulation for that reason alone. Rather, as we see it, the administrative provisions serve to\nidentify the exempted products, through the type and purpose of the relevant seal hunt, and the\nidentity of the hunter. The administrative provisions under the EU Seal Regime also require that\nthese products be certified by a recognized body as meeting the necessary criteria under each\nexception.\n966 Yet, when viewed together with the exceptions under the EU Seal Regime, we\nconsider that this aspect of the measure is ancillary, and does not render the measure a \"technical\nregulation\" within the meaning of Annex 1.1.\n\n960 Appellate Body Report, EC – Asbestos, para. 73. (emphasis added)\n961 Appellate Body Report, EC – Asbestos, para. 73. (emphasis added)\n962 Appellate Body Report, EC – Asbestos, para. 74 (referring to Panel Report, EC – Asbestos,\npara. 8.69). (emphasis added)\n964 See supra, paras. 4.4-4.11.\n966 Articles 6 through 10 of the Implementing Regulation prescribe the procedural requirements that\nmust be met to place seal products on the EU market, that is, for a seal product to be placed on the\nEU market, it must be accompanied by an attesting document (Article 7) issued by a recognized body\n(Article 6). A reference to the attesting document number must be included in any further invoice\n(Article 7(4)). A model attesting document is attached as an annex to the Implementing Regulation. (See Panel\nReports, para. 7.24)\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.1.3.3.4 Conclusion\n5.58. Having reviewed the relevant aspects of the EU Seal Regime, we see only one feature that\nmay suggest that the measure lays down product char acteristics, while all others suggest that this\nis not the case. For example, to the extent that the measure regulates the placing on the\nEU market of pure seal products, which is a pa rt of the integral and essential aspects of the\nmeasure, it does not prescribe or impose any \"characteristi cs\" on the products themselves. To the\nextent the measure prohibits the placing on the EU market of seal-containing products, it could be\nseen as imposing certain \"objective features, qualities or characteristics\" on all products by\nproviding that they may not contain seal. However, as stated above, we are not persuaded that\nthis part of the Regulation constitutes the main feature of the measure at issue. Moreover, the\nEU Seal Regime's prohibition of \"mixed\" products differs, to a considerable extent, from the\nprohibitive aspects of the French Decree under EC – Asbestos . More importantly, as noted by the\nPanel, the EU Seal Regime \"consists of both proh ibitive and permissive components and should be\nexamined as such\".\n967 As we see it, when the prohibitive aspects of the EU Seal Regime are\nconsidered in the light of the IC and MRM exceptions, it becomes apparent that the measure is not\nconcerned with banning the placing on the EU ma rket of seal products as such. Instead, it\nestablishes the conditions for placing seal products on the EU market based on criteria relating to\nthe identity of the hunter or the type or purpose of the hunt from which the product is derived. We\nview this as the main feature of the measure. That being so, we do not consider that the measure\nas a whole lays down product characteristics. This is not changed by the fact that the\nadministrative provisions under the EU Seal Regime may \"apply\" to products containing seal.\n5.59. In the light of the above, we reverse the Panel's findings, in paragraphs 7.111 and 7.112 of\nthe Panel Reports, that the EU Seal Regime lays down product characteristics. The Panel's\nconclusion that the EU Seal Regime constitutes a \"technical regulation\" relied on its intermediate\nfinding that the EU Seal Regime lays down product characteristics. Accordingly, having reversed\nthis finding by the Panel, we also reverse the Panel's findings in paragraphs 7.125 and 8.2(a) of\nthe Panel Reports that the EU Seal Regime constitutes a \"technical regulation\" within the meaning\nof Annex 1.1 to the TBT Agreement.\n5.60. In our analysis above, we have addressed the participants' arguments as they pertain to the\nPanel's interpretation and application of the terms \"product characteristics\" and \"applicable\nadministrative provisions\" in the first sentence of Annex 1.1. In doing so, we have focused on the\ntext and the immediate context found in Annex 1. 1 as well as on previous jurisprudence by the\nAppellate Body. In future cases, depending on the nature of the measure and the circumstances of\nthe case, a panel may find it helpful to seek further contextual guidance in other provisions of the\nTBT Agreement, for example, those pertaining to standards\n968, international standards 969, and\nconformity assessment procedures 970, in delimiting the contours of the term \"technical\nregulation\".971 It may also be relevant for a panel to examine supplementary means of\ninterpretation such as the negotiating history of the TBT Agreement or the types and the nature of\nclaims that have been brought by the complainants. Indeed, as the Appellate Body has\nemphasized, a determination of whether a measure constitutes a technical regulation \"must be\nmade in the light of the characteristics of th e measure at issue and the circumstances of the\ncase\".\n972\n\n967 Panel Reports, para. 7.54.\n968 TBT Agreement, Annex 1.2.\n969 TBT Agreement, Articles 2.4, 2.5, 2.6, and 2.9.\n970 TBT Agreement, Article 5 and Annex 1.3. If the requirements set out in a measure are not apt to be\nsubject to \"conformity assessment procedures\" as defined in Annex 1.3, this may be an indication that the\nmeasure at issue is not a technical regulation.\n971 Thus, for example, if a measure has characteristics of a \"standard\" within the meaning of Annex 1.2,\nit would not constitute a technical regulation. In determining whether this is the case, it may also be relevant\nto consider provisions such as Articles 2.4, 2.5, 2.6, and 2.9 of the TBT Agreement.\n972 Appellate Body Report, US – Tuna II (Mexico), para. 188 (referring to Appellate Body Reports,\nEC – Asbestos, para. 64; and EC – Sardines, paras. 192 and 193).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.1.3.4 Completing the legal analysis\n5.61. We note that both Canada and Norway have requested, should we find that the Panel erred\nin determining that the EU Seal Regime lays down \"product characteristics\" and/or \"applicable\nadministrative provisions\" within the meaning of Annex 1.1, and reverse either of those findings of\nthe Panel, that we complete the analysis and find that the EU Seal Regime constitutes a \"technical\nregulation\" within the meaning of Annex 1.1 to the TBT Agreement.\n973 Hence, having reversed the\nPanel's finding that the measure lays down \"product characteristics\", we now consider whether we\ncan complete the legal analysis as requested by the complainants.\n5.62. We begin by noting that, in its Notice of Other Appeal, the European Union appealed the\nPanel's finding that the EU Seal Regime is a \"technical regulation\" and alleged specifically that the\nPanel erred: (i) in finding the exceptions under the EU Seal Regime constitute \"applicable\nadministrative provisions\"; (ii) in concluding that the measure laid down \"product characteristics\";\nand (iii) in failing to make a holistic assessment of the measure at issue. In our reasoning above,\nwe have addressed each of the issues raised on appeal by the European Union.\n5.63. In some previous disputes, the Appellate Body has completed the analysis with a view to\nfacilitating the prompt settlement and effective resolution of the dispute.\n974 However, the Appellate\nBody has done so only if the factual findings of the panel and the undisputed facts on the panel\nrecord provide it with a sufficient basis for its own analysis. 975 In addition, the Appellate Body has\nbeen unable to complete the legal analysis in the light of the complexity of the legal issues\ninvolved, in conjunction with the absence of full exploration of the issues before the panel, and,\nconsequently, considerations pertaining to parties' due process rights.\n976 Moreover, the Appellate\nBody has declined to complete the legal analysis of a panel in circumstances where that would\ninvolve addressing claims \"which the panel had not examined at all\".977\n5.64. Turning to the specific case before us, we recall that the first sentence of Annex 1.1\nindicates that the subject matter of a technical regulation may consist of either \"product\ncharacteristics\" or \"their related processes and production methods\". Hence, we might, in\nprinciple, be able to complete the analysis by ruling on whether the EU Seal Regime lays down\n\"their related processes and production methods\" and therefore qualifies as a technical regulation\neven though it does not lay down product characteristics.\n5.65. The European Union argued at the oral hearing that the Appellate Body would not be in a\nposition to determine whether the EU Seal Regime lays down \"related processes and production\nmethods\" in the absence of sufficient factual findin gs by the Panel. We are not entirely convinced.\nAs we see it, the text of the measure provides us with some basis to determine whether the\nEU Seal Regime lays down \"related processes and production methods\" within the meaning of\n\n973 Canada's appellee's submission, para. 66; Norway's appellee's submission, para. 101.\n974 See e.g. Appellate Body Reports, Australia – Salmon, paras. 117 and 118; US – Wheat Gluten,\nparas. 80-92; and Canada – Aircraft (Article 21.5 – Brazil), paras. 43-52.\n975 See Appellate Body Reports, Australia – Salmon, paras. 241 and 255; Korea – Dairy, para. 102;\nCanada – Autos, paras. 133 and 144; and Korea – Various Measures on Beef, para. 128. See also Appellate\nBody Reports, EC – Asbestos, para. 79; and EC – Export Subsidies on Sugar, para. 337.\n976 See Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program,\npara. 5.224 (referring to Appellate Body Report, EC – Export Subsidies on Sugar, fn 537 to para. 339). In EC –\nExport Subsidies on Sugar, the Appellate Body stated that, \"in the light of Article 21 of the Agreement on\nAgriculture and the chapeau of Article 3 of the SCM Agreement, the question of the applicability of the\nSCM Agreement to the export subsidies in this dispute raises a number of complex issues.\" (Appellate Body\nReport, EC – Export Subsidies on Sugar, para. 339 (referring to Appellate Body Report, US – Upland Cotton,\nparas. 532 and 533, in turn quoting Appellate Body Report, EC – Bananas III, para. 155; and referring to\nAppellate Body Report, Chile – Price Band System, para. 186)) In that case, the Appellate Body considered\nthat, \"in the absence of a full exploration of these issues, completing the analysis might affect the due process\nrights of the participants.\" (Ibid.)\n977 Appellate Body Report, EC – Asbestos, para. 79. See also Appellate Body Report, EC – Poultry,\npara. 107.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nAnnex 1.1. The European Union has not explained to us why factual findings in this regard would\nhave been required and which factual findings are missing.978\n5.66. Norway argued before the Panel, as an alte rnative to its argument that the EU Seal Regime\nlays down \"product characteristics\", that the measure at issue \"prescribes related PPMs within the\nmeaning of Annex 1.1\". 979 Norway asserted that a PPM is laid down through the IC and\nMRM exceptions. With respect to the IC category , Norway argued that \"the IC requirements\nprescribe a 'process' involving a particular course of action (a traditional hunt by specified persons)\nwith a defined end (the production of se al products for community subsistence).\"980 Regarding the\nMRM category, Norway claimed that \"the measure imposes a particular course of action relating to\nthe purpose of the hunt (sustainable marine resource management); the way in which the hunt is\nconducted (regulated at national level pursuant to a resource management plan); and the way in\nwhich the seal products are marketed (not-for-profit, non-commercial nature and quantity).\"\n981\nFurthermore, \"the action also has a defined end (the sale of MRM by-products).\" 982 Norway further\nargued that the processes prescribed through the IC and MRM exceptions under the EU Seal\nRegime \"'relate' to defined product characteristics\" in the sense that they lay down \"when a\nproduct containing seal can be marketed\". 983 For its part, Canada argued that \"the identity of the\nproducers of a product could be a relevant factor in the identification of a PPM.\" 984 In particular,\nCanada noted that \"certain elements of the Inuit Communities category could be characterized as\n[PPMs]\".985\n5.67. Although the Panel recognized in its Reports 986 that the complainants had made arguments\non \"related PPMs\" in the alternative, it also noted that \"[t]he meaning of the phrase 'their related\nPPMs' has not yet been examined in a WTO dispute.\"987 In addition, the Panel expressly stated that\nit did \"not find it necessary to examine whether the EU Seal Regime also lays down PPMs\". 988 The\nPanel did not develop any interpretation of \"related PPMs\", nor did it make any findings on whether\nthe EU Seal Regime lays down \"related processes and production methods\". 989 Under the Panel's\nlogic, as it found the EU Seal Regime to lay down product characteristics including the applicable\nadministrative provisions, it saw no reason to examine this issue. Consequently, the Panel\nproceedings were conducted without the Panel exploring this issue with the parties, and we thus\nlack the benefit of sufficient elaboration by the parties of their arguments on this matter.\n5.68. In their written submissions on appeal, the complainants have not developed argumentation\non whether and why the EU Seal Regime lays down related PPMs. At the oral hearing, Norway\nreiterated its argument that a PPM is \"related\" to product characteristics when compliance with the\nprescribed PPM determines whether a product can or cannot have a particular characteristic.\n990 For\nits part, Canada confirmed at the oral hearing that it had not argued in these proceedings that the\n\n978 In China – Auto Parts, the Appellate Body recalled that:\n[T]he municipal law of WTO Members may serve not only as evidence of facts, but also as\nevidence of compliance or non-compliance with international obligations. When a panel examines\nthe municipal law of a WTO Member for purposes of determining whether the Member has\ncomplied with its WTO obligations, that determination is a legal characterization by a panel, and\nis therefore subject to appellate review under Article 17.6 of the DSU. The Appellate Body has\nreviewed the meaning of a Member's municipal law, on its face, to determine whether the legal\ncharacterization by the panel was in error, in particular when the claim before the panel\nconcerned whether a specific instrument of municipal law was, as such, inconsistent with a\nMember's obligations.\n(Appellate Body Reports, China – Auto Parts, para. 225 (fns omitted))\n979 Panel Reports, para. 7.90.\n980 Panel Reports, para. 7.90 (referring to Norway's second written submission to the Panel, para. 162).\n981 Panel Reports, para. 7.90 (referring to Norway's second written submission to the Panel, para. 162).\n982 Panel Reports, para. 7.90 (referring to Norway's second written submission to the Panel, para. 162).\n983 Norway's second written submission to the Panel, para. 162.\n984 Panel Reports, para. 7.91 (referring to Canada's response to Panel question No. 21, para. 109).\n985 Panel Reports, para. 7.91 (quoting Canada's response to Panel question No. 21, para. 109).\n986 Panel Reports, paras. 7.90 and 7.91.\n987 Panel Reports, para. 7.103.\n988 Panel Reports, para. 7.112.\n989 In US – Gambling, the Appellate Body noted that, \"in some instances, a panel's decision to continue\nits legal analysis and to make factual findings beyond those that are strictly necessary to resolve the dispute\nmay assist the Appellate Body should it later be called upon to complete the analysis\".989 (Appellate Body\nReport, US – Gambling, para. 344)\n990 Norway's response to questioning at the oral hearing.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nIC and MRM requirements are \"related\" PPMs.991 Norway similarly indicated that it did not consider\nthat the conditions under exceptions of the EU Seal Regime, taken alone, amount to related\nPPMs.\n992 Norway emphasized, however, that the conditions under the exceptions, when considered\ntogether with other elements of the measure, make the EU Seal Regime as a whole a technical\nregulation.993\n5.69. As noted994, the Appellate Body has refrained from completing the legal analysis in view of\nthe novel character of an issue which the panel \"had not examined at all\" and on which the Panel\nhad made no findings. Importantly, it has not completed the analysis in the absence of a full\nexploration of issues before the panel that might have given rise to concerns about the parties'\ndue process rights. We believe that all these elements are present in this case. We further note\nthat the line between PPMs that fall, and those that do not fall, within the scope of the\nTBT Agreement raises important systemic issues. Although we explored the issue of whether the\nEU Seal Regime lays down related PPMs with the participants and third participants at the oral\nhearing, and while the participants' answers to the Division's questions did shed at least some light\non the issue, we consider that in order to develop an interpretation of that phrase in the first\nsentence of Annex 1.1 and in order to reach a conclusion in this respect regarding the EU Seal\nRegime, more argumentation by the participants and exploration in questioning would have been\nrequired. The Panel has made no findings on this issue and the question was not explored by the\nPanel. Moreover, the complainants focused in their argumentation on the issue of whether the\nEU Seal Regime lays down \"product characteristics\" and \"applicable administrative provisions\"\nwithin the meaning of Annex 1.1. In these circumstances, we do not consider it appropriate to\ncomplete the legal analysis by ruling on whether the EU Seal Regime lays down \"related processes\nand production methods\" within the meaning of Annex 1.1 to the TBT Agreement.\n5.1.4 Overall conclusion\n5.70. Having reversed the Panel's finding that the EU Seal Regime constitutes a technical\nregulation subject to the disciplines of the TBT Agreement and having found that we are not in a\nposition to complete the legal analysis in this case, we declare moot and of no legal effect the\nPanel's findings under Articles 2.1, 2.2, 5.1.2, and 5.2.1 of the TBT Agreement.\n5.2 Article I:1 and Article III:4 of the GATT 1994\n5.71. We turn now to consider the European Union's appeal of the Panel's findings under\nArticles I:1 and III:4 of the GATT 1994. The Europe an Union appeals the Panel's interpretation of\nArticles I:1 and III:4, as well as the Panel's conclusion that the EU Seal Regime is inconsistent with\nArticle I:1. The European Union does not appeal th e Panel's conclusion that the EU Seal Regime is\ninconsistent with Article III:4 of the GATT 1994.995\n5.72. With regard to the Panel's interpretation of Articles I:1 and III:4, the European Union\nrequests the Appellate Body to reverse the Panel's finding that the legal standard for the\nnon-discrimination obligations under Article 2.1 of the TBT Agreement does not \"equally apply\" to\nclaims under Articles I:1 and III:4 of the GATT 1994.\n996 With respect to the Panel's conclusion\nunder Article I:1, the European Union requests the Appellate Body to reverse the Panel's finding\nthat the measure at issue is inconsistent with Article I:1 because it does not \"immediately and\nunconditionally\" extend the same market acce ss advantage accorded to seal products of\nGreenlandic origin to like seal products of Canadian and Norwegian origin.\n997 The European Union's\n\n991 See also Canada's response to Panel question No. 21, paras. 108-110.\n992 Canada's and Norway's responses to questioning at the oral hearing.\n993 Norway's response to questioning at the oral hearing.\n994 See supra, para. 5.63.\n995 Norway's appellee's submission, para. 227; European Union's response to questioning at the oral\nhearing.\n996 European Union's other appellant's submission, para. 310. Article 2.1 of the TBT Agreement\nprovides: \"Members shall ensure that in respect of technical regulations, products imported from the territory\nof any Member shall be accorded treatment no less favourable than that accorded to like products of national\norigin and to like products originating in any other country.\"\n997 European Union's other appellant's submission, paras. 314 and 315 (referring to Panel Reports,\npara. 7.600).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nchallenge of the Panel's conclusion under Article I:1 is based entirely on the alleged errors in the\nPanel's interpretation of that provision.998\n5.73. Canada and Norway contend that the Panel was correct in finding that the legal standard for\nthe non-discrimination obligations under Article 2.1 of the TBT Agreement does not apply equally\nto claims under Articles I:1 and III:4 of the GATT 1994. Thus, Canada and Norway request the\nAppellate Body to reject the European Union's appe al of the Panel's interpretation of Articles I:1\nand III:4, and of the Panel's conclusion that the measure at issue is inconsistent with Article I:1.999\n5.74. In addressing the European Union's appeal, we begin by reviewing the Panel's findings with\nrespect to the relationship between the non-discrimination obligations under Articles I:1 and III:4\nof the GATT 1994, on the one hand, and Article 2.1 of the TBT Agreement, on the other hand.\n5.2.1 The Panel's findings\n5.75. At the outset of its analysis, the Panel considered that, because the complainants had raised\nclaims under the non-discrimination obligations of both the GATT 1994 and the TBT Agreement, it\nwas useful \"to review the relationship between, and the legal standards under, the GATT 1994 and\nthe TBT Agreement\" before examining the specific claims under the GATT 1994.\n1000\n5.76. The Panel noted that the Appellate Body had provided guidance on the relationship between\nthe obligations under the TBT Agreement and the GATT 1994 in recent disputes involving claims\nunder the TBT Agreement.1001 Referring to previous Appellate Body reports, the Panel found that:\n[U]nder the GATT 1994 (Articles I:1 and III:4) … the \"treatment no less favourable\"\nstandard prohibits WTO Members from modifying the conditions of competition in the\nmarketplace to the detriment of the group of imported products vis-à-vis the group of\ndomestic like products, whereas under the TBT Agreement, the \"treatment no less\nfavourable\" standard does not prohibit detrimental impact on imports that stems\nexclusively from a legitimate regulatory distinction rather than reflecting\ndiscrimination against the group of imported products.\n1002\n5.77. Based on this understanding of, on the one hand, Articles I:1 and III:4 of the GATT 1994,\nand, on the other hand, Article 2.1 of the TBT Agreement, the Panel rejected the European Union's\nargument that the legal standard under Article 2.1 applies equally to claims under\nArticles I:1 and III:4.1003 The Panel explained that, under the GATT 1994, the objective of trade\nliberalization – including the obligation to respect the non-discrimination obligations under\nArticles I:1 and III:4 – is balanced against the right of Members to regulate under Article XX\nof the GATT 1994.\n1004 According to the Panel, the additional element in the analysis under\nArticle 2.1 – whether a measure's detrimental impact on imports stems exclusively from a\nlegitimate regulatory distinction – reflects the absence in the TBT Agreement of a general\nexceptions provision that resembles Article XX of the GATT 1994.1005\n5.2.2 The legal standards of the obligations under Article I:1 and Article III:4 of the\nGATT 1994\n5.78. We note that, in reviewing the European Union's argument that the legal standard of the\nobligations under Article 2.1 of the TBT Agreement applies equally to claims under Articles I:1\nand III:4 of the GATT 1994, the Panel appears to have focused its analysis on the phrase\n\"treatment no less favourable\" – a phrase contained in Article 2.1 of the TBT Agreement and\n\n998 European Union's response to questioning at the oral hearing.\n999 Canada's appellee's submission, paras. 255 and 262; Norway's appellee's submission, paras. 317\nand 329.\n1000 Panel Reports, para. 7.581.\n1001 Panel Reports, para. 7.582 (referring to Appellate Body Reports, US – Clove Cigarettes; US –\nTuna II (Mexico); and US – COOL).\n1002 Panel Reports, para. 7.585 (referring to Appellate Body Reports, US – Clove Cigarettes,\nparas. 180-182 and 215; and US – Tuna II (Mexico), para. 215).\n1003 Panel Reports, para. 7.586 (referring to European Union's first written submission to the Panel,\npara. 528).\n1004 Panel Reports, para. 7.586.\n1005 Panel Reports, para. 7.585.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nArticle III:4 of the GATT 1994, but not found in Article I:1 of the GATT 1994. For example,\nreferring to Articles I and III of the GATT 1994, the Panel stated that \"under the GATT 1994 the\n'treatment no less favourable' standard prohibits WTO Members from modifying the conditions of\ncompetition in the marketplace to the detriment of the group of imported products vis-à-vis the\ngroup of domestic like products\".\n1006 Thus, it seems to us that the Panel assimilated the legal\nstandards under Articles I:1 and III:4, insofar as it found that, for the purposes of establishing an\ninconsistency with both provisions, a demonstration that a measure modifies the conditions of\ncompetition to the detriment of like imported products is dispositive. We consider it useful,\ntherefore, to make some general observations about the similarities and differences between these\ntwo provisions, before turning to address the Euro pean Union's specific claims on appeal under\nArticles I:1 and III:4.\n5.79. First, although the most favoured nation (MFN) and national treatment obligations under\nArticles I:1 and III:4 are both fundamental non-discrimination obligations under the GATT 1994,\ntheir points of comparison, for the purposes of determining whether a measure discriminates\nbetween like products, are not the same. On the one hand, the MFN obligation under Article I:1\nproscribes, with respect to measures falling within its scope of application, discriminatory\ntreatment between and among like products of different origins. On the other hand, the national\ntreatment obligation under Article III:4 proscribes, with respect to measures falling within its\nscope of application, discriminatory treatment of imported products vis-à-vis like domestic\nproducts.\n5.80. Second, we note that Article I:1 incorporates \"all matters referred to in paragraphs 2 and 4\nof Article III\". Thus, there is overlap in the scope of application of Articles I:1 and III:4, insofar as\n\"internal matters may be within the purview of the MFN obligation\".\n1007\n5.81. Third, there are textual differences betw een Articles I:1 and III:4. Like the national\ntreatment and MFN obligations under Article 2.1 of the TBT Agreement, the national treatment\nobligation under Article III:4 of the GATT 1994 is also expressed through a \"treatment no less\nfavourable\" standard. By contrast, as Canada rightly points out, the MFN obligation in Article I:1 of\nthe GATT 1994 is not expressed through a \"treatment no less favourable\" standard.\n1008 Instead,\nthe legal standard under Article I:1 of the GATT 1994 is expressed through an obligation to extend\nany \"advantage\" granted by a Member to any product originating in or destined for any other\ncountry \"immediately and unconditionally\" to the \"like product\" originating in or destined for all\nother Members.\n5.82. Finally, we observe that, notwithstandin g the textual differences between Articles I:1\nand III:4, each provision is concerned, fundamentally, with prohibiting discriminatory measures by\nrequiring, in the context of Article I:1, equalit y of competitive opportunities for like imported\nproducts from all Members, and, in the cont ext of Article III:4, equality of competitive\nopportunities for imported products and like domestic products.1009 It is for this reason that neither\nArticle I:1 nor Article III:4 require a demonstration of the actual trade effects of a specific\nmeasure.\n\n1006 Panel Reports, para. 7.585 (referring to Appellate Body Reports, US – Clove Cigarettes,\nparas. 180-182 and 215; and US – Tuna II (Mexico), para. 215). We note that, in the paragraphs of the\nAppellate Body reports cited by the Panel, the Appellate Body made observations concerning the relationship\nbetween the national treatment obligations articulated in Article III:4 of the GATT 1994 and Article 2.1 of the\nTBT Agreement. The Appellate Body did not, as the Panel seems to suggest, comment specifically on the\nrelationship between the most favoured nation (MFN) obligations in Article 2.1 of the TBT Agreement and\nArticle I:1 of the GATT 1994.\n1007 Panel Reports, EC – Bananas III, para. 7.176. See also Panel Report, EC – Trademarks and\nGeographical Indications (US), para. 7.713.\n1008 Canada's appellee's submission, para. 211.\n1009 In the context of Article III:4 of the GATT 1994, see Appellate Body Reports, US – Clove Cigarettes,\npara. 176 (referring to GATT Panel Report, US – Section 337 Tariff Act, para. 5.10); China – Publications and\nAudiovisual Products, para. 305 (referring to Appellate Body Report, Korea – Various Measures on Beef,\nparas. 135 and 136); Thailand – Cigarettes (Philippines), para. 126 (referring to Appellate Body Report,\nJapan – Alcoholic Beverages II, p. 16, DSR 1996:I, p. 109); and Korea – Alcoholic Beverages, para. 127. In the\ncontext of Article I:1 of the GATT 1994, see Panel Reports, US – COOL, para. 7.571 (referring to Panel Report,\nColombia – Ports of Entry, para. 7.236, in turn referring to Panel Report, Argentina – Hides and Leather,\npara. 11.20, in turn referring to Appellate Body Reports, Japan – Alcoholic Beverages II, p. 16, DSR 1996:I,\np. 109; and Korea – Alcoholic Beverages, paras. 119, 120, and 127).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.83. With these considerations in mind, we examine separately the Panel's interpretation of the\nlegal standards under Article I:1 and Article III:4, respectively. We begin with the European\nUnion's claim that the Panel erred in finding that the legal standard for the non-discrimination\nobligations under Article 2.1 of the TBT Agreement does not equally apply to claims under Article\nI:1 of the GATT 1994.\n5.2.3 Article I:1 of the GATT 1994\n5.84. The issue before us is whether the legal standard for the non-discrimination obligations\nunder Article 2.1 of the TBT Agreement applies equally to claims under Article I:1 of the\nGATT 1994. We must thus consider whether Article I:1 prohibits: (i) a detrimental impact on\ncompetitive opportunities for like imported products; or (ii) only a detrimental impact on\ncompetitive opportunities for like imported products that does not stem exclusively from a\nlegitimate regulatory distinction. We understan d the European Union to argue on appeal that\nArticle I:1 prohibits only the latter. Thus, in the European Union's view, an analysis of a claim\nunder Article I:1 entails an assessment of whether the detrimental impact on competitive\nopportunities for like imported products stems exclusively from a legitimate regulatory\ndistinction.\n1010\n5.85. Article I:1 of the GATT 1994 provides:\nGeneral Most-Favoured-Nation Treatment\n1. With respect to customs duties and charges of any kind imposed on or in\nconnection with importation or exportation or imposed on the international transfer of\npayments for imports or exports, and with respect to the method of levying such\nduties and charges, and with respect to all rules and formalities in connection with\nimportation and exportation, and with respect to all matters referred to in\nparagraphs 2 and 4 of Article III,[] any advantage, favour, privilege or immunity\ngranted by any Member to any product originating in or destined for any other country\nshall be accorded immediately and unconditionally to the like product originating in or\ndestined for the territories of all other Members.\n5.86. Article I:1 sets out a fundamental non-discrimination obligation under the GATT 1994. The\nobligation set out in Article I:1 has been describ ed by the Appellate Body as \"pervasive\", a\n\"cornerstone of the GATT\", and \"one of the pillars of the WTO trading system\".\n1011 Based on the\ntext of Article I:1, the following elements must be demonstrated to establish an inconsistency with\nthat provision: (i) that the measure at issue fall s within the scope of application of Article I:1;\n(ii) that the imported products at issue are \"lik e\" products within the meaning of Article I:1;\n(iii) that the measure at issue confers an \"advanta ge, favour, privilege, or immunity\" on a product\noriginating in the territory of any country; and (iv) that the advantage so accorded is not extended\n\"immediately\" and \"unconditionally\" to \"like\" products originating in the territory of all Members.\nThus, if a Member grants any advantage to any product originating in the territory of any other\ncountry, such advantage must be accorded \"immed iately and unconditionally\" to like products\noriginating from all other Members.\n5.87. Article I:1 thus prohibits discrimination among like imported products originating in, or\ndestined for, different countries.\n1012 In so doing, Article I:1 protects expectations of equal\ncompetitive opportunities for like imported products from all Members.1013 As stated above, it is for\nthis reason that an inconsistency with Article I:1 is not contingent upon the actual trade effects of\na measure. We consider that an interpretation of the legal standard of the obligation under\nArticle I:1 must take into account the fundamental purpose of Article I:1, namely, to preserve the\nequality of competitive opportunities for like imported products from all Members.\n\n1010 European Union's other appellant's submission, para. 313.\n1011 Appellate Body Report, EC – Tariff Preferences, para. 101 (referring to Appellate Body Reports,\n1012 Appellate Body Report, Canada – Autos, para. 84.\n1013 Panel Reports, US – COOL, para. 7.571 (referring to Panel Report, Colombia – Ports of Entry,\npara. 7.236, in turn referring to Panel Report, Argentina – Hides and Leather, para. 11.20, in turn referring to\nAppellate Body Reports, Japan – Alcoholic Beverages II, p. 16, DSR 1996:I, p. 109; and Korea – Alcoholic\nBeverages, paras. 119, 120, and 127).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.88. Under Article I:1, a Member is proscribed from granting an \"advantage\" to imported\nproducts that is not \"immediately\" and \"unconditionally\" extended to like imported products from\nall Members. This means, in our view, that an y advantage granted by a Member to imported\nproducts must be made available \"unconditionally\", or without conditions , to like imported\nproducts from all Members.\n1014 However, as Article I:1 is concerned, fundamentally, with\nprotecting expectations of equal competitive opportunities for like imported products from all\nMembers, it does not follow that Article I:1 prohibits a Member from attaching any conditions to\nthe granting of an \"advantage\" within the meanin g of Article I:1. Instead, it prohibits those\nconditions that have a detrimental impact on the competitive opportunities for like imported\nproducts from any Member. Conversely, Article I:1 permits regulatory distinctions to be drawn\nbetween like imported products, provided that such distinctions do not result in a detrimental\nimpact on the competitive opportunities for like imported products from any Member.\n5.89. For the European Union, the analysis under Article I:1 is not limited to an assessment of\nwhether a measure has a detrimental impact on competitive opportunities for like imported\nproducts. Instead, if it is found that a measure has a detrimental impact on competitive\nopportunities for like imported products, the analysis under Article I:1 must consider further the\nrationale for such impact, and, more specifically, whether it stems exclusively from a legitimate\nregulatory distinction.\n5.90. Contrary to what the European Union suggests, we see no basis in the text of Article I:1 to\nfind that, for the purposes of establishing an inconsistency with that provision, it must be\ndemonstrated that the detrimental impact of a measure on competitive opportunities for like\nimported products does not stem exclusively from a legitimate regulatory distinction. Instead, we\nconsider that, where a measure modifies the conditions of competition between like imported\nproducts to the detriment of the third-country imported products at issue, it is inconsistent with\nArticle I:1.\n5.91. The European Union advances three arguments to support its claim that the Panel erred in\nfinding that the legal standard for the non-discrimination obligation under Article 2.1 of the\nTBT Agreement does not apply equally to claims under Articles I:1 and III:4 of the GATT 1994:\n(i) that the Panel's interpretation is \"contrary to established Appellate Body jurisprudence\" under\nArticle III:4\n1015; (ii) that the Panel's interpretation fails to take account of the context provided by\nArticle III:1; and (iii) that the Panel's interpretation is incoherent with the interpretation of\nArticle 2.1 of the TBT Agreement and renders Article 2.1 \"irrelevant\".1016\n5.92. The arguments advanced by the European Union do not, in our view, provide a basis for\ninterpreting the legal standard under Article I:1 as requiring an inquiry into whether the\ndetrimental impact of a measure on competitive opportunities for like imported products stems\nexclusively from a legitimate regulatory distinct ion. We note, as argued by Norway and Canada,\nthat the European Union's arguments rely prin cipally on WTO jurisprudence developed under\nArticle III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement. 1017 Moreover, the European\nUnion's arguments appear to be directed at the Pa nel's interpretation of the term \"treatment no\nless favourable\" in Article III:4 of the GATT 1994. Thus, we consider these arguments in\nexamining the Panel's interpretation of the legal standard under that provision.\n5.93. In the light of the above, we consider th at Article I:1 prohibits Members from conditioning\nthe extension of an \"advantage\", within the mean ing of Article I:1, on criteria that have a\ndetrimental impact on the competitive opportunities for like imported products from any Member.\nA panel is not required, under Article I:1, to assess whether the detrimental impact of a measure\non competitive opportunities for like imported products stems exclusively from a legitimate\nregulatory distinction. Such an assessment is a necessary analytical element of Article 2.1 of the\nTBT Agreement, but not of Article I:1 of the GATT 1994.\n5.94. In the light of the above, we reject the European Union's claim on appeal that the Panel\nerred in finding that the legal standard for the non-discrimination obligations under Article 2.1 of\nthe TBT Agreement does not apply equally to claims under Article I:1 of the GATT 1994.\n\n1014 Panel Report, EC – Tariff Preferences, para. 7.59.\n1015 European Union's other appellant's submission, para. 289.\n1016 European Union's other appellant's submission, para. 289.\n1017 Canada's appellee's submission, para. 210; Norway's appellee's submission, paras. 262 and 276.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.95. We note that, in these disputes, the Panel concluded that the measure at issue, although\norigin-neutral on its face, is de facto inconsistent with Article I:1. The Panel found that, while\nvirtually all Greenlandic seal products are likely to qualify under the IC exception for access to the\nE U m a r k e t , t h e v a s t m a j o r i t y o f s e a l p r o d u c t s f r o m C a n a d a a n d N o r w a y d o n o t m e e t t h e\nIC requirements for access to the EU market. Thus, the Panel found that, \"in terms of its design,\nstructure, and expected operation\", the measure at issue detrimentally affects the conditions of\ncompetition for Canadian and Norwegian seal products as compared to seal products originating in\nGreenland.\n1018 Based on these findings, the Panel considered, correctly in our view, that the\nmeasure at issue is inconsistent with Article I:1 because it does not, \"immediately and\nunconditionally\", extend the same market access advantage to Canadian and Norwegian seal\nproducts that it accords to seal products originating from Greenland.\n1019\n5.96. Given that the European Union's challenge of the Panel's conclusion under Article I:1 is\nbased entirely on the alleged errors in the Panel's interpretation of that provision 1020, and given\nthat we have rejected the European Union's appeal in this regard, we have no basis to disturb the\nPanel's finding that the EU Seal Regime is inconsistent with Article I:1 of the GATT 1994. We\ntherefore uphold the Panel's finding, in paragrap h 7.600 of the Panel Reports, that the measure at\nissue is inconsistent with the European Union's obligation under Article I:1 of the GATT 1994.\n5.2.4 Article III:4 of the GATT 1994\n5.97. We turn now to consider whether, as ar gued by the European Union, the legal standard\nunder Article III:4 entails an inquiry into whether the detrimental impact of a measure on\ncompetitive opportunities for like imported products stems exclusively from a legitimate regulatory\ndistinction.\n5.98. Article III:4 of the GATT 1994 provides:\nNational Treatment on Internal Taxation and Regulation\n…\n4. The products of the territory of any Member imported into the territory of any other\nMember shall be accorded treatment no less favourable than that accorded to like\nproducts of national origin in respect of all laws, regulations and requirements\naffecting their internal sale, offering for sa le, purchase, transportation, distribution or\nuse. The provisions of this paragraph shall not prevent the application of differential\ninternal transportation charges which are based exclusively on the economic operation\nof the means of transport and not on the nationality of the product.\n5.99. There are three elements that must be demonstrated to establish that a measure is\ninconsistent with Article III:4: (i) that the imported and domestic products are \"like products\";\n(ii) that the measure at issue is a \"law, regulation, or requirement affecting the internal sale,\noffering for sale, purchase, transportation, distribution, or use\" of the products at issue; and\n(iii) that the treatment accorded to imported products is \"less favourable\" than that accorded to\nlike domestic products.\n1021\n5.100. The European Union's appeal is directed at the Panel's interpretation of the term\n\"treatment no less favourable\" in Article III:4. The participants dispute whether, for the purposes\nof establishing a violation of Article III:4, a finding that a measure has a detrimental impact on\ncompetitive opportunities for imported products, compared to like domestic products, is\n\n1018 Panel Reports, para. 7.597.\n1019 Panel Reports, para. 7.600. Although some aspects of the Panel's reasoning can be read as\nsuggesting that an analysis of the actual trade effects of a measure is necessary under Article I:1 of the\nGATT 1994, we consider that the Panel's reliance on the \"design, structure, and expected operation\" of the\nmeasure highlights that, under Article I:1, the focus of the analysis is on the impact of a measure on\ncompetitive opportunities for like imported products, rather than the actual trade effects of a measure.\n(emphasis added)\n1020 European Union's response to questioning at the oral hearing.\n1021 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 127 (referring to Appellate Body\nReport, Korea – Various Measures on Beef, para. 133).\nWT/DS400/AB/R • WT/DS401/AB/R\n\ndispositive. The European Union submits that a panel must conduct an additional inquiry into\nwhether the detrimental impact on competitive opportunities for like imported products stems\nexclusively from a legitimate regulatory distinction. Thus, in the European Union's view, the legal\nstandard for the non-discrimination obligations under Article 2.1 of the TBT Agreement applies\nequally to claims under Article III:4. By contrast, Canada and Norway contend that this additional\ninquiry is a necessary step in the analysis under Article 2.1 of the TBT Agreement, but not under\nArticle III:4 of the GATT 1994.\n5.101. The meaning of the term \"treatment no less favourable\" in Article III:4 has been\nconsidered by panels and the Appellate Body in prior disputes. As a result, the following\npropositions are well established. First, the term \"treatment no less favourable\" requires effective\nequality of opportunities for imported products to compete with like domestic products.\n1022 Second,\na formal difference in treatment between imported and domestic like products is neither\nnecessary, nor sufficient, to establish that imported products are accorded less favourable\ntreatment than that accorded to like domestic products.\n1023 Third, because Article III:4 is\nconcerned with ensuring effective equality of competitive opportunities for imported products, a\ndetermination of whether imported products are treated less favourably than like domestic\nproducts involves an assessment of the implications of the contested measure for the equality of\ncompetitive conditions between imported and like domestic products.\n1024 If the outcome of this\nassessment is that the measure has a detrimental impact on the conditions of competition for like\nimported products, then such detrimental impact will amount to treatment that is \"less favourable\"\nwithin the meaning of Article III:4.\n1025 Finally, for a measure to be found to modify the conditions\nof competition in the relevant market to the detriment of imported products, there must be a\n\"genuine relationship\" between the measure at issue and the adverse impact on competitive\nopportunities for imported products.\n1026\n5.102. In response to questioning at the oral hear ing, the European Union explained that it is not\nsuggesting that the legal standard of the obligatio n under Article 2.1 of the TBT Agreement should\nbe transposed to Article III:4 of the GATT 1994. Instead, the European Union argues that WTO\njurisprudence under Article III:4 establishes that the analysis of whether imported products are\naccorded treatment less favourable than that accorded to like domestic products \"goes beyond\" a\nconsideration of the detrimental effect of a measure on the competitive opportunities for like\nimported products.\n5.103. The European Union contends that, in Dominican Republic – Import and Sale of Cigarettes,\nthe Appellate Body found that a detrimental effect on imports alone does not indicate that a\nmeasure accords de facto \"less favourable treatment\" to imports under Article III:4.\n1027 In this\nregard, the European Union notes that, in US – Clove Cigarettes , the Appellate Body clarified that\na violation of Article III:4 had not been established in Dominican Republic – Import and Sale of\nCigarettes, because the detrimental impact on competitive opportunities for like imported products\nwas not attributable to the specific measure at issue.1028\n\n1022 Appellate Body Reports, US – Clove Cigarettes, para. 176 (referring to GATT Panel Report, US –\nSection 337 Tariff Act, para. 5.10); China – Publications and Audiovisual Products, para. 305 (referring to\nAppellate Body Report, Korea – Various Measures on Beef, paras. 135 and 136); and Thailand – Cigarettes\n(Philippines), para. 126 (referring to Appellate Body Report, Japan – Alcoholic Beverages II, p. 16, DSR 1996:I,\np. 109).\n1023 Appellate Body Reports, US – Clove Cigarettes, para. 177 (referring to Appellate Body Report,\nKorea – Various Measures on Beef, para. 137); and Thailand – Cigarettes (Philippines), para. 128 (referring to\nAppellate Body Report, EC – Asbestos, para. 100).\n1024 Appellate Body Reports, US – Clove Cigarettes, paras. 177 and 179; Thailand – Cigarettes\n1025 Appellate Body Reports, US – Clove Cigarettes, para. 179; Thailand – Cigarettes (Philippines),\n1026 Appellate Body Reports, US – COOL, para. 270 (quoting Appellate Body Report, US – Tuna II\n(Mexico), fn 457 to para. 214, in turn referring to Appellate Body Report, Thailand – Cigarettes (Philippines),\npara. 134).\n1027 European Union's other appellant's submission, paras. 292 and 293 (referring to Appellate Body\nReport, Dominican Republic – Import and Sale of Cigarettes, para. 96).\n1028 European Union's response to questioning at the oral hearing (referring to Appellate Body Report,\nUS – Clove Cigarettes, fn 372 to para. 179).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.104. As Canada and Norway observe, in US – Clove Cigarettes, the Appellate Body explained its\nearlier finding in Dominican Republic – Import and Sale of Cigarettes .1029 The Appellate Body\nexplicitly rejected the notion that its finding in Dominican Republic – Import and Sale of Cigarettes\nstands for the proposition that, under Article III:4, panels should conduct an inquiry into whether\nthe detrimental impact of a measure on imports is unrelated to the foreign origin of the imported\nproducts. The Appellate Body buttressed this explanation of its finding in Dominican Republic –\nImport and Sale of Cigarettes by pointing out that, subsequent to its finding in that case, it had, in\nthe context of a claim under Article III:4 in Thailand – Cigarettes (Philippines) , \"eschewed an\nadditional inquiry\" as to whether the detrimental impact of a measure on imports is related to the\nforeign origin of the products.\n1030 The Appellate Body also pointed out that, in Thailand –\nCigarettes (Philippines) , it had clarified that, for a finding of less favourable treatment under\nArticle III:4, \"there must be in every case a genuine relationship between the measure at issue\nand its adverse impact on competitive opportunities for imported versus like domestic products to\nsupport a finding that imported products are treated less favourably\".\n1031\n5.105. In US – Clove Cigarettes , the Appellate Body thus clarified that a violation of Article III:4\nhad not been established in Dominican Republic – Import and Sale of Cigarettes , since, in that\ndispute, the detrimental impact on competitive opportunities for like imported products was not\nattributable to the specific measure at issue. The Appellate Body has stated that, in determining\nwhether the detrimental impact on competitive opportunities for like imported products is\nattributable to, or has a genuine relationship with , the measure at issue, the relevant question is\n\"whether it is the governmental measure at issue that 'affects the conditions under which like\ngoods, domestic and imported, compete in the market within a Member's territory'\".\n1032 Thus,\ncontrary to what the European Union suggests, an analysis of whether the detrimental impact on\ncompetitive opportunities for like imported products is attributable to the specific measure at issue\ndoes not involve an assessment of whether such detrimental impact stems exclusively from a\nlegitimate regulatory distinction.\n5.106. The European Union also relies on the Appellate Body's statement in EC – Asbestos that \"a\nMember may draw distinctions between products wh ich have been found to be 'like', without, for\nthis reason alone, according to the group of 'lik e' imported products 'less favourable treatment'\nthan that accorded to the group of 'like' domestic products\".\n1033 In the European Union's view, this\nstatement supports its contention that, for the purposes of establishing a violation of Article III:4,\na finding that a measure has a detrimental impact on competitive opportunities for like imported\nproducts is not dispositive.\n5.107. Canada and Norway disagree wi th the European Union's reading of EC – Asbestos . In\nCanada's view, EC – Asbestos is consistent with the Appellate Body's earlier finding, in Korea –\nVarious Measures on Beef , that \"a distinction between products in itself will not automatically\nresult in a finding of less favourable treatment\" under Article III:4. Canada submits that\n\"a distinction that modifies the conditions of competition in the relevant market to the detriment of\nimported products\" will, however, result in less favourable treatment under Article III:4. 1034 Like\nCanada, Norway submits that the Appellate Body's statement in EC – Asbestos that Article III:4 is\nnot violated for the sole reason that objective distinctions are drawn between imported and\ndomestic like products, does not mean that if these distinctions give rise to a detrimental impact\non the like imported products, a Member may justify such detrimental impact under\nArticle III:4.\n1035\n5.108. In our view, the Appellate Body, in EC – Asbestos , merely highlighted that the term\n\"treatment no less favourable\" in Article III:4 has a more unfavourable connotation than the\ndrawing of distinctions between imported and domestic like products. WTO Members are free to\nimpose different regulatory regimes on imported and domestic products, provided that the\n\n1029 Canada's appellee's submission, para. 201; Norway's appellee's submission, para. 265.\n1030 Appellate Body Report, US – Clove Cigarettes, fn 372 to para. 179.\n1031 Appellate Body Report, US – Clove Cigarettes, fn 372 to para. 179 (quoting Appellate Body Report,\nThailand – Cigarettes (Philippines), para. 134).\n1032 Appellate Body Reports, US – COOL, para. 270 (referring to Appellate Body Report, Korea – Various\nMeasures on Beef, para. 149).\n1033 Appellate Body Report, EC – Asbestos, para. 100.\n1034 Canada's appellee's submission, paras. 206-208 (referring to Appellate Body Reports, EC –\n1035 Norway's appellee's submission, paras. 272 and 273.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ntreatment accorded to imported products is no less favourable than that accorded to like domestic\nproducts. Thus, Article III:4 does not require the identical treatment of imported and like domestic\nproducts, but rather the equality of competitive conditions between these like products. In this\nregard, neither formally identical, nor formally di fferent, treatment of imported and like domestic\nproducts necessarily ensures equality of competitive opportunities for imported and domestic like\nproducts. For this reason, the Appellate Body has considered that:\nA formal difference in treatment between impo rted and like domestic products is thus\nneither necessary, nor sufficient, to show a violation of Article III:4. Whether or not\nimported products are treated \"less favourably\" than like domestic products should be\nassessed instead by examining whether a measure modifies the conditions of\ncompetition in the relevant market to the detriment of imported products.\n1036\n5.109. The proposition that distinctions may be drawn between imported and like domestic\nproducts without necessarily according less favourable treatment to the imported products implies\nonly that the \"treatment no less favourable\" standard, under Article III:4, means something more\nthan drawing regulatory distinctions between im ported and like domestic products. There is,\nhowever, a point at which the differential treatment of imported and like domestic products\namounts to \"treatment no less favourable\" within the meaning of Article III:4. The Appellate Body\nhas demarcated where that point lies, in the following terms:\n[T]he mere fact that a Member draws regu latory distinctions between imported and\nlike domestic products is, in itself, not determinative of whether imported products are\ntreated less favourably within the meaning of Article III:4. Rather, what is relevant is\nwhether such regulatory differences distort the conditions of competition to the\ndetriment of imported products. If so, then the differential treatment will amount to\ntreatment that is \"less favourable\" within the meaning of Article III:4.\n1037\n5.110. In the light of the above, we do not agree with the European Union's reading of the\nAppellate Body's statement in EC – Asbestos . Specifically, we do not consider that the Appellate\nBody's statement that a Member may draw dist inctions between imported and like domestic\nproducts without necessarily violating Article III:4 stands for the proposition that the detrimental\nimpact of a measure on competitive opportunities for like imported products is not dispositive for\nthe purposes of establishing a violation of Article III:4.\n5.111. The European Union further contends that the Panel's interpretation of the legal standard\nunder Article III:4 fails to take account of the general principle, expressed in Article III:1 of the\nGATT 1994, that internal regulations should not be applied \"so as to afford protection\" to domestic\nproduction. The European Union observes that th e Appellate Body has found that the protective\napplication of a measure, within the meaning of Article III:1, can most often be discerned from the\ndesign, the architecture, and the revealing structure of a measure.\n1038 I n t h e E u r o p e a n U n i o n ' s\nview, this \"test\" \"corresponds to the second step of the de facto discrimination analysis\" under\nArticle 2.1 of the TBT Agreement. 1039 Thus, by suggesting that \"this analysis is unnecessary for\nfinding de facto discrimination\" under Article III:4, the Panel, in the European Union's view, failed\nto take account of the context provided by the general principle articulated in Article III:1.1040\n5.112. Canada responds that, in the context of claims under Article III:2, second sentence, of the\nGATT 1994, the Appellate Body has \"simply recognized\" that panels should consider the relevant\ncircumstances, including the design, structure, operation and application of the measure at issue\nto determine whether the measure at issue results in de facto discrimination.\n1041 Canada\nemphasizes that the Appellate Body did not \"suggest this to mean that discrimination under\nArticle III could be justified by regulatory distinctions\". 1042 In addition, Canada points out that the\nAppellate Body has confirmed that the term \"treatment no less favourable\" in Article III:4\n\n1036 Appellate Body Report, Korea – Various Measures on Beef, para. 137. (emphasis original)\n1037 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 128. (emphasis added; fn omitted)\n1038 European Union's other appellant's submission, para. 299 (referring to Appellate Body Report,\nJapan – Alcoholic Beverages II, p. 29, DSR 1996:I, p. 120).\n1039 European Union's other appellant's submission, para. 300.\n1040 European Union's other appellant's submission, para. 300.\n1041 Canada's appellee's submission, para. 220 (referring to Appellate Body Report, Japan – Alcoholic\nBeverages II, p. 29, DSR 1996:I, p. 120).\n1042 Canada's appellee's submission, para. 220.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nexpresses the general principle in Article III:1, so that \"[i]f there is 'less favourable treatment' of\nthe group of 'like' imported products, there is, conversely, 'protection' of the group of 'like'\ndomestic products.\"1043\n5.113. Norway, for its part, notes that Article III: 1 is not expressly invoked in Article III:4, and\nthat the legal requirements set out in Article III: 4 are an application of the general principle set\nforth in Article III:1. Thus, in assessing whether there is less favourable treatment of imports\nunder Article III:4, a panel is required to examine whether a measure has a detrimental or\n\"adverse impact on competitive opportunities for imported versus like domestic products\".\n1044\nNorway asserts that, if it does, the measure will not be in accordance with the \"general principle\"\nexpressed in Article III:1.\n1045\n5.114. It is well established that the general pr inciple expressed in Article III:1 – that internal\nmeasures should not be applied to afford protection to domestic production – informs the rest of\nArticle III, including Article III:4.1046 This general principle, however, informs the other paragraphs\nof Article III in different ways, depending on the textual connection between Article III:1 and the\nother paragraphs of Article III. 1047 Thus, the interpretative direction that Article III:1 provides to\nthe other paragraphs of Article III must respect, and in no way diminish, the meaning of the words\nactually used in those other paragraphs.\n5.115. As both Canada and Norway have poin ted out, Article III:4, like Article III:2, first\nsentence, does not explicitly refer to Article III:1. As clarified by the Appellate Body, this does not\nmean that Article III:1 does not apply to Article III:2, first sentence. Rather, \"the first sentence of\nArticle III:2 is, in effect, an application of\" the general principle in Article III:1.\n1048 We consider\nthat, just as the omission of a textual reference to Article III:1, in Article III:2, first sentence,\nmust be given meaning, so too must the absence of a reference to Article III:1 in Article III:4. In\nour view, Article III:4 is, itself, an expression of the principle set forth in Article III:1.\nConsequently, \"[i]f there is 'less favourable treatment' of the group of 'like' imported products,\nthere is, conversely, 'protection' of the group of 'like' domestic products.\"\n1049\n5.116. As noted above, the term \"treatment no less favourable\" in Article III:4 requires effective\nequality of opportunities for imported products to compete with like domestic products. 1050 Thus,\nArticle III:4 permits regulatory distinctions to be drawn between products, provided that such\ndistinctions do not modify the conditions of competition between imported and like domestic\nproducts. Hence, a determination of whether impo rted products are treated less favourably than\nlike domestic products involves an assessment of the implications of the contested measure for the\nequality of competitive conditions between imported and like domestic products. If the outcome of\nthis assessment is that the measure has a detrimental impact on the conditions of competition for\nlike imported products, then such detrimental impact will amount to treatment that is \"less\nfavourable\" within the meaning of Article III:4.\n5.117. In the light of the above, we consider that the \"treatment no less favourable\" standard\nunder Article III:4 of the GATT 1994 prohibits WT O Members from modifying the conditions of\ncompetition in the marketplace to the detriment of the group of imported products vis-à-vis the\ngroup of like domestic products. We do not consider, as argued by the European Union, that for\nthe purposes of an analysis under Article III:4, a panel is required to examine whether the\ndetrimental impact of a measure on competitive opportunities for like imported products stems\nexclusively from a legitimate regulatory distinction.\n\n1043 Canada's appellee's submission, para. 221 (referring to Appellate Body Report, EC – Asbestos,\npara. 100).\n1044 Norway's appellee's submission, paras. 284 and 286.\n1045 Norway's appellee's submission, para. 286 (quoting Appellate Body Report, Canada – Periodicals,\np. 18, DSR 1997:I, p. 464, in turn referring to GATT Panel Reports, US – Tobacco, para. 99; US – Malt\nBeverages, para. 5.6; Canada – Provincial Liquor Boards (EEC), para. 5.6; US – Section 337 Tariff Act,\n1046 Appellate Body Report, EC – Asbestos, para. 94.\n1047 Appellate Body Report, Japan – Alcoholic Beverages II, p. 18, DSR 1996:I, p. 111.\n1048 Appellate Body Report, Japan – Alcoholic Beverages II, p. 18, DSR 1996:I, p. 111.\n1049 Appellate Body Report, EC – Asbestos, para. 100.\n1050 See supra, para. 5.101.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.118. We note the European Union's argument that, under the Panel's interpretation of\nArticles I:1 and III:4, a technical regulation could be considered non-discriminatory under the\nTBT Agreement, but still violate the GATT 1994.\n1051 Expounding on this argument, the European\nUnion explains that the list of possible legitimate objectives that may factor into an analysis under\nArticle 2.1 of the TBT Agreement is open, in contrast to the closed list of objectives enumerated\nunder Article XX of the GATT 1994. Thus, the Panel's \"divergent approach to de facto\ndiscrimination\" could lead to a situation where, under Article 2.1, a technical regulation that has a\ndetrimental impact on imports would be permitted if such detrimental impact stems from a\nlegitimate regulatory distinction, while, under Articles I:1 and III:4 of the GATT 1994, the same\ntechnical regulation would be prohibited if the objective that it pursues does not fall within the\nsubparagraphs of Article XX of the GATT 1994.\n1052 For the European Union, the Panel's\ninterpretation of Articles I:1 and III:4 would thus \"render Article 2.1 of the TBT Agreement\nirrelevant\" as complainants would have a strong incentive not to invoke Article 2.1 of the\nTBT Agreement, and, instead, would bring claims under the GATT 1994, even if the measure at\nissue qualified as a technical regulation.\n1053\n5.119. Canada disagrees with the European Union's argument that accepting the Panel's approach\nwould result in divergent outcomes under the TBT Agreement and the GATT 1994. 1054 Noting the\nAppellate Body's statement that the TBT Agreement and the GATT 1994 should be \"interpreted in\na coherent and consistent manner\", Canada submits that \"the more reasonable view with respect\nto the scope of objectives that may be cons idered legitimate for the purposes of the\nTBT Agreement is that it mirrors the scope of Article XX of the GATT 1994.\" 1055 Canada asserts, in\naddition, that the European Union's argument that the Panel's interpretation of Articles I:1\nand III:4 of the GATT 1994 would render Article 2. 1 of the TBT Agreement \"irrelevant\" is entirely\nspeculative.\n5.120. Norway, like Canada, disagrees with the European Union's argument that the Panel's\ninterpretation of Articles I:1 and III:4 is incoherent with Article 2.1 of the TBT Agreement. 1056\nFirst, Norway considers that the Appellate Bo dy's statement that the TBT Agreement and the\nGATT 1994 \"should be interpreted in a coherent and consistent manner\" does not mean that the\nprovisions of the two agreements should be given the same meaning. 1057 Second, Norway\nconsiders that the European Union overstates the supposed gap between the list of policy interests\nthat may justify a detrimental impact on imports under Article 2.1 of the TBT Agreement, on the\none hand, and Article XX of the GATT 1994, on the other hand. 1058 According to Norway, although\nthe range of legitimate interests that may be purs ued under Article 2.1 is wider than the range of\ninterests under Article XX, this is not wider than the range of interests reflected in all provisions of\nthe covered agreements.1059 Norway submits that, even assuming, for the sake of argument, that\nthere is some policy interest that may be pursued under the TBT Agreement but not under the\nGATT 1994, it would be inappropriate to \"circumvent the drafters' decision by allowing a policy\ninterest not reflected in the GATT 1994 to justify a trade-restrictive measure under that\nAgreement\".\n1060\n5.121. At the outset, we recall that, in US – Clove Cigarettes , the Appellate Body made certain\nobservations of \"general import\" concerning, inter alia, the preamble of the TBT Agreement; the\nrelevance of Article III:4 of the GATT 1994 in interp reting Article 2.1 of the TBT Agreement; and\nthe absence among the provisions of the TBT Agreement of a general exceptions provision similar\nto Article XX of the GATT 1994. The Appellate Body considered that the language of the second\nrecital of the TBT Agreement indicates that the TBT Agreement expands on pre-existing\n\n1051 European Union's other appellant's submission, para. 307.\n1052 European Union's other appellant's submission, para. 307.\n1053 European Union's other appellant's submission, para. 308.\n1054 Canada's appellee's submission, para. 238 (referring to European Union's other appellant's\nsubmission, para. 307).\n1055 Canada's appellee's submission, para. 240 (referring to Appellate Body Report, US – Clove\nCigarettes, para. 91).\n1056 Norway's appellee's submission, para. 287.\n1057 Norway's appellee's submission, para. 288 (quoting Appellate Body Report, US – Clove Cigarettes,\npara. 91).\n1058 Norway's appellee's submission, paras. 290 and 291.\n1059 Norway's appellee's submission, para. 296.\n1060 Norway's appellee's submission, para. 300.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nGATT disciplines and emphasized that the two agreements should be interpreted in a coherent and\nconsistent manner.1061\n5.122. In addition, the Appellate Body considered that the very similar formulation of Article 2.1\nof the TBT Agreement and Article III:4 of the GATT 1994, and the overlap in their scope of\napplication in respect of technical regulations, confirm that Article III:4 is relevant context for the\ninterpretation of the national treatment obligation under Article 2.1. Thus, in interpreting\nArticle 2.1 of the TBT Agreement, a panel should focus on the text of Article 2.1, read in the\ncontext of the TBT Agreement, including its preamble, and also consider other contextual\nelements, such as Article III:4 of the GATT 1994.\n1062 Turning to the preamble of the\nTBT Agreement, the Appellate Body considered that the balance between the desire to avoid\ncreating unnecessary obstacles to international trade under the fifth recital, and the recognition of\na Member's right to regulate under the sixth recital, is not, in principle, different from the balance\nset out in the GATT 1994, where obligations such as national treatment in Article III are qualified\nby the general exceptions provision of Article XX.\n1063\n5.123. We observe that the GATT 1994, the TB T Agreement and the other covered agreements\nare integral parts of the Marrakesh Agreemen t Establishing the World Trade Organization\n(WTO Agreement). Thus, the provisions of the WTO covered agreements should be interpreted in a\ncoherent and consistent manner, giving meaning to all applicable provisions harmoniously. 1064 This\nprinciple applies to the relationship between th e TBT Agreement and the GATT 1994, as confirmed\nand reinforced by the second recital of the prea mble of the TBT Agreement. We do not consider\nthat the principle that the provisions of the WTO covered agreements should be read in a coherent\nand consistent manner means that the legal standards for similar obligations – such as Articles I:1\nand III:4 of the GATT 1994, on the one hand, and Ar ticle 2.1 of the TBT Agreement, on the other\nhand – must be given identical meanings.\n5.124. The Appellate Body has observed that the TBT Agreement does not contain a general\nexceptions clause similar to Article XX of th e GATT 1994. This does not mean, however, that\nMembers do not have a right to regulate under the TBT Agreement. Instead, the sixth recital of the\npreamble of the TBT Agreement suggests that a Member's right to regulate should not be\nconstrained if the measures taken are necessary to fulfil certain legitimate policy objectives, and\nprovided that they are not applied in a manner that would constitute a means of arbitrary or\nunjustifiable discrimination or a disguised restriction on international trade, and are otherwise in\naccordance with the provisions of the Agreement.\n1065 As the Appellate Body has explained, it is the\nspecific context of Article 2.1 of the TBT Agreem ent – which includes Annex 1.1; Article 2.2; and\nthe second, fifth, and sixth recitals of the preamble – that supports a reading that Article 2.1 does\nnot operate to prohibit a priori any restriction on international trade.1066\n5.125. By contrast, as noted by the Panel, the obligations assumed by Members to respect the\nnon-discrimination disciplines under Articles I:1 and III:4 of the GATT 1994 are balanced by a\nMember's right to regulate in a manner consistent with the requirements of the separate general\nexceptions clause of Article XX and its chapeau. 1067 In our view, the fact that, under the\nGATT 1994, a Member's right to regulate is accommodated under Article XX, weighs heavily\nagainst an interpretation of Articles I:1 and III:4 that requires an examination of whether the\ndetrimental impact of a measure on competitive opportunities for like imported products stems\nexclusively from a legitimate regulatory distinct ion. In the light of the immediate contextual\ndifferences between the TBT Agreement and the GA TT 1994, we do not consider that the legal\n\n1061 Appellate Body Report, US – Clove Cigarettes, para. 91.\n1062 Appellate Body Report, US – Clove Cigarettes, para. 100.\n1063 Appellate Body Report, US – Clove Cigarettes, paras. 93-96.\n1064 Appellate Body Reports, US – Anti-Dumping and Countervailing Duties (China), para. 570; and US –\nUpland Cotton, paras. 549 and 550 (quoting Appellate Body Report, Argentina – Footwear (EC), para. 81 and\nfn 72 thereto, in turn referring to Appellate Body Reports, Korea – Dairy, para. 81; US – Gasoline, p. 23,\nDSR 1996:I, p. 21; Japan – Alcoholic Beverages II, p. 12, DSR 1996:I, p. 106; and India – Patents (US),\npara. 45).\n1065 Appellate Body Report, US – Clove Cigarettes, para. 95.\n1066 Appellate Body Reports, US – COOL, para. 268 (referring to Appellate Body Report, US – Tuna II\n(Mexico), para. 212).\n1067 Beyond the general exceptions clause of Article XX, we note that the GATT 1994 also contains\nspecific exceptions, e.g. Article XXI and Article XXIV.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nstandard for the non-discrimination obligation under Article 2.1 of the TBT Agreement applies\nequally to claims under Articles I:1 and III:4 of the GATT 1994.\n5.126. We are also not persuaded by the Europe an Union's argument that accepting the Panel's\ninterpretation of Articles I:1 and III:4 would result in divergent outcomes under the\nTBT Agreement and the GATT 1994 in respect of th e same measure, and would therefore render\nArticle 2.1 of the TBT Agreement irrelevant. At the outset, we recall that we have reversed the\nPanel's finding that the EU Seal Regime constitu tes a technical regulation under Annex 1.1 to the\nTBT Agreement. Therefore, the asymmetrical ou tcomes that the European Union alleges could\nresult from the Panel's interpretation of Articles I:1 and III:4 do not arise in this case.\n5.127. In any event, it seems to us that the European Union's argument is predicated on a\nperceived imbalance between, on the one hand, the scope of a Member's right to regulate under\nArticle XX of the GATT 1994, and, on the other hand , the scope of that right under Article 2.1 of\nthe TBT Agreement. Yet, under the TBT Agreemen t, the balance between the desire to avoid\ncreating unnecessary obstacles to international trade under the fifth recital, and the recognition of\nMembers' right to regulate under the sixth recital, is not, in principle, different from the balance\nset out in the GATT 1994, where obligations such as national treatment in Article III are qualified\nby the general exceptions provision of Article XX.\n1068\n5.128. We further note that, beyond stating that the list of legitimate objectives that may factor\ninto an analysis under Article 2.1 of the TBT Agreement is open, in contrast to the closed list of\nobjectives enumerated under Article XX of the GATT 1994, the European Union has not pointed to\nany concrete examples of a legitimate objective that could factor into an analysis under Article 2.1\nof the TBT Agreement, but would not fall within the scope of Article XX of the GATT 1994.\n1069\n5.129. Finally, we note that our interpretation of the legal standards under Articles I:1 and III:4\nof the GATT 1994, and Article 2.1 of the TBT Agreemen t, is based on the text of those provisions,\nas understood in their context, and in the light of the object and purpose of the agreements in\nwhich they appear, as is our mandate. If there is a perceived imbalance in the existing rights and\nobligations under the TBT Agreement and the GATT 1994, the authority rests with the Members of\nthe WTO to address that imbalance.\n1070\n5.130. In the light of the foregoing considerations, we uphold the Panel's finding, at\nparagraph 7.586 of its Reports, that the legal standard for the non-discrimination obligations\nunder Article 2.1 of the TBT Agreement does not apply equally to claims under Articles I:1\nand III:4 of the GATT 1994. Consequently, we upho ld the Panel's conclusion, in paragraphs 7.600\nand 8.3(a) of its Reports, that the measure at issue is inconsistent with Article I:1 because it does\nnot, \"immediately and unconditionally\", extend the same market access advantage to Canadian\nand Norwegian seal products that it accords to seal products originating from Greenland.1071\n5.3 Article XX of the GATT 1994\n5.131. We address in the following three sections the claims and arguments of the participants\nrelating to the Panel's analysis under Article XX of the GATT 1994. First, we address the Panel's\nidentification of the objective of the EU Seal Regime. Second, we address the claims of Canada and\nNorway that relate to the Panel's analysis of wh ether the EU Seal Regime is necessary to protect\npublic morals within the meaning of Article XX(a) of the GATT 1994. Third, we address the claims\n\n1068 Appellate Body Report, US – Clove Cigarettes, para. 96.\n1069 European Union's other appellant's submission, para. 307 (referring to Appellate Body Reports, US –\nClove Cigarettes, para. 255; US – Tuna II (Mexico), para. 286; and US – COOL, paras. 341-350).\n1070 See supra, para. 5.127.\n1071 At the oral hearing, the European Union confirmed that its appeal of the Panel's conclusion under\nArticle I:1 is based solely on its claim that the Panel erred in finding that the legal standard for the\nnon-discrimination obligation under Article 2.1 of the TBT Agreement does not apply equally to claims under\nArticle I:1. We note that the Panel concluded that the measure at issue is also inconsistent with Article III:4\nbecause, while virtually all domestic seal products are likely to qualify for market access under the MRM\nexception, the vast majority of seal products from Canada and Norway are excluded from the EU market under\nthe terms of the MRM exception. The Panel thus found that the measure at issue has a detrimental impact on\ncompetitive conditions for like imported products from Canada and Norway. The European Union has not\nappealed this finding.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nof Canada, Norway, and the European Union concerning the Panel's analysis under the chapeau of\nArticle XX of the GATT 1994.\n5.132. We recall that we have declared moot and of no legal effect the Panel's conclusions under\nArticles 2.1 and 2.2 of the TBT Agreement. The Panel, however, relied on certain of its findings and\nreasoning in the context of its analysis under the TBT Agreement when addressing claims and\narguments under Article XX of the GATT 1994. Where relevant, we refer to those findings and\nreasoning below.\n5.3.1 The objective of the EU Seal Regime\n5.133. The Panel sought first to identify the \"objective\" of the EU Seal Regime in the context of its\nanalysis under Article 2.2 of the TBT Agreement.\n1072 The Panel relied on that assessment in its\nanalysis under Article 2.1 of the TBT Agreement, as well as under Article XX of the GATT 1994. In\nthe context of Article XX, the Panel's characte rization of the objective of the measure has\nimplications both in respect of the analysis under subparagraph (a), as well as under the chapeau.\nA c c o r d i n g l y , b e f o r e w e t u r n t o t h e c l a i m s o n a p p e a l d i r e c t e d a t t h e P a n e l ' s a n a l y s i s u n d e r\nArticle XX, we first address the Panel's characterization of the objective of the EU Seal Regime.\n5.3.1.1 The Panel's findings\n5.134. According to the Panel, the disagreement between the parties regarding the objective of\nthe EU Seal Regime was limited to two issues.\n1073 First, although the parties did not dispute that\nthe EU Seal Regime is aimed at addressing public concerns regarding seal welfare, they disagreed\non whether the public concerns at issue are moral concerns for the EU public. Second, the parties\ncontested whether other interests addressed through the exceptions in the measure (i.e. the IC,\nMRM, and Travellers exceptions) constitute objectives of the EU Seal Regime that are separate and\nindependent from the objective of addressing seal welfare concerns. Referring to prior Appellate\nBody jurisprudence, the Panel stated that it would assess the objectives of the EU Seal Regime on\nthe basis of available evidence such as the texts of the statutes, the legislative history, and other\nevidence regarding the structure and operation of the measure at issue.\n1074 The Panel also recalled\nthe meaning and scope of \"public morals\" as discussed in prior disputes.1075\n5.135. The Panel first reviewed the text of the measure and stated that it was able to discern\nthat, in designing the EU Seal Regime, the Europe an Union \"sought to address the public concerns\non seal welfare\" and, in doing so, \"also took into account certain other interests (i.e. IC, MRM, and\nTravellers interests)\". 1076 The Panel also reviewed the legislative history of the measure,\nconcluding that, similar to the text of the EU Seal Regime, the legislative history \"demonstrates\nthe existence of the EU public's concerns about seal welfare\". 1077 The Panel went on to observe\nthat the EU public's concerns on seal welfare found in the evidence \"are related to seal hunting in\ngeneral, and not to any particular type of hunting\", and that public survey results submitted by the\nEuropean Union were also informative, although \"to a limited extent\", in demonstrating the\nEU public's concerns.\n1078\n\n1072 Panel Reports, para. 7.372. Article 2.2 of the TBT Agreement provides:\nMembers shall ensure that technical regulations are not prepared, adopted or applied with a view\nto or with the effect of creating unnecessary obstacles to international trade. For this purpose,\ntechnical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate\nobjective, taking account of the risks non-fulfilment would create. Such legitimate objectives are,\ninter alia: national security requirements; the prevention of deceptive practices; protection of\nhuman health or safety, animal or plant life or health, or the environment. In assessing such\nrisks, relevant elements of consideration are, inter alia: available scientific and technical\ninformation, related processing technology or intended end-uses of products.\n1073 Panel Reports, para. 7.377.\n1074 Panel Reports, para. 7.378 and fn 627 thereto (referring, inter alia, to Appellate Body Report, US –\nTuna II (Mexico), para. 314).\n1075 Panel Reports, paras. 7.379-7.383.\n1076 Panel Reports, para. 7.389.\n1077 Panel Reports, para. 7.398.\n1078 Panel Reports, para. 7.398 and fns 652 and 653 thereto.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.136. The Panel further concluded that, \"in drawing up the measure, the European Union\naccommodated other interests or considerations\" related to Inuit communities, marine\nmanagement, and the personal use of seal products by travellers.\n1079 Although the Panel\nrecognized that a measure may have several objectives, it was not convinced – after reviewing the\ntext, legislative history, and structure and design of the measure – that the \"aim\", \"target\", or\n\"goal\" was to protect the interests reflected in the exceptions to the EU Seal Regime. 1080 Rather,\nthe Panel found that \"the principal objective of adopting a regulation on trade in seal products was\nto address public concerns on seal welfare.\" 1081 In the Panel's view, \"the interests that were\naccommodated in the measure through the [IC, MRM, and Travellers] exceptions must be\ndistinguished from the main objective of the measure as a whole.\"\n1082 The Panel considered that\nthe interests reflected in these exceptions were no t \"grounded in the concerns of EU citizens\", but\nrather \"appear to have been included in the course of the legislative process\". 1083 For all of these\nreasons, the Panel stated that it did not consider that such interests \"form independent policy\nobjectives of the EU Seal Regime as a whole\".\n1084\n5.137. Having concluded that the text and legislative history of the measure established the\nexistence of the EU public's concerns on seal we lfare, the Panel then turned to examine whether\nthese concerns fall within the scope of \"public morals\" in the European Union. 1085 The Panel\nexplained that, because it had found that IC and MRM interests do not constitute objectives of the\nEU Seal Regime, it was \"unnecessary to determine whether such interests are 'articulations of the\nsame standard of morality' governing the public concerns on seal welfare as claimed by the\nEuropean Union\".\n1086 The Panel thus defined its task as \"confined to assessing whether the public\nconcerns on seal welfare are anchored in the morality of European societies\".1087\n5.138. The Panel considered the legislative history of the EU Seal Regime, as well as a range of\nother evidence, including various actions taken by the European Union as well as EU member\nStates concerning animal welfare protection in general; various pieces of legislation and\nconventions on animal welfare within the European Union and other countries, including Norway\nand Canada; and various international instrument s. The Panel found that the evidence of the\nEuropean Union illustrates standards of right and wrong conduct maintained by or on behalf of the\nEuropean Union concerning seal welfare.\n1088 Although the Panel did not consider that all evidence\nmakes an explicit link between seal or animal welfare and the morals of the EU public, it\nnevertheless was persuaded that the evidence \"as a whole sufficiently demonstrates that animal\nwelfare is an issue of ethical or moral nature in the European Union\".\n1089\n5.139. The Panel concluded on the basis of its ex amination of the text and legislative history of\nthe EU Seal Regime, as well as other evidence pertaining to its design, structure, and operation,\nthat the objective of the EU Seal Regime is \"to address the moral concerns of the EU public with\nregard to the welfare of seals\". 1090 The Panel elaborated that these concerns have two specific\naspects: (i) \"the incidence of inhumane killing of seals\"; and (ii) \"EU citizens' 'individual and\ncollective participation as consumers in, and exposure to (\"abetting\"), the economic activity which\nsustains the market for' seal products derived from inhumane hunts.\" 1091 The Panel further\nconcluded that, in the light of the evidence before it, \"the EU public concerns on seal welfare\nappear to be related to seal hunts in general, not any particular type of seal hunts\".\n1092 For this\nreason, the Panel explained, the second aspect of the objective of the EU Seal Regime pertains to\n\n1079 Panel Reports, para. 7.399.\n1080 Panel Reports, paras. 7.400 and 7.401.\n1081 Panel Reports, para. 7.401.\n1082 Panel Reports, para. 7.402.\n1083 Panel Reports, para. 7.402.\n1084 Panel Reports, para. 7.402.\n1085 Panel Reports, para. 7.404.\n1086 Panel Reports, para. 7.404 (referring to European Union's opening statement at the second Panel\nmeeting, para. 44; and European Union's response to Panel question No. 104).\n1087 Panel Reports, para. 7.404.\n1088 Panel Reports, para. 7.409.\n1089 Panel Reports, para. 7.409.\n1090 Panel Reports, para. 7.410.\n1091 Panel Reports, para. 7.410.\n1092 Panel Reports, para. 7.410 (referring to European Union's response to Panel question No. 31, in turn\nreferring to Report of the Royal Commission, Seals and Sealing in Canada (1986), Vol. I, Chapter 11, \"Public\nOpinion on Sealing\" (Panel Exhibit EU-48) (Royal Commission Report), p. 160).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nseal products derived from inhumane hunts rather than \"commercially-hunted seal products\" as\nsubmitted by the European Union.1093\n5.140. Turning to the legitimacy of the objective pursued, the Panel noted that the protection of\n\"public morals\" is expressly included as a general exception to the GATT 1994 and the General\nAgreement on Trade in Services (GATS), which, in the Panel's view, demonstrated that\n\"WTO Members considered this objective to be particularly significant.\" 1094 The Panel considered\nthat, in the light of this, together with the second recital of the TBT Agreement, which states that\none of the objectives of the TBT Agreement is to further the objectives of the GATT 1994, the\nprotection of \"public morals\" falls within the scope of legitimate objectives under Article 2.2 of the\nTBT Agreement.1095 Given its finding that the concerns of the EU public on animal welfare involved\nstandards of right and wrong within the Europe an Union as a community, the Panel found that\naddressing public moral concerns on seal welfare is a \"legitimate\" objective within the meaning of\nArticle 2.2 of the TBT Agreement.1096\n5.3.1.2 Identification of the objective pursued by the EU Seal Regime\n5.141. Norway challenges the Panel's finding that the \"sole objective\" of the EU Seal Regime is to\naddress EU public moral concerns regarding seal welfare. 1097 I n N o r w a y ' s v i e w , t h e P a n e l\ncommitted a number of legal and factual errors in reaching the conclusion that the EU Seal Regime\ndoes not pursue objectives relating to the protection of IC interests and the promotion of\nMRM interests. Norway explains that it does not \"c ontest the existence of public concerns on seal\nwelfare\", but rather maintains that the measure \"also pursued other objectives\". 1098 In particular,\nNorway is critical of the Panel's analysis set out in paragraph 7.402 of its Reports, in which the\nPanel rejected the inclusion of IC and other interests as part of the objective of the measure\nbecause they were not \"grounded in the concerns of EU citizens\", but rather were \"included in the\ncourse of the legislative process\", and therefore di d not \"form independent policy objectives of the\nEU Seal Regime as a whole\".1099\n5.142. The European Union maintains that the Pane l correctly found that the \"principal\" or \"main\"\nobjective of the EU Seal Regime is to address pub lic moral concerns with regard to the welfare of\nseals.1100 The European Union explains that, as found by the Panel, the text of the\nBasic Regulation, its drafting history, and its st ructure and design establish that the EU Seal\nRegime was adopted in order to respond to EU public moral concerns with regard to the welfare of\nseals. The European Union adds that, if the EU legislators' main objective had been \"to protect the\ninterests of the Inuit and other indigenous communities or the objective that Norway ascribes to\nthe MRM exception, they would have refrained fr om adopting the EU Seal Regime in the first\nplace.\"\n1101 The European Union further emphasizes that \"[t]he IC exception does not seek to\npromote exports of seal products by the Inuit and other indigenous communities, but rather to\nmitigate the necessary adverse effects of the EU Seal Regime on those communities to the extent\ncompatible with the main objective of addressing the public moral concerns with regard to the\nwelfare of seals.\"1102\n5.143. The European Union separately appeals the Panel's finding that \"the IC distinction does not\nbear a rational relationship to the objective of a ddressing the moral concerns of the public on seal\nwelfare\".1103 In that context, the European Union is critical of the Panel's conclusion in\nparagraph 7.404 of its Reports that, because the Pa nel did not consider that IC and MRM interests\nconstitute objectives of the EU Seal Regime, it was \"unnecessary to determine whether such\ninterests are 'articulations of the same standard of morality' governing the public concerns on seal\n\n1093 Panel Reports, para. 7.410 (quoting European Union's response to Panel question No. 9).\n1094 Panel Reports, para. 7.418.\n1095 Panel Reports, para. 7.418.\n1096 Panel Reports, para. 7.419.\n1097 Norway's appellant's submission, para. 44.\n1098 Norway's appellant's submission, para. 67.\n1099 Panel Reports, para. 7.402.\n1100 European Union's appellee's submission, para. 138 (quoting Panel Reports, paras. 7.401 and 7.402).\n1101 European Union's appellee's submission, para. 141.\n1102 European Union's appellee's submission, para. 142.\n1103 Panel Reports, para. 7.275.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nwelfare as claimed by the European Union\". 1104 In the European Union's view, the EU Seal Regime\nreflects a moral standard of \"animal welfarism\" 1105, pursuant to which \"humans ought not to inflict\nsuffering upon animals without a sufficient justification\". 1106 With regard to the IC exception, the\nEuropean Union states that EU legislators considered that the subsistence of Inuit and other\nindigenous communities and the preservation of their cultural identity \"provide benefits to humans\nwhich, from a moral point of view, outweigh the risk of suffering inflicted upon seals as a result of\nthe hunts conducted by those communities\".\n1107\n5.144. As noted above, the Panel sought first to identify the objective of the EU Seal Regime\nwhen assessing the claims under Article 2.2 of th e TBT Agreement. The Panel subsequently relied\non that assessment in its analysis under Article XX of the GATT 1994. In seeking to identify the\nobjective of a measure, a panel may be faced with conflicting arguments by the parties as to the\nnature of the objective or the objectives purs ued by a responding party through its measure.\nA panel should take into account the Member's articulation of the objective or the objectives it\npursues through its measure, but it is not bound by that Member's characterizations of such\nobjective(s).\n1108 Indeed, the panel must take account of all evidence put before it in this regard,\nincluding \"the texts of statutes, legislative histor y, and other evidence regarding the structure and\noperation\" of the measure at issue. 1109 A panel's identification of the \"objective\" of a measure is a\nmatter of legal characterization subject to appellate review under Article 17.6 of the DSU.1110\n5.145. Contrary to what Norway suggests, the Panel did not find that addressing EU public moral\nconcerns regarding seal welfare was the \"sole ob jective\" of the EU Seal Regime. Following its\nreview of the text of the EU Seal Regime, the Panel concluded that the European Union, in\ndesigning the measure, \"sought to address the public concerns on seal welfare\".1111 The Panel also\nsurveyed the legislative history and considered that it \" demonstrates the existence of the\nEU public's concerns about seal welfare\".1112 The Panel further found that the EU public's concerns\non seal welfare \"are related to seal hunting in general, and not to any particular type of\nhunting\".1113 On this basis, the Panel concluded that \" the principal objective of adopting a\nregulation on trade in seal products was to address public concerns on seal welfare.\"1114\n5.146. In the light of the Panel's conclusion that the \"main\" 1115 or \"principal\" 1116 element of the\nobjective consisted of addressing EU public co ncerns regarding seal welfare, the Panel then\nproceeded to find that the IC and other interests had been \"accommodated\" in the measure. 1117\nThus, when the Panel stated that the other interests \"must be distinguished from the main\n\n1104 Panel Reports, para. 7.404 (referring to European Union's opening statement at the second Panel\nmeeting, para. 44; and European Union's response to Panel question No. 104).\n1105 European Union's other appellant's submission, paras. 96 (referring to European Union's second\nwritten submission to the Panel, paras. 139-146) and 110.\n1106 European Union's other appellant's submission, para. 110.\n1107 European Union's other appellant's submission, para. 98 (referring to European Union's first written\nsubmission to the Panel, paras. 38-40; European Union's second written submission to the Panel, paras. 275\nand 276; and European Union's response to Panel questions Nos. 10, 31, 104, 136).\n1108 Appellate Body Report, US – Tuna II (Mexico), para. 314 (referring to Appellate Body Report, US –\nGambling, para. 304).\n1109 Appellate Body Report, US – Tuna II (Mexico), para. 314.\n1110 In China – Auto Parts, the Appellate Body stated:\nThe Appellate Body has explicitly stated that the municipal law of WTO Members may serve not\nonly as evidence of facts, but also as evidence of compliance or non-compliance with\ninternational obligations. When a panel examines the municipal law of a WTO Member for\npurposes of determining whether the Member has complied with its WTO obligations, that\ndetermination is a legal characterization by a panel, and is therefore subject to appellate review\nunder Article 17.6 of the DSU.\n(Appellate Body Reports, China – Auto Parts, para. 225 (referring to Appellate Body Reports, US – Section 211\nAppropriations Act, para. 105; and India – Patents (US), paras. 65, 66, and 68) (fns omitted))\n1113 Panel Reports, para. 7.398 (referring to COWI 2008 Report, pp. 124-127).\n1114 Panel Reports, para. 7.401. (emphasis added) The Panel subsequently found that the overall\nobjective of the EU Seal Regime was to address public moral concerns on seal welfare in respect of two aspects\nconsisting of: (i) EU public participation as consumers in and exposure to products derived from inhumanely\nkilled seals; and (ii) the number of inhumanely killed seals. (See e.g. ibid., paras. 7.410 and 7.443)\n1115 Panel Reports, para. 7.402.\n1116 Panel Reports, para. 7.401.\n1117 Panel Reports, paras. 7.399 and 7.402.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nobjective of the measure as a whole\", it was commenting on how the relative significance of the\npolicy interests played out in the measure, sugge sting that the IC and other interests were not\nmanifest in the objective of the measure in the same manner as concerns regarding seal\nwelfare.\n1118 This is confirmed by the subsequent statem ent of the Panel that, \"unlike the issue of\nseal welfare\", it saw no evidence that the IC and other interests were \"grounded in the concerns of\nEU citizens\" and that these interests appear instead \"to have been included in the course of the\nlegislative process\".\n1119 This was not a statement by the Panel that policy concerns only have\nvalidity if they are grounded in the concerns of citizens, as opposed to being advanced by\nlegislators. Rather, we understand this to have been considered by the Panel as further evidence\nsupporting its conclusion that concerns regarding seal welfare were what principally motivated\nadoption of the measure, and that the IC and other interests were also reflected in the design and\nimplementation of the measure in that they were accommodated so as to mitigate the impact of\nthe measure on those interests.\n5.147. In addition, the Panel's statement that IC and other interests \"do not … form independent\npolicy objectives of the EU Seal Regime as a whole\"\n1120 must be read together with the various\nstatements of the Panel confirming that the inte rests protected or promoted in the IC, MRM, and\nTravellers exceptions are reflected in the measure itself. The Panel thus acknowledged the role of\nthese interests when it stated that, in designin g the EU Seal Regime, the European Union sought\nto address concerns on seal welfare while \" also [taking] into account \" IC, MRM, and Travellers\ninterests.1121 The Panel also stated that, \" in drawing up the measure , the European Union\naccommodated other interests or considerations , such as the Inuit communities engaged in seal\nhunting, seals hunted for marine management pu rposes, and seal products brought into the\nEuropean Union for personal use\". 1122 The Panel noted, in particular, references in the legislative\nhistory that \"the interests of Inuit and indigeno us communities engaged in seal hunting should be\nprotected from possible trade regulations on seal products.\" 1123 Thus, although the Panel rejected\nthe contention that IC and other interests reflecte d independent objectives of the EU Seal Regime,\nwe do not understand the Panel to have excluded the role of IC and other interests in the design\nand implementation of the measure.\n5.148. Finally, we note that, although the Panel did not determine the moral content of IC and\nMRM interests, either alone or as part of a single moral standard governing the concerns in respect\nof seal welfare, the Panel also did not accept the European Union's contention that the benefits to\nInuit communities \"outweighed\" concerns in respect of seal welfare. 1124 Thus, the Panel concluded\nthat, while the EU public had moral concerns rega rding seal welfare in general, the Panel did not\nconsider that the evidence before it supported th e European Union's position that \"the EU public\nattributes a higher moral value to the protection of Inuit interests as compared to seal welfare\".1125\nIn this regard, the Panel referred to its conclusion that the evidence before it indicated that\n\n1118 Panel Reports, para. 7.402.\n1119 Panel Reports, para. 7.402.\n1120 Panel Reports, para. 7.402.\n1123 Panel Reports, para. 7.401 (referring to Council Directive No. 83/129 of 28 March 1983 concerning\nthe importation into Member States of skins of certain seal pups and products derived therefrom, Official\nJournal of the European Communities, L Series, No. 91 (9 April 1983), pp. 30-31 (Panel Exhibit CDA-12)\n(EC Seal Pups Directive); European Commission, Proposal for a Regulation of the European Parliament and the\nCouncil concerning trade in seal products (23 July 2008) COM(2008) 469 final (Panel Exhibit JE-9)\n(Commission Proposal), p. 5; Committee on the Internal Market and Consumer Protection, Report on the\nproposal for regulation of the European Parliament and of the Council concerning trade in seal products\n(5 March 2009), A6-0118 (Panel Exhibit JE-4) (Parliament Report), p. 10 (Justification for Amendment 8)). The\nPanel further stated:\nThe legislative history of the EU Seal Regime shows that exceptions for Inuit and indigenous\ncommunities from the regulation on seal products, albeit varying in scope, were consistently a\nconsideration. The European Commission's proposed regulation, subsequent comments on the\nregulation, and the parliament's proposal also indicate references to exempting imports of\noccasional nature and for personal use.\n(Ibid., fn 658 to para. 7.401 (referring to Commission Proposal, p. 5; and Parliament Report, p. 10))\n1124 Panel Reports, para. 7.299 (referring to European Union's response to Panel question No. 31).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nEU public concerns on seal welfare appear to be related to seal hunts in general, and not to any\nparticular type of seal hunts.1126\n5.149. Before we reach a conclusion regarding the objective of the EU Seal Regime, we first\nexamine whether, as Norway contends, the Panel acted inconsistently with Article 11 of the DSU in\nits identification of the objective of the EU Seal Regime.1127\n5.150. Article 11 of the DSU requires a panel to make \"an objective assessment of the matter\",\nwhich includes an objective assessment of the facts of the case. We recall the standard articulated\nin past Appellate Body reports for establishing a violation of Article 11 of the DSU. In accordance\nwith Article 11 of the DSU, a panel is required to \"consider all the evidence presented to it, assess\nits credibility, determine its weight, and ensure that its factual findings have a proper basis in that\nevidence\".\n1128 In particular, \"panels [may not] make affirmative findings that lack a basis in the\nevidence contained in the panel record\". 1129 Within these parameters, \"it is generally within the\ndiscretion of the Panel to decide which evidence it chooses to utilize in making findings\". 1130 In this\nregard, the Appellate Body has stated that it will not \"interfere lightly\" with a panel's fact-finding\nauthority but, rather, for a claim under Article 11 to succeed, the Appellate Body \"must be satisfied\nthat the panel has exceeded its authority as the trier of facts\". 1131 In other words, \"not every error\nallegedly committed by a panel amounts to a violation of Article 11 of the DSU\"1132, but only those\nthat are so material that, \"taken together or sing ly\", they undermine the objectivity of the panel's\nassessment of the matter before it. 1133 Accordingly, it is insufficient for an appellant simply to\ndisagree with a statement or to assert that it is not supported by evidence. Ultimately, the party\nraising the claim bears the onus of explaining why the alleged error meets the standard of review\nunder Article 11.1134\n5.151. Norway's contention that the Panel acted inconsistently with its obligations under Article 11\nof the DSU rests on several grounds. Norway first contends that the Panel disregarded evidence\nprovided by Norway allegedly showing that the legislative objectives of the EU Seal Regime\nincluded protecting the economic and social interests of indigenous communities, and separately\npromoting the sustainable management of marine resources. According to Norway, the Panel\nundertook a \"selective\" and \"unbalanced\" review of the evidence of the legislative history,\ndedicating most of its analysis to addressing evidence that supported the public morals objective\nasserted by the European Union.\n1135 By contrast, the Panel's \"discussion and consideration of the\nIC and [M]RM objectives asserted by Norway receive[d] a few cursory lines of commentary\". 1136\nAccording to Norway, the Panel made only the limited statement that it \" noticed references in\ncertain evidence relating to the measure's legislative history that the interests of Inuit and\nindigenous communities engaged in seal hunting should be protected from possible trade\n\n1126 Panel Reports, para. 7.410 and fn 676 thereto.\n1127 Norway's appellant's submission, para. 170.\n1128 Appellate Body Report, Brazil – Retreaded Tyres, para. 185 (referring to Appellate Body Report,\nEC – Hormones, paras. 132 and 133). See also Appellate Body Reports, Australia – Salmon, para. 266; EC –\nAsbestos, para. 161; EC – Bed Linen (Article 21.5 – India), paras. 170, 177, and 181; EC – Sardines,\nparas. 141 and 142; Korea – Alcoholic Beverages, paras. 161 and 162; Korea – Dairy, para. 138; US – Carbon\n1129 Appellate Body Report, US – Carbon Steel, para. 142 (referring to Appellate Body Report, US –\nWheat Gluten, paras. 161 and 162).\n1130 Appellate Body Report, EC – Hormones, para. 135. The Appellate Body has also stated that: a panel\nhas to base its findings on a sufficient evidentiary basis on the record (Appellate Body Report, EC – Fasteners\n(China), para. 441); may not apply a double standard of proof (Appellate Body Report, US – Upland Cotton\n(Article 21.5 – Brazil), para. 293); and its treatment of the evidence must not \"lack even-handedness\"\n(Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 292).\n1131 Appellate Body Report, US – Wheat Gluten, para. 151.\n1132 Appellate Body Report, EC – Fasteners (China), para. 442.\n1133 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1318.\n1134 Appellate Body Report, EC – Fasteners (China), para. 442. (emphasis omitted)\n1135 Norway's appellant's submission, para. 182.\n1136 Norway's appellant's submission, para. 183.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nregulations on seal products\". 1137 Norway emphasizes that an objective assessment of the facts\n\"requires substantially more than 'notice' by a panel.\"1138\n5.152. Norway further asserts that the Panel' s \"imbalanced treatment of the evidence is\nhighlighted by its selective reliance\" 1139 on a proposal by the European Commission for a\nregulation concerning trade in seal products 1140 (Commission Proposal). In this regard, Norway\nnotes that the Panel \"referred to the Commission's Proposal to support the view that public\nconcerns regarding seal welfare were to be addressed in the measure, quoting two full paragraphs\nof that Proposal\".\n1141 Yet, according to Norway, \"the Panel failed to attribute equal (or for that\nmatter any) weight in its discussion to other objectives highlighted in that very same\ndocument\".1142 Norway argues that the evidence of th e legislative history does not support the\nPanel's \"ultimate conclusion that addressing public moral concerns about seal welfare was the sole\nobjective of the measure and that the protec tion of the IC and [M]RM interests are not\nobjectives\".1143\n5.153. As noted by the Panel, the Commission Proposal refers to the public concerns about \"the\nanimal welfare aspects of the killing and skinning of seals and about trade occurring in products\npossibly derived from seals that have been killed and skinned with avoidable pain, distress and\nother forms of suffering\".\n1144 The Impact Assessment accompanying the Commission Proposal 1145\n(Commission 2008 Impact Assessment) also describ es the main overarching objectives of the\ninitiative as \"[p]rotect[ing] seals from acts that cause them avoidable pain, distress, fear and other\nforms of suffering during the killing and skinning process\", and \"[a]ddress[ing] the concerns of the\ngeneral public with regard to the killing and skinning of seals\".\n1146 The Panel further observed that\n\"the Commission Proposal describes public concerns as relating to 'ethical' considerations.\" 1147 For\nexample, the Panel noted that the following expressions were used in the Commission Proposal:\n\"out of ethical reasons\"; \"citizens' deep indignation and repulsion regarding the trade in seal\nproducts in such conditions\"; \"the public's growing awareness and sensitivity to ethical\nconsiderations in how seal products are obtained\".\n1148 The Panel added that the Commission\nProposal stated:\nFor several years, many members of the public have been concerned about the animal\nwelfare aspects of the killing and skinning of seals and about trade occurring in\nproducts possibly derived from seals that ha ve been killed and skinned with avoidable\npain, distress and other forms of suffering, which seals, as sentient mammals, are\ncapable of experiencing. Those concerns have therefore been expressed by members\nof the public out of ethical reasons . The Commission received during the last years a\nmassive number of letters and petitions on the issue expressing citizens' deep\nindignation and repulsion regarding the trade in seal products in such conditions.1149\n\n1137 Norway's appellant's submission, para. 183 (quoting Panel Reports, para. 7.401). (emphasis added\nby Norway)\n1138 Norway's appellant's submission, para. 184. (emphasis omitted)\n1139 Norway's appellant's submission, para. 188.\n1140 European Commission, Proposal for a Regulation of the European Parliament and the Council\nconcerning trade in seal products (23 July 2008) COM(2008) 469 final (Panel Exhibit JE-9).\n1141 Norway's appellant's submission, para. 188 (referring to ibid., paras. 116 and 131).\n1142 Norway's appellant's submission, para. 188 (referring to Commission Proposal, p. 5). (emphasis\noriginal) Norway also claims that the Panel did not address \"key reports and opinions, which reflected the\nconsiderations expressed in relevant committees of the EU Parliament\". (Norway's appellant's submission,\npara. 189) These reports, Norway maintains, \"provide key insights into why, and how, the IC and [M]RM\ninterests were important to EU legislators, and even highlighted how they contradicted the animal welfare\nconsiderations under the EU Seal Regime\". (Ibid.)\n1143 Norway's appellant's submission, para. 196. (emphasis original)\n1144 Panel Reports, para. 7.394 (referring to Commission Proposal, pp. 2-3, 8, and 11).\n1145 European Commission, \"Commission Staff Working Document accompanying document to the\nProposal for a regulation of the European Parliament and of the council concerning trade in seal products –\nImpact Assessment on the potential impact of a ban of products derived from seal species\" (23 July 2008),\nCOM(2008) 469 final (Panel Exhibit JE-16).\n1146 Panel Reports, para. 7.394 (referring to Commission 2008 Impact Assessment, p. 23).\n1147 Panel Reports, paras. 7.394 and 7.395 (referring to Commission Proposal, p. 2 (Explanatory\nmemorandum)).\n1148 Panel Reports, para. 7.395 (quoting Commission Proposal, pp. 2-3 (Explanatory memorandum)).\n1149 Panel Reports, para. 7.395 (quoting Commission Proposal, p. 2 (Explanatory memorandum)).\n(emphasis added by the Panel)\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.154. The Panel concluded, therefore, that the Commission Proposal \"provide[d] evidence that\nthe public concerns about seal welfare constitute a moral issue for EU citizens\".1150\n5.155. The Commission Proposal also notes that the \"fundamental economic and social interests\nof Inuit communities traditionally engaged in the hunting of seals should not be adversely\naffected.\"1151 Norway's complaint appears to relate to the fact that the Panel did not attribute this\nstatement any weight in its discussion of other objectives highlighted in that same document. We\ndo not see, however, why the Panel's failure explicitly to address and rely upon this statement in\nthe Commission Proposal would have \"a bearing on the objectivity of the panel's factual\nassessment\".\n1152\n5.156. We further note that this statement fr om the Commission Proposal cited by Norway is\nimmediately preceded by the following statements regarding seal welfare concerns, which also fall\nunder the heading \"Grounds for and objectives of the proposal\":\nThe various prohibitions provided for by this Regulation would respond to the animal\nwelfare concerns expressed by members of th e public as to the possible introduction\ninto the Community of seal products obtained from seals that might not have been\nkilled and skinned without causing avoi dable pain, distress and other forms of\nsuffering.\nIt should however be possible for trade in seal products to take place where the killing\nand skinning methods used would be such as offering reasonable guarantees that the\nkilling and skinning occur without causing avoidable pain, distress and other forms of\nsuffering.\nThe regulatory framework so established wo uld therefore be designed so as giving\nincentives to countries concerned to review and improve, where need be, their\nlegislation and practice concerning the meth ods to be complied with when killing and\nskinning seals.\n1153\n5.157. Like the single sentence that Norway cl aims the Panel overlooked, the above observations\nare also not quoted in the Panel Reports. Moreov er, we note that they all articulate concerns\nregarding seal welfare, rather than concerns regarding the protection of indigenous communities.\n5.158. To establish that the Panel acted inconsistently with Article 11 of the DSU, it must be\nestablished that the Panel exceeded the bounds of its discretion as the trier of fact, including in its\ntreatment of the evidence regarding the legislative history. As the Appellate Body noted in Korea –\nAlcoholic Beverages, it is not an error of law under Article 11 of the DSU for a panel \"to fail to\naccord the weight to the evidence that one of the parties believes should be accorded to it\".\n1154 In\nreviewing the Panel's findings regarding the legislative history, we consider that the Panel acted\nwithin its discretion in ascribing weight to the evidence. As we noted, the Panel concluded that\nEU public concerns regarding seal welfare were what principally motivated the adoption of the\nEU Seal Regime. At the same time, although the Panel rejected the contention that IC and other\ninterests reflected independent objectives of the EU Seal Regime, it noted that these interests\nwere accommodated in the design and implementation of the measure. We are not persuaded that\nthe Panel undertook a \"selective\" and \"unbalanced\" review of the evidence of the legislative\nhistory. Rather, it declined to attribute to certain aspects of the legislative history of the EU Seal\nRegime the weight and significance that Norway considers it should have.\n5.159. Regarding the text of the measure, Norway argues that the Panel erred by failing to take\ninto account its own findings. For example, according to Norway, the Panel found that the\npreamble of the Basic Regulation \"sets out three main considerations with equal prominence,\nwhich included those relating to IC and [M]RM interests\".\n1155 According to Norway, the Panel's\nfailure to explain why, in the light of that finding, \"it still gave prominence singularly to the seal\n\n1150 Panel Reports, para. 7.396.\n1151 Norway's appellant's submission, para. 653 (quoting Commission Proposal, p. 5).\n1152 Appellate Body Report, EC – Fasteners (China), para. 442.\n1153 Commission Proposal, pp. 4-5.\n1154 Appellate Body Report, Korea – Alcoholic Beverages, para. 164.\n1155 Norway's appellant's submission, para. 198. (emphasis original)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nwelfare concerns of the EU public, constitutes further error.\" 1156 Norway also maintains that,\ndespite the Panel's finding that the Implementing Regulation was necessary to the enforcement of\nthe EU Seal Regime, the Panel overlooked the re levance of the Implementing Regulation and its\nenforcement provisions relating to the IC and MRM requirements.1157\n5.160. Based on its analysis of the preamble of the Basic Regulation, the Panel found that:\n[T]he Basic Regulation appears to address three main considerations: first, the need\nto harmonize the regulations on seal products within the EU internal market\n(recitals 5, 6, 7, 8, 10, 15, 21); second, concerns about seal welfare issues (recitals 1,\n4, 5, 10, 11); and, third, the need to preserve the economic and social interests of\nInuit communities engaged in seal hunting and to define the conditions for IC, MRM,\nand Travellers exceptions (recitals 16 and 17).\n1158\n5.161. Contrary to what Norway suggests, we do not understand the Panel to have concluded that\nthese considerations were of \"equal prominence\". 1159 Nor are we persuaded that the Panel gave\n\"prominence singularly to the seal welfare concerns of the EU public\". 1160 Rather, as we have said,\nthe EU Seal Regime pursued EU public moral concerns regarding seal welfare while at the same\ntime accommodating other interests so as to mitigate the impact of the measure on those\ninterests. Thus, in examining the text of the EU Seal Regime, the Panel found that \"in designing\nthe Regime, the European Union sought to address the public concerns on seal welfare.\"\n1161 The\nPanel added that, in doing so, \"the European Union also took into account certain other interests\n(i.e. IC, MRM, and Travellers interests).\"\n1162\n5.162. We therefore do not agree with Norway that the Panel somehow ignored its own findings\nor other features of the text of the EU Seal Regime. Although Norway contends that the Panel\nfailed to take into account how the text of the measure \"catered to the goals of Member States,\nsuch as Sweden and Finland\" to protect MRM interests and to the \"desire to protect the interests of\nthe Inuit communities\"\n1163, we do not consider that the Panel committed legal error in failing to\nattribute to evidence of these interests the meaning and significance Norway considers it should be\ngiven. Moreover, we consider that, notwithsta nding the role played by the Implementing\nRegulation in enforcing the EU Seal Regime, the Panel was acting within its discretion in stating\nthat it considered that the Implementing Regulation \"does not in itself assist us in identifying the\nobjective of the measure\".\n1164\n5.163. Norway recalls that the reasons given by the Panel for finding that IC and MRM interests\nare not objectives of the EU Seal Regime were: (i) that the three interests pursued in the measure\n\"must be distinguished\"; (ii) that the IC and MR M interests are not grounded \"in the concerns of\nEU citizens\"; (iii) that the IC and MRM \"exceptions\" were \"included in the [course of the] legislative\nprocess\"; and (iv) that the exception in Brazil – Retreaded Tyres was not argued to constitute an\n\"objective\".1165 In Norway's view, \"these reasons do not provide a coherent basis for the Panel's\nconclusion.\"1166 Moreover, according to Norway, the Panel's reasoning fails to reconcile its finding\nwith \"the considerable evidence showing that protection of the IC and MRM interests were\nobjectives of the measure.\"1167\n5.164. We have addressed Norway's arguments concerning the reasons given by the Panel for\nfinding that protecting IC and MRM interests were not objectives of the EU Seal Regime in\nparagraphs 5.146 and 5.147 of these Reports and have rejected Norway's arguments in that\ncontext. We therefore see no grounds separately to consider these issues under Article 11 of\nthe DSU.\n\n1156 Norway's appellant's submission, para. 198.\n1157 Norway's appellant's submission, para. 201.\n1158 Panel Reports, para. 7.387.\n1159 Norway's appellant's submission, para. 198. (emphasis omitted)\n1160 Norway's appellant's submission, para. 198.\n1161 Panel Reports, para. 7.389.\n1162 Panel Reports, para. 7.389.\n1163 Norway's appellant's submission, para. 199.\n1166 Norway's appellant's submission, para. 209 (referring to ibid., paras. 66-110).\n1167 Norway's appellant's submission, para. 209.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.165. Regarding the expected operation of the me asure, Norway argues that the Panel failed to\nconsider and give probative weight to its own findings in other sections of its Reports. According to\nNorway, these show that the EU Seal Regime will operate to allow into the EU market \"all, or\nvirtually all\"\n1168 seal products from Greenland under the IC exception; and that seal products from\ncertain EU countries, including Sweden, would \"likely qualify\" 1169 under the MRM exception.\nNorway posits that this evidence concerning the expected operation of the EU Seal Regime\n\"confirms that the goals expressed in the legislative history, and reflected in the text and hierarchy\nof the measure, are implemented in the measure's operation to a considerable practical extent\"1170\nand that together \"with the remaining evidence, these findings should have revealed to\nthe Panel that the EU Seal Regime pursues objectives relating to the protection of IC and\n[M]RM interests.\"\n1171\n5.166. The Appellate Body has consistently recognized that panels enjoy a margin of discretion in\ntheir assessment of the facts. This margin includes the discretion of the panel to decide which\nevidence it chooses to utilize in making its findings\n1172, and to determine how much weight to\nattach to the various items of evidence placed before it by the parties to the case.1173 A panel does\nnot commit error simply because it declines to accord to the evidence the weight that one of the\nparties believes should be accorded to it.\n1174 Although the Panel could have provided more\nreasoning to support its findings, we do not think that any shortcomings in the Panel's analysis of\nthe expected operation of the EU Seal Regime are so serious as to amount to a failure to make an\nobjective assessment of the matter before it. Nor do we see why the Panel's finding that the\nEU Seal Regime will operate to allow into the EU market \"all, or virtually all\"\n1175 seal products from\nGreenland under the IC exception, and that seal products from certain EU countries, including\nSweden, would \"likely qualify\" 1176 under the MRM exception, would necessarily mean that the\nprotection of IC and MRM interests amount to separate objectives of the EU Seal Regime.\n5.167. For the reasons stated above, we reject Norway's contentions that the Panel erred in its\ncharacterization of the objective of the EU Seal Regime, and that the Panel failed to comply with\nits duties under Article 11 of the DSU in its asse ssment of the evidence regarding the objective of\nthe EU Seal Regime. Having reviewed the Panel's findings and the participants' arguments on\nappeal, we consider that the principal objective of the EU Seal Regime is to address EU public\nmoral concerns regarding seal welfare, while accommodating IC and other interests so as to\nmitigate the impact of the measure on those interests.\n5.3.2 Article XX(a) of the GATT 1994\n5.168. Article XX(a) of the GATT 1994 reads:\nArticle XX\nGeneral Exceptions\nSubject to the requirement that such measures are not applied in a manner which\nwould constitute a means of arbitrary or unjustifiable discrimination between countries\nwhere the same conditions prevail, or a disguised restriction on international trade,\nnothing in this Agreement shall be construe d to prevent the adoption or enforcement\nby any Member of measures:\n(a) necessary to protect public morals; …\n\n1170 Norway's appellant's submission, para. 205.\n1171 Norway's appellant's submission, para. 206.\n1172 Appellate Body Report, EC – Hormones, para. 135.\n1173 Appellate Body Report, Korea – Dairy, para. 137.\n1174 Appellate Body Reports, Australia – Salmon, para. 267; Japan – Apples, para. 221; and Korea –\nAlcoholic Beverages, para. 164.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.169. As established in WTO jurisprudence, th e assessment of a claim of justification under\nArticle XX involves a two-tiered analysis in which a measure must first be provisionally justified\nunder one of the subparagraphs of Article XX, before it is subsequently appraised under the\nchapeau of Article XX.\n1177 As the Appellate Body has stated, provisional justification under one of\nthe subparagraphs requires that a challenged measure \"address the particular interest specified in\nthat paragraph\" and that \"there be a sufficient nexus between the measure and the interest\nprotected\".\n1178 In the context of Article XX(a), this means that a Member wishing to justify its\nmeasure must demonstrate that it has adopted or enforced a measure \"to protect public morals\",\nand that the measure is \"necessary\" to protect such public morals. 1179 As the Appellate Body has\nexplained, a necessity analysis involves a process of \"weighing and balancing\" a series of factors,\nincluding the importance of the objective, the cont ribution of the measure to that objective, and\nthe trade-restrictiveness of the measure. 1180 The Appellate Body has further explained that, in\nmost cases, a comparison between the challenged measure and possible alternatives should then\nbe undertaken.\n1181 The burden of proving that a measure is \"necessary to protect public morals\"\nwithin the meaning of Article XX(a) resides with the responding party, although a complaining\nparty must identify any alternative measures that, in its view, the responding party should have\ntaken.\n1182\n5.170. Canada and Norway each appeal the Panel's conclusion that the EU Seal Regime is\nnecessary to protect public morals within the meaning of Article XX(a) of the GATT 1994. 1183 The\ncomplainants present several challenges to the Panel's analysis in respect of Article XX(a). First,\nNorway submits that the Panel erred by seeking to justify under Article XX(a) the EU Seal Regime\nas a whole, instead of the aspects of the measure giving rise to WTO-inconsistency under\nArticles I:1 and III:4 of the GATT 1994. Thus, in section 5.3.2.2 below, we address the question of\nwhat aspects of the EU Seal Regime must be justified under Article XX(a).\n5.171. Second, Canada maintains that the Panel failed to establish that there was a risk to the\npublic morals of the European Union regarding animal welfare that is unique to seals. Canada's\nappeal goes to the question of whether the Pane l properly found that the EU Seal Regime is a\nmeasure taken \"to protect public morals\", and is addressed in section 5.3.2.3 below.\n5.172. Third, Canada and Norway contend that the Panel failed to establish that the EU Seal\nRegime makes a material contribution to the objective of addressing EU public moral concerns\nregarding seal welfare. This claim implicates the Panel's assessment of whether the EU Seal\nRegime is \"necessary\" to protect public morals. In addition, because the Panel's analysis under\nArticle XX(a) relies on findings it made in th e context of Article 2.2 of the TBT Agreement\n1184,\nCanada and Norway also incorporate by refe rence various arguments from their appeals\nof the Panel's findings and analysis under Articl e 2.2 regarding the contribution of the EU Seal\nRegime to the objective of the measure, as well as the alternative measure proposed by the\n\n1177 Appellate Body Reports, US – Gasoline, p. 22, DSR 1996:I, p. 20; and US – Shrimp, paras. 119\nand 120. See also Appellate Body Report, US – Gambling, para. 292.\n1178 Appellate Body Report, US – Gambling, para. 292. Although the issue on appeal in US – Gambling\nconcerned Article XIV(a) of the GATS, the Appellate Body stated that the two-tier analysis set out in WTO\njurisprudence is contemplated under both Article XIV of the GATS and Article XX of the GATT 1994. (Ibid.)\n1180 Appellate Body Reports, Korea – Various Measures on Beef, para. 164; US – Gambling, para. 306;\n1181 Appellate Body Report, US – Gambling, para. 307 (referring to Appellate Body Report, Korea –\nVarious Measures on Beef, para. 166). See also Appellate Body Report, US – Tuna II (Mexico), para. 321\n(referring to Appellate Body Report, US – Gambling, para. 307). In the context of Article 2.2 of the\nTBT Agreement, the Appellate Body stated that \"[i]n most cases, a comparison of the challenged measure and\npossible alternative measures should be undertaken\". (Appellate Body Report, US – Tuna II (Mexico),\npara. 322) The Appellate Body then proceeded to identify circumstances in which comparison with possible\nalternative measures may not be required, for instance, when the challenged measure is not trade restrictive,\nor when it makes no contribution to the objective. (Ibid., fn 647 to para. 322)\n1182 Appellate Body Report, US – Gambling, paras. 309-311. The Appellate Body additionally noted that\na responding party need not identify the universe of less trade-restrictive alternative measures and then show\nthat none of those measures achieves the desired objective. The WTO agreements, the Appellate Body stated,\ndo not contemplate such an impracticable and impossible burden. (Ibid., para. 309)\n1183 Panel Reports, para. 7.639.\n1184 Panel Reports, paras. 7.638 and 7.639.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncomplainants.1185 We address these claims concerning the Panel's \"necessity\" analysis in\nsections 5.3.2.4 and 5.3.2.5 below.1186\n5.173. Finally, we note that, in US – Shrimp , the Appellate Body stated that it would not \"pass\nupon the question of whether there is an implied jurisdictional limitation in Article XX(g), and if so,\nthe nature or extent of that limitation\". 1187 The Appellate Body explained that, in the specific\ncircumstances of that case, there was \"a sufficient nexus between the migratory and endangered\nmarine populations involved and the United States for purposes of Article XX(g)\".\n1188 As set out in\nthe preamble of the Basic Regulation, the EU Seal Regime is designed to address seal hunting\nactivities occurring \"within and outside the Community\" 1189 and the seal welfare concerns of\n\"citizens and consumers\" in EU member States. 1190 The participants did not address this issue in\ntheir submissions on appeal. 1191 Accordingly, while recognizing the systemic importance of the\nquestion of whether there is an implied jurisdictional limitation in Article XX(a), and, if so, the\nnature or extent of that limitation, we have decided in this case not to examine this question\nfurther.\n5.174. Before turning to each of Canada's and Norway's claims as set out above, we first recall\nthe Panel's findings under Article XX(a).\n5.3.2.1 The Panel's findings on Article XX(a)\n5.175. The Panel first addressed the issue of wh at aspects of the EU Seal Regime must be\njustified under Article XX of the GATT 1994. Although the parties agreed that it is the aspect of a\nmeasure infringing the GATT 1994 that must be justified under Article XX, the Panel stated that it\nneed not limit itself to considering that aspect of the measure in order to determine the measure's\njustifiability under Article XX.\n1192 Instead, the Panel observed that the aspects of a measure that\nmust be considered in an Article XX analysis are to be identified in the light of the specific\ncircumstances of a given dispute, including the natu re and characteristics of the measure at issue,\nthe manner in which the complainants present th eir claims, and the relationship between the\nGATT 1994 and the other covered agreements that were also examined with respect to the given\nmeasure.\n1193\n\n1185 Canada's appellant's submission, paras. 407 and 408; Norway's appellant's submission,\nparas. 858-867.\n1186 There are certain claims raised by Canada and Norway in respect of Article 2.2 of the TBT\nAgreement on which we need not rule by virtue of our mooting of the Panel's findings under the TBT\nAgreement. (See supra, para. 5.132) For example, we do not rule on Canada's claim that the Panel failed\nproperly to assess the risks non-fulfilment would create, or to conduct a relational analysis taking into account\nsuch risks of non-fulfilment, as required by Article 2.2. (Canada's Notice of Appeal, pp. 1-2) To the extent that\nCanada contends that the Panel was required under Article XX(a) to reach a preliminary determination of\nnecessity before proceeding to compare the challenged measure with possible alternatives, we disagree. (See\ninfra, fn 1300) We also do not rule on Norway's claims that the Panel failed to address its contention that the\nthree contested conditions under the MRM requirements make no contribution to the measure's objective\n(Norway's Notice of Appeal, para. 7, bullet point 3), and failed to address arbitrary or unjustifiable\ndiscrimination in its analysis under Article 2.2 (ibid., para. 8). These claims are set out, respectively, in\nsections IV.B.2.g and IV.B.3 of Norway's appellant's submission, which were not incorporated by reference in\nits claims under Article XX(a). (Norway's appellant's submission, paras. 863 (referring to section IV.B.2.e), 864\n(referring to section IV.B.2.f), and 867 (referring to sections IV.B.4.e and IV.B.4.f)) In addition, because we\nhave rendered moot the Panel's finding in respect of Article 2.2, the conditions for Norway's request that we\ncomplete the legal analysis have not been satisfied. (Norway's Notice of Appeal, para. 11)\n1187 Appellate Body Report, US – Shrimp, para. 133.\n1188 Appellate Body Report, US – Shrimp, para. 133.\n1189 Basic Regulation, preamble, recital 3.\n1190 Basic Regulation, preamble, recital 5.\n1191 In response to questioning at the oral hearing, the participants expressed their agreement that\nthere is a sufficient nexus between the public moral concerns and activities addressed by the measure, on the\none hand, and the European Union, on the other hand. The participants also indicated that, because the parties\ndid not dispute that there was a sufficient nexus, the Appellate Body need not explore this issue further.\n(Participants' responses to questioning at the oral hearing)\n1192 Panel Reports, para. 7.618.\n1193 Panel Reports, para. 7.619.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.176. With respect to the nature and characteristics of the measure at issue in the present\ndisputes, the Panel was of the view that the tw o components comprising the EU Seal Regime\n– i.e. the \"ban\" and the \"exceptions\" – are \"close ly connected\" to each other since the exceptions\ncannot \"operate in isolation\" without the ban. 1194 The Panel compared this to the \"similar factual\ncircumstances\" in US – Gasoline , where, in the Panel's view, the Appellate Body \"weighed and\nconsidered the interrelationship of different comp onents of the measure\" in the context of its\nanalysis under Article XX(g). 1195 The Panel saw no reason why the Appellate Body's approach in\nthe context of Article XX(g) was not relevant to its analysis under Article XX(a) and (b). 1196 The\nPanel further noted that the IC and MRM exceptions have a \"substantial\" relationship with the ban\ngiven that the exceptions cannot exist without the ban, and that the exceptions inform the scope\nof the ban.\n1197\n5.177. Next, the Panel recalled its analysis of the EU Seal Regime under the TBT Agreement,\nnoting that the EU Seal Regime as a whole was found to constitute a \"technical regulation\". The\nPanel further noted that the policy objective pursued by the EU Seal Regime was determined to be\n\"addressing the EU public moral concerns on seal welfare\"\n1198; that the EU Seal Regime as a whole\nwas examined for the necessity of its trade-rest rictiveness in fulfilling the identified policy\nobjective under Article 2.2; and that the justification of the detrimental impacts caused by the\nregulatory distinctions embodied in the IC and MRM exceptions was examined under\nArticle 2.1.1199\n5.178. Based on these observations, the Panel stated that:\n[A]lthough it is the aspects of the EU Seal Regime infringing the GATT 1994 (i.e. the\nIC and MRM exceptions) that must be justified under Article XX, our analysis under\nparagraphs (a) and (b) should first focus on the EU Seal Regime as a whole; it is the\nEU Seal Regime as a whole that pursues the European Union's identified objective,\nrather than the exceptions on their own independently from the ban.\n1200\nThe Panel considered that it must then examine \"whether the EU Seal Regime, in particular the\ndistinctions drawn in the form of the IC and MRM exceptions, are applied in a manner consistent\nwith the requirements under the chapeau of Article XX\".1201\n5.179. The Panel then turned to assess whether, as claimed by the European Union, the EU Seal\nRegime is \"necessary to protect public morals\" and whether it is, therefore, provisionally justified\nunder Article XX(a). The Panel began by considering whether the policy objective pursued through\nthe EU Seal Regime falls within the range of policies designed to protect public morals, as\nprescribed in Article XX(a). In answering this question, the Panel recalled its intermediate finding\nfrom its analysis under Article 2.2 of the TBT Agre ement that the objective of the EU Seal Regime\nis to address EU public moral concerns regarding seal welfare. The Panel recalled that, in reaching\nthis finding, it had established the existence of EU public concerns on seal welfare, as well as their\nmoral nature. The Panel also recalled that it had re lied on past WTO jurisprudence on the scope of\n\"public morals\" under Article XX(a) of the GATT 1994 and Article XIV(a) of the GATS in identifying\nthe objective of the EU Seal Regime. On this basis, the Panel found that the policy objective\npursued by the European Union, namely, addressing EU public moral concerns on seal welfare, fell\nwithin the scope of Article XX(a) on the protection of public morals.\n1202 The Panel also considered\nthat the protection of public moral concerns with regard to animal welfare is an \"important value\nor interest\".1203\n\n1194 Panel Reports, para. 7.620.\n1195 Panel Reports, paras. 7.620 and 7.621.\n1196 Panel Reports, para. 7.621.\n1197 Panel Reports, para. 7.622.\n1198 Panel Reports, para. 7.623.\n1199 Panel Reports, para. 7.623.\n1201 Panel Reports, para. 7.624.\n1202 Panel Reports, para. 7.631.\n1203 Panel Reports, para. 7.632 (referring to Panel Report, China – Publications and Audiovisual\nProducts, para. 7.817).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.180. Next, the Panel turned to assess the measure's contribution to the objective pursued under\nArticle XX of the GATT 1994 in the light of the Appellate Body's jurisprudence that such a\ncontribution exists when there is a \"genuine relationship of ends and means between the objective\npursued and the measure at issue\". 1204 The Panel also recalled the Appellate Body's jurisprudence\nin the context of Article XX(b) that, when a meas ure produces restrictive effects on international\ntrade as severe as those resulting from an import ban, it would be difficult for a panel to find the\nmeasure \"necessary\" unless it was satisfied that the measure was apt to make a material\ncontribution to the achievement of its objective.\n1205 Based on this, the Panel considered that, for a\nfinding that the EU Seal Regime is \"necessary\" under Article XX(a), it must be shown that the\ncontribution made by the \"ban\" to the identified objective is at least \"material\", given the extent of\nits trade-restrictiveness.\n1206 The Panel stated that, following such an affirmative finding, the\nEU Seal Regime could provisionally be deemed \"necessary\", unless it is demonstrated that the\nEuropean Union could have adopted a GATT-consistent or less trade-restrictive alternative.1207\n5.181. Highlighting the \"close relationship\" be tween the GATT 1994 and the TBT Agreement, and\nthe need to interpret the two agreements consistently and harmoniously, the Panel considered that\nits assessment of the EU Seal Regime's contribu tion to its objective under Article 2.2 of the\nTBT Agreement was relevant for its analysis under Article XX. 1208 On this basis, the Panel drew\nupon its Article 2.2 analysis to note that the actual degree of contribution by the ban must also be\nassessed by taking account of the impact of the explicit and implicit exceptions thereto. 1209 With\nrespect to the ban, the Panel recalled its finding under Article 2.2 that the ban contributes to the\nEuropean Union's objective by reducing, to a cert ain extent, the global demand for seal products\nand by helping the EU public avoid being expose d to seal products derived from seals killed\ninhumanely. To the extent such seal products are prohibited from the EU market, therefore, the\nPanel found that the \"ban\" makes a material contribution to the objective of the measure.\n1210\n5.182. The Panel recalled its finding that the IC and MRM exceptions, combined with the absence\nof any mechanism under the measure to inform consumers of the presence of seal products on the\nEU market, \"reduced the effectiveness\" of the ban by providing market access to certain seal\nproducts.\n1211 Similarly, the implicit exceptions also \"undermine\" the measure's fulfilment of the\nobjective.1212 Overall, however, the Panel recalled its finding that the EU Seal Regime as a whole\ncontributed \"to a certain extent\" to its objective of addressing EU public moral concerns on seal\nwelfare.\n1213 With respect to a GATT-consistent or le ss trade-restrictive alternative, the Panel\nrecalled its earlier finding under Article 2.2 that the alternative measure proposed by the\ncomplainants was not reasonably available to the European Union, given, inter alia, the animal\nwelfare risks and challenges that it had found to exist in seal hunts. Therefore, the Panel\nconcluded that the EU Seal Regime was provisionally justified under Article XX(a).1214\n5.183. Finally, the Panel considered the European Union's argument that the EU Seal Regime is\nalso justified under Article XX(b) because it contributes to protecting the health of seals. However,\nthe Panel noted that the European Union never subm itted that the protection of seal welfare as\nsuch was the objective of the EU Seal Regime. The Panel also recalled that the objective of the\nmeasure, namely, to address EU public moral concerns on seal welfare, was found to fall within the\nscope of Article XX(a). For these reasons, and co nsidering the limited extent of the European\nUnion's arguments under Article XX(b), the Panel found that the European Union failed to establish\na prima facie case for its defence under Article XX(b).\n1215\n\n1204 Panel Reports, para. 7.633 (referring to Appellate Body Report, Brazil – Retreaded Tyres,\nparas. 145-157).\n1205 Panel Reports, para. 7.635 (referring to Appellate Body Report, Brazil – Retreaded Tyres, paras. 150\nand 151).\n1206 Panel Reports, para. 7.636.\n1207 Panel Reports, para. 7.639.\n1208 Panel Reports, para. 7.634 (referring to Appellate Body Report, US – Tuna II (Mexico), para. 317).\n1209 Panel Reports, para. 7.636.\n1210 Panel Reports, para. 7.637.\n1211 Panel Reports, para. 7.638.\n1212 Panel Reports, para. 7.638.\n1213 Panel Reports, para. 7.638.\n1214 Panel Reports, para. 7.639.\n1215 Panel Reports, para. 7.640.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.3.2.2 The Panel's analysis of the aspects of the EU Seal Regime to be justified under\nArticle XX(a)\n5.184. We first consider Norway's claim that th e Panel erred in seeking to justify the EU Seal\nRegime as a whole under Article XX(a). 1216 According to Norway, it is the \"particular aspect\" of a\nmeasure that is inconsistent with the GATT 1994 that must be justified under Article XX. 1217 In the\npresent disputes, since the Panel found the IC and MRM exceptions to be inconsistent with\nArticles I:1 and III:4 of the GATT 1994, Norway argu es, it is these specific aspects of the EU Seal\nRegime that must be justified under Article XX(a), and not the EU Seal Regime as a whole.\n1218\nAccording to Norway, the Panel found that the EU Seal Regime \"as a whole\" was provisionally\njustified on the basis of the positive contribution of the \"ban\". 1219 In Norway's view, the Panel's\napproach \"allowed aspects of the EU Seal Regime not found to be WTO-inconsistent, to shield from\nscrutiny under Article XX(a) those aspects of the measure found to be WTO-inconsistent\". 1220 The\nEuropean Union, on the other hand, submits that the \"less favourable treatment\" under the\nEU Seal Regime results from the \"interplay\" between the ban and the IC and MRM exceptions, and\nthat the Panel was therefore correct in not limiting its analysis under Article XX(a) to the IC and\nMRM exceptions alone.\n1221\n5.185. We begin by noting that the general except ions of Article XX apply to \"measures\" that are\nto be analysed under the subparagraphs and chapeau, not to any inconsistency with the\nGATT 1994 that might arise from such measures. In US – Gasoline , the Appellate Body clarified\nthat it is not a panel's legal conclusions of GATT-inconsistency that must be justified under\nArticle XX, but rather the provisions of a measure that are infringing the GATT 1994.\n1222 Similarly,\nin Thailand – Cigarettes (Philippines) , the Appellate Body observed that the analysis of the\nArticle XX(d) defence in that case should focus on the \"differences in the regulation of imports and\nof like domestic products\" giving rise to the finding of less favourable treatment under\nArticle III:4.\n1223 Thus, the aspects of a measure to be justified under the subparagraphs of\nArticle XX are those that give rise to the finding of inconsistency under the GATT 1994.\n5.186. Turning to the specifics of this case, we recall the Panel's statement that:\n[A]lthough it is the aspects of the EU Seal Regime infringing the GATT 1994 (i.e. the\nIC and MRM exceptions) that must be justified under Article XX, our analysis under\nparagraphs (a) and (b) should first focus on the EU Seal Regime as a whole; it is the\nEU Seal Regime as a whole that pursues the European Union's identified objective,\nrather than the exceptions on their own independently from the ban.\n1224\n5.187. The Panel stated that the EU Seal Regime \"consists of both prohibitive and permissive\ncomponents\".1225 The \"prohibitive\" component of the EU Se al Regime \"operates as a ban on seal\nproducts\", while the \"permissive\" component fl ows from \"an exception and two derogations,\nforming three conditions prescribed in Article 3 of the Basic Regulation (i.e. seal products obtained\nfrom IC hunts, MRM hunts, and those imported under the Travellers imports category)\".\n1226\nAs noted above, the IC exception refers to th e requirements under Article 3(1) of the Basic\nRegulation and Article 3 of the Implementing Re gulation that must be met in order for seal\nproducts derived from IC hunts to be placed on the EU market. Similarly, the term MRM exception\nrefers to the requirements under Article 3(2)(b) of the Basic Regulation and Article 5 of the\n\n1216 Norway's appellant's submission, para. 775.\n1217 Norway's appellant's submission, para. 779. (emphasis omitted)\n1218 Norway's appellant's submission, paras. 779-787 (referring to Panel Reports, paras. 7.56, 7.173,\n7.594, 7.600, 7.604, 7.618, and 7.624; and Norway Panel Report (DS401), para. 8.3(a) and (b)).\n1219 Norway's appellant's submission, para. 795 (referring to Panel Reports, paras. 7.636 and 7.638).\n1220 Norway's appellant's submission, para. 795.\n1221 European Union's appellee's submission, para. 407.\n1222 Appellate Body Report, US – Gasoline, pp. 13-14, DSR 1996:I, pp. 12-13. In that dispute, the\nAppellate Body criticized the panel for designating what ought to have been justified under Article XX(g) in\nterms such as \"difference in treatment\", \"less favourable treatment\", or \"discrimination\" for the purposes of its\nanalysis. (Ibid.)\n1223 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 177.\n1225 Panel Reports, para. 7.54.\n1226 Panel Reports, para. 7.56.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nImplementing Regulation that must be met in or der for seal products derived from MRM hunts to\nbe placed on the EU market.\n5.188. With respect to the claims under Article I:1 of the GATT 1994, the Panel found that,\n\"in terms of its design, structure, and expected operation, the EU Seal Regime detrimentally\naffects the conditions of competition on the market [for seal products] of Canadian and Norwegian\norigin as compared to seal products of Greenlandic origin.\" 1227 As we see it, the existence of the\npermissive component in the form of the IC exception alone cannot confer an advantage to seal\nproducts of Greenlandic origin, unless it is compared to the treatment of seal products of Canadian\nand Norwegian origin. It is only the combined operation of the permissive aspect of the EU Seal\nRegime (i.e. the IC exception, which grants market access to seal products of Greenlandic origin),\ntogether with the prohibitive aspect of the EU Seal Regime (i.e. the \"ban\" that restricts market\naccess for Canadian and Norwegian seal products), that leads to a finding of de facto\ndiscrimination under Article I:1.\n5.189. Similarly, in the context of the claims under Article III:4 of the GATT 1994, we note that\nthe Panel's finding that the measure accords treatment to Canadian and Norwegian seal products\nthat is less favourable than the treatment accorded to EU seal products was based on an\nexamination of the combined operation of the permissive component of the EU Seal Regime\n(i.e. the MRM exception, which allows the placing on the market of seal products of EU origin),\ntogether with the prohibitive component (i.e. the \"ban\" that restricts market access for Canadian\nand Norwegian seal products). As with the Panel's analysis of the IC exception under Article I:1,\nthe permissive aspect of the MRM exception and the requirements thereunder would not have led\nto a finding of violation under Article III:4 in the absence of the \"ban\".\n5.190. On the basis of these findings by the Pa nel, we disagree with Norway that the \"precise\naspects\" of the EU Seal Regime that violate th e provisions of the GATT 1994 are the IC exception\nand the MRM exception.\n1228 At the same time, it may not be accurate to state that the analysis\nunder Article XX(a) must focus on the EU Seal Regime \"as a whole\" insofar as the measure\nconsists of elements other than the prohibitive and permissive components of the EU Seal Regime.\nIn any event, although the Panel stated that its analysis should focus on the EU Seal Regime \"as a\nwhole\", it then made clear that it was referring to the components of the measure embodying the\n\"ban\" and the \"exceptions\".\n1229\n5.191. Norway argues that the Panel erroneousl y relied on the Appellate Body's approach in US –\nGasoline to support its approach of using the aspect of the EU Seal Regime not found to be\nWTO-inconsistent (i.e. the ban) to shield from scrutiny the aspects of the EU Seal Regime that\nwere found to be WTO-inconsistent (i.e. the IC and MRM exceptions).\n1230 In US – Gasoline , a\nchallenge was brought against a measure enacted by the United States Environmental Protection\nAgency (EPA) to ensure that pollution from ga soline combustion did not exceed 1990 levels. The\nmeasure set out certain \"baseline establishment rules\" for domestic refiners, blenders, and\nimporters of foreign gasoline, but differentiated between more favourable \"individual\" baselines\n(established by the entity itself) and less favourable \"statutory\" baselines (established by the EPA).\nIn findings that were not appealed, the panel foun d that most domestic refiners were not required\nto meet the statutory baseline, whereas almost all importers of foreign gasoline were required to\ndo so.\n1231 The panel thus found that \"imported gasoline was treated less favourably than domestic\ngasoline\" resulting in an inconsistency under Article III:4 of the GATT 1994.1232\n\n1227 Panel Reports, para. 7.597. The Panel thus found that the EU Seal Regime is inconsistent with\nArticle I:1 of the GATT 1994 because it does not extend the same market access advantage on the EU market\nto the complainants' imports as it does to imports originating from Greenland. (Ibid., para. 7.600)\n1228 Norway's appellant's submission, para. 785 (referring to Panel Reports, para. 7.56). We note that,\nin its request for panel establishment, Norway claimed that the EU Seal Regime gave rise to discrimination\nunder Articles I:1 and III:4 of the GATT 1994 \"[t]hrough the general prohibition and the exceptions set out\ntherein\". (Request for the Establishment of a Panel by Norway, p. 2).\n1229 The Panel stated that \"it is the EU Seal Regime as a whole that pursues the European Union's\nidentified objective, rather than the exceptions on their own independently from the ban.\" (Panel Reports,\npara. 7.624)\n1230 Norway's appellant's submission, paras. 795 and 821. See also ibid., para. 816 (referring to Panel\nReports, para. 7.620).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.192. Norway appears to contend that the ba seline establishment rules, which the Appellate\nBody found needed to be justified in US – Gasoline , were like the IC and MRM exceptions of the\nEU Seal Regime in that they constituted the WTO-inconsistent aspect of the measure. 1233 We do\nnot agree with the analogy drawn by Norway be tween the baseline establishment rules and the\nIC and MRM exceptions. Rather, we see the base line establishment rules as comparable to the\nprohibitive and permissive aspects of the EU Seal Regime, which, taken together, resulted in the\ndifferential treatment found to be inconsistent wi th the GATT 1994. The Appellate Body confirmed\nthis when it stated, in US – Gasoline , that it had to consider whether the \"baseline establishment\nrules, taken as a whole (that is, the provisions relating to establishment of baselines for domestic\nrefiners, along with the provisions relating to baselines for blenders and importers of gasoline)\"\n1234\nwere justified under Article XX(g).\n5.193. At the same time, we do not consider that the Panel was correct to the extent that it\nsuggested that what it considered must be \"justified\" in this case was limited to the permissive\naspects flowing from the IC and MRM exceptions.\n1235 Rather, what must be justified is, as we have\nsaid, both the prohibitive and permissive components of the EU Seal Regime, taken together.\nHowever, because the Panel, in determining what needed to be \"analysed\", ultimately considered\nwhether the prohibitive and permissive aspects of the EU Seal Regime together were \"necessary to\nprotect public morals\" within the meaning of Article XX(a), we find no error in the Panel's\napproach. Accordingly, we reject Norway's claim, and find that the Panel did not err in concluding\nthat the analysis under Article XX(a) of th e GATT 1994 should examine the prohibitive and\npermissive aspects of the EU Seal Regime.\n5.3.2.3 The Panel's analysis of the protection of public morals under Article XX(a)\n5.194. We next consider Canada's claim that the Panel failed to establish that there was a risk to\nEU public morals consisting of concerns regarding animal welfare that are particular to seals.\nCanada principally claims that the Panel erred in finding that the EU Seal Regime falls within the\nscope of application of Article XX(a) without identifying a \"risk\" against which the measure seeks\nto \"protect\". According to Canada, the Panel failed to determine the content of the relevant public\nmoral, consisting of the exact standard of right and wrong conduct, in the European Union.\n1236\nRelying on the panel report in EC – Asbestos , Canada argues that the use of the phrase \"to\nprotect\" in Article XX(a) requires the identification of a risk to public morals against which the\nEU Seal Regime seeks to protect. Canada contends that a \"risk\" to public morals in the European\nUnion can be found to exist only if the evidence shows that \"the commercial seal hunts targeted by\nthe ban exhibit a degree or incidence of animal suff ering that falls below the standard or norm of\nright and wrong conduct in the context of animal welfare shown to prevail within the [European\nUnion].\"\n1237 In this regard, Canada recalls that it presented evidence to show that \"EU policies and\npractices with respect to animal welfare included a tolerance for a certain degree of animal\nsuffering, both for slaughterhouses and wildlife hunts.\"\n1238 In Canada's view, the welfare risks\nassociated with commercial seal hunts are \"commonplace\" in situations that involve the killing of\nanimals, especially in the context of wildlife hunts, regardless of whether they take place inside or\noutside the European Union.\n1239 On this basis, Canada argues that the Panel failed to consider\nwhether the risks associated with commercial seal hunts \"exceeded the accepted level of risk of\ncompromised animal welfare, as reflected in the [European Union's] policies and practices in this\nfield\".1240 Canada also argues that the Panel acted inconsistently with Article 11 of the DSU by\n\n1233 Norway's appellant's submission, paras. 818 and 821.\n1234 Appellate Body Report, US – Gasoline, p. 19, DSR 1996:I, p. 17.\n1235 Panel Reports, para. 7.624.\n1236 Canada's appellant's submission, para. 394.\n1237 Canada's appellant's submission, para. 396.\n1238 Canada's appellant's submission, para. 395 (referring to Canada's first written submission to the\nPanel, paras. 146-162 and 198-213; Canada's second written submission to the Panel, paras. 45-49; Canada's\nopening statement at the second Panel meeting, paras. 44-50; Canada's response to Panel question No. 60,\nparas. 248-250; and the following Exhibits submitted by Canada to the Panel: CDA-29; CDA-34, p. 453;\nCDA-47; CDA-98; CDA-122; CDA-123, p. 14; CDA-124; JE-08; JE-17; and JE-22, p. 88 (see list of Panel\nExhibits on pp. 9-10)).\n1239 Canada's appellant's submission, paras. 395 and 396.\n1240 Canada's appellant's submission, para. 397.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nfailing to explain why it found the physical environmental conditions for seal hunts different from\nother types of terrestrial wildlife hunts.1241\n5.195. The European Union takes issue with Canada's assertion that a panel must first ascertain\nthe existence of a risk to public morals in order to determine that the measure falls within the\nscope of Article XX(a). According to the European Union, in order for a measure to fall within the\nscope of Article XX(a), it only needs to be shown that the measure is designed to protect public\nmorals.1242 In the European Union's view, Canada's interpretation would introduce a \"strict\nconsistency test\", requiring Members to prove that \"the relevant standard of morality is\nconsistently applied by them in each and every situation involving similar risks.\" 1243 Given the\nPanel's finding that the objective of the EU Seal Regime is to address the moral concerns of the\nEU public with regard to the welfare of seals, a finding that has not been appealed by Canada, the\nEuropean Union submits that the Panel was entitled to conclude that the EU Seal Regime is\ndesigned to protect public morals and, therefore, falls within the scope of Article XX(a) of the\nGATT 1994.\n1244 In response to Canada's claim under Article 11 of the DSU challenging the Panel's\nassessment of evidence relating to terrestrial wi ldlife hunts, the European Union points out that\nthe Panel gave detailed reasons for its findings on the uniqueness and distinctiveness of the\nwelfare risks associated with seal hunts, and that these have not been challenged by Canada on\nappeal.\n1245\n5.196. In our view, Canada's arguments are built around the notion of an identifiable \"risk\" that it\nfinds implicit in the phrase \"to protect\" in Article XX(a). According to Canada, identifying such a\n\"risk\" requires the identification of a precise standard of animal welfare in the European Union, and\nan assessment of the incidence of suffering in commercial seal hunts against that standard.\nCentral to Canada's position is its contention that the animal welfare risks in commercial seal hunts\nare not unique to those types of hunts, and can be found in all forms of wildlife hunts, including\nthose conducted in the European Union.\n1246 In other words, Canada argues that the Panel, upon\nproper consideration of the evidence, should have concluded that the animal welfare risks\nassociated with seal hunts are not any higher than the animal welfare risks associated with\nslaughterhouses and other terrestrial wildlife hunts, such as deer hunts, in the European Union. In\nthe absence of a higher risk associated with seal hunts, Canada asserts that the European Union\ncannot justify its measure on public moral grounds.\n5.197. Canada's claim asks us to consider whether the use of the phrase \"to protect\" in\nArticle XX(a) requires a panel to identify a risk against which the measure that is to be justified\nseeks to protect. The ordinary meaning of the ve rb \"protect\" includes \"defend or guard against\ninjury or danger; shield from attack or assault; support, assist …; keep safe, take care of …\".\n1247\nThe meaning of \"to protect\" in a given provision also requires taking into account the context in\nwhich the phrase is used. The phrase \"to protect\" is used in three subparagraphs of Article XX that\nconcern the \"protection\" of different non-economic interests and concerns.1248 In EC – Asbestos, in\naddressing the term \"to protect\" in Article XX(b), the panel noted that \"the notion of 'protection' …\nimpl[ies] the existence of a health risk\".1249 We note that Article XX(b) focuses on the protection of\n\"human, animal or plant life or health\". It may be that the protection of human, animal, or plant\nlife or health implies a particular focus on the protection from or against certain dangers or risks.\n\n1241 Canada's appellant's submission, paras. 401 and 402.\n1242 European Union's appellee's submission, paras. 343 and 344 (referring to Appellate Body Report,\nKorea – Various Measures on Beef, para. 157).\n1243 European Union's appellee's submission, para. 347.\n1244 European Union's appellee's submission, paras. 345 and 346.\n1245 European Union's appellee's submission, paras. 355 and 356 (referring to Panel Reports,\nparas. 7.187, 7.188, 7.190, 7.204, 7.209, 7.214, 7.215, 7.217, 7.218, 7.221-7.223, and fns 300 and 339 to\nparas. 7.206 and 7.218, respectively).\n1246 Canada's appellant's submission, para. 369.\n1247 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),\nVol. 2, p. 2376.\n1248 Article XX(a) talks of measures \"necessary to protect public morals\". Article XX(b) is concerned with\nmeasures \"necessary to protect human, animal or plant life or health\". Finally, Article XX(f) talks of measures\n\"imposed for the protection of national treasures of artistic, historic or archaeological value\".\n1249 Panel Report, EC – Asbestos, para. 8.170. (emphasis omitted)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nFor example, the concepts of \"risk\" and \"protection\" are expressly reflected in the SPS Agreement,\nwhich elaborates rules for the application of Article XX(b).1250\n5.198. However, the notion of risk in the context of Article XX(b) is difficult to reconcile with the\nsubject matter of protection under Article XX(a), namely, public morals. While the focus on the\ndangers or risks to human, animal, or plant life or health in the context of Article XX(b) may lend\nitself to scientific or other methods of inquiry, such risk-assessment methods do not appear to be\nof much assistance or relevance in identifying and assessing public morals. We therefore do not\nconsider that the term \"to protect\", when used in relation to \"public morals\" under Article XX(a),\nrequired the Panel, as Canada contends, to identi fy the existence of a risk to EU public moral\nconcerns regarding seal welfare.\n5.199. For this reason, we also have difficulty accepting Canada's argument that, for the purposes\nof an analysis under Article XX(a), a panel is requ ired to identify the exact content of the public\nmorals standard at issue. The Panel accepted the definition of \"public morals\" developed by the\npanel in US – Gambling , according to which \"the term 'public morals' denotes 'standards of right\nand wrong conduct maintained by or on behalf of a community or nation'\".\n1251 The Panel also\nreferred to the reasoning developed by the panel in US – Gambling that the content of public\nmorals can be characterized by a degree of variation, and that, for this reason, Members should be\ngiven some scope to define and apply for themselves the concept of public morals according to\ntheir own systems and scales of values. 1252 Canada does not challenge these propositions on\nappeal. In addition, we note that, although Canada indirectly questions the existence of EU public\nmoral concerns regarding seal welfare by contending that the Panel ought to have considered the\nsimilarity of animal welfare risks in both terrestrial wildlife hunts and seal hunts, Canada does not\ndirectly challenge the Panel's finding that there are public moral concerns in relation to seal\nwelfare in the European Union.\n5.200. Finally, by suggesting that the European Union must recognize the same level of animal\nwelfare risk in seal hunts as it does in its slaughterhouses and terrestrial wildlife hunts, Canada\nappears to argue that a responding Member must regulate similar public moral concerns in similar\nways for the purposes of satisfying the requiremen t \"to protect\" public morals under Article XX(a).\nIn this regard, we note that the panel in US – Gambling underscored that Members have the right\nto determine the level of protection that they consider appropriate\n1253, which suggests that\nMembers may set different levels of protection even when responding to similar interests of moral\nconcern. Even if Canada were correct that the European Union has the same moral concerns\nregarding seal welfare and the welfare of other animals, and must recognize the same level of\nanimal welfare risk in seal hunts as it does in its slaughterhouses and terrestrial wildlife hunts, we\n\n1250 The preamble to the SPS Agreement states, in relevant part, \"Desiring therefore to elaborate rules\nfor the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary\nmeasures, in particular the provisions of Article XX(b).\" Article 5.1 of the SPS Agreement concerns the\n\"assessment of risk\", taking into account risk assessment techniques developed by the relevant international\norganizations. Article 5.2 further requires that, in the assessment of risks, Members shall take into account,\ninter alia, relevant scientific evidence. Article 5.3 draws a link between \"protection\" and \"risk\" by stating that\n\"[i]n assessing the risk to animal or plant life or health and determining the measure to be applied for\nachieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into\naccount ….\". (SPS Agreement, Article 5.3) Article 5.3 th erefore relates the concepts of \"protection\" and \"risk\"\nby using the phrase \"protection from such risk\".\n1253 Panel Report, US – Gambling, para. 6.461 (referring to Appellate Body Reports, Korea – Various\nMeasures on Beef, para. 176; and EC – Asbestos, para. 168). We note that the panel in EC – Asbestos took a\nsimilar position in the context of Article XX(b) when it stated that, although it must examine the particular\nhealth risk posed by chrysotile asbestos fibres, it was not required to assess France's choice to protect its\npopulation against that risk. (Panel Report, EC – Asbestos, paras. 8.170 and 8.171)\nWT/DS400/AB/R • WT/DS401/AB/R\n\ndo not consider that the European Union was required by Article XX(a), as Canada suggests, to\naddress such public moral concerns in the same way.1254\n5.201. For these reasons, we reject Canada's argument that the Panel was required to assess\nwhether the seal welfare risks associated with seal hunts exceed the level of animal welfare risks\naccepted by the European Union in other situations such as terrestrial wildlife hunts. We therefore\nalso do not consider it necessary to address Canada's claim under Article 11 of the DSU regarding\nthe same issue. Accordingly, we find that the Pane l did not err in concluding that the objective of\nthe EU Seal Regime falls within the scope of Article XX(a) of the GATT 1994.1255\n5.202. In addition, Canada claims that the Panel \"misinterpreted\" 1256 Canada's argument and\ntherefore erred under Article 11 of the DSU in finding that Canada did not dispute the importance\nof public moral concerns regarding the protection of animal welfare. Canada points out that, while\nit had acknowledged that \"the protection of publ ic morals is, in principle, a highly important\ninterest or value\"\n1257, Canada \"did not agree that the specific public moral concern in issue was\nconsidered important or presented a serious risk\". 1258 A l t h o u g h C a n a d a r a i s e s t h i s c l a i m i n t h e\ncontext of the Panel's assessment of the importan ce of the objective in a necessity analysis,\nCanada appears again to be advancing its central contention that the objective of the EU Seal\nRegime is not as important as the European Union asserts. Canada maintained before the Panel\nthat there are \"reasons to doubt the seriousness of the harm that might be expected to arise from\nthe presence of seal products on the [EU] market\".1259\n5.203. The Panel noted the European Union's position that moral concern regarding the protection\nof animals is a value of high importance in the European Union. The Panel then stated:\n\"We consider, and the parties do not dispute, that the protection of such public moral concerns is\nindeed an important value or interest.\" 1260 As we see it, the Panel was making a rather general\nstatement about the importance of public moral concerns regarding animal welfare. 1261 Moreover,\nthe Panel appears to have reached this conclusion on the basis of its own assessment, and\ntherefore did not rely solely on the position it attributed to the parties. We further note that the\nPanel also alluded in this section to its prior assessment of the risks of non-fulfilment under\nArticle 2.2 of the TBT Agreement\n1262, where the Panel had concluded that it did not consider that\n\"the level of protection actually achieved by the measure is as high as the European Union claims\nthe measure initially aimed to achieve\", and that it would \"bear this in mind\" in its assessment of\nthe alternative measure.\n1263 Therefore, while the Panel did no t provide much elaboration of its\nassessment of the importance of the objective in the context of its analysis under Article XX(a), we\ndo not consider that the general statement to which Canada refers shows that its position was\nsomehow misinterpreted or misrepresented by the Panel. Canada's views about the scope and\n\n1254 The drafters of the WTO agreements have elsewhere explicitly addressed the question of\nconsistency in the setting of levels of protection. Article 5.5 of the SPS Agreement reads, in relevant part:\nWith the objective of achieving consistency in the application of the concept of appropriate level\nof sanitary or phytosanitary protection against risks to human life or health, or to animal and\nplant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it\nconsiders to be appropriate in different situations, if such distinctions result in discrimination or a\ndisguised restriction on international trade.\n1255 Panel Reports, para. 7.631.\n1256 Canada's appellant's submission, para. 431 (referring to Panel Reports, para. 7.632).\n1257 Canada's appellant's submission, para. 432 (quoting Canada's second written submission to the\nPanel, para. 176).\n1258 Canada's appellant's submission, para. 434 (referring to Canada's second written submission to the\nPanel, para. 183).\n1259 Canada's appellant's submission, para. 433 (quoting Canada's second written submission to the\nPanel, para. 179).\n1260 Panel Reports, para. 7.632 (referring to Panel Report, China – Publications and Audiovisual\nProducts, para. 7.817).\n1261 The Panel also referred to the statement by the panel in China – Publications and Audiovisual\nProducts that the protection of public morals \"ranks among the most important values or interests pursued by\nmembers as a matter of public policy\". (Panel Reports, fn 972 to 7.632 (quoting Panel Report, China –\n1263 Panel Reports, para. 7.466 (referring to European Union's first written submission to the Panel,\npara. 39). As we noted above at paragraph 5.172, the Panel relied on its findings under Article 2.2 of the\nTBT Agreement in concluding that the EU Seal Regime was \"necessary\" within the meaning of Article XX(a) of\nthe GATT 1994.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncontent of EU public moral concerns at issue in this case have been amply reviewed by the Panel in\nthese disputes and now on appeal. We therefore reject this claim under Article 11 of the DSU.\n5.3.2.4 The Panel's analysis of the contribution of the EU Seal Regime to the objective\n5.204. Next, we address Canada's and Norway's claims that the Panel erred in finding that the\nEU Seal Regime is \"necessary\" within the meanin g of Article XX(a) of the GATT 1994. In analysing\n\"necessity\" under Article XX(a), the Panel considered that \"an analysis of a measure's contribution\nto an objective under Article 2.2 of the TBT Agreement is also relevant to such analysis under\nArticle XX of the GATT 1994.\"\n1264 The Panel thus decided that it would \"refer back to [its] relevant\nanalysis under Article 2.2 of the TBT Agreement to the extent necessary for the analysis of the\nmeasure's contribution under Article XX(a) of the GATT 1994\". 1265 The Panel then recalled its\nearlier findings in the context of its analysis und er Article 2.2 of the TBT Agreement in addressing\nthe elements of the legal standard of \"nec essity\" under Article XX(a) of the GATT 1994. 1266 The\nPanel ultimately concluded that the EU Seal Regime is \"necessary\" within the meaning of\nArticle XX(a).\n1267\n5.205. We note that, in assessing the appeals by Canada and Norway, there are aspects of the\nPanel's necessity analysis that have not been appealed and upon which we, therefore, need not\nrule.\n1268 For instance, the Panel found in its analysis under Article 2.2 of the TBT Agreement that\nthe EU Seal Regime \"considered in its entirety, is trade restrictive because it does 'hav[e] a\nlimiting effect on trade' by prohibiting certain seal products, including those imported from Canada\nand Norway, from accessing the EU market\".\n1269 The Panel also referred to the trade-\nrestrictiveness of the EU Seal Regime in the context of its analysis under Article XX(a). 1270 The\nPanel's analysis and findings regarding trade-restrictiveness are not appealed by Canada or\nNorway, either in the context of its analysis under Article 2.2 of the TBT Agreement or\nArticle XX(a) of the GATT 1994.1271\n5.206. Rather, the complainants challenge on appeal the Panel's analysis and findings in respect\nof the contribution that the EU Seal Regime makes to its objective, and in respect of the\ncomparison of the EU Seal Regime with a less trade-restrictive alternative measure. In this\nsection, we address the Panel's contribution analysis. As noted above, because the Panel's analysis\nunder Article XX(a) relied on findings it made in the context of Article 2.2 of the TBT Agreement,\nCanada and Norway also incorporate by reference many of the arguments made in the context of\ntheir Article 2.2 claims in their appeals of the Panel's findings under Article XX(a).\n1272\n5.3.2.4.1 Whether the Panel was required to show that the EU Seal Regime makes a\n\"material\" contribution to its objective\n5.207. Canada and Norway argue that the Panel e rred by focusing only on the prohibitive aspect\nof the measure, i.e. the \"ban\", when determining whether the EU Seal Regime made a \"material\"\ncontribution to its objective of addressing EU public moral concerns regarding seal welfare. 1273\nInstead, they argue that, because the Panel sought to determine whether the EU Seal Regime \"as\na whole\" was provisionally justified under Article XX(a), it was required to consider whether the\ncontribution of the measure \"as a whole\", and not just the \"ban\", was \"material\". 1274 In addition,\n\n1264 Panel Reports, para. 7.634.\n1265 Panel Reports, para. 7.634.\n1266 Panel Reports, paras. 7.637-7.639.\n1267 Panel Reports, para. 7.639.\n1268 We are mindful that there are differences in the text of Article 2.2 of the TBT Agreement and\nArticle XX(a) of the GATT 1994 that may have a bearing on the interpretation of these provisions.\n1269 Panel Reports, para. 7.426 (referring to European Union's first written submission to the Panel,\nparas. 357 and 586; and Appellate Body Reports, US – Tuna II (Mexico), para. 319; and US – COOL,\npara. 375). In referring to the prohibition on the import of seal products \"including those imported from\nCanada and Norway\", the Panel may have been referring not only to the restrictive impact of the ban, but also\nto any restrictive discriminatory impact caused by trade diversion between imports of seal products originating\nin different countries.\n1270 Panel Reports, para. 7.636.\n1271 Canada's and Norway's responses to questioning at the oral hearing.\n1272 See supra, para. 5.172 (referring to Panel Reports, paras. 7.638 and 7.639).\n1273 Canada's appellant's submission, para. 410 and 421; Norway's appellant's submission, para. 854.\n1274 Canada's appellant's submission, para. 420; Norway's appellant's submission, para. 855.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nCanada and Norway contend that the Panel erred in finding that the EU Seal Regime made a\n\"material\" contribution. According to Norway, the Panel's findings in the context of its analysis\nunder Article 2.2 of TBT Agreement do not demonstrate that the EU Seal Regime makes a\ncontribution, either \"to a certain extent\", as found by the Panel, or \"materially\", as required under\nArticle XX(a), to protecting EU public morals.\n1275 Canada similarly asserts that the Panel erred in\ncharacterizing \"some contribution\" and \"makes a contribution to\" the identified objective as\nequivalent to making a \"material\" contribution.\n1276\n5.208. The European Union submits that the ar guments of Canada and Norway are based on a\nmisreading of the Appellate Body report in Brazil – Retreaded Tyres .1277 The European Union\nconsiders that, in that case, the Appellate Body left open \"the possibility that, exceptionally, an\nimport ban may be considered necessary even when the contribution is not 'material'\".\n1278\nAccording to the European Union, following Canada 's and Norway's approach would contradict the\nAppellate Body's approach in US – COOL , in the context of Article 2.2 of the TBT Agreement, in\nwhich \"the Appellate Body rebuked the panel for having considered it necessary for the\nCOOL measure to meet some minimum level of fulfilment\". 1279 In any event, the European Union\nmaintains that the Appellate Body in Brazil – Retreaded Tyres held that \"a contribution should be\ndeemed 'material' provided that it is not 'marginal or insignificant'\".1280 The European Union claims\nthat both the Panel's findings and the evidence on record \"demonstrate that the contribution of the\nE U S e a l R e g i m e i s c l e a r l y m o r e t h a n ' m a r g i n a l o r insignificant', even if it cannot be quantified\nprecisely\".1281\n5.209. We first address the question of whether the Panel was required to determine whether the\ncontribution of the measure was \"material\". The Panel stated that \"the contribution made by the\n'ban' to the identified objective must be shown to be at least material given the extent of its\ntrade-restrictiveness.\"\n1282 Drawing on the Appellate Body's report in Brazil – Retreaded Tyres , the\nPanel stated that \"when a measure produces restrictive effects on international trade as severe as\nthose resulting from an import ban, it would be difficult for a panel to find that measure necessary\nunless it is satisfied that the measure is apt to make a material contribution to the achievement of\nits objective\".\n1283 In a footnote, the Panel added that, in order for a measure to be considered\nnecessary within the meaning of Article XX(a), the measure's contribution to its objective must\nreach a \"certain minimum threshold such as a material or significant contribution\".\n1284 By contrast,\nthe Panel stated that no such threshold degree of contribution exists under Article 2.2 of the\nTBT Agreement, which only requires an assessment of the degree of contribution of a measure.1285\n5.210. In Brazil – Retreaded Tyres , the Appellate Body identified certain principles in evaluating\nthe contribution of a measure in the context of a necessity analysis under Article XX:\nThe selection of a methodology to assess a measure's contribution is a function of the\nnature of the risk, the objective pursued, and the level of protection sought. It\nultimately also depends on the nature, quantity, and quality of evidence existing at\nthe time the analysis is made. Because the Panel, as the trier of the facts, is in a\nposition to evaluate these circumstances, it should enjoy a certain latitude in\ndesigning the appropriate methodology to use and deciding how to structure or\norganize the analysis of the contribution of the measure at issue to the realization of\nthe ends pursued by it. This latitude is not, however, boundless. Indeed, a panel must\nanalyze the contribution of the measure at issue to the realization of the ends pursued\n\n1275 Norway's appellant's submission, para. 861.\n1276 Canada's appellant's submission, para. 430.\n1277 European Union's appellee's submission, paras. 421 and 422.\n1278 European Union's appellee's submission, para. 423.\n1279 European Union's appellee's submission, para. 424.\n1280 European Union's appellee's submission, para. 429.\n1281 European Union's appellee's submission, para. 429.\n1282 Panel Reports, para. 7.636.\n1283 Panel Reports, para. 7.635 (referring to Appellate Body Report, Brazil – Retreaded Tyres, paras. 150\nand 151). (emphasis original)\n1284 Panel Reports, fn 977 to para. 7.635. (emphasis original)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nby it in accordance with the requirem ents of Article XX of the GATT 1994 and\nArticle 11 of the DSU.1286\n5.211. The Appellate Body thus confirmed that a panel's approach is appropriately guided by the\nparticular circumstances of the case and the evidence at issue, and that a panel will have certain,\nbut not unbounded, discretion is designing that approach. The Appellate Body further confirmed\nthat a panel's contribution analysis \"can be done either in quantitative or in qualitative terms\".1287\n5.212. The measure at issue in Brazil – Retreaded Tyres , namely, a ban on imports of retreaded\ntyres, was particular in at least two respects. First, the import ban formed part of a comprehensive\npolicy designed and implemented by Brazil to de al with the public health and environmental\nconsequences of waste tyres. As the Appellate Body recognized, \"certain complex public health or\nenvironmental problems may be tackled only with a comprehensive policy comprising a multiplicity\nof interacting measures\".\n1288 Consequently, the Appellate Body noted, it may prove difficult in the\nshort term \"to isolate the contribution to public health or environmental objectives of one specific\nmeasure from those attributable to the other measures that are part of the same comprehensive\npolicy\".\n1289 Second, the Appellate Body considered that the results obtained from, for example,\ncertain preventive actions to reduce the incidence of diseases, \"can only be evaluated with the\nbenefit of time\".\n1290 As the Appellate Body explained, the broader regulatory scheme was designed\nto induce changes in the practices and behaviour of commercial actors in order to reduce the\nnumber of waste tyres generated and, thereby, to reduce the risks to human, animal, and plant\nlife and health arising from the accumulation of waste tyres.1291\n5.213. The Appellate Body in Brazil – Retreaded Tyres was thus confronted with the particular\nchallenge of assessing the contribution of a meas ure that formed part of a broader policy scheme,\nand that was not yet having, or likely itself to produce, an immediately discernible impact on its\nobjective. The Appellate Body thus sought to determine whether the measure was \"apt to make a\nmaterial contribution\" to its objective. 1292 This reflected the Appellate Body's recognition that,\nnotwithstanding the particular features of the measure at issue in that dispute, it was nevertheless\npossible to determine the level of contribution to be made by the measure, by assessing the extent\nto which it was apt to do so at some point in the future. We further note that the Appellate Body\nwas careful not to suggest that its approach in that dispute was requiring the use of a generally\napplicable threshold for a contribution analysis. Rather, the Appellate Body was making the more\nlimited statement that \"when a measure produces restrictive effects on international trade as\nsevere as those resulting from an import ban, it appears to us that it would be difficult for a panel\nto find that measure necessary unless it is satisfied that the measure is apt to make a material\ncontribution to the achievement of its objective\".\n1293 We therefore do not see that the Appellate\nBody's approach in Brazil – Retreaded Tyres sets out a generally applicable standard requiring the\nuse of a pre-determined threshold of contribution in analysing the necessity of a measure under\nArticle XX of the GATT 1994.\n5.214. This understanding is supported, in our view, by the other dimensions of a necessity\nanalysis. As we noted, the Appellate Body has explained in several disputes that a necessity\nanalysis involves a process of \"weighing and balancing\" a series of factors, including the\nimportance of the objective, the contribution of the measure to that objective, and the\ntrade-restrictiveness of the measure.\n1294 The Appellate Body has further explained that, in most\ncases, a comparison between the challenged meas ure and possible alternatives should then be\nundertaken.1295 As the Appellate Body has stated, \"[i]t is on the basis of this 'weighing and\nbalancing' and comparison of measures, taking into account the interests or values at stake, that a\npanel determines whether a measure is 'necessary' or, alternatively, whether another,\n\n1286 Appellate Body Report, Brazil – Retreaded Tyres, para. 145.\n1287 Appellate Body Report, Brazil – Retreaded Tyres, para. 146.\n1288 Appellate Body Report, Brazil – Retreaded Tyres, para. 151.\n1289 Appellate Body Report, Brazil – Retreaded Tyres, para. 151.\n1290 Appellate Body Report, Brazil – Retreaded Tyres, para. 151. The Appellate Body accepted that a\nmeasure could be considered \"necessary\" even if the contribution of the measure \"is not immediately\nobservable\". (Ibid., para. 151)\n1291 Appellate Body Report, Brazil – Retreaded Tyres, para. 154.\n1292 Appellate Body Report, Brazil – Retreaded Tyres, para. 150.\n1293 Appellate Body Report, Brazil – Retreaded Tyres, para. 150. (emphasis added)\n1294 See supra, para. 5.169.\n1295 See supra, para. 5.169.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nWTO-consistent measure is 'reasonably available'\". 1296 Such an analysis, the Appellate Body has\nobserved, involves a \"holistic\" weighing and balancing exercise \"that involves putting all the\nvariables of the equation together and evaluating them in relation to each other after having\nexamined them individually, in order to reach an overall judgement\".\n1297\n5.215. A measure's contribution is thus only one component of the necessity calculus under\nArticle XX. This means that whether a measure is \"necessary\" cannot be determined by the level\nof contribution alone, but will depend on the manner in which the other factors of the necessity\nanalysis, including a consideration of potential alternative measures, inform the analysis. It will\nalso depend on the nature, quantity, and quality of evidence, and whether a panel's analysis is\nperformed in quantitative or qualitative terms. 1298 Indeed, the very utility of examining the\ninteraction between the various factors of the necessity analysis, and conducting a comparison\nwith potential alternative measures, is that it provides a means of testing these factors as part of a\nholistic weighing and balancing exercise, whether quantitative or qualitative in nature. 1299 The\nflexibility of such an exercise does not allow for the setting of pre-determined thresholds in respect\nof any particular factor. If the level of contribution alone cannot determine whether a measure is\nnecessary or not, we do not see that mandating in advance a pre-determined threshold level of\ncontribution would be instructive or warranted in a necessity analysis. 1300 The Appellate Body's\napproach in Brazil – Retreaded Tyres is consonant with an assessment of the contribution of a\nmeasure as one element of a holistic necessity analys is under Article XX. It is also consistent with\nour understanding that the EU Seal Regime, even if it were highly trade-restrictive in nature, could\nstill be found to be \"necessary\" within the mean ing of Article XX(a), subject to the result of a\nweighing and balancing exercise under the specific circumstances of the case and in the light of\nthe particular nature of the measure at issue.\n5.216. For these reasons, we reject the contention of Canada and Norway that the Panel was\nrequired to apply a standard of \"materiality\" as a generally applicable pre-determined threshold in\nits contribution analysis. We also consider that the Panel erred to the extent that it relied on such\na standard in these portions of its analysis.\n1301\n5.217. The Panel then proceeded to examine the contribution of the EU Seal Regime in the\ncontext of Article XX(a) by recalling, and relying upon, its analysis conducted in the context of\nArticle 2.2 of the TBT Agreement.\n1302 As we have explained, it is evident from the Panel's analysis\nthat it was examining the contribution of both the prohibitive and permissive aspects of the\nEU Seal Regime.1303 Because the Panel properly conducted its contribution analysis in respect of\nboth of these aspects of the measure, we need not rule on Canada's and Norway's claims that the\nPanel also erred in focusing exclusively on the ban, and not the ban together with the exceptions,\nin this part of its analysis. We turn now to address Canada's and Norway's appeals of the Panel's\n\n1296 Appellate Body Report, US – Gambling, para. 307 (referring to Appellate Body Report, Korea –\n1297 Appellate Body Report, Brazil – Retreaded Tyres, para. 182.\n1298 Appellate Body Report, Brazil – Retreaded Tyres, paras. 145 and 146.\n1299 While there may be circumstances in which a weighing and balancing exercise would not require\nthat a panel proceed to evaluate alternative measures (see supra, fn 1182), we also do not consider that such\nan exercise mandates a preliminary determination of the necessity of the challenged measure before\nproceeding to assess those alternatives. (See Appellate Body Report, US – Gambling, paras. 306 and 307. See\nalso Appellate Body Reports, Brazil – Retreaded Tyres, paras. 156 and 178; and China – Publications and\nAudiovisual Products, para. 241 (stating that if a panel reaches a preliminary conclusion that a measure is\nnecessary, this result must be confirmed by comparing the measure with possible alternatives)) We therefore\ndisagree with Canada's assertion that a preliminary determination of necessity is required before proceeding to\ncompare the challenged measure with possible alternatives. (Canada's appellant's submission, paras. 310\nand 318)\n1300 We also note the Appellate Body's statements that the term \"necessary\" refers to a range of\ndegrees of necessity, but that a \"necessary\" measure would be located significantly closer to the pole of\n\"indispensable\" than to the opposite pole of simply \"making a contribution to\". (Appellate Body Report, Korea –\nVarious Measures on Beef, para. 161; Appellate Body Report, US – Gambling, para. 310) It is conceptually\nuseful to distinguish the degree of contribution that informs the weighing and balancing exercise, from the\nquestion of where on the continuum the necessity of that measure lies following such a weighing and balancing\nexercise. The Appellate Body's above statements can be understood in this context to refer to the latter\nquestion.\n1301 Panel Reports, paras. 7.635-7.637.\n1302 See supra, para. 5.172 (referring to Panel Reports, paras. 7.638 and 7.639).\n1303 See supra, para. 5.193.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nconclusions under Article XX(a) on the basis of their contentions that the Panel erred in the\ncontribution analysis it conducted in the context of Article 2.2 of the TBT Agreement.\n5.3.2.4.2 Whether the Panel properly articulated its findings on contribution\n5.218. In the context of its analysis under Arti cle XX(a), the Panel recalled its finding that the\nEU Seal Regime \"contributed to a certain extent to its objective of addressing the EU public moral\nconcerns on seal welfare\". 1304 This was based on the Panel's prior conclusion in the context of\nArticle 2.2 of the TBT Agreement that \"the EU Seal Regime is capable of making and does make\nsome contribution to its stated objective of addressing the public moral concerns\". 1305 The\ncomplainants do not take issue with the Panel's characterization of the legal standard for\ndetermining contribution, but rather challenge the Panel's application of that legal standard to the\nfacts of this case.\n5.219. Canada and Norway argue that the Panel failed to articulate the \"degree\" or \"extent\" of the\ncontribution made by the prohibitive and permissi ve parts of the EU Seal Regime. This criticism\nhas several facets. The complainants contend that the Panel reached indeterminate conclusions\nregarding the positive and negative contributions made by different elements of the measure, and\nthat the Panel therefore had no basis to reach, and in fact did not reach, an overall conclusion on\nthe net contribution of the measure.\n1306 The complainants also fault the Panel for reaching findings\nindicating a capability or possibility of a contribution, rather than the actual contribution.1307 The\ncomplainants argue that the Panel failed to make \"clear and precise\" findings regarding the\ncontribution of the EU Seal Regime to the identified objective, and that such findings were required\nin order to establish the benchmark against which alternative measures could be compared.\n1308\nNorway also challenges aspects of the Panel's analysis under Article 11 of the DSU.1309\n5.220. The European Union submits that the complainants' arguments are \"unfounded\". 1310\nAccording to the European Union, the WTO agreements do not prescribe the manner in which a\nmeasure's contribution to the fulfilment of its ob jective should be assessed, nor how specific that\nassessment should be. The European Union maintains that the Panel's analysis is in line with\nWTO jurisprudence, and that, because the quantitative evidence available did not permit a precise\nquantification of the contribution, \"the Panel had no alternative but to resort to qualitative\nreasoning\".\n1311 The European Union further contends that the Panel's findings were no less specific\nthan those reached by other panels examining a necessity test.1312\n5.221. We recall that, in Brazil – Retreaded Tyres , the Appellate Body stated that a panel enjoys\ncertain latitude in setting out its approach to determine contribution; that such an approach may\nbe performed in qualitative or quantitative terms; and that it ultimately depends on the nature,\nquantity, and quality of evidence existing at the time the analysis is made.\n1313 In the present\ndisputes, the Panel opted for a qualitative analysis that focused mainly on the design and expected\noperation of the measure. During the panel proceedings, the Panel had only limited information on\nhow certain aspects of the measure would operate in practice. While the Panel could perhaps more\neasily perceive how the prohibitive aspect of the measure would operate in practice, the\npermissive aspects were still in a relatively nascent stage of implementation. By the time the Panel\n\n1304 Panel Reports, para. 7.638.\n1305 Panel Reports, para. 7.460.\n1306 See e.g. Canada's appellant's submission, para. 150; and Norway's appellant's submission,\npara. 315.\n1307 See e.g. Canada's appellant's submission, para. 166; and Norway's appellant's submission,\npara. 284.\n1308 See e.g. Canada's appellant's submission, para. 158; and Norway's appellant's submission,\npara. 257.\n1309 Norway's appellant's submission, paras. 398-409.\n1310 European Union's appellee's submission, para. 165.\n1311 European Union's appellee's submission, para. 170.\n1312 European Union's appellee's submission, paras. 171-175 (referring to Appellate Body Reports,\nBrazil – Retreaded Tyres; US – Tuna II (Mexico); US – Gambling; and US – COOL).\n1313 Appellate Body Report, Brazil – Retreaded Tyres, paras. 145 and 146.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nheld its second substantive meeting in April 2013, Greenlandic and Swedish recognized bodies had\nonly recently been approved for the issuance of attesting documentation under the exceptions.1314\n5.222. Moreover, although the parties had su bmitted substantial evidence regarding the\nEU market for seal products, that information appears to have been incomplete and subject to a\nnumber of limitations. As the Panel remarked, the \"data provided by the parties are incomplete in\nterms of product types and import/export countries\".1315 For example, EU trade data was available\nonly for those categories of seal products for which the tariff classification consisted exclusively of\nseal or seal-containing products. 1316 The EU trade data therefore did not reflect imports of seal\nproducts other than seal skins, and did not reflec t imports of raw seal skins after 2006, when the\nEuropean Union no longer maintained a separate tariff classification covering only raw seal\nskins.\n1317 These limitations were particularly significant given that the Panel recognized that seal\nskins have historically constituted the majority of traded seal products. 1318 In the light of these\nfactors, the Panel stated that it was \"not in a position to draw any concrete conclusions\" based on\nthe data before it.\n1319 Additionally, the Panel stated that, although the data \"show a general trend\nthat seal product imports from the complainants into the EU market have decreased significantly\nover the last few years\"1320, \"the extent of the connection between the ban aspect of the measure\nand the reduction in the number of seals killed is not clearly discernible\". 1321 Therefore, we do not\nconsider that the Panel's decision to focus largely on a qualitative assessment of the measure was\nimproper.\n5.223. In analysing the contribution made by the EU Seal Regime to the first aspect of the\nobjective – i.e. addressing public moral concerns relating to the EU public's participation as\nconsumers in the market for products derived from inhumanely killed seals – the Panel focused\nexclusively on an assessment of the measure itself. Indeed, in its intermediate finding, the Panel\nexpressly stated that its conclusion was based on the \"design and expected operation\" of the\nmeasure.\n1322 This approach would also seem to have implications for the way in which the Panel\nframed its findings. The complainants argue that, by concluding that the ban was \"capable of\nmaking a contribution\"\n1323, the Panel was identifying a possible, instead of an actual, contribution.\nWe recognize that the Panel's language could be read to suggest that the Panel found only a\npossibility that the ban contributed to the object ive. On the other hand, because the Panel made\nclear that it was focusing on the design and expected operation of the measure, we understand the\nPanel to have been projecting what the impact of the prohibitive aspect of the measure would be.\n5.224. This approach bears similarities with the analysis in Brazil – Retreaded Tyres , where the\npanel concluded that the measure at issue was \"capable of making a contribution to the\nobjective\".\n1324 The European Communities argued on appe al that this represented an erroneous\nlegal standard, and that the panel should instead have assessed the actual contribution of the\nmeasure to its stated objective, and measured the importance of the contribution to the objective\nachieved by the measure.\n1325 The Appellate Body ultimately dismissed this ground of appeal. 1326\nAs we noted, the Appellate Body further found that the impact of the measure was not yet\nrealized, but that it was \"apt to\" induce change s over time in the behaviour and practices of\n\n1314 Recognized bodies were approved by the Commission for seal products from Sweden on\n18 December 2012, and for Greenland on 25 April 2013. (Panel Reports, fns 220 and 221 to paras. 7.164\nand 7.166, respectively) The Panel also noted that, prior to the Greenlandic entity obtaining recognized body\nstatus, Danish customs authorities had processed imports based on certificates issued by Greenlandic\n1315 Panel Reports, para. 7.456 and fn 729 thereto.\n1317 Panel Reports, fn 729 to para. 7.456. The Panel also noted that Canada does not maintain discrete\ndata for exports of tanned skins because such products are combined with those derived from other animals.\n(Ibid.)\n1319 Panel Reports, para. 7.456.\n1321 Panel Reports, para. 7.458.\n1322 Panel Reports, para. 7.448.\n1323 Panel Reports, para. 7.448.\n1324 Appellate Body Report, Brazil – Retreaded Tyres, para. 136 (quoting Panel Report, Brazil –\nRetreaded Tyres, para. 7.148).\n1325 Appellate Body Report, Brazil – Retreaded Tyres, para. 137.\n1326 Appellate Body Report, Brazil – Retreaded Tyres, para. 155.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncommercial actors in a manner contributing to the objective. 1327 Such changes, however, were not\nmeasurable at the time of the proceedings, at least not in quantifiable terms. We therefore do not\nsee that a panel falls into error by projecting what contribution will be brought about by the\nmeasure.\n5.225. With regard to the second aspect of the objective – i.e. addressing public moral concerns\nrelating to the number of inhumanely killed seals – the Panel concluded that the prohibitive aspect\nof the EU Seal Regime \"makes a contribution\" to reducing the demand for seal products within the\nEuropean Union, and contributes \"to a certain extent\" to reducing global demand.\n1328 The Panel\nthen further stated that its observation regarding the downward trend in seal products trade also\nsuggests that the measure \"may have co ntributed\" to reducing EU demand.\n1329 W e n o t e t h a t ,\nalthough this further characterization conveys a less certain conclusion with respect to\ncontribution, it pertains to the Panel's review of data about which it signalled its prior reservations\nthat we referred to above. It is thus not surpri sing that the Panel conveyed a qualified conclusion\nwith respect to this additional, quantitative element of its analysis.\n5.226. The complainants also criticize the Panel's overall conclusion that \"the EU Seal Regime is\ncapable of making and does make some contribution to its stated objective of addressing the\npublic moral concerns.\"\n1330 Again, the complainants consider that this finding is not sufficiently\nclear and precise. We read this sentence to reflect the combination of the Panel's assessment of\nthe contribution in respect of both aspects of the objective. Since the Panel concluded that the\nEU Seal Regime was \"capable of making a contribution\" to addressing public moral concerns\nrelating to the EU public's participation as consumers in the market for products derived from\ninhumanely killed seals, and \"makes a contribution \" to reducing EU and global demand for seal\nproducts, the conclusion set out in the first sentence of paragraph 7.460 can be understood as\nsimply reflecting an aggregation of those two conclusions. What follows in the remaining sentences\nof paragraph 7.460 thus consists of the Panel's recapitulation of its prior intermediate findings in\nrespect of both the prohibitive and permissive aspects of the measure.\n5.227. Finally, we take note of the fact that, in its analysis under Article XX of the GATT 1994, the\nPanel recalled its finding under Article 2.2 of the TBT Agreement that the EU Seal Regime\n\"contributed to a certain extent to its objective of addressing the EU public moral concerns on seal\nwelfare\".\n1331 Although it is not apparent why the Panel framed its conclusion differently in these\ntwo sections, we do not see any appreciable difference between a finding that a measure \"makes a\ncontribution\" and a finding that it \"contributes to a certain extent\".\n5.228. The complainants further contend that the Panel failed to identify how the positive and\nnegative contributions of the different elements of the measure resulted in a net overall\ncontribution to the identified objective. The complainants add that the Panel's failure to identify the\ndegree of contribution in respect of each aspect of the objective meant that the Panel was not able\nto reach a sufficiently clear and precise conclusion with regard to the contribution of the EU Seal\nRegime to the stated objective. To be sure, the Panel's finding is not very detailed. The conclusion\nthat the EU Seal Regime \"is capable of making and does make some contribution\" 1332 does not\nprovide much information as to the precise degree or extent of the contribution. At the same time,\nhowever, it is not clear what greater clarity or precision the Panel could have achieved in the\ncircumstances of this case. We recall the Appellate Body's guidance in Brazil – Retreaded Tyres\nthat a Panel's inquiry ultimately depends on \"the nature, quantity, and quality of evidence existing\nat the time the analysis is made\". 1333 In these disputes, the Panel faced significant limitations in\nexamining aspects of the measure other than through its design, structure, and expected\noperation. Principally, the Panel recognized, correctly in our view, that there was limited and\n\n1327 The Appellate Body stated: \"Over time, this comprehensive regulatory scheme is apt to induce\nsustainable changes in the practices and behaviour of the domestic retreaders, as well as other actors, and\nresult in an increase in the number of retreadable tyres in Brazil and a higher rate of retreading of domestic\ncasings in Brazil.\" (Appellate Body Report, Brazil – Retreaded Tyres, para. 154)\n1328 Panel Reports, para. 7.459.\n1329 Panel Reports, para. 7.459.\n1330 Panel Reports, para. 7.460.\n1331 Panel Reports, para. 7.638. (emphasis added) The Panel used similar language in the conclusions\nand recommendations section of the Panel Reports. (Canada Panel Report (DS400), para. 8.2(c); Norway Panel\nReport (DS401), para. 8.2(b))\n1332 Panel Reports, para. 7.460.\n1333 Appellate Body Report, Brazil – Retreaded Tyres, para. 145.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nuneven information relating to the actual operation of the measure on the Panel record, in\nparticular relating to the actual operation of the exceptions, and the actual impact the measure\nhad on the EU seal product market. Given the particular nature of the measure at issue, and the\nspecific circumstances of these disputes, it is not clear that the Panel could have done more. In\nsum, we do not consider that the Panel erred in concluding that the EU Seal Regime \"is capable of\nmaking and does make some contribution\"\n1334 to its objective, or that it makes a contribution \"to a\ncertain extent\".1335\n5.229. Norway asserts a claim under Article 11 of the DSU that mirrors aspects of its claim that\nthe Panel erred in the application of the legal standard. Norway argues, for instance, that the\nimprecision of the Panel's contribution analysis means that \"the Panel provides an inadequate\nstatement on how it weighed, balanced, and reconciled the competing evidence of positive and\nnegative contributions.\"\n1336 Norway adds that \"as the Panel failed to explain and reconcile the\nevidence in arriving at its conclusion, including in making its intermediate factual findings, there is\nno objective basis to comprehend how it arrived at its net overall conclusion.\"\n1337 Similarly,\nNorway charges that the Panel failed to make an objective assessment in reaching its net overall\nconclusion as to the contribution of the EU Seal Regime to its objective. According to Norway, \"it is\nimpossible to comprehend the basis on which the Panel found that the overall netting process\nleaves a positive contribution.\" 1338 Norway adds that the Panel's overall conclusion is thus \"bereft\nof any objective and coherent basis\".1339\n5.230. To the extent that we have reviewed the Panel's reasoning, and the clarity and precision of\nits findings, in our assessment of Norway's claim that the Panel erred in its contribution analysis,\nwe have also addressed the substance of Norway's criticism that the nature and quality of the\nPanel's reasoning was inconsistent with an objective assessment under Article 11 of the DSU. We\ntherefore see no grounds separately to consider th ese issues under Article 11. In the next section,\nwe address Norway's other claims, including its claims under Article 11 of the DSU, as they relate\nto whether the Panel's conclusions were properly substantiated.\n5.3.2.4.3 Whether the Panel's findings regarding the contribution of the EU Seal Regime\nto its objective were properly substantiated\n5.231. In addition to claiming that the Panel's finding failed properly to establish the degree to\nwhich the EU Seal Regime contributes to its objective, the complainants assert distinct claims that\nvarious aspects of the Panel's findings were unsubstantiated. Norway identifies various points that\nit considers the Panel either undervalued or ov ervalued in assessing the contribution of the\nEU Seal Regime to the public morals objective.\n1340 Separately, Canada and Norway both maintain\nthat the Panel failed to substantiate its conclusion that the EU Seal Regime contributes to reducing\nEU and global demand for seal products and the incidence of inhumanely killed seals.1341\n5.232. We note that certain of the claims by Canada and Norway present overlapping challenges\nconcerning the Panel's application of the law to the facts, as well as the Panel's assessment of the\nfacts under Article 11 of the DSU. The Appellate Body has recognized the difficulty of\ndistinguishing \"clearly between issues that are purely legal or purely factual, or are mixed issues of\nlaw and fact\", and has stated that \"{i}n most cases … an issue will either be one of application of\nthe law to the facts or an issue of the objective assessment of facts, and not both.\"\n1342 The\nAppellate Body has found that allegations implicating a panel's assessment of the facts and\n\n1334 Panel Reports, para. 7.460.\n1335 Panel Reports, para. 7.638; Canada Panel Report (DS400), para. 8.2(c); Norway Panel Report\n(DS401), para. 8.2(b).\n1336 Norway's appellant's submission, para. 415. (emphasis original)\n1337 Norway's appellant's submission, para. 418.\n1338 Norway's appellant's submission, para. 460.\n1339 Norway's appellant's submission, para. 465.\n1340 Norway's appellant's submission, paras. 316-397.\n1341 Canada's appellant's submission, paras. 176-208; Norway's appellant's submission, paras. 381-394,\nand 420-451.\n1342 Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 955 (referring to EC and\ncertain member States – Large Civil Aircraft, para. 872 (emphasis original)).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nevidence fall under Article 11 of the DSU. 1343 By contrast, \"[t]he consistency or inconsistency of a\ngiven fact or set of facts with the requirements of a given treaty provision is … a legal\ncharacterization issue\" and therefore a legal question.\n1344 We examine, where relevant below,\nwhether certain of the complainants' claims are properly considered as claims of legal application\nunder Article XX(a) of the GATT 1994, or as claims relating to the Panel's objective assessment of\nthe facts within the meaning of Article 11 of the DSU.\n5.233. We have structured our analysis to address the issues raised by the complainants in the\nfollowing three subsections. First, we examine Cana da's and Norway's contention that the EU Seal\nRegime fails to contribute to the objective in various respects because it leads to worse seal\nwelfare outcomes. Next, we assess the complainants' claims in respect of the Panel's finding that\nthe EU Seal Regime contributes to reducing EU and global demand for seal products and the\nincidence of inhumanely killed seals. Finally, we consider several remaining claims as they relate to\nthe Panel's analysis.\n5.3.2.4.3.1 Whether the EU Seal Regime leads to worse seal welfare outcomes\n5.234. Several of the arguments advanced by the complainants in respect of the Panel's\ncontribution analysis are premised on the view that the EU Seal Regime could or does lead to\ngreater numbers of imports of seal products de rived from seal hunts with poor seal welfare\noutcomes. Norway specifically addresses this matter in relation to several issues that it considers\nthe Panel undervalued in assessing the contribution of the EU Seal Regime\n1345, as well as in\nchallenging the Panel's analysis under Article 11 of the DSU. 1346 Canada does so to a more limited\nextent in its criticism of the Panel for failing to assess whether the EU Seal Regime makes a net\npositive contribution.1347\n5.235. The complainants' premise that the EU Seal Regime leads to worse seal welfare outcomes\nconsists of two elements: (i) that the EU Seal Regime will have the effect of replacing imports from\ncommercial hunts with those from IC and MRM hunts; and (ii) that IC and MRM hunts lead to\nhigher rates of inhumanely killed seals as compared to commercial hunts. Both elements are\nrequired to sustain the premise upon which the complainants rely. Only if seal products derived\nfrom IC and MRM hunts replace seal products from commercial hunts would any alleged effect of\nworse seal welfare outcomes in the former hunts lead to an increase of seal product imports\nderived from inhumanely killed seals.\n5.236. Canada and Norway identify factors that, in their view, cumulatively confirm the existence\nof a replacement effect. Norway refers to the Panel's finding that virtually all seal products from\nGreenland and the European Union are likely to be placed on the EU market by virtue of the IC and\nMRM exceptions, whereas the vast majority of Cana dian and Norwegian seal products do not meet\nthe requirements of either of these exceptions.\n1348 Norway considers that the Panel's findings also\ndemonstrate that seal products may be sold on the EU market under the IC and MRM exceptions\nregardless of whether they derive from seals killed humanely, and that these exceptions do not\nimpose any quantitative limits on the number of qualifying seal products that may be admitted to\nthe EU market.\n1349 Canada makes similar arguments when it refers to the Panel's findings that the\n\n1343 This includes claims that a panel: exceeded its authority as a trier of facts (Appellate Body Report,\nUS – Wheat Gluten, para. 151); disregarded evidence or did not have a sufficient evidentiary basis on the\nrecord for its finding (Appellate Body Report, US – Continued Zeroing, para. 338); lacked even-handedness in\nthe treatment of evidence (Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 292);\nfailed to provide reasoned and adequate explanations for its findings (Appellate Body Report, US – Softwood\nLumber VI (Article 21.5 – Canada), para. 97); or failed to provide coherent reasoning (Appellate Body Report,\nUS – Upland Cotton (Article 21.5 – Brazil), para. 293 and fn 618 thereto, and para. 294).\n1344 Appellate Body Report, EC – Hormones, para. 132.\n1345 Norway's appellant's submission, paras. 324-360.\n1346 Norway's appellant's submission, paras. 472-474.\n1347 Canada's appellant's submission, paras. 169-175.\n1348 Norway's appellant's submission, para. 328 (referring to Panel Reports, paras. 7.164 and 7.608).\n1349 Norway's appellant's submission, paras. 325-327 (referring to, inter alia, Panel Reports,\npara. 7.447).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nonly beneficiary under the IC exception is Greenland, and that all or virtually all seal products from\nGreenland are eligible to access the EU market under the IC exception.1350\n5.237. Canada and Norway also point to Panel find ings and evidence in the Panel record that, in\ntheir view, support the conclusion that the EU Seal Regime would lead to the replacement by\nGreenlandic seal products of imports previously derived from commercial hunts in Canada and\nNorway. The complainants assert that these findings and evidence demonstrate that Greenlandic\ntrade could by itself satisfy EU demand.\n1351 First, the complainants note the Panel's conclusion that\n\"all, or virtually all, seal products from Greenland are eligible to access the EU market under the\nIC exception\".1352 Second, the complainants cite the Panel's statement that Greenland, for the\nperiod from 1993 to 2009, always caught over 163,000 seals annually, half the skins of which\nwere normally traded.\n1353 Norway compares the over 80,000 skins estimated to be annually traded\nby Greenland with an estimation of, on average, 20,000 skins imported annually from Canada and\nNorway into the European Union between 2002 and 2008. 1354 The complainants also point to the\nPanel's observation that \"Greenland has stored ar ound 300,000 sealskins since the introduction of\nthe EU Seal Regime\".1355 Finally, we note that the complainants repeatedly refer to a statement in\nthe COWI 2010 Report, not cited by the Panel, that \"Greenlandic trade is more than enough to\ncover the EU demand by itself\".1356\n5.238. The European Union contends that the ev idence on which Canada and Norway rely is\nunsupported and contradicted by other facts. The European Union argues that the complainants'\nmain piece of evidence contained in the COWI 2 010 Report \"is not supported by any evidence or\nreasoning and it is not possible to know on what basis COWI came to that view\".\n1357 The European\nUnion identifies other facts that, in the European Union's view, contradict the appellants' position:\n(i) the number of seals hunted in Canada and Norway has traditionally exceeded the number of\ncatches in Greenland; (ii) unlike in Canada and Norway, a large part of the seal skins in Greenland\nare consumed domestically rather than traded internationally; (iii) a large part of the seal skins\nare exported from Greenland to markets outside the European Union; (iv) there are Inuit\nexceptions under other countries' bans that would absorb exports of seal skins traded by\nGreenland; (v) global demand for seal products may not remain unchanged at currently depressed\nlevels; (vi) the IC exception is subject to conditions that constrain Greenland's ability to expand\nsupply more than traditional levels; (vii) Greenland's supply capacity is declining; and\n(viii) Greenlandic export data shows stable or declining exports to the European Union.\n1358\n5.239. The European Union further contends that this evidence demonstrates that, due to\ndepressed global demand and prices resulting in part from the EU Seal Regime, imports from\nGreenland \"have not even returned to their usual level\" 1359 before seal product bans were first\nintroduced in the European Union in 2007. The European Union also maintains that Norway's\nassertion that Greenland's supply of 80,000 seal skins per year can easily supply the\nEuropean Union's average imports of 20,000 skins is flawed.\n1360 This data, the European Union\nargues, only covers tanned skins, whereas Canada's principal exports to the European Union\nconsisted of raw skins. Noting that Canada exported more than 100,000 raw skins to the\nEuropean Union in 2006, the European Union asserts that Norway's own estimates show that\n\"Greenland could not supply that volume on its own, even if it were to discontinue its exports to all\nother countries.\"\n1361 Norway responded at the oral hearing that the European Union had itself\nacknowledged before the Panel that the Canadian export data include transit goods that do not\nenter the EU market and therefore overstate the level of EU imports from Canada. Norway added\n\n1350 Canada's appellant's submission, para. 170 (referring to Panel Reports, paras. 7.164, 7.314,\nand 7.315).\n1351 Canada's appellant's submission, para. 172; Norway's appellant's submission, para. 356.\n1352 Panel Reports, para. 7.164.\n1353 Panel Reports, para. 7.310.\n1354 Norway's appellant's submission, paras. 352-355 (calculated on the basis of data set out at\nparagraphs 7.310 and 7.456 of the Panel Reports).\n1355 Panel Reports, para. 7.310.\n1356 Canada's appellant's submission, paras. 6 and 171; Norway's appellant's submission, paras. 3, 205,\n356, 382, and 470 (both quoting COWI 2010 Report, p. 84). The Panel referred to this page of the COWI 2010\nReport in support of a different proposition. (Panel Reports, para. 7.315)\n1357 European Union's appellee's submission, para. 184.\n1358 European Union's appellee's submission, paras. 185-196.\n1359 European Union's appellee's submission, para. 196.\n1360 European Union's appellee's submission, para. 199.\n1361 European Union's appellee's submission, para. 199.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthat the European Union's own data show that the level of imports from Canada in 2006 comprised\nless than 11,000 skins.1362\n5.240. Canada and Norway also identify factors that, in their view, support the existence of worse\nseal welfare outcomes in Greenlandic as oppose d to commercial hunts. As a preliminary matter,\nNorway refers to the Panel's conclusion that EU public concerns on seal welfare appear to be\nrelated to seal hunts in general, not to particular types of seal hunts. 1363 Norway maintains that\nthis shows that the moral standard applies equally to IC and MRM hunts as it does to hunts\nconducted in Greenland and the European Union. 1364 The complainants both assert that the Panel\nfailed to take proper account of findings made elsewhere in its Reports that establish that IC and\nMRM hunts lead to poorer seal welfare outcomes th an commercial hunts. Specifically, they refer to\nseveral of the Panel's findings that, when taken together, in their view support a finding that\nGreenlandic Inuit rely mainly on open-water hunting and trapping and netting, and that these\nmethods lead to higher rates of inhumanely killed seals. The complainants note, for instance, the\nPanel's statement that \"the use of rifles from boats in 'open water hunting' or trapping and netting\nappear to be the main hunting methods for Greenlandic Inuit\".\n1365 With regard to hunting with\nrifles from boats in open water, the Panel referred to evidence showing that shooting seals in open\nwater can contribute to struck and lost rates, and that there was anecdotal evidence showing\nhigher struck and lost rates in Greenlandic hunts than in commercial hunts.\n1366 Regarding trapping\nand netting, the Panel also pointed to evidence that such hunting practices lead to severe seal\nwelfare concerns, and that the use of nets is not allowed in Canadian and Norwegian commercial\nseal hunts.\n1367 The complainants also pointed to differences observed by the Panel in compliance\nmonitoring efforts as between Greenland, and Canada and Norway.1368\n5.241. We note that other findings in the Panel Reports either highlight the particular seal welfare\nrisks associated with both Inuit and commercial hunts, or indicate that such risks are equivalent.\nThus, the Panel found that the existence of comm ercial motives leads to killing a greater number\nof seals in hunts conducted within a limited period of time, and that this \"may additionally\ncontribute to subjecting seals to the animal welf are risks identified above with respect to seal\nhunts in general\".\n1369 Moreover, the Panel noted that \"similar challenges to effecting humane\nkilling of seals exist in IC hunts\" 1370, and that \"the same animal welfare concerns as those arising\nfrom seal hunting in general also exist in IC hunts\". 1371 The Panel thus refrained from making a\nfinding that seal welfare outcomes were worse in IC or MRM hunts, as compared to those in\ncommercial hunts, and instead limited itself to the more general finding that the risks of inhumane\nkilling of seals are present in each of commercial, IC, and MRM hunts.1372\n5.242. Canada and Norway frame many of the above arguments in a manner suggesting that they\nconcern the Panel's legal characterization of the facts, and therefore constitute claims of error\nregarding the Panel's application of law. 1373 We note that Norway has also presented certain of\nthese matters as errors under Article 11 of the DSU. 1374 The premise that the EU Seal Regime\ncould or does lead to worse welfare outcomes due to a replacement effect appears to have been\nhighly contested by the parties in these disputes. We further note that the Panel did not reach the\nfindings sought by Canada and Norway, and, in the light of the contested nature of these facts\nbetween the parties, appears to have had reasonable grounds for not doing so. Thus, even if there\n\n1362 Norway's opening statement at the oral hearing.\n1363 Norway's appellant's submission, para. 333 (referring, inter alia, to Panel Reports, para. 7.410).\n1364 Norway's appellant's submission, para. 334.\n1365 Panel Reports, para. 7.268.\n1366 Panel Reports, paras. 7.215, 7.216, and fns 324-331 thereto.\n1368 Panel Reports, paras. 7.220 and 7.269.\n1369 Panel Reports, para. 7.245.\n1370 Panel Reports, para. 7.273.\n1371 Panel Reports, para. 7.275.\n1372 Panel Reports, paras. 7.245 (commercial), 7.275 (IC), and 7.337 (MRM). Norway confirms this point\nin stating that \"the Panel failed to make any assessment of the animal welfare risks presented by the\nGreenlandic hunt in relation to the banned hunts\". (Norway's appellant's submission, para. 344)\n1373 Canada contends that the Panel's failure properly to articulate the degree of contribution of the\nmeasure to the objective constitutes legal error. (See e.g. Canada's appellant's submission, paras. 168-175)\nNorway considers that, in matters concerning the Panel's task of determining the contribution of the measure\nto its public morals objective, the Panel's errors constitute errors in the legal characterization of the facts. (See\ne.g. Norway's appellant's submission, para. 317)\n1374 See e.g. Norway's appellant's submission, paras. 468-475.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nwere particular findings of the Panel that, when read in isolation, could be viewed as possibly\nsupporting a differentiation between welfare outcomes in different types of hunts, the Panel was\nnot of the view that such differentiation was clearly supported by the Panel record. Likewise, with\nrespect to the replacement effect, the Panel identifi ed the difficulties it had in examining data due\nto significant gaps and limitations with the trad e data concerning the EU seal product market,\nparticularly given that the data was incomplete with regard to product types and import and export\ncountries. If the Panel was \"not in a position to draw any concrete conclusions\"\n1375 concerning the\ndata for purposes of determining seal product demand, it does not seem unwarranted for the Panel\nto have refrained from relying on that same data to reach a finding that the EU Seal Regime could\nor does have the effect of replacing imports from commercial hunts with those from IC and\nMRM hunts.\n5.243. On the basis of the foregoing, we consider that the premise that the complainants believe\nis supported by the Panel record is primarily factual in nature, and therefore relates to the Panel's\nweighing and appreciation of the evidence. We ther efore consider that these claims of Canada and\nNorway are more properly addressed under Article 11 of the DSU as challenges to the Panel's\nobjective assessment of the facts. Even in respect of aspects of the Panel's analysis where Canada\nand Norway have presented solely claims of error in the Panel's application of law to fact, we\nconsider that their arguments would have been more properly characterized as ones concerning\nthe Panel's failure properly to evaluate the evidence on the Panel record, or to rely on other Panel\nfindings, to reach a factual determination as to whether the EU Seal Regime could or does lead to\nworse seal welfare outcomes. We recall, in this re gard, our view that the record before the Panel\nprovided it with reasonable grounds for not concluding that: (i) IC and MRM hunts lead to poorer\nseal welfare outcomes than commercial hunts; and (ii) the EU Seal Regime resulted in the\nreplacement of seal product imports from commercial hunts with such products from IC and\nMRM hunts. Moreover, even where specific allegation s of error were raised under Article 11 of the\nDSU, we consider that our analysis is dispositive of those arguments as well.\n1376 Accordingly, we\nsee no grounds under Article 11 of the DSU to disturb the Panel's findings, and we therefore reject\nthe claims of Canada and Norway as they relate to this aspect of the Panel's contribution analysis.\n5.3.2.4.3.2 Whether the EU Seal Regime cont ributed to reducing EU and global demand\nfor seal products and the incidence of inhumanely killed seals.\n5.244. Canada and Norway further claim that the Pa nel erred in its analysis of the contribution of\nthe EU Seal Regime to the second aspect of the identified objective, namely, reducing the number\nof inhumanely killed seals. 1377 Canada contends that the Panel relied on a proxy objective of\nreducing demand for seal products in the EU an d globally without assessing whether this then\ncontributed to a reduction in the number of inhumanely killed seals. 1378 Canada and Norway also\nmaintain that there is no support for the Panel's conclusion that a reduction in EU or global\ndemand for seal products would result in a reduction in the number of inhumanely killed seals.\n1379\nNorway further argues that the rationale and evidence relied on by the Panel do not substantiate\n\n1375 Panel Reports, para. 7.456.\n1376 For instance, Norway notes that, despite numerous occasions on which the Panel relied on the\nCOWI 2010 Report, the Panel nevertheless overlooked the statement in that report that \"Greenlandic trade is\nmore than enough to cover EU demand by itself\". (Norway's appellant's submission, para. 470 (quoting\nCOWI 2010 Report, p. xi) Norway refers to this as \"a particularly revealing example of the Panel's selective\ntreatment of the evidence\". (Norway's appellant's submission, para. 469) Canada also notes that the Panel did\nnot identify this statement from the COWI 2010 Report. (Canada's appellant's submission, para. 171) We have\nobserved that there were significant, substantive disagreements between the parties on the issue of whether\nthe EU Seal Regime could or does have the effect of replacing imports from commercial hunts with those from\nIC and MRM hunts, and that the Panel had reasonable grounds for not reaching such a finding. In these\ncircumstances, we cannot fault the Panel for failing to attribute to this particular evidence the significance\nsought by Canada and Norway.\n1377 Canada also argues that the Panel confused matters by referring alternatively to the \"incidence\" and\nthe \"number\" of inhumanely killed seals. (Canada's appellant's submission, paras. 193-195) The European\nUnion maintains that neither it nor the Panel ever sought, in referring to the \"incidence\" of inhumane killing of\nseals, to ascribe any meaning to that term other than that relating to the number of such inhumanely killed\nseals. (European Union's appellee's submission, paras. 224 and 225) To the extent these terms can be seen as\nreferring to different concepts, we note that the Panel makes clear, at paragraphs 7.443 and 7.449 of its\nReports, that it understood the second aspect of the EU public morals objective for purposes of its analysis as\nrelating to the \"number\" of seals killed inhumanely.\n1378 Canada's appellant's submission, para. 177.\n1379 Canada's appellant's submission, para. 189; Norway's appellant's submission, para. 394.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nits conclusion that the measure affected the demand for seal products. 1380 Finally, Canada and\nNorway contend that these shortcomings demonstrate that the Panel acted inconsistently with its\nduty to make an objective assessment within the meaning of Article 11 of the DSU.\n1381\n5.245. The European Union responds that the Panel properly found that the EU Seal Regime\ncontributes to reducing EU and global demand fo r seal products. As the European Union observes,\nthe complainants acknowledge that there has been a significant decrease in seal product trade\nfrom Canada and Norway into the European Union. 1382 The European Union further argues that,\nalthough the statistics relied on by the Panel were incomplete because they do not track separately\nall categories of seal products, \"this does not mean that those statistics are unreliable\".1383 Instead\nof disputing that such imports have declined, the European Union adds, the complainants rely on\nthe \"speculative prediction\" that imports from Ca nada and Norway will be replaced by imports\nfrom Greenland.\n1384 The European Union further maintains that, because EU demand for seal\nproducts is a component of the global demand for such products, reducing EU demand also\ncontributes to reducing global demand.\n1385 The European Union adds that this is supported by the\nfact that the EU seal product market has traditionally \"occupied a central position within the global\nmarket\"1386, and that trade statistics show a decline in Canada's exports and a \"precipitous\nreduction in the number of seals hunted\". 1387 Finally, the European Union argues that the Panel\n\"was entitled to assume that a reduction in the number of seals killed would entail necessarily a\nreduction of the number of seals being killed inhumanely\" on the basis of its factual findings\nregarding the welfare risks inherent in all seal hunts.\n1388\n5.246. Before the Panel, the European Union argued that the ban makes a partial contribution to\naddressing public moral concerns regarding seal welfare \"by reducing global demand for seal\nproducts resulting from commercial hunts, with the consequence that less seals are killed in an\ninhumane way\".\n1389 Thus, by focusing on whether the ban reduces demand for seal products, the\nPanel appears to have accepted the proposition th at reducing such demand would lead to fewer\ninhumanely killed seals. The complainants contend that: (i) the evidence does not support the\nPanel's finding that the EU Seal Regime led to a reduction in demand for seal products; and (ii) the\nPanel never demonstrated that reducing demand leads to fewer inhumanely killed seals.\n5.247. Taking the second point first, we note Canada and Norway's argument that the Panel\nomitted a critical step in its analysis by failing to assess whether a reduction in demand for seal\nproducts would actually contribute to a reduction in the number of inhumanely killed seals.\n1390 The\nPanel did not seek to establish that a reduction in demand would lead to fewer inhumanely killed\nseals. However, in our view, it was not unreasonable for the Panel to assume that a decrease in\ndemand, and hence a contraction of the seal prod uct market, would have the effect of reducing\nthe number of seals killed, and thus the number of inhumanely killed seals. We therefore see\nnothing improper in the Panel's logic when it referred to the effect of the ban as one of \"reducing\nthe overall demand for seal products within the European Union and consequently the number of\nseals that may be killed inhumanely in these hunts\".\n1391\n5.248. The complainants further argue that seal products derived from Greenlandic hunts could\nfully satisfy EU demand, and that the ban could or does lead to an increase in the number of seals\nkilled inhumanely.\n1392 We discussed in the preceding section that this argument rests on a factual\npremise that seems to have been highly conteste d by the parties, was not uniformly supported by\nthe Panel record, and, in any event, was not found to exist by the Panel. We also considered that\n\n1380 Norway's appellant's submission, paras. 381-394.\n1381 Canada's appellant's submission, paras. 198-208; Norway's appellant's submission, paras. 420-451.\n1382 European Union's appellee's submission, para. 211 (referring to Panel Reports, para. 7.456 and\nfn 731 thereto).\n1383 European Union's appellee's submission, para. 209.\n1384 European Union's appellee's submission, para. 212.\n1385 European Union's appellee's submission, para. 213.\n1386 European Union's appellee's submission, para. 216.\n1387 European Union's appellee's submission, para. 219.\n1388 European Union's appellee's submission, para. 226.\n1389 Panel Reports, para. 7.449.\n1390 Canada's appellant's submission, para. 177; Norway's appellant's submission, para. 394.\n1392 Canada's appellant's submission, paras. 189 and 205-207; Norway's appellant's submission,\nparas. 382 and 394.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthis premise is primarily factual in nature, and therefore relates to the Panel's weighing and\nappreciation of the supporting evidence. We theref ore view this issue as properly relating to a\nchallenge under Article 11 of the DSU regarding the Panel's objective assessment of the facts. In\nthe light of uncertainty about whether the Panel record ever evinced a more definite depiction of\nthis aspect of the EU seal product market, much less the depiction sought by the complainants, we\ndo not see sufficient grounds on which to sustain arguments that the Panel erred in assuming that\nreducing demand leads to fewer inhumanely killed seals. Accordingly, because we consider that it\nwas reasonable for the Panel to rely on this assumption, we also reject Canada's and Norway's\nclaims that the basis for such an assumption lacked a proper evidentiary foundation in violation of\nthe Panel's duties under Article 11 of the DSU.\n5.249. We next turn to the remaining questions as to whether the Panel's finding that the EU Seal\nRegime led to a reduction in demand for seal products was properly substantiated. We note the\nPanel's reference to statements in the COWI 2010 Report indicating that the EU Seal Regime has\ncreated uncertainty in the EU market, and that, as a result, trade numbers have decreased\nsubstantially and the market price of raw skin has been cut in half.\n1393 The Panel also pointed to\nevidence that the EU Seal Regime has \"halted\" European markets for seal oil and had a generally\nnegative influence on the EU seal product market. 1394 Canada and Norway contend that this\nevidence is unavailing because the prohibitive aspect of the EU Seal Regime affects the supply, not\nthe demand, for seal products.1395\n5.250. The evidence cited by the Panel does not refer to demand per se but rather to observations\nabout trade impacts experienced by the EU seal product market as a whole. Such observations,\nhowever, are descriptive of a market dynamic that necessarily reflects both supply-side and\ndemand-side considerations. Taking the statement about market price, for example, we observe\nthat, generally speaking, a decrease in supply without a change in demand would lead to higher\nprices. Consequently, it would seem reasonable to infer from an observation about decreases in\nthe market price that demand for seal products had also been adversely affected. Likewise, it does\nnot seem unreasonable for the Panel to have considered that the \"halting\" of the seal oil market in\ncertain EU countries was due at least in part to an impact on demand occasioned by the impact of\nthe EU Seal Regime.\n1396 We therefore consider that the references to market uncertainty and\ndecreases in trade numbers and market prices are all elements of a market dynamic that is at\nleast partly informed by demand-side considerations, and that the Panel therefore had a\nreasonable basis to conclude that the evidence that it cited provided at least some support for the\nview that the measure reduced EU demand for seal products. In our view, the presence of these\ndemand-side considerations in the evidence relied upon by the Panel also addresses specific\nallegations of error that the Panel acted inconsistently with its duties under Article 11 of the DSU\nin its treatment of the evidence.1397\n\n1393 Panel Reports, para. 7.450.\n1394 Panel Reports, para. 7.450.\n1395 Canada's appellant's submission, para. 183; Norway's appellant's submission, paras. 386, 423,\nand 424.\n1396 The Panel referred to Norway's recognition that \"the mere expectation of the adoption of the\nEU Seal Regime hampered trade\", which could be understood as reflecting at least in part downward shifts in\ndemand. (Panel Reports, para. 7.450 (quoting Norway's first written submission to the Panel, paras. 673\nand 674, in turn referring to COWI 2010 Report, Annex 5, Briefing note of 2009)) Canada also stated before\nthe Panel that the EU Seal Regime adversely affected market demand. (Canada's first written submission to\nthe Panel, para. 81 (\"The 2007 Belgian and the Dutch prohibitions and the 2009 EU Seal Regime have had\nsignificant negative impacts on the Canadian industry's ability to export seal products by decreasing the\ndemand for such products.\"))\n1397 For instance, Norway directs a specific allegation of error at the Panel for citing the COWI 2008\nReport for a statement that restrictions on market access will have trade impacts, yet neglecting to include a\nstatement from the same passage of the Report that highlights supply-side impacts on various groups involved\nin the seal product trade. (Norway's appellant's submission, paras. 428-430 (referring to COWI 2008 Report))\nNorway asserts that \"this selective treatment of the evidence, inferring a lack of even-handedness and\ncoherence in the treatment of the evidence, demonstrates a lack of objectivity.\" (Norway's appellant's\nsubmission, para. 430) Although the passage refers to various supply-side factors, it also refers to disruptions\ncaused by the EU Seal Regime in the form of \"income and production losses\" by \"importers and seal product\nmanufacturers on the Community territory\". (COWI 2008 Report, p. 102) We therefore see at least some\nsupport in this passage for a forecast of market uncertainty and the prospect of a contracting EU market for\nseal products with attendant consequences for the demand for seal products in the EU market.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.251. Norway further argues that the Panel's finding regarding the impact of the EU Seal Regime\non global demand is even more untenable since it lacks any supporting reasoning or evidence. 1398\nIn the analysis that precedes the Panel's finding that the EU Seal Regime contributes, \"to a certain\nextent, to reducing a global demand\"\n1399, the Panel evaluated two aspects potentially having a\nbearing on global demand for seal products. First, as discussed above, the Panel reached the\nconclusion that the ban aspect of the measure led to a reduction of the demand for seal products\nwithin the European Union.\n1400 The Panel therefore may have considered that, because EU demand\nfor seal products is a component of the global demand for such products, reducing EU demand also\ncontributes to reducing global demand. As the European Union argues, although various factors\nmay contribute to reducing global demand, \"the reduction in EU demand would still entail a\nreduction in potential global demand.\"\n1401 T h i s v i e w i s s u p p o r t e d b y t h e f a c t t h a t t h e P a n e l ' s\nconclusion in respect of global demand was, as it stated, based on the design, structure, and\nexpected operation of the measure. We also note th e Panel's finding that the measure contributed\nto reducing global demand only \"to a certain extent\".1402\n5.252. Second, the Panel also evaluated data relating to the \" actual operation\" 1403 of the\nmeasure. There, as we have noted, the Panel made several observations regarding the data\npresented by the parties, ultimately concluding that, while it observed certain downward trends in\nseal product imports into the EU market, it was nevertheless \"not in a position to draw any\nconcrete conclusions\".\n1404 The Panel moreover noted that it was unable to discern \"the extent of\nthe connection between the ban aspect of the me asure and the reduction in the number of seals\nkilled\".1405 We do not see that the Panel drew much support from this data for its conclusion in\nrespect of demand for EU seal products, whether in the European Union or globally. Indeed, the\nPanel stated that its ultimate findings in that regard were based on the measure's \"design,\nstructure, and expected operation\"\n1406, which does not suggest much reliance on the limited\nobservations the Panel previously made regarding the data in relation to the \"actual operation\" of\nthe measure.\n5.253. The Panel appears to have based its conclusions in respect of global demand largely on its\nconclusions regarding the effect of the EU Seal Regime on EU demand. We further point out that\nany conclusions that the Panel reached regarding the effect of EU demand on global demand were\nfurther qualified by its observations about continuing imports for subsequent export under the\ninward processing exception.\n1407 Although the basis for these findings appears quite tenuous, we\nrecall again the difficulties faced by the Panel in conducting any sort of quantitative analysis on the\nbasis of the Panel record, which rendered the Panel's analysis necessarily qualitative in nature. We\nfurther note that the Panel's ultimate finding in respect of the contribution of the measure to\nreducing demand for seal products, and consequent ly the number of inhumanely killed seals, is\nqualified by the Panel's statement that the EU Seal Regime \" appears to be negatively affecting the\ndemand for seal products within the European Union and globally\".\n1408\n5.254. Each of these issues regarding the Panel's finding that the EU Seal Regime results in\nreduced EU and global demand for seal products relate, in our view, to the question of whether the\nPanel properly reasoned and substantiated that fi nding. Although the complainants assert that\ncertain aspects of the Panel's analysis constitute an error of legal application by the Panel, we\nconsider that this issue relates principally to the Panel's weighing and appreciation of the evidence.\nWe therefore consider that these claims are more properly entertained under Article 11 of the DSU\nas challenges to the Panel's objective assessment of the facts. We have examined the alleged\nshortcomings identified by the complainants in the Panel's reasoning or evidentiary support for\nfindings that it reached. We consider that the Panel has, within the constraints imposed by the\nevidence before it in these disputes, declined to attribute to certain arguments and evidence the\nweight and significance that the complainants would have liked. It is not an error under Article 11\n\n1398 Norway's appellant's submission, paras. 389 and 444.\n1399 Panel Reports, para. 7.459.\n1400 Panel Reports, para. 7.450.\n1401 European Union's appellee's submission, para. 214. (emphasis original)\n1404 Panel Reports, para. 7.456.\n1405 Panel Reports, para. 7.458.\n1406 Panel Reports, para. 7.459.\n1407 Panel Reports, paras. 7.453-7.455.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nof the DSU for a panel \"to fail to accord the weight to the evidence that one of the parties believes\nshould be accorded to it\". 1409 The fact that the complainants may not agree with a conclusion the\nPanel reached, or considered itself unable to reach, does not mean that the Panel committed an\nerror amounting to a violation of Article 11 of the DSU. Accordingly, we do not consider that any\nalleged limitations identified by the complainants in respect of the Panel's finding that the EU Seal\nRegime led to a reduction in demand for seal products amount to a violation of Article 11 of the\nDSU, and we therefore reject the claims of Canada and Norway as they relate to this aspect of the\nPanel's contribution analysis.\n5.3.2.4.3.3 Whether the Panel erred in other aspects of its contribution analysis\n5.255. Finally, we address Norway's claims that the Panel undervalued two additional aspects in\nassessing the contribution of the EU Seal Regime to the public morals objective.\n5.256. Norway argues that the Panel failed to take proper account of the negative contribution\nmade by the implicit exceptions in its contribution analysis. Norway maintains that, despite the\nPanel's observations about the commercial importance of the implicit exceptions, the \"significance\"\nof these exceptions \"is nowhere properly taken into account or characterized by the Panel in\narriving at its overall conclusion\".\n1410 Although Norway may have wished that the Panel attribute\ngreater significance to this factor than it did, we are not persuaded by Norway's complaint given\nthat the Panel explicitly discussed the impact of inward processing on the EU market in the context\nits contribution analysis.1411 In doing so, the Panel referred to the incoherency of a measure that\nprohibits seal product imports based on the potential incidence of inhumanely killed seals, yet\nallows processing activities within the European Union in respect of those very same products. The\nPanel went on to conclude that the inward processing exception \"further reduces the contribution\nof the measure to the reduction of the global demand for seal products derived from inhumane\nkilling\".\n1412 Moreover, in the absence of a finding or evidence that seal product imports into the\nEU market increased under the inward processing or other implicit exceptions 1413, we do not see\nhow this would necessarily have a bearing on the extent to which the prohibitive aspect of the\nmeasure contributes to the objective. Given the above, we reject Norway's argument that the\nsignificance of the implicit exceptions \"is nowhere properly taken into account or characterized by\nthe Panel in arriving at its overall conclusion\".\n1414\n5.257. Norway further argues that the Panel wrongly concluded that indigenous communities have\nnot been able to benefit from the IC exception, a factor that the Panel considered to limit the\nnegative impact of the exceptions. 1415 Specifically, Norway points to the Panel's conclusion that,\nalthough Inuit and other indigenous communities could potentially qualify and export seal products\nunder the IC exception, \"they have not been able to benefit from the exception\".\n1416 Norway\nconsiders that the Panel's finding is \"disingenuous\" 1417 because no Greenlandic imports were\npossible under the IC exception until a Greenlandic body to certify imports was approved on\n25 April 2013, four days before the second Panel meeting, and that the Panel was nevertheless\ncompelled to consider the expected operation of the measure after that date. 1418 Norway also\nargues that the Panel's conclusion demonstrates a selective treatment of the evidence, and a\nfailure to refer to or reconcile its findings, in violation of Article 11 of the DSU.1419\n\n1409 Appellate Body Report, Korea – Alcoholic Beverages, para. 164.\n1410 Norway's appellant's submission, para. 374.\n1411 Panel Reports, paras. 7.453-7.455.\n1412 Panel Reports, para. 7.455.\n1413 We note the Panel's observation that, while seal skins have been exported from the European Union\nfollowing the adoption of the EU Seal Regime possibly resulting from inward processing activities, these\nactivities have occurred at reduced levels from previous years. (Panel Reports, fn 721 to para. 7.453)\n1414 Norway's appellant's submission, para. 374.\n1415 Norway's appellant's submission, paras. 361-371 (referring to Panel Reports, para. 7.452). Norway\nalso challenges this Panel finding under Article 11 of the DSU. (Norway's appellant's submission,\nparas. 452-458)\n1416 Panel Reports, para. 7.452.\n1418 Norway's appellant's submission, paras. 369 and 370. See also ibid., para. 456.\n1419 Norway's appellant's submission, para. 453.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.258. The European Union responds that the Panel record supports the Panel's finding that the\nInuit have been adversely affected by the EU Se al Regime and have not always been able to\nbenefit from the IC exception. In the European Union's view, the EU Seal Regime has a depressing\neffect on global prices and demand, including on seal products from IC hunts. 1420 The European\nUnion also rejects as \"thoroughly misguided\" 1421 Norway's assertion that the only reason the\nindigenous communities have not been able to benefit from the IC exception is because Greenland\ndid not have an established recognized body at the time of the Panel proceedings. The European\nUnion maintains that the Panel was \"well aware th at Greenland had benefitted effectively from the\nIC exception since 2010\", and must be understood as referring to the difficulties faced by\nindigenous communities in Canada, not Greenland.\n1422\n5.259. We do not consider that the Panel was, as Norway argues, referring exclusively to the fact\nthat Greenlandic imports were not legally permitted before 25 April 2013 as the basis for its\nstatement. Given the Panel's recognition that Greenlandic imports had already been introduced\ninto the EU market prior to that date, we consider it unlikely that the Panel would have been\nreferring to difficulties faced by indigenous communities in Greenland.\n1423 In addition, the Panel\nelsewhere noted that Canadian Inuit face certain obstacles in taking advantage of the\nIC exception.\n1424 Moreover, we observe that the Panel's conclusion in this paragraph also refers to\nevidence indicating that Inuit communities have been adversely affected by, in particular, the\nprohibitive aspect of the EU Seal Regime, wh ich suggests an adverse impact on marketing\nopportunities for Inuit communities created by the restrictive impact of the ban. 1425 This points to\nanother reason supporting the Panel's view that the interplay between the ban and the\nIC exception may limit the negative impact of the exception. In the light of these considerations,\nwe do not consider that the Panel placed undue emphasis on factors concerning the eligibility of\nGreenlandic imports in reaching its conclusion. In our view, Norway's claim relates to a decidedly\nfactual question of whether the Panel properly concluded that Inuit communities have not been\nable to benefit from the IC exception. Becaus e this question relates solely to the Panel's\nassessment of the evidence, we consider that it is more properly considered under Article 11 of the\nDSU. In any event, for the reasons set out above, we reject Norway's claim that the Panel failed to\nconduct an objective assessment under Article 11 of the DSU.\n5.3.2.5 The Panel's analysis of the reasonable availability of the alternative measure\n5.260. We now turn to assess Canada's and Norway's claims relating to the Panel's finding that\nthe alternative measure was not reasonably available.\n5.261. We recall the Appellate Body's view that the weighing and balancing exercise under the\nnecessity analysis contemplates a determination as to \"whether a WTO-consistent alternative\nmeasure which the Member concerned could 'reasonably be expected to employ' is available, or\nwhether a less WTO-inconsistent measure is 'reasonably available'.\"\n1426 An alternative measure\nmay be found not to be reasonably available where it is \"merely theoretical in nature, for instance,\nwhere the responding Member is not capable of taking it, or where the measure imposes an undue\nburden on that Member, such as prohibitive costs or substantial technical difficulties.\" 1427\nFurthermore, in order to qualify as a \"genuine alternative\", the proposed measure must be not\nonly less trade restrictive than the original measure at issue, but should also \"preserve for the\nresponding Member its right to achieve its desired level of protection with respect to the objective\n\n1420 European Union's appellee's submission, para. 205.\n1421 European Union's appellee's submission, para. 206.\n1422 European Union's appellee's submission, para. 206.\n1424 Panel Reports, paras. 7.162 and 7.315 (referring to Canada's explanation that Canadian Inuit would\nhave difficulty taking advantage of the IC exception because they have limited access to the distribution\nnetworks, processing facilities, and marketing opportunities needed to export their seal products to the\nEuropean Union).\n1425 Canada and the European Union acknowledge evidence on the Panel record showing that Inuit\ncommunities were opposed to the EU Seal Regime because it would have a negative impact on the market for\nall seal products. (Canada's appellant's submission, para. 91; European Union's appellee's submission,\nparas. 98, 141, 142, and 202-204)\n1426 Appellate Body Report, Korea – Various Measures on Beef, para. 166.\n1427 Appellate Body Report, Brazil – Retreaded Tyres, para. 156 (quoting Appellate Body Report, US –\nGambling, para. 308).\nWT/DS400/AB/R • WT/DS401/AB/R\n\npursued.\"1428 The complaining Member bears the burden of identifying possible alternatives to the\nmeasure at issue that the responding Member could have taken.1429\n5.262. In these disputes, the proposed alternative measure consisted of market access for seal\nproducts that would be conditioned on compliance with animal welfare standards, and certification\nand labelling requirements. 1430 The Panel found that the alternative measure is less trade\nrestrictive than the EU Seal Regime. 1431 This finding is not challenged on appeal. Instead, Canada\nand Norway request us to reverse the Panel's finding that the proposed alternative measure is not\nreasonably available. 1432 The complainants principally argue that the Panel failed to assess the\nalternative measure against the actual contribution of the EU Seal Regime, but rather did so\nagainst a standard of complete fulfilment of the objective. The complainants argue that, since\ncomplete fulfilment of the objective is a higher degree of contribution than what was found under\nthe EU Seal Regime, the Panel erred in finding that the alternative measure is not reasonably\navailable.1433 The complainants point to various statements by the Panel that, in their view,\ndemonstrate the Panel's error. 1434 In addition, they assert that the Panel misapplied\nWTO jurisprudence. In particular, Canada and Norway submit that the significance of costs and\ntechnical difficulties relates to those borne by WTO Members, not by the relevant industry.1435\n5.263. The European Union responds that the co mplainants' allegations that the Panel assessed\nthe contribution made by the alternative measure against the wrong benchmark \"misrepresent the\nanalysis conducted by the Panel and are unfounded\". 1436 The European Union contends that the\nPanel did not ignore its findings regarding the ex ceptions, and that, even if it did not expressly\nrepeat its findings with regard to the exceptions, \"those findings are reflected in the Panel's overall\nassessment of the contribution\".1437 The European Union maintains that, because the complainants\nfailed to articulate a sufficiently precise alternative measure, the Panel \"had to assess instead the\ndegree of contribution and the reasonable availabili ty of two distinct hypothetical regimes within\nthe scope of the broad [less trade-restrictive alternative] proposed by the Complainants\".\n1438 The\nEuropean Union maintains that, although the complainants sought to establish that a more lenient\nregime was possible, they \"failed to specify the co ntent of such a 'more lenient regime' before the\nPanel, let alone provide any meaningful assessment of its contribution to the measure's\nobjective\".\n1439\n5.264. We turn first to evaluate the claims on appeal by Canada and Norway that the Panel erred\nin finding that the proposed alternative measure was not reasonably available, before turning to\naddress the claims under Article 11 of the DSU.\n\n1428 Appellate Body Report, Brazil – Retreaded Tyres, para. 156 (quoting Appellate Body Report, US –\nGambling, para. 308).\n1429 Appellate Body Reports, Brazil – Retreaded Tyres, para. 156; and US – Gambling, para. 311.\n1430 Panel Reports, para. 7.468 (referring to Canada's first written submission to the Panel,\nparas. 556-560; and Norway's first written submission to the Panel, paras. 779 and 793).\n1431 Panel Reports, para. 7.472.\n1432 Canada's appellant's submission, para. 299; Norway's appellant's submission, para. 580.\n1433 Canada's appellant's submission, para. 261; Norway's appellant's submission, paras. 554 and 579.\n1434 See Canada's appellant's submission, paras. 234-277; and Norway's appellant's submission,\nparas. 582-612. Canada also maintains that the Panel erred by disregarding measures applied by the\nEuropean Union in regulating wildlife hunts and abattoirs. (Canada's appellant's submission, paras. 278-290)\n1435 Canada's appellant's submission, paras. 291-298; Norway's appellant's submission, paras. 613-617.\n1436 European Union's appellee's submission, para. 245.\n1437 European Union's appellee's submission, para. 249.\n1438 European Union's appellee's submission, para. 260.\n1439 European Union's appellee's submission, para. 261.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.3.2.5.1 Whether the Panel erred in finding that the proposed alternative measure was\nnot reasonably available\n5.265. Canada and Norway point to key passages of the Panel's analysis that they believe\nevidence its use of an inappropriately high benchmark of contribution for the EU Seal Regime. 1440\nThe complainants refer, for instance, to the Panel's assessment of the contribution of the\nalternative measure to preventing or reducing expo sure of the EU public to products raising moral\nconcerns. They take issue, in particular, with the Panel's statement that, \"even if the alternative\nmeasure succeeded in limiting market access to exclusively those products derived from humanely\nkilled seals, such products would originate in hunts that may have caused poor animal welfare\noutcomes for some other number of seals.\"\n1441 In Canada's and Norway's view, by requiring that\nthe alternative measure limit market access to only those seal products that were derived from\nhumanely killed seals, the Panel holds the alternative measure to a higher standard that the\nEU Seal Regime could not meet.\n5.266. Similarly, in assessing the contribution of the alternative measure to reducing the number\nof seals killed, the complainants note the Panel's statement that the alternative measure would\npotentially afford market access to seal products from commercial hunts that are currently\nprohibited under the EU Seal Regime. As the Panel stated, this \"may in turn contribute to\nsustaining or increasing the overall number of seals killed, which would have the consequence of\nsubjecting a greater number of seals to the animal welfare risks incidental to seal hunting\".\n1442\nCanada argues that the Panel did not reconcile this statement with its observation that the\nalternative measure could potentially introduce an economic incentive for sealing countries to\nadopt and enforce animal welfare standards.\n1443 Norway contends that the Panel's citation to a\nEuropean Parliament report that favoured a comprehensive ban without a derogation for seal\nproducts meeting animal welfare standards confirmed that the Panel held the alternative measure\nto a standard that exceeded the actual contribution of the EU Seal Regime.\n1444\n5.267. The essence of the complainants' contention is that it was improper for the Panel to have\nentertained scenarios in which an alternative measure would limit market access only to humanely\nkilled seals, or would increase overall market acce ss, since that is not reflective of the level of\ncontribution actually achieved by the EU Seal Re gime. We agree that several of the hypothetical\noutcomes considered by the Panel in its assessm ent of the alternative measure contemplate the\nconsequences of a certification system that would operate to exclude all inhumanely killed seals\nfrom, and include all humanely killed seals into, the EU market, or that would potentially lead to\nincreased EU market access for seal products. In our view, however, the Panel's analysis was\ninconclusive at this stage of its assessment. The Panel was at this point in its analysis simply\nassessing what possible scenarios might result from adoption of a certification system.\nIndeed, we do not see that the Panel ever reache d a definitive conclusion with respect to the\ncontribution of such a system vis-à-vis the EU Seal Regime. Rather, because it considered that the\nimpacts of the alternative measure were \"closely related to the type of animal welfare\nrequirements to be imposed, the feasibility of enforcement of such requirements, and the\nattendant risks of inhumane killing in seal hunts\"\n1445, the Panel found that there was an\n\"inextricable link between the contribution of the alternative measure to the objective and the\n\n1440 Canada also argues that the Panel erred in its assessment of the alternative measure by recalling\nonly the contribution of the prohibitive aspect of the EU Seal Regime. (Canada's appellant's submission,\nparas. 237-244 (referring to Panel Reports, para. 7.478)) While it is true that the Panel did not expressly refer\nto its assessment of the impact of the exceptions, it implicitly did so by accurately characterizing its overall\nfinding in that same paragraph that the EU Seal Regime \"is capable of making and does actually make a\ncontribution to the achievement of its stated objective of addressing the public moral concerns\". (Panel\nReports, para. 7.478)\n1441 Canada's appellant's submission, para. 240; Norway's appellant's submission, para. 593 (both\nreferring to Panel Reports, para. 7.480). Canada also refers to the statement in that same passage that, to the\nextent that the alternative measure could effectively distinguish and label products from humanely and\ninhumanely killed seals, \"the direct participation of EU consumers in the market for seal products would\ntheoretically be confined to products that conform to the animal welfare concerns of the EU public\". (Canada's\n1442 Canada's appellant's submission, para. 254; Norway's appellant's submission, para. 596 (both\n1443 Canada's appellant's submission, paras. 255-257 (referring to Panel Reports, para. 7.483).\n1444 Norway's appellant's submission, paras. 596-599.\n1445 Panel Reports, para. 7.484.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nfeasibility of its implementation\". 1446 Thus, having identified certain conceptual limitations of any\ncertification system in fulfilling the objective of addressing EU public moral concerns regarding seal\nwelfare, the Panel expressly refrained from making a finding regarding the contribution of the\nalternative measure until it could also evaluate the reasonable availability of the alternative\nmeasure. We therefore do not agree with Canada and Norway that these statements of the Panel\ndemonstrate that it erroneously considered the E U S e a l R e g i m e t o h a v e a c h i e v e d c o m p l e t e\nfulfilment of the objective, and then to have measured the alternative measure against such an\ninflated benchmark.\n5.268. Canada and Norway also consider that the Panel, in assessing the reasonable availability of\nthe alternative measure, compared that measure against a higher degree of contribution than\nwhat was found in respect of the EU Seal Regime.\n1447 The complainants refer, for instance, to the\nPanel's statement that \"in order to genuinely assuage [animal welfare] concerns there would need\nto be a mechanism to verify that the requirements were actually satisfied for seals used to\ngenerate products\".\n1448 This statement, they contend, demonstrates that the Panel compared the\nalternative measure against stringent animal welfare requirements including seal-by-seal\ncertification, a standard that the EU Seal Regime does not meet. 1449 The complainants further\nargue that the Panel also wrongly concluded that certification at the country or hunter level is\ninsufficient because it would fail to convey accurate information in respect of seal welfare, a\nstandard that the EU Seal Regime also does not meet.1450\n5.269. As we see it, in addressing whether the alternative measure was reasonably available, the\nPanel was exploring the hypothetical implications for the European Union's ability to achieve its\nobjective of addressing seal welfare concerns. There were several recurring elements in its\nanalysis. We note, for instance, the Panel's explanation that it was undertaking an analytical\nexercise in which the contours of the animal welf are standards required as part of the alternative\nmeasure were not clearly defined, and that this had a bearing on the range of hypothetical\nversions of the alternative measure that the Pa nel was being asked to examine. As the Panel\nstated: \"Based on the differing views on what wo uld constitute adequate welfare standards, and\nabsent a clearly articulated standard from the complainants, the requirements under the\nalternative measure could possibly span a range of different levels of stringency or leniency.\"\n1451\n5.270. We further note that the Panel appeared quite sceptical that a certification system, even if\nit were to adopt the most stringent animal welfare requirements, would be able effectively to\naddress EU public moral concerns regarding seal welfare. For instance, the Panel considered that\nadopting a certification system to enforce stringent animal welfare requirements would create\nsignificant difficulties in terms of monitoring and compliance. Any such system, the Panel argued,\nwould require \"accurate differentiation\"\n1452 between humanely and inhumanely killed seals, and\nthe more stringent the regime, the larger the \"costs and/or logistical demands on those\nparticipating in the hunt and subsequent marketing of products\".\n1453 The concern in part stems\nfrom the Panel's assessment that hunters would have difficulty conforming to a certification\nsystem imposing stringent animal welfare requirem ents in the light of the conditions under which\nseal hunts take place. The Panel suggested that this is a practical concern in terms of both the\nability and willingness of seal hunters to conform to such requirements.\n1454 Additionally, however,\nthe Panel's concern is broader in that it extends to the implications for those involved in\nsubsequent stages of the production and sale of seal products, and those who would be required to\nenforce it. In particular, the Panel noted the persistent difficulties that arise regardless of whether\nthe regime relies on hunter licensing, or requires country or seal-by-seal certification.\n1455\n\n1446 Panel Reports, para. 7.485.\n1447 Canada's appellant's submission, para. 261; Norway's appellant's submission, para. 600.\n1448 Canada's appellant's submission, paras. 224 and 263; Norway's appellant's submission, para. 601\n(both referring to Panel Reports, para. 7.496).\n1449 Canada's appellant's submission, paras. 263 and 264; Norway's appellant's submission,\nparas. 601-603.\n1450 Canada's appellant's submission, para. 267; Norway's appellant's submission, paras. 605-608.\n1451 Panel Reports, para. 7.496.\n1452 Panel Reports, para. 7.496.\n1453 Panel Reports, para. 7.497.\n1454 Panel Reports, para. 7.496 and fn 798 thereto.\n1455 Panel Reports, para. 7.498.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.271. The Panel also expressed the concern that a certification system that sought to impose\nstringent welfare requirements would have consequences that would effectively undercut any\npotential contribution to EU public moral concerns. In other words, the Panel considered that a\ncertification system would create an outcome in which the desire to conform to stringent\ncertification requirements would lead to greater numbers of seals killed, and, consequently, a\ngreater number of seals killed inhumanely. The Panel reasoned that this result would be\nparticularly acute in larger scale hunts where an effort to harvest a number of properly certified\nseals would lead to even greater numbers of seal killings with an attendant increase in the number\nof inhumanely killed seals.\n1456 The Panel also considered that a certification system would have the\neffect of restoring or expanding the market for se al products that had been diminished due to the\nban, and that this would also lead to an increased number of seals being killed, and, consequently,\na greater number of inhumanely killed seals.1457\n5.272. We do not consider the Panel's reference to more stringent hypothesized regimes as\nsomehow suggesting that it was comparing the alternative measure against a benchmark of\ncomplete fulfilment of the objective. Rather, we understand the Panel to have suggested that even\nthe more stringent certification systems presented significant difficulties in terms of both their\nreasonable availability and their contribution to the objective. As the Panel stated, more stringent\ncertification systems would likely present difficulties in terms of ensuring adequate animal welfare\nstandards and accurately distinguishing between humanely and inhumanely killed seals, and lead\nto increased market access accompanied by more seal killings, and, consequently, more\ninhumanely killed seals. Indeed, the Panel did not suggest that the stringent alternative measure\nachieved complete fulfilment, but rather that it would be difficult to implement and enforce, and\nwould lead to increased numbers of inhumanely killed seals. Alternatively, the Panel noted, a more\nlenient regime might very well attenuate some of these limitations, but then would have the\nconsequence – by more weakly enforcing animal welfare standards and any distinctions drawn\nbetween humanely and inhumanely killed seals – of achieving a weak contribution in respect of\nEU public moral concerns regarding seal welfare. The fact that the Panel entertained, and\ncompared, the possibility of stringent versus lenient versions of a certification system, in order to\nconsider how a loosely defined alternative measure might contribute to the identified objective,\nconfirms in our view that the Panel was undertaking considerable efforts to understand how such\nvariations of the alternative measure might operate. We understand the Panel to have concluded\nthat, irrespective of the level of stringency, a certification system would be beset by difficulties in\naddressing EU public moral concerns regarding seal welfare.\n5.273. We also reject the complainants' contention that the Panel erred in relying on \"the\nAppellate Body's guidance that a responding Member cannot be reasonably expected to employ an\nalternative measure that involves a continuation of the very risk that the challenged measure\nseeks to halt\".\n1458 Canada and Norway argue that, by referring to the challenged measure as\n\"halting\" a \"risk\", the Panel was holding the alternative measure up to a higher standard of\nachievement than what the EU Seal Regime itself met.1459 We do not agree that the Panel attached\nto this statement the significance that Canada and Norway claim it did. The reference\nin EC – Asbestos immediately follows the Panel's stated concern that the alternative measure\nwould lead to \"restored market opportunities\".\n1460 Given the Panel's prior finding that the EU Seal\nRegime appears to reduce the market for seal products, this suggests that such restored\nopportunities would have the potential to increase exposure of the EU public to inhumanely killed\nseals. In that context, we read the Panel to be referencing the Appellate Body's statement\nin EC – Asbestos only as support for the proposition that a responding Member cannot be expected\nto accept an alternative measure that makes less of a contribution to its objective than the\nchallenged measure. For the above reasons, we do not agree that the Panel was comparing the\nalternative measure against a standard of complete fulfilment.\n\n1456 Panel Reports, paras. 7.480, 7.496, and 7.498.\n1457 Panel Reports, paras. 7.482, 7.484, and 7.502.\n1458 Panel Reports, para. 7.502 (referring to Appellate Body Report, EC – Asbestos, para. 174).\n1459 Canada's appellant's submission, paras. 270-277; Norway's appellant's submission, paras. 611\nand 612. Canada asserts that the Panel's reference to EC – Asbestos \"illustrates it[s] misinterpretation and\nmisapplication of the 'reasonably available' requirement for an alternative measure when carrying out the\nnecessity test\". (Canada's appellant's submission, para. 271)\n1460 Panel Reports, para. 7.502.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.274. Canada and Norway further submit that the Panel erred in considering the costs and\nlogistical demands on hunters and marketers of seal products if a strict certification scheme were\nto be adopted by the European Union. According to the complainants, the Appellate Body report in\nBrazil – Retreaded Tyres stands for the proposition that it is the burdens and costs imposed on the\nresponding WTO Member, not on the industry, th at are relevant for a finding on whether the\nalternative measure is reasonably available.\n1461\n5.275. According to the European Union, the Appellate Body report in Brazil – Retreaded Tyres\nsimply identifies an example of a situation where the proposed alternative would not be reasonably\navailable, but that there \"can be other circum stances where a measure would not be available\nbecause it would be 'merely theoretical in nature'\". 1462 The European Union further notes that,\ndespite the Panel's conclusion regarding the gr eater expenditure and practical challenges of\nimplementation, the costs of such a regime was \"j ust one of the obstacles mentioned by the Panel\nand, by no means, the most important\".1463\n5.276. In Brazil – Retreaded Tyres, the Appellate Body stated as follows:\nAs the Appellate Body indicated in US – Gambling, \"[a]n alternative measure may be\nfound not to be 'reasonably available' ... wher e it is merely theoretical in nature, for\ninstance, where the responding Member is not capable of taking it, or where the\nmeasure imposes an undue burden on that Member, such as prohibitive costs or\nsubstantial technical difficulties.\"1464\n5.277. This passage suggests that the \"prohibitive costs or substantial technical difficulties\" are\nindeed those associated with the burden placed on a Member. At the same time, however, this\nlanguage does not foreclose the possibility that there may be other indications that the alternative\nmeasure is \"merely theoretical in nature\". As we see it, if there are reasons why the prospect of\nimposing an alternative measure faces significant, even prohibitive, obstacles, it may be that such\na measure cannot be considered \"reasonably available\". We would not exclude a priori the\npossibility that an alternative measure may be deemed not reasonably available due to significant\ncosts or difficulties faced by the affected industry, in particular where such costs or difficulties\ncould affect the ability or willingness of the indu stry to comply with the requirements of that\nmeasure. We therefore consider that an assessment of the reasonable availability of an alternative\nmeasure could potentially include the burden on the industries concerned.\n1465\n5.278. We also are not persuaded that the Panel erred in concluding that the situations in which\nother measures are applied are not sufficiently similar to the circumstances of the seal hunt to\nassist in determining the availability of alternative measures.1466 Indeed, although it acknowledged\nthat the examination of measures applied to other product areas may provide useful input in\ndetermining whether an alternative measure is reasonably available, the Panel also recalled the\nfollowing: its findings regarding the particular characteristics, risks, and challenges of seal hunting;\nthat the evidence did not establish comparable effective stunning rates in seal hunts and\ncommercial abattoirs; and \"in any case that the two situations differ significantly in areas of great\nrelevance to the application of humane killing methods\".\n1467 In our view, the Panel provided a\nreasonable explanation as to why it did not consider regimes applicable in other situations helpful\nin determining the reasonable availability of the alternative measure.\n5.279. In sum, having reviewed the Panel's reasoning and findings in respect of the alternative\nmeasure, we do not consider that the Panel erred in concluding that \"the alternative measure is\nnot reasonably available\".\n1468 In our view, the Panel undertook considerable efforts to understand\nwhat impact hypothetical variations of the alternative measure might have on the objective of the\nEU Seal Regime. The Panel considered that, whether focusing on addressing the EU public's\n\n1461 Canada's appellant's submission, paras. 291-298; Norway's appellant's submission, paras. 613-617.\n1462 European Union's appellee's submission, para. 279.\n1463 European Union's appellee's submission, para. 281.\n1464 Appellate Body Report, Brazil – Retreaded Tyres, para. 156 (quoting Appellate Body Reports, US –\nGambling, para. 308). See also Appellate Body Report, EC – Asbestos, paras. 172-174.\n1465 See Appellate Body Report, EC – Asbestos, para. 174.\n1466 Canada's appellant's submission, paras. 278-290 (referring to Panel Reports, fn 815 to para. 7.504).\n1467 Panel Reports, fn 815 to para. 7.504 (referring to Appellate Body Report, Korea – Various Measures\non Beef, para. 170).\n1468 Panel Reports, para. 7.504.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nparticipation in the market for products derived from inhumanely killed seals, or the overall\nnumber of inhumanely killed seals, even the most stringent certification system would be difficult\nto implement and enforce, and would lead to in creased numbers of inhumanely killed seals. The\nPanel further considered that making the welfare standards or the certification and labelling\nrequirements more lenient would make the alte rnative measure more reasonably available but\nwould not meaningfully contribute to addressing EU public moral concerns regarding seal welfare.\nWe therefore understand the Panel to have conclude d that, irrespective of the level of stringency,\na certification system would be beset by difficul ties in addressing EU public moral concerns\nregarding seal welfare. The Panel thus was not persuaded that such a hypothetical regime\nconstituted an alternative that is reasonably available.\n5.280. Finally, we note the Panel's finding that, al though the contribution of the EU Seal Regime\nto the fulfilment of its objective is lowered by the implicit and explicit exceptions of the measure,\n\"the complainants have not clearly defined an alternative measure in respect of its separate\ncomponents and their cumulative capability to address the moral concerns of the EU public\".\n1469\nUnder the circumstances of this case, it is not clear to us how much more could have been\nrequired of the complainants in articulating the nature and scope of the alternative measure. We\nhave certain doubts about the Panel's criticism, particularly given what seems to be substantial\nengagement between the Panel and the parties regarding the features of such a certification\nscheme and its ability to contribute to the object ive. In any event, however, our concerns are\nparticular to the circumstances of this case, and do not alter our assessment of the Panel's overall\nfinding.\n5.3.2.5.2 Article 11 of the DSU\n5.281. Finally, we consider two claims brought respectively by Canada and Norway under\nArticle 11 of the DSU relating to the reasonable availability of the alternative measure.\n5.282. Canada asserts a claim under Article 11 of the DSU regarding the Panel's finding that the\nalternative measure could result in an increase in the number of seals killed inhumanely. In\nparticular, Canada argues that the Panel's finding is based on an assertion by the European Union\nthat is itself a restatement of an unsupported assertion made in an amicus curiae submission.\nAccording to Canada, the Panel thus found \"that a stringent animal welfare standard would lead to\nmore seals being killed inhumanely … without any evidentiary support\".\n1470\n5.283. The European Union disagrees with Canada that the Panel failed to make an objective\nassessment under Article 11 of the DSU by finding th at the alternative measure could result in an\nincrease in the number of inhumanely killed seals. The European Union contends that the Panel's\nfinding \"can be reasonably inferred from the Panel's findings regarding the inevitability of certain\nrisks of inhumane killing arising from the conditions and circumstances of the seal hunts\".\n1471\n5.284. Canada is correct that the Panel – in stating that strict certification requirements \"could\ngive rise to infliction of significant suffering in larger scale hunts in order to kill other seals in\naccordance with the higher standards of welfare\"1472 – cited in footnote 799 of its Reports only the\nEuropean Union's second written submission and the corresponding amicus curiae submission.1473\nThe European Union notes, however, that the Panel itself stated that this was \"[a]ssessed against\nthe backdrop of the welfare risks of seal hunting\".\n1474 The European Union adds that the argument\nrelates to its position that there are inherent obstacles that make it impossible to kill seals\nhumanely on a consistent basis, and that the European Union \"submitted extensive scientific\nevidence and argument to the Panel in order to substantiate that position\".\n1475 Based on the\nevidence and argument to which the European Union refers, the Panel had been presented with\nmore information relating to this argument than what it referred to in footnote 799 of its Reports.\nWe do not consider that a panel falls into error under Article 11 of the DSU for failing to cite all of\n\n1469 Panel Reports, para. 7.503.\n1470 Canada's appellant's submission, para. 334.\n1471 European Union's appellee's submission, para. 291.\n1472 Panel Reports, para. 7.496.\n1474 Panel Reports, para. 7.496.\n1475 European Union's appellee's submission, para. 286 (referring to European Union's response to Panel\nquestion No. 148; and Panel Reports, paras. 7.202, 7.206, 7.207, 7.209, 7.213, and 7.214).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthe arguments and evidence supporting a particul ar proposition. Even if the Panel made the\nreference it did to identify the source of the argument, this does not mean that there were no\nfurther arguments and evidence on the Panel record that informed the Panel's statement.\nMoreover, the Panel implicitly referred to the exte nsive information on the Panel record regarding\nthe \"welfare risks of seal hunting\" in stating that it \"assessed\" the argument against the\n\"backdrop\" of those risks. This further indicates that the Panel's statement was substantiated.\nWe therefore do not consider that this statemen t by the Panel evidences a failure to conduct an\nobjective assessment under Article 11 of the DSU.\n5.285. Norway submits that the Panel acted in violation of Article 11 of the DSU by ignoring two\nfurther alternative measures it had proposed duri ng the course of the Panel proceedings. First,\nNorway proposed an alternative that consisted of the removal of the restrictive conditions of the\nEU Seal Regime. Under this alternative, trade would be permitted from hunts that, under the\nmeasure at issue, could not meet the conditions for market access under the IC, MRM, or\nTravellers exceptions.\n1476 The second alternative was the removal of three of the conditions for\naccess to the MRM exception, namely, the not-for-profit, non-systematic, and sole purpose\nconditions, leaving all the other elements of the EU Seal Regime undisturbed. Norway maintains\nthat this alternative could include animal welf are, certification, and labelling requirements.\n1477\nAccording to Norway, \"these alternatives were completely ignored by the Panel\". 1478 In Norway's\nview, the Panel's failure to address the second alternative was \"egregious\" 1479 since the three\nconditions were found to restrict access to the EU market. Norway considers \"manifestly\ninadequate\" the Panel's failure to assess whether Norway's proposed alternative – which excludes\nthese three restrictive conditions, but adds anim al welfare requirements and labelling – could\nmake an equivalent contribution to the public morals objective.\n1480\n5.286. The European Union disagrees with Norway, noting that one of these proposed alternative\nmeasures consisted of removing all of the requ irements of the EU Seal Regime, and \"amounted\neffectively to repealing the EU Seal Regime\". 1481 Because Norway's proposal was premised on the\nassumption that the EU Seal Regime made no contribution to its objective, the European Union\nargues, the Panel implicitly rejected this claim. The European Union argues that, although the\nPanel did not expressly address the second alternat ive measure proposed by Norway, it is clearly\nimplicit in the Panel's reasoning and findings that this alternative measure would also fail to make\nan equivalent contribution to the objective of the EU Seal Regime.\n1482\n5.287. The first alternative to which Norway refers appears, as the European Union maintains, to\namount to the removal of the EU Seal Regime. This alternative rests on the factual premise that\nthe EU Seal Regime could or does lead to worse seal welfare outcomes than those existing prior to\nthe adoption of the measure. As we have explai ned, this premise was highly contested by the\nparties, was not uniformly supported by the Pane l record, and, in any event, was not found to\nexist by the Panel. The second alternative proposes removal of three of the restrictive conditions of\nthe MRM exception – that is, the not-for-profit, non-systematic, and sole purpose conditions – to\nbe replaced by certain animal welfare, certification, and labelling requirements. We note that the\nsubstitution of other requirements for the existing MRM exception is critical to Norway's proposed\nalternative because, otherwise, removal of the re strictive conditions of the MRM exception would\nlead to an increase in the trade of seal produc ts with attendant consequences for the number of\ninhumanely killed seals. Norway acknowledged this point during the Panel proceedings when it\nsuggested that such requirements could be added.\n1483 In that respect, what Norway proposes\nconsists in part of a set of requirements similar to what the Panel actually analysed in its Reports.\nThus, any conclusions the Panel reached regarding the likely limitations of the certification system\n\n1476 Norway's appellant's submission, para. 621.\n1477 Norway's appellant's submission, para. 622.\n1478 Norway's appellant's submission, para. 623. (emphasis original)\n1479 Norway's appellant's submission, para. 624.\n1480 Norway's appellant's submission, para. 625.\n1481 European Union's appellee's submission, para. 306.\n1482 European Union's appellee's submission, para. 307.\n1483 See Norway's oral statement at the second Panel meeting, para. 77: \"Norway thus disagrees that\n'enlarging' the scope of the [M]RM requirements by removing the unnecessary conditions would undermine the\nEU's animal welfare objective. In any event, if the EU wishes to ensure that the [M]RM requirements do not\nundermine animal welfare, it could – as a modified version of this [M]RM alternative – allow seal products from\n[M]RM hunts that additionally meet minimum animal welfare standards.\" (emphasis original)\nWT/DS400/AB/R • WT/DS401/AB/R\n\nit analysed would equally apply to a version of that system that would apply only in respect of seal\nproducts from MRM hunts.\n5.288. We emphasize that a panel must consider the claims and arguments of parties in a dispute\nso as to conform with the obligation under Article 11 of the DSU to make an objective assessment\nof the matter before it. At the same time, the Appellate Body has clarified that a panel need not\n\"refer explicitly to every argument made by the parties\" 1484 or \"consider each and every argument\nput forward by the parties in support of their respective cases, so long as it completes an objective\nassessment\".1485 We consider that, in the circumstances of this case, the additional alternatives to\nwhich Norway refers were in fact implicitly addressed by the Panel. With regard to the first\nadditional alternative, we have noted that the Pa nel had grounds for not finding that the EU Seal\nRegime could or does lead to worse seal welfare outcomes than existed prior to the adoption of the\nmeasure. With regard to the second additional alternative, it is implicit in the Panel's reasoning\nand findings that this alternative would have failed on the same grounds as the alternative\nmeasure explicitly addressed by the Panel. Had th e Panel explicitly addressed these two additional\nproposals by Norway, we do not see that it woul d have altered the Panel's assessment of whether\nthere was a reasonably available alternative measure.\n1486 The Panel's analysis in our view\ncontained an implicit rejection of these additional alternatives, and we therefore do not consider\nthat the Panel's failure to mention these two alternatives undermined the objectivity of the Panel's\nassessment under Article 11 of the DSU.\n5.3.2.6 Conclusion\n5.289. The foregoing discussion has entailed an ex tensive assessment of the Panel's analysis of\nwhether the EU Seal Regime is necessary to protect public morals within the meaning of\nArticle XX(a) of the GATT 1994. We have also been called upon to consider claims and arguments\nby Canada and Norway that were related to the Panel's contribution analysis in the context of\nArticle 2.2 of the TBT Agreement, but which the Pa nel relied on in reaching its findings under\nArticle XX(a). The Panel correctly focused its analysis on the question of whether the prohibitive\nand permissive components of the EU Seal Regi me are necessary to protect EU public moral\nconcerns. The Panel then conducted a relational analysis in which it evaluated the importance of\nthe objective of addressing EU public moral concerns regarding seal welfare, the\ntrade-restrictiveness of the EU Seal Regime, th e contribution of the EU Seal Regime to the\nobjective, and whether the alternative measure proposed by the complainants was reasonably\navailable.\n1487 In that context, having focused on and assessed the specific claims of error advanced\nby Canada and Norway, we consider that the Panel did not err in concluding that the EU Seal\nRegime \"is capable of making and does make some contribution\" to its objective, or that it does so\n\"to a certain extent\". We further consider that the Panel did not err in concluding that, although\nthe alternative measure was less trade restrictive than the EU Seal Regime, it was not reasonably\navailable given inter alia the inherent animal welfare risks and challenges found to exist in seal\nhunting. Overall, in the light of the specific circum stances of this case, and the particular nature of\nthe measure at issue, we have endorsed the Panel's analysis of the EU Seal Regime under\nArticle XX(a) of the GATT 1994.\n5.290. Accordingly, having rejected the claims on appeal by Canada and Norway as they relate to\nArticle XX(a), we uphold the Panel's finding at pa ragraph 7.639 of its Reports that \"the EU Seal\nRegime is provisionally deemed necessary within the meaning of Article XX(a) of the GATT 1994\".\nSince we have upheld the Panel's finding that the EU Seal Regime is provisionally justified under\nArticle XX(a), we are not called upon to address the European Union's conditional other appeal\nwith respect to Article XX(b).1488\n\n1484 Appellate Body Report, US – Upland Cotton, para. 446.\n1485 Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 125.\n1486 In EC – Fasteners (China), the Appellate Body noted that a participant must explain why evidence\n\"is so material to its case that the panel's failure explicitly to address and rely upon [it] has a bearing on the\nobjectivity of the panel's assessment.\" (Appellate Body Report, EC – Fasteners (China), para. 442) See also\nAppellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1318.\n1487 See Panel Reports, section 7.4.4.3.2.\n1488 European Union's other appellant's submission, para. 320 (referring to Panel Reports, para. 7.640).\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.3.3 The chapeau of Article XX of the GATT 1994\n5.291. Having upheld the Panel's finding that the EU Seal Regime is \"necessary to protect public\nmorals\" within the meaning of Article XX(a) of th e GATT 1994, we now turn to review the Panel's\nanalysis as it pertains to the chapeau of Article XX of the GATT 1994.\n5.292. Article XX of the GATT 1994 reads in relevant part:\nGeneral Exceptions\nSubject to the requirement that such measures are not applied in a manner which\nwould constitute a means of arbitrary or unjustifiable discrimination between countries\nwhere the same conditions prevail, or a disguised restriction on international trade,\nnothing in this Agreement shall be construe d to prevent the adoption or enforcement\nby any Member of measures:\n(a) necessary to protect public morals; …\n5.293. The Panel determined that discrimination in the application of the EU Seal Regime within\nthe meaning of the chapeau \"results from th e discriminatory impact found in the IC and\nMRM exceptions under Articles I:1 and III:4\".\n1489 In its assessment of whether this discrimination\nis \"arbitrary\" or \"unjustifiable\" within the meaning of the chapeau of Article XX, the Panel recalled\nits analysis of the EU Seal Regime, in particular the distinctions drawn in the IC and\nMRM exceptions, under Article 2.1 of the TBT Agreement.\n1490 Given its findings under Article 2.1 of\nthe TBT Agreement that these exceptions are not designed and applied in an even-handed\nmanner, the Panel found that they also do not meet the requirements of the chapeau of Article XX\nof the GATT 1994.\n1491\n5.294. While Canada and Norway agree with the Panel's conclusion that the EU Seal Regime does\nnot meet the requirements of the chapeau of Ar ticle XX, they appeal the Panel's reasoning in\nreaching that conclusion. In particular, they allege that the Panel erred in applying the same test\nto determine the existence of arbitrary or unjus tifiable discrimination under the chapeau of\nArticle XX as it had applied in determining whether the measure was inconsistent with Article 2.1\nof the TBT Agreement.\n1492 In addition, Canada requests the Appellate Body to reverse the Panel's\nintermediate finding that the distinction between commercial and IC hunts is \"justifiable\" 1493, to\ncomplete the analysis on this specific point 1494, and to find that the discrimination between\nCanadian commercial seal products and IC seal products arising from the application of the\nEU Seal Regime is arbitrary and unjustifiable.\n1495 By contrast, the European Union requests the\nAppellate Body to reverse the Panel's conclusion that the IC exception does not meet the\nrequirements of the chapeau, to complete the anal ysis, and to find instead that the IC exception\nmeets the requirements of Article XX(a), including the chapeau.1496\n5.295. We will begin by reviewing the requirem ents of the chapeau in the light of relevant\nWTO jurisprudence. Thereafter, we will address the claims on appeal in the light of our\ninterpretation of the chapeau of Article XX.\n5.3.3.1 Interpretation of the chapeau of Article XX of the GATT 1994\n5.296. The chapeau of Article XX imposes additional disciplines on measures that have been found\nto violate an obligation under the GATT 1994, but that have also been found to be provisionally\njustified under one of the exceptions set forth in the subparagraphs of Article XX. The chapeau\ndoes so by requiring that measures not be \"applied in a manner which would constitute a means of\n\n1489 Panel Reports, para. 7.648.\n1490 Panel Reports, para. 7.649.\n1491 Panel Reports, para. 7.650 (referring to Panel Reports, sections 7.3.2.3.3 and 7.3.2.3.4).\n1492 Canada's appellant's submission, paras. 447-454; Norway's appellant's submission, paras. 894-898.\n1493 Canada's appellant's submission, paras. 460-466. See also Panel Reports, para. 7.650.\n1494 Canada's appellant's submission, para. 468.\n1495 Canada's appellant's submission, paras. 455-466 and 468.\n1496 European Union's other appellant's submission, paras. 316-319.\nWT/DS400/AB/R • WT/DS401/AB/R\n\narbitrary or unjustifiable discrimination between countries where the same conditions prevail, or\na disguised restriction on international trade\".\n5.297. The function of the chapeau of Article XX of the GATT 1994 is to prevent the abuse or\nmisuse of a Member's right to invoke the exce ptions contained in the subparagraphs of that\nArticle.1497 In that way, the chapeau operates to preserve the balance between a Member's right to\ninvoke the exceptions of Article XX, and the rights of other Members to be protected from conduct\nproscribed under the GATT 1994.\n1498 Achieving this equilibrium is called for \"so that neither of the\ncompeting rights will cancel out the other and thereby distort and nullify or impair the balance of\nrights and obligations constructed by the Members themselves\". 1499 As the Appellate Body stated\nin US – Gasoline, the burden of demonstrating that a measure provisionally justified under one of\nthe exceptions of Article XX does not constitute an abuse of such an exception under the chapeau\nrests with the party invoking the exception.1500 The Appellate Body explained that this is \"a heavier\ntask than that involved in showing that an exception … encompasses the measure at issue.\" 1501\n5.298. With respect to the type of \"discriminat ion\" that is at issue under the chapeau, the\nAppellate Body noted in US – Gasoline that \"[t]he provisions of the chapeau cannot logically refer\nto the same standard(s) by which a violation of a substantive rule has been determined to have\noccurred\".\n1502 A finding that a measure is inconsistent with one of the non-discrimination\nobligations of the GATT 1994, such as those contained in Articles I and III, is thus not dispositive\nof the question of whether the measure gives rise to \"arbitrary or unjustifiable discrimination\nbetween countries where the same conditions prev ail\" under the chapeau of Article XX of the\nGATT 1994. Moreover, \"the nature and quality of this discrimination is different from the\ndiscrimination in the treatment of products which was already found to be inconsistent with one of\nthe substantive obligations of the GATT 1994\".\n1503 This does not mean, however, that the\ncircumstances that bring about the discrimination that is to be examined under the chapeau\ncannot be the same as those that led to the finding of a violation of a substantive provision of the\nGATT 1994.1504\n5.299. The examination of whether a measure is applied in a manner that would constitute a\nmeans of \"arbitrary or unjustifiable discrimination between countries where the same conditions\nprevail\" necessitates an assessment of whether the \"conditions\" prevailing in the countries\nbetween which the measure allegedly discriminates are \"the same\". We note that the term\n\"condition\" has a number of meanings, including \"a way of living or existing\"; \"the state of\nsomething\"; \"the physical state of something\"; and \"the physical or mental state of a person or\nthing\".\n1505 The term \"conditions\" could thus potentially encompass a number of circumstances\nfacing a country. In order further to define and circumscribe the meaning of the term \"conditions\",\nthe treaty interpreter should therefore seek guidan ce from the specific context in which that term\nappears in the chapeau. As we see it, only \"conditions\" that are relevant for the purpose of\nestablishing arbitrary or unjustifiable discrimination in the light of the specific character of the\n\n1497 Appellate Body Report, US – Gasoline, p. 22, DSR 1996:I, pp. 20-21.\n1498 Appellate Body Report, US – Shrimp, para. 156.\n1499 The Appellate Body, in US – Shrimp, stated that:\nThe task of interpreting and applying the chapeau is, hence, essentially the delicate one of\nlocating and marking out a line of equilibrium between the right of a Member to invoke an\nexception under Article XX and the rights of the other Members under varying substantive\nprovisions (e.g., Article XI) of the GATT 1994, so that neither of the competing rights will cancel\nout the other and thereby distort and nullify or impair the balance of rights and obligations\nconstructed by the Members themselves in that Agreement.\n(Appellate Body Report, US – Shrimp, para. 159)\n1500 Appellate Body Report, US – Gasoline, pp. 22-23, DSR 1996:I, p. 21.\n1501 Appellate Body Report, US – Gasoline, p. 23, DSR 1996:I, p. 21.\n1502 Appellate Body Report, US – Gasoline, p. 23, DSR 1996:I, p. 21. See also Appellate Body Report,\nUS – Shrimp, para. 150.\n1503 Appellate Body Report, US – Shrimp, para. 150 (referring to Appellate Body Report, US – Gasoline,\np. 23, DSR 1996:I, p. 21).\n1504 In US – Gasoline, the Appellate Body concluded that the baseline establishment rules, which the\npanel in that dispute had found to be discriminatory under Article III:4 of the GATT 1994, also resulted in\n\"unjustifiable discrimination\", since certain omissions by the United States went \"well beyond what was\nnecessary for the Panel to determine that a violation of Article III:4 had occurred in the first place\". (Appellate\nBody Report, US – Gasoline, pp. 28-29, DSR 1996:I, p. 27)\n1505 Merriam-Webster, available at <http://www.merriam-webster.com/dictionary/condition> (accessed\n28 April 2014).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nmeasure at issue and the circumstances of a particular case should be considered under the\nchapeau.1506 The question is thus whether the conditions prevailing in different countries are\nrelevantly \"the same\".\n5.300. We consider that, in determining which \"conditions\" prevailing in different countries are\nrelevant in the context of the chapeau, the subpa ragraphs of Article XX, and in particular the\nsubparagraph under which a measure has been provis ionally justified, provide pertinent context.\nIn other words, \"conditions\" relating to the particular policy objective under the applicable\nsubparagraph are relevant for the analysis under the chapeau. Subject to the particular nature of\nthe measure and the specific circumstances of the case, the provisions of the GATT 1994 with\nwhich a measure has been found to be inconsistent may also provide useful guidance on the\nquestion of which \"conditions\" prevailing in different countries are relevant in the context of the\nchapeau. In particular, the type or cause of the violation that has been found to exist may inform\nthe determination of which countries should be compared with respect to the conditions that\nprevail in them.\n1507\n5.301. We recall that the function of the chap eau is to maintain the equilibrium between the\nobligations under the GATT 1994 and the except ions provided under each subparagraph of\nArticle XX. This also lends support to our view that the identification of the relevant \"conditions\"\nunder the chapeau should be understood by reference to the applicable subparagraph of Article XX\nunder which the measure was provisionally justified and the substantive obligations under the\nGATT 1994 with which a violation has been found. If a respondent considers that the conditions\nprevailing in different countries are not \"the same\" in relevant respects, it bears the burden of\nproving that claim.\n5.302. By its terms, the chapeau of Article XX is concerned with the \"manner\" in which a measure\nthat falls under one of the subparagraphs of Article XX is \"applied\".\n1508 Although this suggests that\nthe focus of the inquiry is on the manner in which the measure is applied, the Appellate Body has\nnoted that whether a measure is applied in a particular manner \"can most often be discerned from\nthe design, the architecture, and the revealing structure of a measure\". 1509 It is thus relevant to\nconsider the design, architecture, and revealing structure of a measure in order to establish\nwhether the measure, in its actual or expected application, constitutes a means of arbitrary or\nunjustifiable discrimination between countries where the same conditions prevail. This involves a\nconsideration of \"both substantive and procedural requirements\" under the measure at issue.\n1510\n5.303. We recall that the Appellate Body has already observed, in US – Shrimp , that\ndiscrimination within the meaning of the chapeau of Article XX \"results … when countries in which\nthe same conditions prevail are differently treated\".\n1511 Where this is the case, a panel should\nanalyse whether the resulting discrimination is \"arbitrary or unjustifiable\". The Appellate Body has\nexplained that the analysis of whether discrimination is arbitrary or unjustifiable within the\nmeaning of the chapeau \"should focus on the caus e of the discrimination, or the rationale put\nforward to explain its existence\".\n1512\n5.304. In US – Gasoline , the Appellate Body assessed the two explanations provided by the\nUnited States for the discrimination resulting from the application of the baseline establishment\nrules at issue.\n1513 The first explanation provided by the Un ited States for such discrimination was\nthe impracticability of verification and enforcem ent of individual baselines for foreign refiners.\nWhile the Appellate Body accepted that the anticipated difficulties concerning verification and\n\n1506 See also the Appellate Body report in US – Shrimp, where the Appellate Body noted that the\n\"standards established in the chapeau are … necessarily broad in scope an d reach\", and that, \"[w]hen applied\nin a particular case, the actual contours and contents of these standards will vary as the kind of measure under\nexamination varies.\" (Appellate Body Report, US – Shrimp, para. 120)\n1507 See Appellate Body Report, US – Gasoline, p. 23-24, DSR 1996:I, pp. 21-22; and Appellate Body\nReport, US – Shrimp, para. 150.\n1508 See also Appellate Body Reports, US – Gasoline, p. 22, DSR 1996:I, p. 20; US – Shrimp, para. 115;\n1509 Appellate Body Report, Japan – Alcoholic Beverages II, p. 29, DSR 1996:I, p. 120.\n1510 Appellate Body Report, US – Shrimp, para. 160.\n1511 Appellate Body Report, US – Shrimp, para. 165.\n1512 Appellate Body Report, Brazil – Retreaded Tyres, para. 226 (referring to Appellate Body Reports,\nUS – Gasoline; US – Shrimp; and US – Shrimp (Article 21.5 – Malaysia)).\n1513 See supra, para. 5.191 for background on the US – Gasoline dispute.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nenforcement with respect to foreign refiners were \"doubtless real to some degree\" 1514, it noted\nthat the United States \"had not pursued the possibi lity of entering into cooperative arrangements\nwith the governments of Venezuela and Brazil or, if it had, not to the point where it encountered\ngovernments that were unwilling to cooperate\". 1515 Second, the United States explained that\nimposing the statutory baseline requirement on domestic refiners was not an option either,\nbecause it was not feasible to require domestic refiners to incur the physical and financial costs\nand burdens entailed by immediate compliance with a statutory baseline. The Appellate Body\nobserved that, while the United States counted the costs for its domestic refiners, there was\n\"nothing in the record to indicate that it did other than disregard that kind of consideration when it\ncame to foreign refiners\".\n1516\n5.305. In US – Shrimp , the Appellate Body relied on a number of factors in finding that the\nmeasure at issue resulted in arbitrary or unjustifiable discrimination.1517 These factors included the\nfact that the discrimination resulted from: (i) a \"rigid and unbending requirement\" that countries\nexporting shrimp into the United States must adopt a regulatory programme that is essentially the\nsame as the United States' programme\n1518; (ii) the fact that the discrimination resulted from the\nfailure to take into account different circumstances that may occur in the territories of other\nWTO Members, in particular, specific policies and measures other than those applied by the\nUnited States that might have been adopted by an exporting country for the protection and\nconservation of sea turtles\n1519; and (iii) the fact that, while the United States negotiated seriously\nwith some WTO Members exporting shrimp into the United States for the purpose of concluding\ninternational agreements for the protection and conservation of sea turtles, it did not do so with\nother WTO Members.\n1520 A s t h e A p p e l l a t e B o d y s t a t e d i n Brazil – Retreaded Tyres , \"[t]he\nassessment of these factors … was part of an analysis that was directed at the cause, or the\nrationale, of the discrimination.\"\n1521\n5.306. One of the most important factors in the assessment of arbitrary or unjustifiable\ndiscrimination is the question of whether the discrimination can be reconciled with, or is rationally\nrelated to, the policy objective with respect to which the measure has been provisionally justified\nunder one of the subparagraphs of Article XX.\n1522 In Brazil – Retreaded Tyres , the Appellate Body\nconsidered this factor particularly relevant in assessing the merits of the explanations provided by\nthe respondent as to the cause of the discrimin ation. As the Appellate Body stated, it had\n\"difficulty understanding how discrimination might be viewed as complying with the chapeau of\nArticle XX when the alleged rationale for discriminating does not relate to the pursuit of or would\ngo against the objective that was provisionally found to justify a measure under a paragraph of\nArticle XX\".\n1523 In US – Shrimp , the Appellate Body considered this factor as one element in a\n\"cumulative\" assessment of \"unjustifiable discrimination\".1524\n\n1514 Appellate Body Report, US – Gasoline, p. 26, DSR 1996:I, p. 24.\n1515 Appellate Body Report, US – Gasoline, p. 27, DSR 1996:I, pp. 25-26.\n1516 Appellate Body Report, US – Gasoline, p. 28, DSR 1996:I, p. 27.\n1517 See also Appellate Body Report, Brazil – Retreaded Tyres, para. 225: \"In US – Shrimp, the Appellate\nBody relied on a number of factors in finding that the measure at issue resulted in arbitrary or unjustifiable\ndiscrimination.\"\n1519 Appellate Body Report, US – Shrimp, paras. 163 and 164.\n1520 Appellate Body Report, US – Shrimp, paras. 166 and 172.\n1521 Appellate Body Report, Brazil – Retreaded Tyres, para. 225 (referring to Appellate Body Report,\nUS – Shrimp, paras. 163-166, 172, and 177).\n1522 See Appellate Body Reports, US – Shrimp, para. 165; and Brazil – Retreaded Tyres, paras. 227,\n228, and 232.\n1523 Appellate Body Report, Brazil – Retreaded Tyres, para. 227.\n1524 Appellate Body Report, US – Shrimp, para. 176. The Appellate Body highlighted that the measure\ntreated \"shrimp caught using methods identical to those employed in the United States\" differently from\nshrimp caught in the United States or other certified countries \"solely because they have been caught in waters\nof countries that have not been certified by the United States\" – a situation that the Appellate Body found\n\"difficult to reconcile with the declared policy objective of protecting and conserving sea turtles\". (Ibid.,\npara. 165 (emphasis original)) See also Appellate Body Report, Brazil – Retreaded Tyres, para. 225 and fn 431\nthereto.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n5.3.3.2 Canada's and Norway's claims on appeal regarding the Panel's reasoning under\nthe chapeau of Article XX of the GATT 1994\n5.307. We recall that, in determining whether the discrimination under the EU Seal Regime is\n\"arbitrary\" or \"unjustifiable\" within the meaning of the chapeau of Article XX, the Panel relied on\nits findings under Article 2.1 of the TBT Agreement. 1525 Based on its findings under Article 2.1 of\nthe TBT Agreement that the IC and MRM exceptions under the EU Seal Regime are not designed\nand applied in an even-handed manner, the Pa nel found that they also do not meet the\nrequirements of the chapeau of Article XX of the GATT 1994.1526\n5.308. Neither Canada nor Norway appeal the Panel's ultimate conclusion under the chapeau of\nArticle XX that the \"IC exception and the MRM exception … fail to meet the requirements under the\nchapeau\".\n1527 Instead, Canada and Norway take issue wi th the Panel's reasoning in reaching this\nconclusion.1528 In particular, they allege that the Panel erred in applying the same test to\ndetermine the existence of arbitrary or unjustifiable discrimination under the chapeau of Article XX\nas it applied in determining whether the measure was inconsistent with Article 2.1 of the\nTBT Agreement.1529 Canada and Norway submit that the sco pe, content, and text of the chapeau\nof Article XX of the GATT 1994 and Article 2.1 of the TBT Agreement (read together with the sixth\npreambular recital thereto) are not the same. Cana da argues that the Panel \"failed to adequately\nexplain\" why its analysis under Article 2.1 was relevant and applicable to its assessment of the\nlegal standard under the chapeau of Article XX. 1530 Norway similarly asserts that \"a panel must be\nfaithful to the independence of the analysis to be conducted under each Agreement.\" 1531 Second,\naccording to the complainants, the Panel's \"three-step test\" in the context of its \"legitimate\nregulatory distinction\" analysis under Article 2.1 1532 i s a t o d d s w i t h t h e t e x t o f t h e c h a p e a u o f\nArticle XX, as well as with well-accepted jurisprudence regarding the proper analysis of \"arbitrary\nor unjustifiable discrimination\" under the chapeau.\n1533 Specifically, both complainants take issue\nwith the Panel's substitution of its three-step \"legitimate regulatory distinction\" test under\nArticle 2.1 for the proper test under the chapeau of Article XX developed by the Appellate Body in\nBrazil – Retreaded Tyres , which, the complainants assert, requires an assessment of whether the\ndiscrimination at issue is \"rationally connected\" to the objective of the measure.\n1534\n5.309. The European Union responds that the requirement that the reasons for discrimination be\nrationally connected to the policy objective of th e measure is not reflected in the text of the\nchapeau or in past Appellate Body jurisprudence. 1535 While the European Union agrees that\ndetermining whether the discrimination at issue is \"arbitrary or unjustifiable\" usually involves an\ninvestigation of the reason underlying the discrimination, in its view, investigating the cause\nunderlying the discrimination is not necessarily limited to determining whether such cause is\nrationally connected to the objective of measure, and, as reflected in prior Appellate Body\njurisprudence, may involve the consideration of other factors.\n1536 According to the European Union,\nthis is supported by Brazil – Retreaded Tyres , as, in that case, the Appellate Body merely found\n\n1525 Panel Reports, paras. 7.649 and 7.650.\n1526 Panel Reports, para. 7.650 (referring to ibid., sections 7.3.2.3.3 and 7.3.2.3.4).\n1528 Canada's appellant's submission, para. 436; Norway's appellant's submission, para. 892.\n1529 Canada's appellant's submission, paras. 447-454; Norway's appellant's submission, paras. 894-898.\n1530 Canada's appellant's submission, para. 450 (referring to Panel Reports, para. 7.649).\n1531 Norway's appellant's submission, para. 897.\n1532 See Panel Reports, para. 7.259. The Panel found that:\n[T]he legitimacy of the regulatory distinction between commercial hunts and IC hunts should be\ndetermined by examining the following questions: first, is the distinction rationally connected to\nthe objective of the EU Seal Regime; second, if not, is there any cause or rationale that can\njustify the distinction (i.e. \"explain the existence of the distinction\") despite the absence of the\nconnection to the objective of the Regime, taking into account the particular circumstances of the\ncurrent dispute; and, third, is the distinction concerned, as reflected in the measure, \"designed\nor applied in a manner that constitutes arbitrary or unjustifiable discrimination\" such that it lacks\n\"even-handedness\".\n(Ibid. (fns omitted))\n1533 Canada's appellant's submission, paras. 452, 453, and 457; Norway's appellant's submission,\nparas. 898 and 905-926.\n1534 Canada's appellant's submission, paras. 437, and 455-459; Norway's appellant's submission,\nparas. 904-927.\n1535 European Union's appellee's submission, paras. 443-447.\n1536 European Union's appellee's submission, paras. 448-456.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthat, under the specific circumstances of that individual case, the MERCOSUR arbitral ruling was\n\"not an acceptable rationale for the discrimination, because it bears no relationship to the\nlegitimate objective pursued by the Import Ban th at falls within the purview of Article XX(b), and\neven goes against this objective\".\n1537\n5.310. We consider that the Panel should have provided more explanation as to why and how its\nanalysis under Article 2.1 of the TBT Agreement was \"relevant and applicable\" to the analysis\nunder the chapeau of Article XX of the GATT 1994. 1538 We recognize that there are important\nparallels between the analyses under Article 2.1 of the TBT Agreement and the chapeau of\nArticle XX. In particular, we note that the concepts of \"arbitrary or unjustifiable discrimination\nbetween countries where the same conditions prevail\" and of a \"disguised restriction on trade\" are\nfound both in the chapeau of Article XX of the GA TT 1994 and in the sixth recital of the preamble\nof the TBT Agreement, which the Appellate Body has recognized as providing relevant context for\nArticle 2.1 of the TBT Agreement.\n1539 Moreover, both Article 2.1 and the chapeau of Article XX do\nnot \"operate to prohibit a priori any obstacle to international trade\". 1540 Instead, as interpreted by\nthe Appellate Body, Article 2.1 \"permit[s] detrim ental impact on competitive opportunities for\nimports that stems exclusively from legitimate regulatory distinctions\" 1541, while under the\nchapeau of Article XX, discrimination is permitted if it is not arbitrary or unjustifiable.\n5.311. However, there are significant differences between the analyses under Article 2.1 of the\nTBT Agreement and the chapeau of Article XX of the GATT 1994. First, the legal standards\napplicable under the two provisions differ. Under Article 2.1 of the TBT Agreement, a panel has to\nexamine whether the detrimental impact that a measure has on imported products stems\nexclusively from a legitimate regulatory distinction rather than reflecting discrimination against the\ngroup of imported products. 1542 Under the chapeau of Article XX, by contrast, the question is\nwhether a measure is applied in a manner that would constitute a means of arbitrary or\nunjustifiable discrimination between countries where the same conditions prevail.1543\n5.312. Another important difference between Article 2.1 and the chapeau of Article XX relates to\ntheir main function and scope. Article 2.1 is a non-discrimination provision in respect of technical\nregulations. Consequently, in the context of Article 2.1, it is only the regulatory distinction that\naccounts for the detrimental impact on imported products that is to be examined to determine\nwhether it is \"a legitimate regulatory distinction\".\n1544 By contrast, the function of the chapeau of\nArticle XX is to maintain a balance between a Member's right to invoke the exceptions under the\nsubparagraphs of Article XX and the substantive rights of the other Members under the various\nother provisions of the GATT 1994. 1545 Indeed, a measure can be found to be applied in a manner\nthat would constitute a means of arbitrary or unjustifiable discrimination under the chapeau on\ngrounds that are not necessarily the same in their \"nature and quality\" as the discrimination which\nwas found to be inconsistent with the non-discr imination obligations of the GATT 1994, such as\nArticles I and III.1546\n5.313. Given these differences between the inquir ies under Article 2.1 of the TBT Agreement and\nthe chapeau of Article XX of the GATT 1994, we find that the Panel erred in applying the same\nlegal test to the chapeau of Article XX as it applied under Article 2.1 of the TBT Agreement, instead\nof conducting an independent analysis of the cons istency of the EU Seal Regime with the specific\nterms and requirements of the chapeau. 1547 We therefore reverse the Panel's finding, in\nparagraph 7.651 of the Panel Reports, that the European Union has failed to establish that the\n\n1537 European Union's appellee's submission, para. 451 (quoting Appellate Body Report, Brazil –\nRetreaded Tyres, para. 228).\n1538 See Panel Reports, para. 7.649.\n1539 Appellate Body Reports, US – Clove Cigarettes, para. 173; and US – Tuna II (Mexico), para. 213.\n1540 Appellate Body Report, US – Clove Cigarettes, para. 171.\n1541 Appellate Body Report, US – Clove Cigarettes, para. 175.\n1542 Appellate Body Report, US – Clove Cigarettes, paras. 182 and 215.\n1543 We note the Appellate Body's statement, in US – COOL, that a regulatory distinction that is designed\nor applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination cannot be\nconsidered \"legitimate\", and that any detrimental impact stemming from such a distinction will hence reflect\ndiscrimination prohibited under Article 2.1. (Appellate Body Reports, US – COOL, para. 271)\n1544 Appellate Body Report, US – Tuna II (Mexico), paras. 284 and 286.\n1545 Appellate Body Report, US – Shrimp, para. 156.\n1546 Appellate Body Report, US – Shrimp, para. 150 (referring to Appellate Body Report, US – Gasoline,\np. 23, DSR 1996:I, p. 21).\n1547 Panel Reports, para. 7.649.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ndiscriminatory impact found in the IC and MRM exceptions under the EU Seal Regime is justified\nunder Article XX(a) of the GATT 1994. We also reverse the intermediate legal findings that the\nPanel made in the context of the chapeau of Article XX of the GATT 1994 on the basis of its\nanalysis under Article 2.1 of the TBT Agreement, given that the Panel reached these intermediate\nfindings on the basis of a legal test that it should not have applied under the chapeau of\nArticle XX.1548\n5.314. It follows that we do not need to address the arguments on appeal as far as they relate to\nthese findings. In particular, we do not need to address the European Union's appeal of the Panel's\nfinding that \"the IC distinction does not bear a rational relationship to the objective of addressing\nthe moral concerns of the public on seal welfare\"\n1549, nor the related claim under Article 11 of the\nDSU, given that the Panel made this finding in th e context of its analysis under Article 2.1 of the\nTBT Agreement. For the same reasons, we do not need to address Canada's appeal of the Panel's\nfinding that the distinction between commercial and IC hunts is nevertheless justified, nor\nCanada's related claim under Article 11 of the DSU.\n1550\n5.315. In the following, we complete the analysis under the chapeau of Article XX of the\nGATT 1994 to the extent that we are able to do so on the basis of factual findings by the Panel and\nuncontested facts on the Panel record.\n5.3.3.3 Whether the EU Seal Regime m eets the requirements of the chapeau of\nArticle XX of the GATT 1994\n5.316. The discrimination that the Panel found und er Article I:1 of the GATT 1994 arises from the\ndifferent regulatory treatment that the measure accords to seal products derived from\n\"commercial\" hunts, on the one hand, as compared to seal products derived from IC hunts, on the\nother hand, in combination with the fact that seal hunts in Canada and Norway are primarily\n\"commercial\" hunts, whereas seal hunts in Greenland are predominantly IC hunts.\n1551 As noted\nabove, the circumstances that bring about the discrimination within the meaning of the chapeau\nmay include, but are not limited to, the circumstances that led to the finding of a violation of a\nsubstantive provision of the GATT 1994. In completing the analysis under the chapeau, we will first\nexamine whether the different regulatory treatmen t that the EU Seal Regime accords to seal\nproducts derived from IC hunts as compared to \"commercial\" hunts constitutes \"arbitrary or\nunjustifiable discrimination\". In addition, we will analyse whether the measure has any\ndiscriminatory effects on different indigenous communities and whether any such effects amount\nto arbitrary or unjustifiable discrimination.\n5.317. As noted above, the analysis under the chapeau of Article XX of the GATT 1994 entails an\nassessment of whether the \"conditions\" prevailing in the countries between which the measure\nallegedly discriminates are \"the same\". We furthe r found that, in conducting this assessment, the\nsubparagraph under which a measure has been provisionally justified, as well as the provision of\nthe GATT with which a measure has been found to be inconsistent, provide important context. In\nthe circumstances of the present case, we do not consider that the European Union has shown that\nthe \"conditions\" prevailing in Canada and Norw ay, on the one hand, and Greenland, on the other\nhand, are relevantly different. In particular, the European Union does not appear to contest\nNorway's claim that \"the same animal welfare conditions prevail in all countries where seals are\nhunted\"\n1552, nor has the European Union appealed the Panel's finding that \"the same animal\nwelfare concerns as those arising from seal hunting in general also exist in IC hunts\". 1553 We also\ndo not understand the European Union to have argued that the differences in the identity of the\nhunter or in the purpose of seal hunts that the Panel found to exist between \"commercial\" and\nIC hunts would render the conditions in Canada and Norway, on the one hand, and Greenland, on\nthe other hand, relevantly different. Finally, while the European Union has pointed to \"the different\n\n1548 Panel Reports, para. 7.650.\n1549 Panel Reports, para. 7.275.\n1550 Panel Reports, para. 7.300.\n1551 Panel Reports, paras. 7.159-7.164, 7.170, and 7.600.\n1552 Panel Reports, fn 442 to para. 7.276 (referring to Norway's first written submission to the Panel,\npara. 680 and fn 980 thereto, in turn referring to European Food Safety Authority, \"Scientific Opinion of the\nPanel on Animal Health and Welfare on a request from the Commission on the Animal Welfare aspects of the\nkilling and skinning of seals\", The EFSA Journal (2007), No. 610, pp. 1-122 (Panel Exhibit JE-22) (EFSA\nScientific Opinion), p. 13).\n1553 Panel Reports, para. 7.275.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nlevel of development in the organisation of th e marketing structures achieved by the Inuit\ncommunities in Greenland as compared to the Canadian Inuit communities\" 1554, the\nEuropean Union has not, in our view, sufficiently explained how these differences would render the\nconditions prevailing in Canada and Greenland different in a respect that would be relevant under\nthe chapeau. Given that the European Union has not shown that the conditions prevailing in\nCanada and Norway, on the one hand, and Greenland, on the other hand, are relevantly different,\nwe proceed on the basis that the conditions prevailing in these countries are \"the same\" for the\npurposes of the chapeau.\n5.318. We consider that, in the present case, th e causes of the \"discrimination\" found to exist\nunder Article I:1 of the GATT 1994 are the same as those to be examined under the chapeau. We\nalso note that this is not disputed by the participants. We therefore turn to examine whether such\ndiscrimination is \"arbitrary or unjustifiable\" within the meaning of the chapeau. As noted above,\none of the most important factors in the assessment of arbitrary or unjustifiable discrimination is\nthe question of whether the discrimination can be reconciled with, or is rationally related to, the\npolicy objective with respect to which the measure has been provisionally justified under one of\nthe subparagraphs of Article XX. We therefore be gin our analysis with Canada's and Norway's\nclaim that the EU Seal Regime results in arbitrary or unjustifiable discrimination because it\ndiscriminates on a basis that does not have a \"rational relationship\" with the objective of the\nmeasure or goes against that objective.\n1555\n5.319. We recall that the objective of the EU Seal Regime is to address EU public moral concerns\nregarding seal welfare. 1556 In pursuit of this objective, the EU Seal Regime bans the importation\nand placing on the market of seal products derive d from \"commercial\" hunts, while it allows the\nimportation of seal products derived from hunts that satisfy certain criteria relating to the identity\nof the hunter, the purpose of the hunt, and the use of by-products from the hunt. The\ncomplainants allege, and the European Union does not dispute, that these criteria are not related\nto the welfare of seals. The complainants theref ore submit that there is a rational disconnect\nbetween the IC exception and the objective of the EU Seal Regime, and that the IC exception even\ngoes against that objective.\n1557 Essentially, the complainants' arguments go to the manner in\nwhich the EU Seal Regime pursues its objective in the context of IC hunts as compared to\n\"commercial\" hunts. In response, the European Union submits that it exempts seal products\nderived from hunts conducted by Inuit and other indigenous peoples from the ban on the\nimportation and placing on the market of seal products in order to mitigate the adverse effects on\nthose communities resulting from the EU Seal Re gime to the extent compatible with the main\nobjective of addressing the public moral concerns with regard to the welfare of seals.\n1558\n5.320. The first relevant question before us is thus whether the European Union has sufficiently\nexplained how the manner in which the EU Seal Regime treats IC hunts as compared to\n\"commercial\" hunts can be reconciled with, or is related to, the policy objective of addressing\nEU public moral concerns regarding seal welfare. We note that the different regulatory treatment\nof IC hunts, as compared to \"commercial\" hunts, takes the form of a significant carve-out of the\nformer from the measure's ban on seal products. The European Union has sought to explain why it\ndecided not to impose the ban on the importation and placing on the market of seal products\nderived from IC hunts. Yet, the European Union has failed to demonstrate, in our view, how the\ndiscrimination resulting from the manner in which the EU Seal Regime treats IC hunts as\ncompared to \"commercial\" hunts can be reconciled with, or is related to, the policy objective of\naddressing EU public moral concerns regarding seal welfare. In this connection, we note that the\nEuropean Union has not established, for example, why the need to protect the economic and social\ninterests of the Inuit and other indigenous peoples necessarily implies that the European Union\ncannot do anything further to ensure that the welfare of seals is addressed in the context of\n\n1554 European Union's appellant's submission, para. 203.\n1555 Canada's appellant's submission, para. 468; Norway's appellant's submission, paras. 904, 929, 930,\nand 932. We note that Canada advances this claim in the context of its appeal under Article 2.1 of the\nTBT Agreement and the chapeau of Article XX, while Norway makes this argument in the context of its appeal\nunder the chapeau of Article XX.\n1556 In section 5.3.1 above, we considered that the principal objective of the EU Seal Regime is to\naddress EU public moral concerns regarding seal welfare, while accommodating IC and other interests so as to\nmitigate the impact of the measure on those interests.\n1557 Canada's appellant's submission, para. 468; Norway's appellant's submission, paras. 904, 929, 930,\nand 932.\n1558 European Union's appellee's submission, para. 142.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nIC hunts, given that \"IC hunts can cause the very pain and suffering for seals that the EU public is\nconcerned about.\"1559\n5.321. As noted above, the relationship of the discrimination to the objective of a measure is one\nof the most important factors, but not the sole test , that is relevant to the assessment of arbitrary\nor unjustifiable discrimination.1560 In other words, depending on the nature of the measure at issue\nand the circumstances of the case at hand, there could be additional factors that may also be\nrelevant to that overall assessment. In this connection, we note that the European Union argues\nthat only seal products derived from hunts conducted by Inuit communities for subsistence\npurposes can benefit from the exception.\n1561 We therefore now turn to examine whether the\nspecific criteria of the IC exception are designed and applied in a manner that would render\narbitrary or unjustifiable the different regulatory treatment of seal products derived from IC hunts\nas compared to seal products derived from \"commercial\" hunts.\n5.322. We recall that the IC exception is set out in Article 3(1) of the Basic Regulation, which\nprovides that \"[t]he placing on the market of se al products shall be allowed only where the seal\nproducts result from hunts traditionally conducted by Inuit and other indigenous communities and\ncontribute to their subsistence. These conditions shall apply at the time or point of import for\nimported products\". This provision is implemented by Article 3(1) of the Implementing Regulation,\nwhich requires that, in order to qualify for the IC hunts category, seal products must originate\nfrom seal hunts that satisfy the following three conditions:\na. seal hunts conducted by Inuit or other indigenous communities which have a tradition of\nseal hunting in the community and in the geographical region;\nb. seal hunts the products of which are at least partly used, consumed or processed within\nthe communities according to their traditions; and\nc. seal hunts which contribute to the subsistence of the community.\n5.323. With respect to these criteria, we note the Panel's finding that:\n[T]he requirements of the IC exception are generally linked to the characteristics of\nIC hunts as discussed above, particularly in terms of the identity of the hunter with a\ntradition of seal hunting, the use of by-products from the hunted seals, and the\ncontribution of the hunts to the subsistence of the community.\n1562\n5.324. The Panel also noted, however, that the \"scope and meaning of the 'subsistence' criterion\"\nof the IC requirements \"is not defined under the measure\". 1563 The Panel had earlier found that\n\"the subsistence purpose of IC hunts encompasses not only direct use and consumption of\nby-products of the hunted seals as part of their culture and tradition, but also a commercial\ncomponent, to the extent that Inuit or indigenous communities also exchange some by-products of\nthe hunted seals for economic gain.\"\n1564 The Panel further found this commercial aspect of\nIC hunts to be related more to the \"need [of Inuit communities] to adjust to modern society rather\nthan to continuing their cultural heritage of bartering\".\n1565 For the Panel, the commercial aspect of\nIC hunts \"resembles the purpose of commercial hunts, which is to earn income (and make profits)\n\n1559 Panel Reports, para. 7.275. We note that the European Union submitted before the Panel that \"[t]he\nComplainants have not offered any indication of how animal welfare could be improved in the hunts within the\nscope of the IC exception without at the same time endangering the subsistence of the Inuit and the\npreservation of their cultural identity.\" (European Union's response to Panel question No. 8, para. 24) Canada\nresponded that \"the onus is not on the complainants to offer solutions to enable Greenlandic sealers to improve\nanimal welfare standards without putting at risk the subsistence of the Inuit and the preservation of their\ncultural identity.\" (Panel Reports, para. 7.294 (quoting Canada's second written submission to the Panel,\npara. 251))\n1560 We recall again that, in US – Shrimp, the Appellate Body considered this factor as one element in a\n\"cumulative\" assessment of \"unjustifiable discrimination\". (Appellate Body Report, US – Shrimp, paras. 165\nand 176)\n1561 European Union's other appellant's submission, paras. 182 and 188.\n1562 Panel Reports, para. 7.308.\n1563 Panel Reports, para. 7.308. See also ibid., paras. 7.283-7.289.\n1564 Panel Reports, para. 7.288.\n1565 Panel Reports, para. 7.287.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nby selling by-products of the hunted seals\". 1566 The Panel thus identified a degree of overlap\nbetween the purposes of \"commercial\" and IC hunts, while at the same time maintaining that\n\"[t]he commercial aspect of IC hunts is … not the same in its extent as that associated with\ncommercial hunts\".\n1567 The European Union has not contested that IC hunts also have a\ncommercial aspect. As we see it, the lack of a precise definition of the subsistence criterion\nintroduces a degree of ambiguity into the requir ements for the IC exception under the EU Seal\nRegime.\n5.325. We see similar ambiguities with respect to the \"partial use\" criterion, pursuant to which\nseal products must be \"at least partly used, consumed or processed within the communities\naccording to their traditions\". The assessment of whether this criterion is fulfilled may be\nstraightforward when it comes to the products of a single hunt, or where there are relatively stable\npatterns in the use of seal products, as appears to be the case in Greenland, where skins are the\nonly parts of the seal that are currently traded on a significant scale. However, the ambiguity in\nthe notion of \"partial use\" arises when it is applied on an aggregate basis. In response to\nquestioning at the oral hearing, the European Union could not confirm whether the \"partial use\"\ncriterion is administered and enforced with respect to each individual seal, with respect to each\nseal hunt, or with respect to the catch of an entire season.\n1568 It is therefore not clear with respect\nto what benchmark the requirement that seal products be at least partly used, consumed, or\nprocessed in the community, is to be understood. We are concerned that, where conformity with\nthe \"partial use\" criterion is not assessed with respect to individual seals but rather with respect to\nindividual hunters over an extended period of ti me (e.g. through licensing conditions), or with\nrespect to all hunters active in a particular area or even all members of an Inuit community, a\nsubstantial proportion of seal products that, wh en considered individually, might not conform to\nthe \"partial use\" criterion (either because the hunter has commercialized the entire seal or\nbecause the non-commercialized parts of the seal have been disposed of rather than used) could\npotentially qualify for the IC exception. We consider that the ambiguity in the notion of \"partial\nuse\" compounds the ambiguity of the \"subsistence\" criterion, with which it applies cumulatively,\nand thereby aggravates the overall vagueness of the IC requirements.\n5.326. Given these significant ambiguities and the broad discretion in the application of the\nIC requirements, we are troubled by the European Union's position that, once a seal hunt has been\nclassified as an IC hunt, the degree of commercialization is \"irrelevant\".\n1569 I n p a r t i c u l a r w i t h\nregard to borderline cases, the \"subsistence\" and \"partial use\" criteria would appear to call for, if\nnot continuous, at least regular reassessments, at a sufficiently disaggregated level, of whether\nthe requirements of the IC exception are fulfilled.\n1570 We note in this regard that the evaluation of\nwhether a given seal product complies with the requirements of the IC exception is left entirely to\nthe \"recognized bodies\" designated pursuant to Article 6 of the Implementing Regulation. Given\nthe ambiguities that can arise with respect to at least two elements of the IC requirements, the\nrecognized bodies would appear to enjoy broad discretion in applying the IC requirements, which\ncould allow for instances of abuse of the IC exception, even where the recognized body is acting in\ngood faith. Depending on how strictly the IC requirements are applied, seal products derived from\nwhat should in fact be properly characterized as \"commercial\" hunts could thus enter the\nEU market under the IC exception in some instances. As we see it, the European Union has not\nsufficiently explained how such instances can be prevented in the application of the IC exception.\n5.327. It appears to us, in particular, that the criteria for recognized body status set out in\nArticle 6 of the Implementing Regulation are not sufficiently precise to ensure that the \"partial use\"\n\n1566 Panel Reports, para. 7.287.\n1567 Panel Reports, para. 7.288.\n1568 At the oral hearing, the European Union pointed out that this assessment would be left to the\n\"recognized body\" designated pursuant to Article 6 of the Implementing Regulation. The European Union\nhighlighted that the Implementing Regulation provides for the auditing of \"recognized bodies\". (European\nUnion's responses to questioning at the oral hearing)\n1569 European Union's other appellant's submission, paras. 207 and 208; European Union's appellee's\nsubmission, para. 103.\n1570 It appears to us that, in certain cases, the only requirement of the IC exception that is effectively\nenforced might be the requirement regarding the identity of the hunter, whereas the other two requirements\nwould be presumed to be fulfilled where the hunter is an Inuit, even if the hunt was highly commercialized.\nWT/DS400/AB/R • WT/DS401/AB/R\n\ncriterion is assessed at a sufficiently disaggregated level. 1571 Moreover, while the recognized body\nis subject to \"independent third party audit\" pu rsuant to Article 6(1)(g) of the Implementing\nRegulation, it is not clear how the auditor would be able reliably to assess whether the recognized\nbody has diligently applied the criteria of the IC exception, especially given the ambiguities that\ncan arise with respect to at least two of them, that is, the \"subsistence\" and \"partial use\"\nrequirements. We note, in this regard, that the MRM and Travellers exceptions contain\nanti-circumvention clauses that would allow the denial of entry of seal products that, while\nformally compliant with the exception, appear to be outside the scope of the exception.\n1572 The\nIC exception contains no such anti-circumvention clause. We recall in this respect that the primary\npurpose of the chapeau of Article XX is to preven t the abuse or misuse of the exceptions in the\nsubparagraphs of Article XX.\n1573 We note that the Appellate Body in US – Shrimp criticised the\ncertification processes followed by the United States as being \"singularly informal and casual\", and\nas being \"conducted in a manner such that these processes could result in the negation of rights of\nMembers\".\n1574\n5.328. In US – Shrimp, the Appellate Body was concerned that there appeared to be \"no way that\nexporting Members can be certain\" whether the relevant provisions and guidelines were \"being\napplied in a fair and just manner by the appropriate governmental agencies of the\nUnited States\".\n1575 We have similar concerns with regard to the process for the issuing of attesting\ndocuments by recognized bodies pursuant to Articles 6, 7 1576, and 9 1577 of the Implementing\n\n1571 Article 6 of the Implementing Regulation reads, in relevant part:\nArticle 6\n1. An entity shall be included in a list of recognised bodies where it demonstrates that it fulfils\nthe following requirements:\n(a) it has legal personality;\n(b) it has the capacity to ascertain that the requirements of Article 3 or 5 are met;\n(c) it has the capacity to issue and manage attesting documents referred to in Article 7(1), as\nwell as process and archive records;\n(d) it has the ability to carry out its functions in a manner that avoids conflict of interest;\n(e) it has the ability to monitor compliance with the requirements set out in Articles 3 and 5;\n(f) it has the capacity to withdraw attesting documents referred to in Article 7(1) or suspend\ntheir validity in case of non- compliance with the requirements of this Regulation, and to take\nmeasures to inform competent authorities and customs authorities of Member States thereof;\n(g) it is subject to an independent third party audit;\n(h) it operates at national or regional level.\n1572 See Basic Regulation, Article 3(2), which stipulates that the \"nature and quantity\" of seal products\nthat are imported or place on the market under the Travellers and MRM exceptions \"shall not be such as to\nindicate that they are\" imported or placed on the market \"for commercial reasons\". Article 3(2) further\nstipulates that \"[t]he application of this paragraph shall not undermine the achievement of the objective of this\nRegulation\".\n1573 See supra, para. 5.297.\n1574 Appellate Body Report, US – Shrimp, para. 181.\n1575 Appellate Body Report, US – Shrimp, para. 181.\n1576 Article 7 of the Implementing Regulation reads, in relevant part:\nArticle 7\n1. Upon request, where the requirements for placing on the market set out in Article 3(1) or 5(1)\nare met, a recognised body shall issue an attesting document conforming to the models set out\nin the Annex.\n2. The recognised body shall deliver the attesting document to the applicant and shall keep a\ncopy for three years for record-keeping purposes.\n…\n7. In case of doubts relating to the authenticity or correctness of an attesting document issued in\naccordance with paragraph 1 as well as when further advice is required, the customs authorities\nand other enforcement officers shall contact the competent authorities designated by the\nMember State concerned in accordance with Article 9. The competent authorities shall decide on\nthe measures to be taken.\n1577 Article 9 of the Implementing Regulation reads, in relevant part:\nArticle 9\n1. Each Member State shall designate one or several competent authorities responsible for the\nfollowing tasks:\n(a) verification upon request of the customs authorities pursuant to Article 7(7) of attesting\ndocuments for imported seal products;\n(b) control of the issuing of attesting documents by recognised bodies established and active in\nthat Member State;\n(c) preservation of a copy of attesting documents issued for seal products originating from seal\nhunts in that Member State.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nRegulation. Given the ambiguities in the criteria of the IC exception and the broad discretion that\nthe recognized bodies consequently enjoy in applying these criteria, we consider that seal products\nderived from what should in fact be properly characterized as \"commercial\" hunts could potentially\nenter the EU market under the IC exception. Thus, pursuant to its design, the EU Seal Regime\ncould be applied in a manner that would constitute a means of arbitrary or unjustifiable\ndiscrimination between countries where the same conditions prevail.\n5.329. We now turn to the question of whether the manner in which the IC exception affects Inuit\ncommunities in different countries amounts to \"arbitrary or unjustifiable discrimination\". We note,\nin this respect, the Panel's findings that \"the IC exception is available de facto exclusively to\nGreenland\", and that this outcome is \"directly attributable to the regime itself and not to the\nactions of the operators in countries like Canada\".\n1578 The European Union challenges these\nfindings on appeal both as an error of law 1579 and, in the alternative, as a failure of the Panel to\nmake an objective assessment of the facts, as required by Article 11 of the DSU. 1580 In the\nfollowing, we will address the European Union's arguments, and Canada's and Norway's responses,\nto the extent that they are pertinent in the context of the chapeau of Article XX of the GATT 1994.\n5.330. The European Union notes that any entity within the Inuit communities in Canada or\nelsewhere can meet the requirements to become a recognized body for the purposes of assessing\nconformity with the IC exception. 1581 The European Union submits that the fact that, so far, only\nan entity in Greenland has become a recognized body results from the decisions of the relevant\nauthorities and operators in other countries, and cannot be attributed to the EU Seal Regime. 1582\nThe European Union argues that, contrary to what the Panel found, there is no \"inherent flaw\" or\npermanent defect in the IC exception that prevents Inuit communities, other than those in\nGreenland, from taking advantage of it. 1583 The European Union further submits that the Panel\nwrongly assessed the even-handedness of the IC exception by looking at the effects of the\nmeasure in a particular period of time.1584 The European Union underscores that, while Canada and\nits Inuit communities have not taken any steps to benefit from the IC exception despite numerous\nefforts made by the EU authorities\n1585, they could do so at any time in the future, if and when they\nso wish, based on their assessment of whether exports to the European Union are desirable. 1586 In\nthe European Union's view, the fact that the Canadian authorities purchase Inuit products under a\ntargeted programme means that they have, in principle, a convenient and easy means to identify\nthe seal products qualifying for the IC exception.\n1587\n5.331. Canada alleges that the European Union has misunderstood the thrust of the Panel's\nreasoning. According to Canada, the Panel's concerns about the design and application of the\nIC exception did not relate to whether Canadian I nuit seal products formally qualified for market\naccess under the IC exception, but rather to the qu estion of whether they could benefit from it in\npractice. As Canada sees it, the Panel concluded that they could not because the IC exception was\ndesigned and applied in such a way that only large-scale, commercially oriented seal hunting\noperations possess the wherewithal to do so.\n1588 Canada highlights the Panel's reference to a\nstatement by the Canadian Inuit that their hunt is too small to \"generate market interest alone on\nan international scale\"\n1589, and that \"market realities are ꞌmajor factors contributing to the\nineffectiveness of the Inuit exemption to the EU seal ban ꞌ\".1590 According to Canada, the Panel\nagreed that there is \"little point\" in Canadian Inuit applying for the IC exception if, due to its\n\n1578 Panel Reports, paras. 7.317 and 7.318.\n1579 The European Union presents its arguments in the context of Article 2.1 of the TBT Agreement.\n(European Union's other appellant's submission, paras. 124-277) However, the European Union also requests\nthe Appellate Body to reverse the Panel's finding under the chapeau on the same grounds. (Ibid., para. 318)\n1580 European Union's other appellant's submission, para. 217.\n1581 European Union's other appellant's submission, paras. 182 and 191.\n1582 European Union's other appellant's submission, paras. 182 and 192.\n1583 European Union's other appellant's submission, para. 193.\n1584 European Union's other appellant's submission, para. 195.\n1585 European Union's other appellant's submission, paras. 196, 201, and 202.\n1586 European Union's other appellant's submission, para. 203.\n1587 European Union's other appellant's submission, para. 203.\n1588 Canada's appellee's submission, para. 132.\n1589 Canada's appellee's submission, para. 133 (quoting Panel Reports, fn 219 to para. 7.162).\n1590 Canada's appellee's submission, para. 133 (quoting Panel Reports, fn 219 to para. 7.162, in turn\nquoting Nunavut Department of Environment, Fisheries and Sealing Division, Report on the Impacts of the\nEuropean Union Seal Ban, (EC) No. 1007/2009, in Nunavut (2012) (Panel Exhibit JE-30) (Nunavut 2012\nReport), p. 9).\nWT/DS400/AB/R • WT/DS401/AB/R\n\ndesign and application, they are unable to take advantage of it. 1591 Canada alleges that, more\ngenerally, the actions of a WTO Member or private actors, in responding to a discriminatory\nmeasure, should not form the basis for an assessment of whether that measure discriminates\nagainst that WTO Member.\n1592\n5.332. Norway argues that the Panel did not err in relying on its finding that the IC exception is\nde facto only available to Greenland. According to Norway, \"the Panel explicitly acknowledged that\nthe fact that Greenland has so far been the only beneficiary of the IC requirements was not …\nsufficient to establish arbitrariness in the design or application of the IC requirements\", but\n\"merely 'an indication' that had to be considered with other factors\". 1593 Norway further submits\nthat \"the Panel adequately examined the implications\" of the actions and omissions of the\nCanadian authorities and operators.\n1594 Norway highlights the Panel's observation that \"it is not\ncost effective under the current circumstances to segregate [Canadian] Inuit products from other\nproducts\".1595 Norway also underscores the Panel's suggestion that this result had been anticipated\nby the EU legislator. 1596 Norway submits that the European Union cannot claim that the\nrequirements of the IC exception do not discriminate against Canadian Inuit when the EU legislator\nin fact knew that this would be the case.1597 According to Norway, it is because of the terms of the\nmeasure that Canadian Inuit, who truly pursue a subsistence hunt, are effectively denied the\nchoice to benefit from the IC exception. Norway asserts that the European Union is, therefore,\nw r o n g w h e n i t a r g u e s t h a t \" t h e f a i l u r e o f t h e C a n a d i a n I n u i t t o de facto qualify under the\nIC requirements cannot be 'attributed' to the EU Seal Regime, or the European Union\".1598\n5.333. We consider that, to the extent that the IC exception is designed and applied so as to be\nde facto only available to Greenland, the EU Seal Regime would treat seal products derived from\nIC hunts in Greenland and Canada differently and, in this respect, result in discrimination between\ncountries where the same conditions prevail. It is undisputed that the Inuit in Greenland are\ncurrently the only beneficiaries of the IC exception. The European Union contests, however, that\nthis outcome can be attributed to the EU Seal Regime, suggesting that there is no \"genuine\nrelationship\"\n1599 between the current de facto exclusivity of the IC exception and the design and\napplication of the IC exception, such that this ou tcome would not be \"attributable\" to the EU Seal\nRegime.1600\n5.334. We note that, while the Panel found that the fact that only Greenland has been able to\nbenefit from the IC exception \"is directly attributab le to the regime itself and not to the actions of\nthe operators in countries like Canada\" 1601, it did not point to any aspect of the IC exception itself\nthat prevents indigenous communities in Canada from taking advantage of it. The Panel also did\nnot explain how it accounted for the failure of the Canadian authorities to apply for recognized\nbody status in reaching its conclusion. Canada, in turn, does not argue that the fact that the\nCanadian indigenous communities have not taken advantage of the IC exception is due to the\ndesign and application of the IC exception. Rather , Canada's explanation is based on the fact that\nthe EU Seal Regime bans seal products derived from commercial hunts, and that the Canadian\nInuit had allegedly relied on synergies with \"southern producers\" in order to export their seal\nproducts to the European Union.\n1602 According to Canada's own explanation, the reason that Inuit\ncommunities in Canada do not have an incentive to take advantage of the IC exception is related\n\n1591 Canada's appellee's submission, para. 136.\n1592 Canada's appellee's submission, para. 137.\n1593 Norway's appellee's submission, para. 394 (quoting Panel Reports, para. 7.306). (emphasis omitted)\n1594 Norway's appellee's submission, para. 395.\n1596 Norway's appellee's submission, paras. 398 and 399.\n1597 Norway's appellee's submission, para. 400.\n1598 Norway's appellee's submission, para. 402.\n1599 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 134.\n1600 See also Appellate Body Report, US – Clove Cigarettes, fn 372 to para. 179.\n1601 Panel Reports, para. 7.318.\n1602 See Panel Reports, para. 7.315 (\"Canada also explains that it is not economically feasible for\nCanadian Inuit to develop their own processing and distribution chains, given that the Inuit have relied on\nsynergies with southern producers; as those networks may no longer be viable because of the EU Seal Regime,\nconsiderable investment would be needed to develop a new processing and distribution centre.\")\nWT/DS400/AB/R • WT/DS401/AB/R\n\nto the incidental effects of the ban on seal products derived from commercial hunts1603, rather than\nany aspect of the \"text\", \"legislative history\", or \"actual application of the IC exception\", as the\nPanel suggests.\n1604\n5.335. We further note that, while the Panel cited Canada's explanation and certain statements\nfrom the COWI Reports, it never made an affirmative finding that the ban on seal products derived\nfrom commercial hunts prevents the Canadian Inuit from taking advantage of the IC exception. In\nany event, the European Union submits that the Pa nel ignored the fact that the relevant Canadian\nauthorities and entities have not shown any interest in benefiting from the IC exception. 1605 The\nEuropean Union cites Canada's response to a Panel question to the effect that Inuit communities in\nCanada have \"deliberately decided to focus on the development of the local (i.e. Nunavut)\nmarket\".\n1606 The European Union further argues that the Canadian Inuit could benefit from the\nIC exception \"at any time in the future if and when they so wish, based on their assessment of\nwhether exports to the EU are desirable\". 1607 The European Union submits that \"the fact that the\nCanadian authorities purchase Inuit products under a targeted programme means that they have,\nin principle, a convenient and easy means to identify and manage the relevant products qualifying\nfor the IC exception\".1608\n5.336. We recall that the question before us is whether the European Union has met its burden of\nshowing that the current de facto exclusivity of the IC exception cannot be attributed to the\nEU Seal Regime. The European Union argues that the fact that Canadian Inuit have so far not\ntaken advantage of the IC exception is explained by the inaction of the Canadian authorities and\nmarket actors. We consider that, if the current de facto exclusivity of the IC exception could be\nattributed entirely to private choice, there would be no \"genuine relationship\" between this\nexclusivity and the EU Seal Regime. We recall, in this respect, that the non-discrimination\nobligations in the covered agreements are only concerned with \" governmental intervention that\naffects the conditions under which like goods, domestic and imported, compete in the market\nwithin a Member's territory\".\n1609 We also recognize that, to the extent that the EU Seal Regime has\nan adverse effect on the Canadian Inuit by depressing the international market for seal products,\nthis adverse effect would be experienced by the Greenlandic Inuit as well and thus would not affect\nthe conditions of competition between Canadian and Greenlandic Inuit.1610\n5.337. Nevertheless, we are not persuaded that the European Union has made \"comparable\nefforts\"1611 to facilitate the access of the Canadian Inuit to the IC exception as it did with respect\nto the Greenlandic Inuit. For example, the Danish customs authorities processed imports based on\ncertificates by the Greenlandic authorities prior to the Greenlandic entity obtaining recognized\n\n1603 See Panel Reports, fn 499 to para. 7.315 (referring to Canada's first written submission to the\nPanel, paras. 37-48; and Canada's response to Panel question No. 84). (\"Canada further submits that the\nGovernment of Nunavut has indicated that there has been no demand for Canadian Inuit products from\nEuropean Union buyers since the coming-into-force of the ban. Therefore there has not been much incentive to\npursue the marketing of seal products under the IC category.\")\n1604 Panel Reports, para. 7.317.\n1605 European Union's other appellant's submission, para. 201.\n1606 European Union's other appellant's submission, fn 251 to para. 203 (quoting Canada's response to\nPanel question No. 71, para. 304). The European Union also quoted the following excerpt from a report by the\ngovernment of Nunavut that the complainants put before the Panel:\nDue to logistics and the high cost of transporting seal pelts to market, the Government of\nNunavut purchases sealskins from Inuit seal hunters, and then transport the skins for marketing\nto national and international buyers at no cost to the hunter. This program applies exclusively to\nringed seals and terrestrial furbearers, with all pelts being sold at the Fur Harvesters Auction Inc.\n(FHA) bi-annual auction in North Bay, Ontario, Canada. Buyers and brokers from around the\nworld attend these auctions to bid on a wide selection of wild fur species[.]\n(European Union's other appellant's submission, fn 254 to para. 203 (quoting Nunavut 2012 Report, p. 2))\n1607 European Union's other appellant's submission, para. 203.\n1608 European Union's other appellant's submission, para. 203.\n1609 Appellate Body Report, Korea – Various Measures on Beef, para. 149. (emphasis original) See also\nAppellate Body Report, US – Tuna II (Mexico), para. 236.\n1610 The European Union argues that \"the Panel disregarded the fact that the challenges for Inuit\ncommunities engaged in seal hunting for subsistence purposes are similar anywhere, including Canada and\nGreenland\". (European Union's other appellant's submission, para. 203)\n1611 See Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), para. 122.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nbody status within the meaning of the Implementing Regulation.1612 While the European Union has\nargued that it had \"engaged in 'multiple efforts' to assist the Inuit in Canada to benefit from the\nIC exception\"\n1613, the European Union also observes that \"the relevant Canadian Inuit authorities\nwrongly interpret the EU Seal Regime as requiring the Inuit communities to process their own\nsealskin products to fall under the IC exception\". 1614 It would appear that the European Union has\nnot pursued cooperative arrangements to facilitate the access of Canadian Inuit to the\nIC exception.\n1615 We recall, in this regard, that a measure may result in arbitrary or unjustifiable\ndiscrimination \"when the application of the measure at issue does not allow for any inquiry into the\nappropriateness of the regulatory program for the conditions prevailing in those exporting\ncountries.\"1616 For example, it appears to us that setting up a \"recognized body\" that fulfils all the\nrequirements of Article 6 of the Implementing Re gulation may entail significant burdens in some\ninstances. Overall, we are not persuaded that the European Union has established that it has\ndesigned and implemented the EU Seal Regime in a manner that is not arbitrary or\nunjustifiable.\n1617\n5.338. In sum, we have identified several features of the EU Seal Regime that indicate that the\nregime is applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination\nbetween countries where the same conditions prevail, in particular with respect to the\nIC exception. First, we found that the European Union did not show that the manner in which the\nEU Seal Regime treats seal products derived from IC hunts as compared to seal products derived\nfrom \"commercial\" hunts can be reconciled with the objective of addressing EU public moral\nconcerns regarding seal welfare. Second, we found considerable ambiguity in the \"subsistence\"\nand \"partial use\" criteria of the IC exception. Given the ambiguity of these criteria and the broad\ndiscretion that the recognized bodies consequently enjoy in applying them, seal products derived\nfrom what should in fact be properly characterized as \"commercial\" hunts could potentially enter\nthe EU market under the IC exception. We di d not consider that the European Union has\nsufficiently explained how such instances can be pr evented in the application of the IC exception.\nFinally, we were not persuaded that the European Union has made \"comparable efforts\" to\nfacilitate the access of the Canadian Inuit to the IC exception as it did with respect to the\nGreenlandic Inuit. We also noted that setting up a \"recognized body\" that fulfils all the\nrequirements of Article 6 of the Implementing Re gulation may entail significant burdens in some\ninstances.\n5.339. For these reasons, we find that the European Union has not demonstrated that the EU Seal\nRegime, in particular with respect to the IC exception, is designed and applied in a manner that\nmeets the requirements of the chapeau of Arti cle XX of the GATT 1994. It follows that the\nEuropean Union has not justified the EU Seal Regime under Article XX(a) of the GATT 1994.\n\n1612 Panel Reports, fn 220 to para. 7.164, and para. 7.316. We note that there is no evidence that\nCanadian Inuit communities have attempted to export seal products to the European Union since the entry into\nforce of the EU Seal Regime.\n1613 Panel Reports, para. 7.162 and fn 218 thereto (referring to European Union's response to Panel\nquestion No. 116 and \"European Commission representative visits Iqaluit on good-will trip\", Nunatsiaq Online,\n23 April 2013 (Panel Exhibit EU-145)). The European Union also submits that \"the EU authorities issued explicit\ninvitations and made substantial efforts so that entities in Canada could also become recognised bodies and the\nCanadian Inuit communities could benefit from the IC exception\". (European Union's other appellant's\n1614 European Union's other appellant's submission, para. 200.\n1615 We note that, in US – Gasoline, the Appellate Body found it relevant that the United States had not\npursued cooperative arrangements \"to the point where it encountered governments that were unwilling to\ncooperate\". (Appellate Body Report, US – Gasoline, p. 27, DSR 1996:I, pp. 25-26)\n1616 Appellate Body Report, US – Shrimp, para. 165.\n1617 We consider that our findings are not affected by the European Union's claims on this issue under\nArticle 11 of the DSU. We therefore do not find it necessary to address those claims.\n\n- CAN-191 -\n\n6 FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS400/AB/R\n6.1. In the appeal of the Panel Report, European Communities – Measures Prohibiting the\nImportation and Marketing of Seal Products (WT/DS400/R) (Canada Panel Report), for the reasons\nset out in this Report, the Appellate Body:\na. reverses the Panel's finding, in paragraphs 7.125 and 8.2(a) of the Canada Panel Report,\nthat the EU Seal Regime constitutes a \"technical regulation\" within the meaning of\nAnnex 1.1 to the TBT Agreement; and consequently, declares moot and of no legal effect\nthe Panel's conclusions under:\ni. Article 2.1 of the TBT Agreement, in pa ragraphs 7.319, 7.353, and 8.2(b) of the\nCanada Panel Report;\nii. Article 2.2 of the TBT Agreement, in pa ragraphs 7.505 and 8.2(c) of the Canada\nPanel Report;\niii. Article 5.1.2 of the TBT Agreement, in paragraphs 7.528, 7.547, and 8.2(d) of the\nCanada Panel Report; and\niv. Article 5.2.1 of the TBT Agreement, in pa ragraphs 7.580 and 8.2(e) of the Canada\nPanel Report;\nb. with respect to the Panel's analysis under Article I:1 and Article III:4 of the GATT 1994:\ni. upholds the Panel's finding, in paragraphs 7.586 of the Canada Panel Report, that\nthe legal standard of the non-discrimination obligations under Article 2.1 of the\nTBT Agreement does not apply equally to claims under Articles I:1 and III:4 of the\nGATT 1994; and\nii. upholds the Panel's finding, in paragraphs 7.600 and 8.3(a) of the Canada Panel\nReport, that the EU Seal Regime is inconsistent with Article I:1 of the GATT 1994\nbecause it does not \"immediately and unconditionally\" extend the same advantage\naccorded to seal products of Greenlandic origin to like seal products of Canadian\norigin;\nc. with respect to the Panel's analysis under Article XX(a) of the GATT 1994:\ni. finds that the Panel did not err in concluding, in paragraph 7.624 of the Canada\nPanel Report, that the analysis under Article XX(a) of the GATT 1994 should examine\nthe prohibitive and permissive aspects of the EU Seal Regime;\nii. finds that the Panel did not err in concluding, in paragraph 7.631 of the Canada\nPanel Report, that the objective of the EU Seal Regime falls within the scope of\nArticle XX(a) of the GATT 1994;\niii. upholds the Panel's finding, in paragraph 7.639 of the Canada Panel Report, that \"the\nEU Seal Regime is provisionally deemed necessary within the meaning of\nArticle XX(a) of the GATT 1994\";\nd. with respect to the Panel's analysis under the chapeau of Article XX of the GATT 1994:\ni. reverses the Panel's findings under the chapeau of Article XX of the GATT 1994, in\nparagraphs 7.649, 7.650, 7.651, and 8.3(d) of the Canada Panel Report, on the\nbasis that the Panel applied an incorrect legal test;\nii. completes the analysis and finds that the European Union has not demonstrated that\nthe EU Seal Regime, in particular with respect to the IC exception, is designed and\napplied in a manner that meets the requiremen ts of the chapeau of Article XX of the\nGATT 1994; and, therefore,\n\n- NOR-193 -\n\n6 FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS401/AB/R\n6.1. In the appeal of the Panel Report, European Communities – Measures Prohibiting the\nImportation and Marketing of Seal Products (WT/DS401/R) (Norway Panel Report), for the reasons\nset out in this Report, the Appellate Body:\na. reverses the Panel's finding, in paragraphs 7.125 and 8.2(a) of the Norway Panel Report,\nthat the EU Seal Regime constitutes a \"technical regulation\" within the meaning of\nAnnex 1.1 to the TBT Agreement; and consequently, declares moot and of no legal effect\nthe Panel's conclusions under:\ni. Article 2.2 of the TBT Agreement, in pa ragraphs 7.505 and 8.2(b) of the Norway\nPanel Report;\nii. Article 5.1.2 of the TBT Agreement, in pa ragraphs 7.528, 7.547, and 8.2(c) of the\nNorway Panel Report; and\niii. Article 5.2.1 of the TBT Agreement, in pa ragraphs 7.580 and 8.2(d) of the Norway\nPanel Report;\nb. with respect to the Panel's analysis under Article I:1 and Article III:4 of the GATT 1994:\ni. upholds the Panel's finding, in paragraph 7.586 of the Norway Panel Report, that the\nlegal standard of the non-discrimination obligations under Article 2.1 of the\nTBT Agreement does not apply equally to claims under Articles I:1 and III:4 of the\nGATT 1994; and\nii. upholds the Panel's finding, in paragraphs 7.600 and 8.3(a) of the Norway Panel\nReport, that the EU Seal Regime is inconsistent with Article I:1 of the GATT 1994\nbecause it does not \"immediately and unconditionally\" extend the same advantage\na c c o r d ed t o s e a l p r o d u c ts o f G r e e n la n d ic o r ig i n t o l ike s e a l p r o d u c t s o f No r we g ia n\norigin;\nc. with respect to the Panel's analysis under Article XX(a) of the GATT 1994:\ni. finds that the Panel did not err in concluding, in paragraph 7.624 of the Norway\nPanel Report, that the analysis under Article XX(a) of the GATT 1994 should examine\nthe prohibitive and permissive aspects of the EU Seal Regime;\nii. finds that the Panel did not err in concluding, in paragraph 7.631 of the Norway\nPanel Report, that the objective of the EU Seal Regime falls within the scope of\nArticle XX(a) of the GATT 1994;\niii. upholds the Panel's finding, in paragraph 7.639 of the Norway Panel Report, that\n\"the EU Seal Regime is provisionally deemed necessary within the meaning of\nArticle XX(a) of the GATT 1994\";\nd. with respect to the Panel's analysis under the chapeau of Article XX of the GATT 1994:\ni. reverses the Panel's findings under the chapeau of Article XX of the GATT 1994, in\nparagraphs 7.649, 7.650, 7.651, and 8.3(d) of the Norway Panel Report, on the\nbasis that the Panel applied an incorrect legal test;\nii. completes the analysis and finds that the European Union has not demonstrated that\nthe EU Seal Regime, in particular with respect to the IC exception, is designed and\napplied in a manner that meets the requiremen ts of the chapeau of Article XX of the\nGATT 1994; and, therefore,\niii. finds that the European Union has not justified the EU Seal Regime under\nArticle XX(a) of the GATT 1994; and\nWT/DS400/AB/R • WT/DS401/AB/R\n\nANNEX 1\n\n29 January 2014\n(14-0510) Page: 1/2\n\nEUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND\nMARKETING OF SEAL PRODUCTS\nNOTIFICATION OF AN APPEAL BY CANADA\nUNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES\nAND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),\nAND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW\n The following notification, dated 24 January 2014, from the Delegation of Canada, is being\ncirculated to Members.\n\n Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures\nGoverning the Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate\nReview, Canada notifies its appeal of certain issues of law in the Report of the Panel in European\nCommunities – Measures Prohibiting the Importation and Marketing of Seal Products\n(WT/DS400/R) and certain legal interpretations developed by the Panel in this Report.\nFirst, Canada seeks review by the Appellate Body of the Panel's findings and conclusions\nwith respect to the legitimate regulatory distinction test in Article 2.1 of the Agreement on\nTechnical Barriers to Trade (TBT Agreement). Specifically, the Panel erred in its intermediate\nfinding that the distinction between commercial and IC 1 hunts based on the purpose of the hunt is\njustifiable.2 The Panel erred by formulating and applyi ng the wrong legal test, and in doing so,\nfailed to take into account relevant information about the negative impact of the IC exception on\nthe identified objective of the EU Seal Regime.\n3\nCanada also requests the Appellate Body to find that the Panel acted inconsistently with\nArticle 11 of the DSU by failing to make an objective assessment of the facts pertinent to its\nfindings under Article 2.1 of the TBT Agreement with respect to the distinctions between\ncommercial and IC hunts.\n4\nSecond, Canada seeks review by the Appellate Body of the Panel's findings and conclusion\nthat the EU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement. This conclusion\nis incorrect as a matter of law, and is based on erroneous intermediate findings on issues of law\nand legal interpretation including the Panel's reasoning and findings with respect to whether the\n\n1 IC refers to \"Inuit or other indigenous communities\".\n2 See e.g. Panel Report, EC – Seal Products, paras. 7.283-7.300.\n3 The EU Seal Regime includes the Basic Regulation and the Implementing Regulation as set out in\nibid. paras. 7.7-7.24.\n4 See e.g. ibid. paras. 7.227-7.245 and 7.261-7.271.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nEU Seal Regime contributes to the identified objective,5 the relational analysis under the \"weighing\nand balancing\" exercise, and its reasoning and findings as to whether the alternative measure\nproposed by Canada is reasonably available.\n6 Specifically, in relation to the \"contribution\" element,\nthe Panel erred in finding that the EU Seal Regime as a whole contributes to the identified\nobjective by applying the wrong legal test and failing to articulate with sufficient specificity the\nextent of the contribution. 7 The Panel also failed to properly assess the risks non-fulfilment would\ncreate, or to conduct a relational analysis.8 In relation to its reasoning and findings with respect to\nthe reasonable availability of the alternative measure advanced by Canada, the Panel erred by\ncomparing the wrong aspects of the EU Seal Regime with the alternative measure, 9 by\ndisregarding measures applied by the European Union in comparable situations or similar product\nareas,\n10 and by mis-interpreting and mis-applying Appellate Body jurisprudence.11\nCanada also requests the Appellate Body to find that the Panel acted inconsistently with\nArticle 11 of the DSU by failing to make an objective assessment of the facts pertinent to the\nabove-referenced intermediate findings with respect to Article 2.2 of the TBT Agreement, including\nits consideration and assessment of facts and evidence pertinent to the question of whether the EU\nSeal Regime contributes to the identified objective, and has negatively impacted demand in the\nEuropean Union.\n Third, Canada seeks review by the Appellate Body of the Panel's findings and conclusion with\nrespect to Article XX of the GATT 1994. Canada subm its that the Panel erred in finding that the EU\nSeal Regime is provisionally justified under Article XX(a). Specifically, the Panel failed to interpret\nand apply the first element\n12 of Article XX(a) correctly, by ignoring the words \"to protect\", and\nthereby omitting to determine whether the sale in the European Union of products derived from\ncommercial seal hunts created a risk to an EU public moral. 13 It also erred in its interpretation and\napplication of the necessity test under Article XX(a) with respect to the issues of the contribution\nof the EU Seal Regime to the identified objective, and with respect to the reasonable availability of\nthe alternative measure advanced by Canada already noted above in the context of Canada's\nrequest for review under Article 2.2 of the TBT Agreement.\n14 In addition, although it came to the\ncorrect conclusion that the EU Seal Regime is no t consistent with the requirements of the chapeau\nof Article XX, the Panel erred in its reasoning in coming to this conclusion.15\n Canada also requests the Appellate Body to find that the Panel acted inconsistently with\nArticle 11 of the DSU in relation to its findings under Article XX(a) by failing to make an objective\nassessment of the facts by not taking into account evidence relating to animal welfare standards in\nthe European Union, including standards applied to other wild animal hunts and commercial\nabattoirs.\n16\n\nWT/DS400/AB/R • WT/DS401/AB/R\n\nANNEX 2\n\n29 January 2014\n(14-0508) Page: 1/4\n\nEUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND\nMARKETING OF SEAL PRODUCTS\nNOTIFICATION OF AN APPEAL BY NORWAY\nUNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES\nAND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),\nAND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW\n The following notification, dated 24 January 2014, from the Delegation of Norway, is being\ncirculated to Members.\n\nSettlement Body (“DSB”) of its decision to appeal certain issues of law and legal interpretations in\nthe Panel Report in European Communities – Measures Prohibiting the Importation and Marketing\nof Seal Products (WT/DS401) (“Panel Report”).\n2. Pursuant to Rules 20(1) and 21(1) of the Working Procedures, Norway files this Notice of\nAppeal together with its Appellant’s Submission with the Appellate Body Secretariat.\n3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal includes an\nindicative list of the paragraphs of the Panel Report containing the alleged errors, without\nprejudice to Norway’s ability to rely on other paragraphs of the Panel Report in its appeal.\n\n4. Norway seeks review by the Appellate Body of the following errors of law and legal\ninterpretation by the Panel in its Report, and requests the following findings by the Appellate Body.\nI. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE 2.2 OF THE TBT AGREEMENT\n1. With respect to the Panel’s identification of the objective of the EU Seal\nRegime:1\n5. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the facts as requ ired under Article 11 of the DSU, when it found\n\n1 Panel Report, paras. 7.410 and 8.2(b).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nthat the objectives of the EU Seal Regime do not include protecting the interests of indigenous\ncommunities (“IC”), as reflected in the “IC requirements”2 under the measure, and promoting the\nsustainable management of marine resources (“SR M”), as reflected in the “SRM requirements” 3\nunder the measure; and rather found that the EU Seal Regime pursues a sole “objective” of\na d d r e s s i n g “ t h e m o r a l c o n c e r n s o f t h e E U p u b l i c w i t h r e g a r d t o t h e w e l f a r e o f s e a l s ” .4 I n\nparticular, the Panel erred because:\n it failed properly to consider the text, legislat ive history, structure, design and operation of\nthe EU Seal Regime in identifying the objectiv es of the EU Seal Regime, as required under\nArticle 2.2;5\n in its assessment of the evidence regarding the objectives of the EU Seal Regime, the Panel\nfailed to make an objective assessment of th e facts, as required under Article 11 of the\nDSU;6 and\n assuming it did properly assess the text, legisl ative history, structure, design and operation\nof the EU Seal Regime ( quod non), the Panel erred under Article 2.2 in finding that the IC\nand SRM interests reflected in the IC and SRM requirements do not qualify as objectives.7\n6. For the reasons provided in paragraph 5 above, Norway requests that the Appellate Body\nreverse the Panel’s finding that the objectives of the EU do not include protecting IC interests and\npromoting SRM interests, and that the EU Seal Regime’s sole objective is to address “the moral\nconcerns of the EU public with regard to the welfare of seals”. As a result, the Appellate Body\nshould also reverse the Panel’s ultimate finding, in paragraph 8.2(b) of the Panel Report, that the\nEU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement.\n2. With respect to the Panel’s finding the E U S e a l R e g i m e i s “ n o t m o r e t r a d e\nrestrictive than necessary to fulfil” its objective:8\n7. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the facts as requ ired under Article 11 of the DSU, in finding that\nthe EU Seal Regime is capable of making, and do es make, some contribution to the identified\nobjective of addressing EU public moral concerns.9 In particular, the Panel erred because:\n it failed properly to interpret and apply Article 2.2, by failing to articulate with sufficient\nclarity and precision the degree or extent of the contribution made by the EU Seal Regime to\nits objective, and by concluding that the EU Seal Regime is capable of making, and does\nmake, some contribution to EU public moral concerns;\n10 and\n it failed to make an objective assessment of the facts, as required under Article 11 of the\nDSU, in finding that the EU Seal Regime is capable of making, and does make, some\ncontribution to the identified objective of addressing EU public moral concerns;\n11 and\n\n2 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(1); Implementing Regulation, Exhibit JE-2,\nArticle 3(1).\n3 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2,\nArticle 5(1).\n4 Panel Report, para. 7.410.\n5 Panel Report, paras. 7.372-7.411.\n6 Panel Report, paras. 7.372-7.411.\n7 Panel Report, para. 7.402. See also Panel Report, paras. 7.399 and 7.401.\n8 Panel Report, paras. 7.505 and 8.2(b).\n9 Panel Report, para. 7.460.\n10 Panel Report, paras. 7.441-7.461.\n11 Panel Report, paras. 7.441-7.461.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n the Panel also failed to make an objective assessment of the matter under Article 11 of the\nDSU by failing to address Norway’s claim and argument that three contested conditions\nunder the SRM requirement – that is, the “s ole purpose”, “not-for-profit”, and “non-\nsystematic” requirements\n12 (the “three contested conditions”) – make no contribution to the\nmeasure’s objectives.\n8. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the matter, as required under Article 11 of the DSU, by failing to\nestablish whether the EU Seal Regime gives rise to “arbitrary and unjustifiable discrimination”, as\nrequired by Article 2.2, read in light of the sixth recital of the preamble of the TBT Agreement;\n9. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the matter as re quired under Article 11 of the DSU, in finding\nthat one of the less trade-restrictive alternative measures proposed by Norway was not reasonably\navailable to the European Union, having regard to the level of contribution of the alternative. 13 In\nparticular, the Panel erred because:\n it held the alternative measure up to a benchmark level of contribution that was much\nhigher than the degree of contribution it ha d found was achieved by the EU Seal Regime,\ncontrary to Article 2.2;14 and\n it failed to make an objective assessment of the facts under Article 11 of the DSU, by not\naddressing or making any findings with respect to other less trade-restrictive alternatives\nput forward by Norway.\n10. For the reasons provided in paragraphs 7, 8, and 9 above, Norway requests that the\nAppellate Body reverse the Panel’s finding that the EU Seal Regime is not more trade-restrictive\nthan necessary to fulfil the legitimate objective. 15 As a result, the Appellate Body should also\nreverse the Panel’s ultimate finding, in paragrap h 8.2(b) of the Panel Report, that the EU Seal\nRegime is not inconsistent with Article 2.2 of the TBT Agreement.\nII. REQUEST FOR LIMITED COMPLETION OF THE ANALYSIS UNDER ARTICLE 2.2 OF\nTHE TBT AGREEMENT\n11. If, as requested by Norway above, the Appella te Body reverses, for any reason, the Panel’s\nfindings under Article 2.2 of the TBT Agreement, Norway requests the Appellate Body to complete\nthe legal analysis under Article 2.2 of the TBT Agreement and make the following limited findings:\n that, in addition to pursuing the EU public morals objective, the objectives of the EU Seal\nRegime also include protecting the interests of indigenous communities and promoting\nsustainable marine resource management;\n that promoting sustainable marine resource management is a legitimate objective; and\n that, by virtue of the three contested SRM conditions, the EU Seal Regime is more trade-\nrestrictive than necessary to fulfil its legitimate objectives.\n\n12 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2,\nArticles 5(1) and 5(1)(c).\n13 Panel Report, para. 7.504.\n14 Panel Report, paras. 7.467, 7.478-7.485 and 7.493-7.505.\n15 Panel Report, para. 7.505.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nIII. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE XX OF THE GENERAL\nAGREEMENT ON TARIFFS AND TRADE (“GATT 1994”) AND REQUEST FOR\nCOMPLETION OF THE ANALYSIS UNDER ARTICLE XX OF THE GATT 1994\n1. With respect to the Panel’s finding that the EU Seal Regime is provisionally\njustified under sub-paragraph (a) of Article XX of the GATT 1994:16\n12. The Panel erred in interpreting and applying sub-paragraph (a) of Article XX because it\nexamined whether the EU Seal Regime as a whole was provisionally justified under that provision,\nwhereas it was required, but failed, to consider whether the specific aspects of the measure that\ngive rise to violations of substantive provis ions of the GATT 1994 could fall under, and be\nprovisionally justified by, sub-paragraph (a).\n17 Norway, therefore, requests that the Appellate\nBody reverse the Panel’s findings at paragraphs 7.639 and 8.3(d) that the EU Seal Regime falls\nunder, and is provisionally justified by, sub-paragraph (a).\n13. Norway also requests that the Appellate Body complete the analysis and find that the\nspecific aspects of the measure that give rise to violations of the GATT 1994 do not fall under, and\nare not provisionally justified by, sub-paragraph (a) of Article XX.\n14. If the Appellate Body disagrees with Norway’s requests under paragraphs 12 and 13 above,\nNorway further considers that the Panel erred in interpreting and applying sub-paragraph (a) of\nArticle XX, and failed to make an objective asse ssment of the matter, as required under Article 11\nof the DSU. In particular, the Panel erred because:\n it failed properly to interpret and apply subparagraph (a) of Article XX by finding that the EU\nSeal Regime as a whole contributes “to a certain extent” to the measure’s objective;18\n it failed to make an objective assessment of the facts, as required under Article 11 of the\nDSU, in finding that the EU Seal Regime as a whole contributes “to a certain extent” to the\nmeasure’s objective;19\n it failed to apply the proper legal standard under sub-paragraph (a) of Article XX as regards\na less trade-restrictive alternative measure because it held the alternative measure up to a\nbenchmark level of contribution that was much higher than the degree of contribution it had\nfound was achieved by the EU Seal Regime;\n20 and\n it failed to make an objective assessment of the facts, as required under Article 11 of the\nDSU, by not addressing or making any findings with respect to other less trade-restrictive\nalternatives put forward by Norway.\n15. As a result of the errors identified in paragraph 14 above, Norway requests that the\nAppellate Body reverse the Panel’s ultimate finding at paragraphs 7.639 and 8.3(d).\n2. With respect to the Panel’s finding that the EU Seal Regime reflects arbitrary\nand unjustifiable discrimination under the chapeau of Article XX of the GATT\n1994:21\n16. The Panel erred in interpreting and applying the chapeau of Article XX because, in\ndetermining whether the IC and SRM requirements are applied in a manner that reflect “arbitrary\n\n16 Panel Report, paras. 7.639 and 8.3(d).\n17 Panel Report, paras. 7.618-7.624.\n18 Panel Report, paras. 7.630-7.639.\n19 Panel Report, paras. 7.630-7.639.\n20 Panel Report, para. 7.639.\n21 Panel Report, paras. 7.651 and 8.3(d).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nor unjustifiable discrimination”, it failed to end its analysis upon finding that the IC and SRM\nrequirements are not “rationally connected” to the EU public moral concerns.22\n17. If the Appellate Body disagrees with Norway’s requests under paragraphs 12 and 13 above,\nNorway requests that the Appellate Body modify the reasoning underpinning the Panel’s finding at\nparagraphs 7.651 and 8.3(d) that the measure is not consistent with the requirements of the\nchapeau to Article XX, and uphold that finding, albeit for reasons different than those given by the\nPanel.\n\nWT/DS400/AB/R • WT/DS401/AB/R\n\nANNEX 3\n\n31 January 2014\n(14-0537) Page: 1/4\n Original: English\n\nEUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\nNOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION\nUNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES\nAND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),\nAND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW\n The following notification, dated 29 January 2014, from the Delegation of the European\nUnion, is being circulated to Members.\n\nGoverning the Settlement of Disputes (DSU) and Rule 23 of the Working Procedures for Appellate\nReview, the European Union hereby notifies its decision to appeal to the Appellate Body certain\nissues of law and certain legal interpretations developed by the Panel in European Communities –\nMeasures prohibiting the importation and Marketing of Seal Products (WT/DS400/R, WT/DS401/R)\n(Panel Report).\n1. THE PANEL ERRED BY FINDING THAT THE EU SEAL REGIME IS A TECHNICAL\nREGULATION WITHIN THE MEANING OF THE TBT AGREEMENT\n2. The European Union appeals the Panel's conclusion that the EU Seal Regime is a technical\nregulation within the meaning of Annex 1.1 of the TBT Agreement.\n1\n3. This conclusion is in error for the following reasons: 1) the Panel wrongly interpreted the\nterms \"applicable administrative provisions\" and wrongly concluded that the exceptions under the\nEU Seal Regime constitute applicable administrative provisions; 2 2) the Panel wrongly established\nthe scope of products characteristics under Annex 1:1 of the TBT Agreement, which led it to\nerroneously conclude that the criteria under the exceptions lay down product characteristics\n3;\nand 3) the Panel failed to make a holistic assessment of the measure at issue 4 and, thus, wrongly\nfound that the measure as a whole is a \"technical regulation\" within the meaning of Annex 1:1 of\nthe TBT Agreement.\n5\n\n1 See e.g. Panel report, para. 7.111. See also the conclusion under para. 8.2.a) of both reports.\n2 Panel report, para. 7.108.\n3 Panel report, para. 7.110.\n4 Panel report, para. 7.100, 7.106, footnote 153.\n5 Panel report, paras. 7.111, 7.125.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n4. Reversal of the Panel's conclusion that the EU Seal Regime is a technical regulation would\ndispose of Canada's and Norway's claims under the TBT Agreement. Accordingly, the European\nUnion requests the Appellate Body to find that th e Panel's findings and conclusions with regards to\nArticles 2.1, 2.2, 5.1.2 and 5.2.1 of the TBT Agreement are moot and of no legal effect.\n2. THE PANEL ERRED BY FINDING THAT THE IC EXCEPTION BEARS NO \"RATIONAL\nRELATIONSHIP\" TO THE PRIMARY OBJECTIVE OF THE EU SEAL REGIME\n5. The European Union also appeals the Panel's finding, as part of its analysis under\nArticles 2.1 and 2.2 of the TBT Agreement and under Article XX(a) of the GATT 1994, that \"the IC\nexception does not bear a rational relationship to the objective of addressing the moral concerns of\nthe public on seal welfare\".\n6\n6. This finding is in error because it is based on an incorrect interpretation of the notion of\n\"public morals\", according to which a Member invoking that a measure pursues a public morals\nobjective would have to show that such measure is supported by a majority of its population.\n7. Furthermore, the European Union submits in the alternative that, in reaching its conclusion\nthat the EU public does not support the IC ex ception the Panel failed to make an objective\nassessment of the evidence before it, as required by Article 11 DSU. Specifically, the Panel relied\nupon the following factual evidence: 1) the results of two opinion polls analysed in Canada's Royal\nCommission Report on Sealing7; and 2) the results of a public consultation conducted by the EU\nCommission as part of the preparation of its proposal to the EU legislators.\n8 Yet this evidence lends\nno support to the Panel's appealed finding.\n8. In view of these errors, the European Union requests the Appellate Body to reverse this\nfinding.\n3. THE PANEL ERRED BY FINDING THAT TH E EU SEAL REGIME IS INCONSISTENT\nWITH ARTICLE 2.1 TBT AGREEMENT BE CAUSE THE IC EXCEPTION IS NOT\nDESIGNED AND APPLIED EVEN-HANDEDLY\n9. The European Union also appeals the Panel's finding that the IC exception \"is not designed\nand applied in an even-handed ma nner\" and that, consequently, \"the IC exception of the EU Seal\nRegime is inconsistent with the European Union's obligations under Article 2.1 of the TBT\nAgreement as the European Union has failed to de monstrate that the detrimental impact caused\nby the IC exception on Canadian seal products stems exclusively from a legitimate distinction\".9\n10. This finding is in error because the Panel misinterpreted and misapplied Article 2.1 of the\nTBT Agreement when examining the even-handedne ss in the design and application of the IC\nexception.10 Rather than considering whether the IC exception was designed and applied in a\nreasonable, impartial and harmonious manner, having regard to its objective (i.e., the protection\nof the interest of the Inuit and other indigenous communities traditionally engaged in seal hunting\nfor subsistence purposes), the Panel determined that the IC exception was available de facto\nexclusively to Greenland without examining the acti ons (and omissions) of the relevant Canadian\n(and Canadian Inuit) authorities and operators. The Panel also wrongly focused on the alleged\nsimilarities of Greenland's hunts to the commercial hunts. Those similarities, however, were\nirrelevant for assessing even-handedness, in view of the Panel's earlier finding that the Inuit hunts\nare conducted primarily for subsistence purposes and can be legitimately distinguished from the\ncommercial hunts.\n11\n11. Furthermore, the European Union submits in the alternative that this finding was based on\nseveral material inaccuracies leading to erroneous factual determinations as well as incoherent\n\n6 See e.g. Panel report, para. 7.275.\n7 See e.g. Panel report, footnote 676.\n8 See e.g. Panel report, footnotes 652 and 676.\n9 See e.g. Panel Report, para. 7.319.\n10 Panel Report, para. 7.317.\n11 Panel Report, paras. 7.288 and 7.289.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nreasoning, contrary to the Panel's duties under Article 11 of the DSU. Specifically, the European\nUnion challenges the Panel's finding that \"the IC exception is available de facto exclusively to\nGreenland\"12 based on \"the text of the IC exception, its legislative history, and the actual\napplication of the IC exception\". 13 The European Union also challenges the Panel's findings that\n\"the degree of the commercial aspect of [Greenland's] hunts is comparable to that of the\ncommercial hunts\",14 and that \"the Inuit hunt [in Greenland] bears the greatest similarities to the\ncommercial characteristics of commercial hunts\". 15 The European Union submits that these errors\nare material. Consequently, the European Union requests the Appellate Body to find that the Panel\nfailed to make an objective assessment of the matter, contrary to Article 11 of the DSU, when\nfinding that the IC exception was not currently designed and applied in an even-handed manner.\n16\n12. In view of these fundamental errors, or an y combination thereof, the European Union\nrequests the Appellate Body to reverse the Panel's finding that the distinction made by the IC\nexception between IC and commercial hunts based on the purpose of the hunt \"is not designed\nand applied in an even-handed manner\" and, thus, that \"the IC exception of the EU Seal Regime is\ninconsistent with the European Union's obligations under Article 2.1 of the TBT Agreement as the\nEuropean Union has failed to demonstrate that th e detrimental impact caused by the IC exception\non Canadian seal products stems exclusively from a legitimate distinction\".17\n4. THE PANEL ERRED BY FINDING THAT THE IC EXCEPTION DIMINISHES THE\nCONTRIBUTION OF THE EU SEAL REGIME TO ITS PUBLIC MORALS OBJECTIVE\n13. The European Union appeals the Panel's finding, as part of its analysis under Article 2.2 of\nthe TBT Agreement and Article XX(a) of the GATT 1994, that the IC exception \"diminishes\" the\ncontribution of the EU Seal Regime to its public morals objective.18\n14. This finding is in error because it is premised on the Panel's earlier erroneous finding that\nthe IC exception bears no \"rational relationship\" to the public morals objective pursued by the EU\nSeal Regime. Accordingly, the European Union requests the Appellate Body to reverse this finding.\n5. THE PANEL MADE AN ERRONEOUS INTERP RETATION OF ARTICLES I:1 AND III:4\nOF THE GATT 1994\n15. The European Union appeals the Panel's finding that it \"do[es] not consider that the legal\nstandard with respect to the non-discrimination ob ligation under Article 2.1 of the TBT Agreement\n'equally applies' to claims under Articles I:1 and III:4 of the GATT 1994\" 19. The European Union\nsubmits that the Panel's finding constitutes an erro neous interpretation of Articles I.1 and III:4 of\nthe GATT 1994. Therefore, the European Union re quests the Appellate Body to reverse that\nfinding.\n\n12 Panel Report, paras. 7.314 – 7.317.\n13 Panel Report, para. 7.317.\n14 Panel Report, para. 7.313.\n15 See e.g. Panel Report, para. 7.317.\n16 See e.g. Panel Report, paras. 7.317 and 7.319.\n17 Panel Report, para. 7.319. See also the conclusion under paragraph 8.2 (b) with regard to the\ncomplaint by Canada (DS 400).\n18 See e.g. Panel report, para. 7.460. See also Panel report, paras. 7.447-7.448, 7.451-7.452, 7.466\nand 7.638.\n19 See e.g. Panel Report, para. 7.586.\nWT/DS400/AB/R • WT/DS401/AB/R\n\n6. THE PANEL'S FINDING THAT THE EU SEAL REGIME IS INCONSISTENT WITH\nARTICLE I:1 OF THE GATT IS IN ERROR BECAUSE THE PANEL FAILED TO CONSIDER\nWHETHER THE IC EXCEPTION INVOLV ES A LEGITIMATE REGULATORY\nDISTINCTION\n16. The European Union also appeals the Panel's application of its erroneous interpretation of\nArticle I:1 of the GATT 1994 in reaching its finding that the EU Seal Regime is inconsistent with\nArticle I:1 of the GATT 1994.\n20 Accordingly the European Union requests the Appellate Body to\nreverse that finding.\n7. SUBSIDIARILY, THE PANEL ERRED BY FI NDING THAT THE IC EXCEPTION IS NOT\nJUSTIFIED UNDER ARTICLE XX(A) GATT BECAUSE IT FAILS TO MEET THE\nREQUIREMENTS OF THE CHAPEAU\n17. Were the Appellate Body to uphold the Panel's finding that the IC exception is inconsistent\nwith Article I:1 of the GATT 1994, the European Union appeals the Panel's finding that the IC\nexception is not justified under Article XX(a) of the GATT 1994 because it fails to meet the\nrequirements of the chapeau.\n21\n18. The Panel's analysis of the even-handedness of the IC exception under Article 2.1 of the TBT\nAgreement contained several legal errors. 22 Should the Appellate Body reverse the Panel's finding\nthat the IC exception \"is not designed and applied in an even-handed manner\" and, thus, that \"the\nIC exception of the EU Seal Regime is inconsistent with the European Union's obligations under\nArticle 2.1 of the TBT Agreement as the Europe an Union has failed to demonstrate that the\ndetrimental impact caused by the IC exception on Canadian seal products stems exclusively from a\nlegitimate distinction\",\n23 the European Union requests the Appellate Body to also reverse the\nPanel's finding under the chapeau of Article XX( a) of the GATT 1994. The European Union further\nrequests the Appellate Body to complete the analysis under the chapeau of Article XX(a) of the\nGATT 1994 and find, on the basis of the considerations made before, that the IC exception is not\n\"applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination\nbetween countries where the same conditions prevail, or a disguised restriction on international\ntrade\" and, accordingly, that the IC exception meets the requirements under Article XX(a) of the\nGATT 1994, including its chapeau.\n8. SUBSIDIARILY, THE PANEL ERRED BY FINDING THAT THE EUROPEAN UNION HAD\nFAILED TO ESTABLISH A PRIMA FACIE CASE FOR ITS CLAIM THAT THE IC\nEXCEPTION IS JUSTIFIED UNDER ARTICLE XX(B) GATT\n19. Finally, in the event that the Appellate Body were to 1) uphold the Panel's finding that the\nEU Seal Regime is inconsistent with Article I:1 of the GATT 1994; and 2) reverse the Panel's\nfinding that the EU Seal Regime falls within the scope of GATT Article XX(a), the European Union\nappeals the Panel's finding that \"the European Union has failed to establish a prima facie case for\nits claim under Article XX(b) [of the GATT]\".\n24 The European Union submits that in reaching this\nconclusion the Panel failed to fulfil its duty to conduct an objective assessment of the matter as\nrequired by Article 11 of the DSU. Accordingly, the European Union requests the Appellate Body:\n1) to reverse the Panel's finding that the European Union failed to establish a prima facie case\nunder GATT Article XX(b); and 2) to complete the analysis under GATT Article XX(b) and find that\nthe EU Seal Regime is justified under that provision.\nWT/DS400 R and WTDS401/R.\nWT/DS400/AB/R • WT/DS401/AB/R\n\nANNEX 4\n\n ORGANISATION MONDIALE ORGANIZACIÓN MUNDIAL\n DU COMMERCE DEL COMERCIO\n\nAPPELLATE BODY\n\nProcedural Ruling\n\n1. On 29 January 2014, we received a joint communication from Canada and Norway in the\nabove proceedings. In that letter, Canada and Norw ay request that the oral hearing in this appeal\nbe opened to public observation. Specifically, Canada and Norway request that the Division allow\npublic observation of the statements and answers to questions of the participants, as well as those\nof third participants who agree to make their statements and responses to questions public. They\npropose that public observation be permitted via simultaneous closed-circuit television\nbroadcasting with the option for the transmission to be turned off should a third participant\nindicate that it wishes to keep its oral statem ent confidential. Canada and Norway further request\nand that the Division adopt additional procedures to ensure the security and orderly conduct of the\nproceedings. On that same date, we also received an email communication from the\nEuropean Union, the Other Appellant in these proceedings, stating that it joins Canada's and\nNorway's request for observation by the public of the hearing, and has no objections to the\nproposed additional security arrangements.\n2. On 30 January 2014, we invited the third partie s to comment in writing on the request by\nnoon, on 3 February 2014. By that deadline, we received responses from Japan, Mexico, and the\nUnited States. Japan provided an email communication indicating that it has no objection to\nCanada and Norway's request regarding public observation and logistical arrangements for the oral\nhearing. Mexico also indicated that it does not object to the request of Canada and Norway, but\nthat its position is without prejudice to its systemic views on the public observation of oral\nhearings. The United States indicated its support for the request of the participants regarding the\npublic observation of the hearing, and suggested that the Division accommodate the logistical\nrequests of Canada and Norway to the extent possible to ensure that the participants are\ncomfortable opening the hearing to the public.\n3. We recall that requests to allow public observation of the oral hearing have been made, and\nhave been authorized, in 10 previous appeals.\n1 In its rulings, the Appellate Body has held that it\n\n1 These proceedings are:\n United States / Canada – Continued Suspension of Obligations in the EC – Hormones Dispute\n(WT/DS320/AB/R / WT/DS321/AB/R);\n European Communities – Regime for the Importation, Sale and Distribution of Bananas – Second\nRecourse to Article 21.5 of the DSU by Ecuador (WT/DS27/AB/RW2/ECU) and Recourse to\nArticle 21.5 of the DSU by the United States (WT/DS27/AB/RW/USA);\n United States – Continued Existence and Application of Zeroing Methodology (WT/DS350/AB/R);\n United States – Laws, Regulations and Methodology for Calculating Dumping Margins (\"Zeroing\") –\nRecourse to Article 21.5 of the DSU by the European Communities (WT/DS294/AB/RW);\n United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the\nDSU by Japan (WT/DS322/AB/RW);\n Australia – Measures Affecting the Importation of Apples from New Zealand (WT/DS367/AB/R);\n European Communities and Certain Member States – Measures Affecting Trade in Large Civil\nAircraft (WT/DS316/AB/R);\n United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint)\n(WT/DS353/AB/R);\n United States – Certain Country of Origin Labelling Requirement (WT/DS384/AB/R /\nWT/DS386/AB/R); and\n Canada – Certain Measures Affecting the Renewable Energy Generation Sector (WT/DS412/AB/R) /\nCanada – Measures Relating to the Feed-in Tariff Program (WT/DS4126/AB/R).\nWT/DS400/AB/R • WT/DS401/AB/R\n\nhas the power to authorize such requests by the participants, provided that this does not affect the\nconfidentiality in the relationship between the third participants and the Appellate Body, or impair\nthe integrity of the appellate process. We concur with the reasons previously expressed by the\nAppellate Body, and its interpretation of Article 17.10 of the DSU, in this regard, and consider that\nit applies equally in circumstances such as those prevailing in these appellate proceedings.\n4. In this appeal, Canada and Norway have requested that the Appellate Body allow\nobservation by the public of the oral hearing by means of simultaneous closed-circuit television\nbroadcasting, with the option for the transmission to be turned off should a third participant\nindicate that it wishes to keep its oral statement confidential. We agree that such modalities would\noperate to protect confidential information in the context of a hearing that is open to public\nobservation, and would not have an adverse impact on the integrity of the adjudicative function\nperformed by the Appellate Body. We also consider that during public observation in previous\nappeals, the rights of those third participants that did not wish to have their oral statements made\nsubject to public observation have been fully protected.\n5. For these reasons, the Appellate Body Division in these appellate proceedings authorizes the\npublic observation of the oral hearing on the terms set out below. Accordingly, pursuant to\nRule 16(1) of the Working Procedures for Appella te Review, we adopt the following additional\nprocedures for the purpose of these appellate proceedings:\na. The oral hearing will be open to public observation by means of simultaneous\nclosed-circuit television broadcast, shown in a separate room to which duly registered\ndelegates of WTO Members and members of the general public will have access.\nb. Third participants wishing to maintain the confidentiality of their oral statements and\nresponses to questions will not be subject to public observation.\nc. Any request by a third participant wishing to maintain the confidentiality of its oral\nstatements and responses to questions shou ld be received by the Appellate Body\nSecretariat no later than 17:00 p.m. Geneva time on Monday, 10 March.\nd. An appropriate number of seats will be reserved for delegates of WTO Members that are\nnot participants or third participants in these proceedings in the separate room where\nthe closed-circuit television broadcast will be shown. WTO delegates wishing to observe\nthe oral hearing are requested to register in advance with the Appellate Body\nSecretariat.\ne. Notice of the oral hearing will be provided to the general public on the WTO website.\nMembers of the general public wishing to observe the oral hearing will be required to\nregister in advance with the Appellate Bo dy Secretariat, in accordance with the\ninstructions set out in the WTO website notice.\n6. Further details regarding the logistical arrangements for the oral hearing will be provided\nseparately to the participants and third participants.\nGeneva, 5 February 2014\n\nWT/DS400/AB/R • WT/DS401/AB/R\n\nANNEX 5\n\n ORGANISATION MONDIALE ORGANIZACIÓN MUNDIAL\n DU COMMERCE DEL COMERCIO\n\nAPPELLATE BODY\n\nProcedural Ruling\n1. On 30 January 2014, we received letters from Canada, Norway, and the European Union\nrequesting that we postpone the date for the oral hearing in the above appellate proceedings due\nto certain logistical difficulties faced by the parties in securing reasonable hotel accommodation in\nGeneva during the week of 3 March 2014. Norway and the European Union confirmed that they\nwould be available for a hearing as of the week of 17 March. Canada requested that the hearing be\npostponed until 19 March to allow its legal team to arrive a few days prior.\n2. On 31 January 2014, we invited the third parties to comment in writing on the request\nby 12 noon on 4 February 2014. By that deadline, we received responses from Japan, Mexico, and\nthe United States. Japan and Mexico indicated that they have no objections to the participants'\nrequests. The United States supported the participants' requests, and considered that their\nrequests to change the date of the oral hearing would also satisfy Rule 16(2) of the Working\nProcedures for Appellate Review.\n3. The Division has carefully considered the part icipants' requests and the comments provided\nby the third parties. In light of the difficulties raised and the reasons given by the participants, and\nhaving also considered the size and complexity of the appeals, the Division has scheduled the oral\nhearing for Monday, Tuesday, and Wednesday, 17 to 19 March 2014, in Centre William Rappard,\n154 rue de Lausanne, Geneva.\n4. Attached is an updated Working Schedule for Appeal, which includes the revised dates for\nthe oral hearing. Further details regarding the or al hearing and the date of circulation of the\nAppellate Body reports will be provided to the participants and the third participants in due course.\nGeneva, 5 February 2014"},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.007776"}}},{"rowIdx":6589,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ01_Request_To_Join_Consultations_00.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ01_Request_To_Join_Consultations_00.pdf"},"doc_sequence":{"kind":"number","value":1,"string":"1"},"doc_type":{"kind":"string","value":"Request_To_Join_Consultations"},"doc_type_raw":{"kind":"string","value":"Request to Join Consultations Communication from Iceland"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":0,"string":"0"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"18 November 2009"},"header_codes":{"kind":"string","value":"WT/DS401/2"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":1,"string":"1"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nRequest to Join Consultations\n\nCommunication from Iceland\n\n The following communication, dated 16 Nove mber 2009, from the delegation of Iceland to\nthe delegation of the European Communities, the de legation of Norway and to the Chairman of the\nDispute Settlement Body, is circulated in accordance with Article 4.11 of the DSU.\n\n Pursuant to Article 4.11 of the Understanding on Rules and Procedures Governing the\nSettlement of Disputes (DSU), Iceland hereby notifies its desire to be joined in the consultations\nrequested by Norway in a communication circulated to WTO Members on 10 November 2009\n() entitled .\n\n Fish and other marine products constitutes th e largest share of Iceland's merchandise exports.\nIceland thus has a substantial trade interest in the consultations requested by Norway and in the\ncorrect implementation of the Agreements referr ed to in Norway's re quest to the European\nCommunities.\n\n Iceland looks forward to being informed of the date and venue of the consultations."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.128689"}}},{"rowIdx":6590,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ02_Request_To_Join_Consultations_01.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ02_Request_To_Join_Consultations_01.pdf"},"doc_sequence":{"kind":"number","value":2,"string":"2"},"doc_type":{"kind":"string","value":"Request_To_Join_Consultations"},"doc_type_raw":{"kind":"string","value":"Request to Join Consultations Communication from Canada"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":1,"string":"1"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"24 November 2009"},"header_codes":{"kind":"string","value":"WT/DS401/3"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":1,"string":"1"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nRequest to Join Consultations\n\nCommunication from Canada\n\n The following communication, dated 20 Nove mber 2009, from the delegation of Canada to\nthe delegation of the European Communities, the de legation of Norway and to the Chairman of the\nDispute Settlement Body, is circulated in accordance with Article 4.11 of the DSU.\n\n My authorities have instructed me to re quest, pursuant to Article 4.11 of the WTO\nUnderstanding on Rules and Procedures Government the Settlement of Disputes, that Canada be\njoined in the consultations requested by Norway on 5 November 2009 in a communication circulated\nto Members on 10 November 2009 entitled ().\n\n Canada is a major exporter of seal products , with the European Communities and Norway\nrepresenting significant destination markets for thes e products. Therefore, Canada has a substantial\ntrade interest in these consultations. In addition, Ca nada has requested its own consultations with the\nEuropean Communities with respect to the same measures resulting in severe restrictions on the\nmarketing of seal products in the European Union market (WT/DS400). In that regard, Canada would\nlike to thank the European Comm unities for having agreed to hold consultations for DS400 and\nDS401 jointly on 15 December 2009.\n\n Canada looks forward to receiving the Eur opean Communities' reply to this request."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.129326"}}},{"rowIdx":6591,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ03_Request_To_Join_Consultations_02.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ03_Request_To_Join_Consultations_02.pdf"},"doc_sequence":{"kind":"number","value":3,"string":"3"},"doc_type":{"kind":"string","value":"Request_To_Join_Consultations"},"doc_type_raw":{"kind":"string","value":"Request to Join Consultations Communication from Canada"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":2,"string":"2"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"1 November 2010"},"header_codes":{"kind":"string","value":"WT/DS401/4"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":1,"string":"1"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nRequest to Join Consultations\n\nCommunication from Canada\n\n The following communication, dated 28 Octobe r 2010, from the delegation of Canada to the\ndelegation of the European Union 1, the delegation of Norway and to the Chairman of the Dispute\nSettlement Body, is circulated in accordance with Article 4.11 of the DSU.\n\n My authorities have instructed me to re quest, pursuant to Article 4.11 of the WTO\nUnderstanding on Rules and Procedures Government the Settlement of Disputes, that Canada be\njoined in the supplementary consultations requested by Norway on 19 October 2010 in a\ncommunication circulated to Members on 21 October 2010 entitled ().\n\n As you know, Canada has requested its own s upplementary consultations with the European\nUnion with respect to the same measures resulting in severe restrictions on the marketing of seal\nproducts in the European Union market (WT/DS400).\n\n Canada thanks the European Union for havi ng agreed to hold consultations for DS400 and\nDS401 jointly on 15 December 2009, and requests that the supplementary consultations be conducted\nin a similar manner.\n\n Canada looks forward to receiving the Eu ropean Union's reply to this request."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.129986"}}},{"rowIdx":6592,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ04_Request_For_Establishment_Of_Panel.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ04_Request_For_Establishment_Of_Panel.pdf"},"doc_sequence":{"kind":"number","value":4,"string":"4"},"doc_type":{"kind":"string","value":"Request_For_Establishment_Of_Panel"},"doc_type_raw":{"kind":"string","value":"Request for the Establishment of a Panel by Norway"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"null"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"15 March 2011"},"header_codes":{"kind":"string","value":"WT/DS401/5"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":3,"string":"3"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nRequest for the Establishment of a Panel by Norway\n\n The following communication, dated 14 March 2011, from the delegation of Norway to the\nChairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.\n\n On 5 November 2009, Norway requested cons ultations with the European Union (\"EU\")\n1\nconcerning certain measures affecting trade in seal products, comprising the \"EU seal regime\". 2 On\n15 December 2009, Norway and the EU held consultations on the EU seal regime.\n On 10 August 2010, the EU adopted implementing rules as part of the EU seal regime.\nFollowing this, on 19 October 2010, Norway pr esented a further request for consultations. 3 O n\n1 December 2010, Norway and the EU held further consultations on the EU seal regime.\n Unfortunately, the two rounds of consulta tions have failed to settle the dispute.\n Norway therefore requests the Dispute Settlement Body to establish a panel to examine this\nmatter with standard terms of referenc e, as set out in Article 7.1 of the Understanding on Rules and\nProcedures Governing the Settlement of Disputes (\"DSU\"), pursuant to Articles 4.7 and 6 of the DSU,\nArticle XXIII of the General Agreement on Tariffs and Trade 1994 (\"GATT 1994\"), Article 19 of the\nAgreement on Agriculture and Article 14 of the Agreement on Technical Barriers to Trade (\" TBT\nAgreement\").\nThe measures at issue, which Norway collectively refers to as the \"EU seal regime\", are the following:\n− Regulation (EC) No. 1007/2009 of the European Parliament and of the Council on\ntrade in seal products, adopted on 16 September 2009 (the \"Basic Regulation\");4\n\n− Commission Regulation (EU) No. 737/2010, laying down detailed rules for the\nimplementation of the Basic Regulati on, adopted on 10 August 2010 (the\n\"Implementing Regulation\");5\n\n1 Following the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union has\nsucceeded the European Communities (\"EC\"), including as a Me mber of the WTO. In this request, for the sake\nof simplicity, Norway uses the phrase \"European Union\" or \"EU\" to refer both to the European Communities\nand the European Union, before and after, respectively, the entry into force of the Treaty of Lisbon.\n2 Document WT/DS401/1, G/L/912, G/TBT/D/37, G/AG/GEN/88.\n3 Document WT/DS401/1/Add.1, G/L/912/Add.1, G/TBT/D/37/Add.1, G/AG/GEN/88/Add.1.\n4 Official Journal of the European Union, L 286/36, published 31.10.2009.\n5 Official Journal of the European Union, L 216/1, published 17.08.2010.\n\n− Omissions to adopt adequate proce dures for establishing that seal products\nconforming to the relevant c onditions, set forth in exceptions in the EU seal regime,\nmay be placed on the EU market; and\n\n− Any other related measures adopted by the EU or its member States that provide\nguidance on, amend, supplement, replace, and/or implement the rules set forth in the\nBasic Regulation and Implementing Regulation, whether adopted pursuant to these\nregulations or otherwise.\n The EU seal regime imposes a general prohibition on the importation and sale of processed\nand unprocessed seal products in the EU, thereby de priving Norway of access to a significant market\nfor its exports of these products. The EU seal regi me contains certain exceptions that set forth\nconditions under which seal products may be placed on the EU mark et. However, these exceptions\nappear to discriminate in favour of seal products originating in the EU and in certain third countries.\n\n The EU seal regime also includes elements of a system for certifying that seal products are in\nconformity with the relevant conditions for being placed on the EU market under the exceptions.\nHowever, the EU does not appear to have established adequate procedures for the assessment of\nconformity of imported seal products with the relevant conditions for being placed on the EU market.\n\n As a result, the EU seal regime appears to be inconsistent with the EU’s obligations under the\nAgreement on Agriculture, the TBT Agreement and the GATT 1994. In particular:\n(i) Through the general prohibition and the ex ceptions set out therein, the EU seal\nregime appears to discriminate among like pr oducts originating in different countries,\nin violation of Article I:1 of the GATT 1994 and Article 2.1 of the TBT Agreement;\n(ii) Through the general prohibition and the ex ceptions set out therein, the EU seal\nregime appears to discriminate betw een imported products and like products\noriginating in the EU, in violation of Ar ticle III:4 of the GATT 1994 and Article 2.1\nof the TBT Agreement;\n(iii) By restricting the importation of seal products, the EU seal regime appears to violate\nArticle XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture;\n(iv) By restricting the importation of seal products without that being necessary to achieve\na legitimate objective, and by failing to adopt adequate administrative provisions, the\nEU seal regime appears to create unnecessary obstacles to international trade and,\nthus, violate Article 2.2 of the TBT Agreement ;\n(v) By failing to prepare, adopt and apply c onformity assessment procedures in a way\nthat grants non-discriminatory access to suppliers from WTO Members, and that does\nnot create unnecessary obstacles to international trade, the EU appears to violate both\nsubparagraphs of Article 5.1 of the TBT Agreement;\n(vi) By failing to ensure compliance with the procedural guarantees set forth in Article 5.2\nof the TBT Agreement, the EU appears to violate that provision, including all of its\nsubparagraphs;\n(vii) By failing to base conformity assessment procedures on relevant guides or\nrecommendations completed, or imminently to be completed, by international\nstandardizing bodies, the EU appears to be violating Article 5.4 of the TBT\nAgreement;\n\n(viii) By failing to follow the procedural steps set out in the subparagraphs of Article 5.6 of\nthe TBT Agreement, and in particular by failing properly to notify the procedures for\nassessment of conformity with the requirements of the EU seal regime, the EU has\nacted inconsistently with this provision;\n(ix) By failing to publish prom ptly all conformity assessment procedures to enable\ninterested parties to become acquainted with them, the EU appears to violate Article\n5.8 of the TBT Agreement;\n(x) By imposing unduly burdensome requirements for the recognition of conformity\nassessment bodies, irrespective of whether these offer an equivalent assurance of\nconformity, and by failing to ensure that its conformity assessment procedures permit\nacceptance of the results of conformity assessment procedures carried out in other\nMembers, the EU appears to violate Articles 6.1 and 6.2 of the TBT Agreement;\n(xi) By failing to ensure that local government conformity assessment bodies within the\nEU comply with the requirements laid out in Articles 5 and 6 of the TBT Agreement,\nby encouraging these bodies not to comply with such requirements, and by failing to\nimplement positive measures to ensure comp liance with such requirements, the EU\nappears to violate Articles 7.1, 7.4 and 7.5 of the TBT Agreement;\n(xii) By failing to take reasonable measures to ensure that non-governmental conformity\nassessment bodies within the EU comply with the requirements laid out in Articles 5\nand 6 of the TBT Agreement, by encouraging these bodies not to comply with such\nrequirements, and by relying nonetheless on the results of conformity assessment\nprocedures operated by these bodies, the EU appears to violate Articles 8.1 and 8.2 of\nthe TBT Agreement;\n(xiii) By failing to take reasonable measures to en sure that regional systems for conformity\nassessment comply with the requirements laid out in Articles 5 and 6 of the TBT\nAgreement, by encouraging these systems not to comply with such requirements, and\nby relying nonetheless on these systems, the EU appears to violate Articles 9.2 and\n9.3 of the TBT Agreement.\n These violations appear to nullify or impair bene fits accruing to Norway directly or indirectly\nunder the covered agreements within the meaning of Article XXIII:1(a) of the GATT 1994.\n\n Moreover, the EU seal regime appears to nullif y or impair benefits accruing to Norway under\nthe covered agreements, within the meaning of Ar ticle XXIII:1(b) of the GATT 1994, in particular,\nbenefits accruing to Norway pursuant to tariff co ncessions granted with respect to the various seal\nproducts that can no longer be imported into the EU.\n\n Norway requests that this matter be put on the agenda of the next DSB meeting, scheduled to\nbe held on 25 March 2011."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.131718"}}},{"rowIdx":6593,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ05_Note_By_Secretariat.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ05_Note_By_Secretariat.pdf"},"doc_sequence":{"kind":"number","value":5,"string":"5"},"doc_type":{"kind":"string","value":"Note_By_Secretariat"},"doc_type_raw":{"kind":"string","value":"Constitution of the Panel Established at the Requests of Canada and Norway Note by the Secretariat"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"null"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"5 October 2012"},"header_codes":{"kind":"string","value":"WT/DS400/5; WT/DS401/6; WT/DS400/4; WT/DS401/5"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":2,"string":"2"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nConstitution of the Panel Established at the Requests of Canada and Norway\n\nNote by the Secretariat\n\n1. At its meeting on 25 March 2011, the Disput e Settlement Body (DSB ) established a panel\npursuant to the request of Canada in document , in accordance with Article 6 of the\nUnderstanding on Rules and Procedures Governing the Settlement of Disputes (DSU).\n1 At its meeting\non 21 April 2011, the DSB established a panel pursuan t to the request of Norway in document\n, in accordance with Article 6 of the DSU 2, and agreed, as provided for in Article 9 of\nthe DSU in respect of multiple complainants, th at the panel established on 25 March 2011 to examine\nthe complaint by Canada, will also examine Norway's complaint.\n\n2. The Panel's terms of reference are the following:\n\n\"To examine, in the light of the relevant provisions of the covered agreements cited\nby the parties to the dispute, the matter referred to the DSB by Canada in document\n, and by Norway in document , and to make such findings\nas will assist the DSB in making the recommendations or in giving the rulings\nprovided for in those agreements.\"\n3. On 24 September 2012, Canada and Norway requ ested the Director-General to determine the\ncomposition of the Panel, pursuant to Article 8.7 of the DSU. This paragraph provides:\n\n\"If there is no agreement on the panelists within 20 days after the date of the\nestablishment of a panel, at the request of either party, the Director-General, in\nconsultation with the Chairman of the DSB and the Chairman of the relevant Council\nor Committee, shall determine the com position of the panel by appointing the\npanelists whom the Director-General consid ers most appropriate in accordance with\nany relevant special or additional rules or procedures of the covered agreement or\ncovered agreements which are at issue in th e dispute, after consulting with the parties\nto the dispute. The Chairman of th e DSB shall inform the Members of the\ncomposition of the panel thus formed no later than 10 days after the date the\nChairman receives such a request.\"\n\n1 WT/DSB/M/294.\n2 WT/DSB/M/295.\n\n4. On 4 October 2012, the Director-General accordingly composed the Panel as follows:\n\n Chairperson: Mr Luzius Wasescha\n\n Members: Ms Elizabeth Chelliah\n Ms Patricia Holmes\n\n5. Argentina, Canada (for WT/DS401), China, Colombia, Ecuador, Iceland, Japan, Mexico,\nNamibia (for WT/DS401), Norway (for WT/DS400), and the United States have reserved their rights\nto participate in the Panel proceedings as third parties."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.132449"}}},{"rowIdx":6594,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ06_Note_By_Secretariat_Rev.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ06_Note_By_Secretariat_Rev.pdf"},"doc_sequence":{"kind":"number","value":6,"string":"6"},"doc_type":{"kind":"string","value":"Note_By_Secretariat"},"doc_type_raw":{"kind":"string","value":"Constitution of the Panel Established at the Requests of Canada and Norway Note by the Secretariat Revision"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"string","value":"Rev"},"part_number":{"kind":"null"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"5 November 2012"},"header_codes":{"kind":"string","value":"WT/DS400/5/Rev.1; WT/DS401/6/Rev.1; WT/DS400/4; WT/DS401/5"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":2,"string":"2"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nConstitution of the Panel Established at the Requests of Canada and Norway\n\nNote by the Secretariat\n\nRevision\n\n1. At its meeting on 25 March 2011, the Disput e Settlement Body (DSB ) established a panel\npursuant to the request of Canada in document , in accordance with Article 6 of the\nUnderstanding on Rules and Procedures Governing the Settlement of Disputes (DSU).1 At its meeting\non 21 April 2011, the DSB established a panel pursuan t to the request of Norway in document\n, in accordance with Article 6 of the DSU 2, and agreed, as provided for in Article 9 of\nthe DSU in respect of multiple complainants, th at the panel established on 25 March 2011 to examine\nthe complaint by Canada, will also examine Norway's complaint.\n\n2. The Panel's terms of reference are the following:\n\n\"To examine, in the light of the relevant provisions of the covered agreements cited\nby the parties to the dispute, the matter referred to the DSB by Canada in document\n, and by Norway in document , and to make such findings\nas will assist the DSB in making the recommendations or in giving the rulings\nprovided for in those agreements.\"\n3. On 24 September 2012, Canada and Norway requ ested the Director-General to determine the\ncomposition of the Panel, pursuant to Article 8.7 of the DSU. This paragraph provides:\n\n\"If there is no agreement on the panelists within 20 days after the date of the\nestablishment of a panel, at the request of either party, the Director-General, in\nconsultation with the Chairman of the DSB and the Chairman of the relevant Council\nor Committee, shall determine the com position of the panel by appointing the\npanelists whom the Director-General consid ers most appropriate in accordance with\nany relevant special or additional rules or procedures of the covered agreement or\ncovered agreements which are at issue in th e dispute, after consulting with the parties\nto the dispute. The Chairman of th e DSB shall inform the Members of the\ncomposition of the panel thus formed no later than 10 days after the date the\nChairman receives such a request.\"\n\n1 WT/DSB/M/294.\n2 WT/DSB/M/295.\n\n4. On 4 October 2012, the Director-General accordingly composed the Panel as follows:\n\n Chairperson: Mr Luzius Wasescha\n\n Members: Ms Elizabeth Chelliah\n Ms Patricia Holmes\n\n5. Argentina, Canada (for WT/DS401), China, Colombia, Ecuador, Iceland, Japan, Mexico,\nNamibia (for WT/DS401), Norway (for WT/DS400), the Russian Federation\n3, and the United States\nhave reserved their rights to participate in the Panel proceedings as third parties."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.133256"}}},{"rowIdx":6595,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ07_Working_Procedures.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ07_Working_Procedures.pdf"},"doc_sequence":{"kind":"number","value":7,"string":"7"},"doc_type":{"kind":"string","value":"Working_Procedures"},"doc_type_raw":{"kind":"string","value":"AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"null"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS NOTIFICATION OF AN APPEAL BY NORWAY UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW"},"date":{"kind":"string","value":"29 January 2014"},"header_codes":{"kind":"string","value":"WT/DS401/9"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":4,"string":"4"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND\nMARKETING OF SEAL PRODUCTS\nNOTIFICATION OF AN APPEAL BY NORWAY\nUNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES\nAND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),\nAND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW\n The following notification, dated 24 January 2014, from the Delegation of Norway, is being\ncirculated to Members.\n\nSettlement Body (“DSB”) of its decision to appeal certain issues of law and legal interpretations in\nthe Panel Report in European Communities – Measures Prohibiting the Importation and Marketing\nof Seal Products (WT/DS401) (“Panel Report”).\n2. Pursuant to Rules 20(1) and 21(1) of the Working Procedures, Norway files this Notice of\nAppeal together with its Appellant’s Submission with the Appellate Body Secretariat.\n3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal includes an\nindicative list of the paragraphs of the Panel Report containing the alleged errors, without\nprejudice to Norway’s ability to rely on other paragraphs of the Panel Report in its appeal.\n\n4. Norway seeks review by the Appellate Body of the following errors of law and legal\ninterpretation by the Panel in its Report, and requests the following findings by the Appellate Body.\nI. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE 2.2 OF THE TBT AGREEMENT\n1. With respect to the Panel’s identification of the objective of the EU Seal\nRegime:1\n5. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the facts as requ ired under Article 11 of the DSU, when it found\nthat the objectives of the EU Seal Regime do not include protecting the interests of indigenous\ncommunities (“IC”), as reflected in the “IC requirements”2 under the measure, and promoting the\nsustainable management of marine resources (“SR M”), as reflected in the “SRM requirements” 3\nunder the measure; and rather found that the EU Seal Regime pursues a sole “objective” of\n\n1 Panel Report, paras. 7.410 and 8.2(b).\n2 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(1); Implementing Regulation, Exhibit JE-2,\nArticle 3(1).\n3 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2,\nArticle 5(1).\n\na d d r e s s i n g “ t h e m o r a l c o n c e r n s o f t h e E U p u b l i c w i t h r e g a r d t o t h e w e l f a r e o f s e a l s ” .4 I n\nparticular, the Panel erred because:\n it failed properly to consider the text, legislat ive history, structure, design and operation of\nthe EU Seal Regime in identifying the objectiv es of the EU Seal Regime, as required under\nArticle 2.2;5\n in its assessment of the evidence regarding the objectives of the EU Seal Regime, the Panel\nfailed to make an objective assessment of th e facts, as required under Article 11 of the\nDSU;6 and\n assuming it did properly assess the text, legisl ative history, structure, design and operation\nof the EU Seal Regime ( quod non), the Panel erred under Article 2.2 in finding that the IC\nand SRM interests reflected in the IC and SRM requirements do not qualify as objectives.7\n6. For the reasons provided in paragraph 5 above, Norway requests that the Appellate Body\nreverse the Panel’s finding that the objectives of the EU do not include protecting IC interests and\npromoting SRM interests, and that the EU Seal Regime’s sole objective is to address “the moral\nconcerns of the EU public with regard to the welfare of seals”. As a result, the Appellate Body\nshould also reverse the Panel’s ultimate finding, in paragraph 8.2(b) of the Panel Report, that the\nEU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement.\n2. With respect to the Panel’s finding the E U S e a l R e g i m e i s “ n o t m o r e t r a d e\nrestrictive than necessary to fulfil” its objective:8\n7. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the facts as requ ired under Article 11 of the DSU, in finding that\nthe EU Seal Regime is capable of making, and do es make, some contribution to the identified\nobjective of addressing EU public moral concerns.9 In particular, the Panel erred because:\n it failed properly to interpret and apply Article 2.2, by failing to articulate with sufficient\nclarity and precision the degree or extent of the contribution made by the EU Seal Regime to\nits objective, and by concluding that the EU Seal Regime is capable of making, and does\nmake, some contribution to EU public moral concerns;\n10 and\n it failed to make an objective assessment of the facts, as required under Article 11 of the\nDSU, in finding that the EU Seal Regime is capable of making, and does make, some\ncontribution to the identified objective of addressing EU public moral concerns;\n11 and\n the Panel also failed to make an objective assessment of the matter under Article 11 of the\nDSU by failing to address Norway’s claim and argument that three contested conditions\nunder the SRM requirement – that is, the “s ole purpose”, “not-for-profit”, and “non-\nsystematic” requirements12 (the “three contested conditions”) – make no contribution to the\nmeasure’s objectives.\n8. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the matter, as required under Article 11 of the DSU, by failing to\nestablish whether the EU Seal Regime gives rise to “arbitrary and unjustifiable discrimination”, as\nrequired by Article 2.2, read in light of the sixth recital of the preamble of the TBT Agreement;\n\n4 Panel Report, para. 7.410.\n5 Panel Report, paras. 7.372-7.411.\n6 Panel Report, paras. 7.372-7.411.\n7 Panel Report, para. 7.402. See also Panel Report, paras. 7.399 and 7.401.\n8 Panel Report, paras. 7.505 and 8.2(b).\n9 Panel Report, para. 7.460.\n10 Panel Report, paras. 7.441-7.461.\n11 Panel Report, paras. 7.441-7.461.\n12 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2,\nArticles 5(1) and 5(1)(c).\n\n9. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement, and failed to\nmake an objective assessment of the matter as re quired under Article 11 of the DSU, in finding\nthat one of the less trade-restrictive alternative measures proposed by Norway was not reasonably\navailable to the European Union, having regard to the level of contribution of the alternative. 13 In\nparticular, the Panel erred because:\n it held the alternative measure up to a benchmark level of contribution that was much\nhigher than the degree of contribution it ha d found was achieved by the EU Seal Regime,\ncontrary to Article 2.2;14 and\n it failed to make an objective assessment of the facts under Article 11 of the DSU, by not\naddressing or making any findings with respect to other less trade-restrictive alternatives\nput forward by Norway.\n10. For the reasons provided in paragraphs 7, 8, and 9 above, Norway requests that the\nAppellate Body reverse the Panel’s finding that the EU Seal Regime is not more trade-restrictive\nthan necessary to fulfil the legitimate objective. 15 As a result, the Appellate Body should also\nreverse the Panel’s ultimate finding, in paragrap h 8.2(b) of the Panel Report, that the EU Seal\nRegime is not inconsistent with Article 2.2 of the TBT Agreement.\nII. REQUEST FOR LIMITED COMPLETION OF THE ANALYSIS UNDER ARTICLE 2.2 OF\nTHE TBT AGREEMENT\n11. If, as requested by Norway above, the Appella te Body reverses, for any reason, the Panel’s\nfindings under Article 2.2 of the TBT Agreement, Norway requests the Appellate Body to complete\nthe legal analysis under Article 2.2 of the TBT Agreement and make the following limited findings:\n that, in addition to pursuing the EU public morals objective, the objectives of the EU Seal\nRegime also include protecting the interests of indigenous communities and promoting\nsustainable marine resource management;\n that promoting sustainable marine resource management is a legitimate objective; and\n that, by virtue of the three contested SRM conditions, the EU Seal Regime is more trade-\nrestrictive than necessary to fulfil its legitimate objectives.\nIII. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE XX OF THE GENERAL\nAGREEMENT ON TARIFFS AND TRADE (“GATT 1994”) AND REQUEST FOR\nCOMPLETION OF THE ANALYSIS UNDER ARTICLE XX OF THE GATT 1994\n1. With respect to the Panel’s finding that the EU Seal Regime is provisionally\njustified under sub-paragraph (a) of Article XX of the GATT 1994:16\n12. The Panel erred in interpreting and applying sub-paragraph (a) of Article XX because it\nexamined whether the EU Seal Regime as a whole was provisionally justified under that provision,\nwhereas it was required, but failed, to consider whether the specific aspects of the measure that\ngive rise to violations of substantive provis ions of the GATT 1994 could fall under, and be\nprovisionally justified by, sub-paragraph (a).\n17 Norway, therefore, requests that the Appellate\nBody reverse the Panel’s findings at paragraphs 7.639 and 8.3(d) that the EU Seal Regime falls\nunder, and is provisionally justified by, sub-paragraph (a).\n\n13 Panel Report, para. 7.504.\n14 Panel Report, paras. 7.467, 7.478-7.485 and 7.493-7.505.\n15 Panel Report, para. 7.505.\n16 Panel Report, paras. 7.639 and 8.3(d).\n17 Panel Report, paras. 7.618-7.624.\n\n13. Norway also requests that the Appellate Body complete the analysis and find that the\nspecific aspects of the measure that give rise to violations of the GATT 1994 do not fall under, and\nare not provisionally justified by, sub-paragraph (a) of Article XX.\n14. If the Appellate Body disagrees with Norway’s requests under paragraphs 12 and 13 above,\nNorway further considers that the Panel erred in interpreting and applying sub-paragraph (a) of\nArticle XX, and failed to make an objective asse ssment of the matter, as required under Article 11\nof the DSU. In particular, the Panel erred because:\n it failed properly to interpret and apply subparagraph (a) of Article XX by finding that the EU\nSeal Regime as a whole contributes “to a certain extent” to the measure’s objective;18\n it failed to make an objective assessment of the facts, as required under Article 11 of the\nDSU, in finding that the EU Seal Regime as a whole contributes “to a certain extent” to the\nmeasure’s objective;19\n it failed to apply the proper legal standard under sub-paragraph (a) of Article XX as regards\na less trade-restrictive alternative measure because it held the alternative measure up to a\nbenchmark level of contribution that was much higher than the degree of contribution it had\nfound was achieved by the EU Seal Regime;\n20 and\n it failed to make an objective assessment of the facts, as required under Article 11 of the\nDSU, by not addressing or making any findings with respect to other less trade-restrictive\nalternatives put forward by Norway.\n15. As a result of the errors identified in paragraph 14 above, Norway requests that the\nAppellate Body reverse the Panel’s ultimate finding at paragraphs 7.639 and 8.3(d).\n2. With respect to the Panel’s finding that the EU Seal Regime reflects arbitrary\nand unjustifiable discrimination under the chapeau of Article XX of the GATT\n1994:21\n16. The Panel erred in interpreting and applying the chapeau of Article XX because, in\ndetermining whether the IC and SRM requirements are applied in a manner that reflect “arbitrary\nor unjustifiable discrimination”, it failed to end its analysis upon finding that the IC and SRM\nrequirements are not “rationally connected” to the EU public moral concerns.22\n17. If the Appellate Body disagrees with Norway’s requests under paragraphs 12 and 13 above,\nNorway requests that the Appellate Body modify the reasoning underpinning the Panel’s finding at\nparagraphs 7.651 and 8.3(d) that the measure is not consistent with the requirements of the\nchapeau to Article XX, and uphold that finding, albeit for reasons different than those given by the\nPanel."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.136160"}}},{"rowIdx":6596,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ08_Communication_00.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ08_Communication_00.pdf"},"doc_sequence":{"kind":"number","value":8,"string":"8"},"doc_type":{"kind":"string","value":"Communication"},"doc_type_raw":{"kind":"string","value":"COMMUNICATION FROM"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":0,"string":"0"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM NORWAY AND THE EUROPEAN UNION CONCERNING ARTICLE 21.3(C) OF THE DSU"},"date":{"kind":"string","value":"30 July 2014"},"header_codes":{"kind":"string","value":"WT/DS401/15; WT/DS401/AB/R; WT/DS401/R; WT/DS401/R/Add.1"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":1,"string":"1"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND\nMARKETING OF SEAL PRODUCTS\nCOMMUNICATION FROM NORWAY AND THE EUROPEAN UNION CONCERNING\nARTICLE 21.3(C) OF THE DSU\nThe following communication, dated 24 July 2014, from the delegation of Norway and the\ndelegation of the European Union to the Chairper son of the Dispute Settlement Body, is circulated\nat the request of these delegations.\n\nOn 18 June 2014, the Dispute Settlement Body (\"DSB\") adopted its recommendations and rulings\nin the dispute European Communities – Measures Prohibiting the Importation and Marketing of\nSeal Products (, and ). At the meeting of the\nDSB held on 10 July 2014, the European Union stated that it intends to implement the\nrecommendations and rulings of the DSB in this dispute in a manner that respects its WTO\nobligations. The European Union also said that it would need a reasonable period of time for\nimplementation.\n\nArticle 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of\nDisputes (\"DSU\") provides that, in the absence of an agreement between the parties on a period of\ntime, the reasonable period of time shall be de termined \"through binding arbitration within 90\ndays after the date of adoption of the recommendations and rulings\".\n\nIn order to allow sufficient time for the parties to discuss a mutually agreed period, Norway and\nthe European Union (i) agree that, in the event an arbitration under Article 21.3(c) of the DSU is\nrequested, it shall be completed no later than 60 days after the date of the appointment of an\narbitrator, unless the arbitrator, following consultation with the parties, considers that additional\ntime is required and (ii) hereby confirm that any award of the arbitrator (including an award not\nmade within 90 days after the date of adoption of the DSB recommendations and rulings) shall be\ndeemed to be an award of the arbitrator for the purposes of Article 21.3(c) of the DSU in\ndetermining the reasonable period of time for the European Union to implement the\nrecommendations and rulings of the DSB.\n\nWe request that you circulate this notification to the Members of the DSB.\n\nFor Norway\n\n(Signed)\nHarald NEPLE\nPermanent Representative of\nNorway to the WTO\n For the European Union\n\n(Signed)\nAngelos PANGRATIS\nPermanent Representative of\nthe European Union to the WTO"},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.137005"}}},{"rowIdx":6597,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ09_Communication_01.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ09_Communication_01.pdf"},"doc_sequence":{"kind":"number","value":9,"string":"9"},"doc_type":{"kind":"string","value":"Communication"},"doc_type_raw":{"kind":"string","value":"communication from"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":1,"string":"1"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU"},"date":{"kind":"string","value":"8 September 2014"},"header_codes":{"kind":"string","value":"WT/DS401/16"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":1,"string":"1"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND\nMARKETING OF SEAL PRODUCTS\nAGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU\nThe following communication, dated 5 September 2014, from the delegation of Norway and the\ndelegation of the European Union to the Chairper son of the Dispute Settlement Body, is circulated\nin accordance with Article 21.3(b) of the DSU.\n\nWe wish to inform you that, with reference to our previous communication from 24 July 2014 and\npursuant to Article 21.3(b) of the Understa nding on Rules and Procedures Governing the\nSettlement of Disputes, Norway and the European Union have agreed that the reasonable period of\ntime for the European Union to implement the recommendations and rulings of the Dispute\nSettlement Body (DSB) in the dispute European Communities – Measures Prohibiting the\nImportation and Marketing of Seal Products (DS401) shall be 16 months from 18 June 2014, i.e.\nthe date of adoption of the DSB’s recommendat ions and rulings. Accordingly, the reasonable\nperiod of time will expire on 18 October 2015.\n\nWe request that you circulate this notification to the Members of the DSB.\n\nFor Norway\n\n(Signed)\nMonica Nagelgaard\nDeputy Permanent Representative\nof Norway to the WTO\n\n For the European Union\n\n(Signed)\nDetlev Brauns\nChargé d'Affaires a.i."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.137509"}}},{"rowIdx":6598,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ10_Request_For_Consultations_00.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ10_Request_For_Consultations_00.pdf"},"doc_sequence":{"kind":"number","value":10,"string":"10"},"doc_type":{"kind":"string","value":"Request_For_Consultations"},"doc_type_raw":{"kind":"string","value":"Request for Consultations by Norway Addendum"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":0,"string":"0"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"21 October 2010"},"header_codes":{"kind":"string","value":"WT/DS401/1/Add.1; WT/DS401/1; G/L/912/Add.1; G/TBT/D/37/Add.1; G/AG/GEN/88/Add.1; G/L/912; G/TBT/D/37; G/AG/GEN/88"},"agreement_indicators":{"kind":"string","value":"Agriculture (AG); General Council; Technical Barriers to Trade (TBT)"},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":2,"string":"2"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nRequest for Consultations by Norway\n\nAddendum\n\n The following communication, dated 19 Octobe r 2010, from the delegation of Norway to the\ndelegation of the European Union\n∗ and to the Chairman of the Dis pute Settlement Body, is circulated\nin accordance with Article 4.4 of the DSU.\n\n On 5 November 2009, Norway requested c onsultations with the European Communities\n(\"EC\") concerning certain measures affecting trade in seal products (Document ,\n, , ). The present request complements, constitutes an addendum\nto, and must be read with, the original request for consultations presented on 5 November 2009.\n\n On 15 December 2009, Norway and the European Union (\"EU\") held consultations on the EU\nseal regime.\n\n On 10 August 2010, the EU adopted Commission Regulation (EU) No. 737/2010 laying down\nrules for the implementation of the Regulation.\n\n Pursuant to Article 4 of the Understanding on Rules and Procedures Governing the\nSettlement of Disputes , Article XXII of the General Agreement on Tariffs and Trade 1994\n(\"GATT 1994\"), Article 19 of the Agreement on Agriculture , and Article 14 of the Agreement on\nTechnical Barriers to Trade (\"TBT Agreement\"), Norway hereby renews its request for consultations\nwith the EU concerning certain measures affecting trade in seal products and collectively referred to\nas the \"EU seal regime\". The measures at issue include:\n\n− Regulation (EC) No. 1007/2009 of the European Parliament and of the Council on\ntrade in seal products, adopted on 16 September 2009 (the \"Regulation\"), which\nestablishes a harmonized EU regime for the importation and marketing of seal\nproducts;\n1\n\n∗ On 1 December 2009, the Treaty of Lisbon amending the Treaty on European Union and the Treaty\nestablishing the European Community (done at Lisbon, 13 December 2007) entered into force. On\n29 November 2009, the WTO received a Verbal Note (WT/L/779) from the Council of the European Union and\nthe Commission of the European Communities stating that, by virtue of the Treaty of Lisbon , as of\n1 December 2009, the European Union replaces and succeeds the European Community.\n1 Official Journal of the European Union, L 286/36, published 31.10.2009.\nWT/DS401/1/Add.1, G/L/912/Add.1,\nG/TBT/D/37/Add.1, G/AG/GEN/88/Add.1\n\n− Commission Regulation (EU) No. 737/2010, adopted on 10 August 2010 laying down\ndetailed rules for the implementation of the Regulation (the \"Implementing\nRegulation\");\n2\n− omissions to adopt adequate procedur es for establishing that seal products\nconforming to the relevant conditions in the EU seal regime may be placed on the EU\nmarket; and\n− any other related measures adopted by the EU or its member States that guide,\namend, supplement, replace, and/or implement the rules set forth in the Regulation\nand Implementing Regulation, whether adopt ed pursuant to these regulations or\notherwise.\n The EU seal regime imposes a general prohibition on the importation and sale of processed\nand unprocessed seal products in the EU, thereby de priving Norway of access to a significant market\nfor its exports of these products. The EU seal regi me contains certain exceptions that set forth\ncircumstances in which seal products may be pl aced on the EU market. However, these exceptions\nappear to discriminate in favour of seal products orig inating in the EU and in certain third countries.\nThe EU seal regime also includes elements of a system for certifying that seal products are in\nconformity with the relevant condi tions for being placed on the EU market. This system, too, appears\nto be discriminatory and trade-restrictive in a num ber of respects. Moreover, the Regulation and the\nImplementing Regulation do not appear to establi sh adequate procedures for the assessment of\nconformity of imported seal products with the relevant conditions for being placed on the EU market.\n\n The EU seal regime appears to be inconsis tent with the EU’s obligations under the Agreement\non Agriculture, the TBT Agreement and the GATT 1994, in particular:\n\n(i) Article 4.2 of the Agreement on Agriculture;\n(ii) Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT\nAgreement; and,\n(iii) Articles I:1, III:4, and XI:1 of the GATT 1994.\n These violations appear to nullify or impair bene fits accruing to Norway directly or indirectly\nunder the covered agreements within the meaning of Article XXIII:1(a) of the GATT 1994.\n\n Moreover, the EU seal regime appears to nu llify or impair benefits accruing to Norway\ndirectly or indirectly under the covered agreements within the meaning of Article XXIII:1(b) of the\nGATT 1994.\n\n Norway reserves its rights to raise additional matters during the course of these consultations\nand in any future request for panel proceedings.\n\n Norway looks forward to the EU’s reply to this request, and to fixing a mutually acceptable\ndate for consultations."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.138753"}}},{"rowIdx":6599,"cells":{"folder_number":{"kind":"string","value":"401"},"case_number":{"kind":"string","value":"401"},"original_filename":{"kind":"string","value":"DS401_SEQ11_Request_For_Consultations_01.pdf"},"new_filename":{"kind":"string","value":"DS401_SEQ11_Request_For_Consultations_01.pdf"},"doc_sequence":{"kind":"number","value":11,"string":"11"},"doc_type":{"kind":"string","value":"Request_For_Consultations"},"doc_type_raw":{"kind":"string","value":"Request for Consultations by Norway"},"doc_class":{"kind":"string","value":"NUMBERED"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":1,"string":"1"},"case_title":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS"},"date":{"kind":"string","value":"10 November 2009"},"header_codes":{"kind":"string","value":"WT/DS401/1; G/L/912; G/TBT/D/37; G/AG/GEN/88"},"agreement_indicators":{"kind":"string","value":"Agriculture (AG); General Council; Technical Barriers to Trade (TBT)"},"complainant":{"kind":"string","value":"['Norway']"},"respondent":{"kind":"string","value":"['EU']"},"third_parties":{"kind":"string","value":"['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at\n 8 October 2014\n\n\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by Norway. (See also DS400)\nOn 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, and subsequent related measures (the “EC seal regime”). According to Norway, the EC seal regime prohibits the importation and sale of processed and unprocessed seal products, while containing certain exceptions that afford privileged access to the EU market to seal products originating in the EC and certain third countries, but not Norway.\nNorway claims that the above measures are inconsistent with the obligations of the European Communities under Article 4.2 of the Agriculture Agreement; Article 2.1 and 2.2 of the TBT Agreement; and Articles I:1, III:4 and XI:1 of the GATT 1994.\nOn 16 November 2009, Iceland requested to join the consultations. On 20 November 2009, Canada requested to join the consultations.\nOn 19 October 2010, Norway renewed its consultation request with respect to the EU seal regime, which, in addition to Regulation (EC) No. 1007/2009, also includes: Commission Regulation (EU) No. 737/2010 (laying down rules for the implementation of Regulation (EC) No. 1007/2009); omissions to adopt adequate procedures for establishing that seal products conforming to the relevant conditions in the EU seal regime may be placed on the EU market; and any other related implementing measures.\nNorway claims that the EU seal regime imposes a prohibition on the importation and sale of seal products and establishes certain exceptions that discriminate in favour of seal products originated in the EU and certain third countries. Norway further claims that the EU seal regime also includes elements of a system for certifying that seal products are in conformity with the relevant conditions for being placed on the EU market that is discriminatory and trade-restrictive in a number of respects. Moreover, Regulation (EC) No. 1007/2009 and requested supplementary consultations concerning Commission Regulation (EU) No. 737/2010 do not establish adequate procedures for the assessment of conformity of imported seal products with the relevant conditions for being placed on the EU market.\nNorway claims that the EU seal regime is inconsistent, inter alia , with Articles 2.1, 2.2, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 7.1, 7.4, 7.5, 8.1 and 8.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement.\nOn 28 October 2010, Canada requested to join the supplementary consultations.\nOn 14 March 2011, Norway requested the establishment of a panel. At its meeting on 25 March 2011, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 21 April 2011, the DSB established a panel. As provided for in Article 9.1 of the DSU with regard to multiple complainants, the DSB agreed that the panel established at the DSB meeting on 25 March 2011 to examine the complaint by Canada (DS400), would also examine this complaint. Argentina, Canada, China, Colombia, Ecuador, Iceland, Japan, Mexico, Namibia and the United States reserved their third party rights. Subsequently, the Russian Federation reserved its third party rights. On 24 September 2012, Canada and Norway requested the Director‑General to determine the composition of the panel. On 4 October 2012, the Director-General composed the panel. On 4 April 2013, the Chair of the Panel informed the DSB that the panel expects to issue its final report to the parties by October 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 25 November 2013, the panel report was circulated to Members.\nOn 24 January 2014, Norway notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 29 January 2014, the European Union notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations developed by the panel. On 24 March 2014, the Chair of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its report within 60 days nor within the 90-day time-frame provided for in Article 17.5 of the DSU due to the size of the appeals, and the number and complexity of issues raised. The Appellate Body estimated that the report would be circulated no later than 20 May 2014. On 16 May 2014, the Chair of the Appellate Body informed the DSB that due to the time required for translation and the caseload that the Appellate Body is currently facing, it would not be possible to circulate its report by 20 May 2014. The Appellate Body report would be circulated on 22 May 2014.\nOn 22 May 2014, the Appellate Body report was circulated to Members.\nAt its meeting on 18 June 2014, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 10 July 2014, the European Union informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respected its WTO obligations and that it would need a reasonable period of time to do so. On 5 September 2014, Norway and the European Union informed the DSB that they had agreed that the reasonable period of time for the European Union to implement the DSB recommendations and rulings shall be 16 months from the date of adoption of the panel report. Accordingly, the reasonable period of time expires on 18 October 2015."},"page_count":{"kind":"number","value":2,"string":"2"},"clean_text":{"kind":"string","value":"EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION\nAND MARKETING OF SEAL PRODUCTS\n\nRequest for Consultations by Norway\n\n The following communication, dated 5 November 2009, from the delegation of Norway to the\ndelegation of the European Communities and to th e Chairman of the Dispute Settlement Body, is\ncirculated in accordance with Article 4.4 of the DSU.\n\n Pursuant to Article 4 of the Understanding on Rules and Procedures Governing the\nSettlement of Disputes , Article XXII of the General Agreement on Tariffs and Trade 1994\n(\"GATT 1994\"), Article 19 of the Agreement on Agriculture , and Article 14 of the Agreement on\nTechnical Barriers to Trade (\" TBT Agreement \"), Norway hereby requests consultations with the\nEuropean Communities (\"EC\") concerning certain me asures affecting trade in seal products. The\nmeasures at issue, which are collectively referred to as the \"EC seal regime\", include:\n\n− Regulation (EC) No. 1007/2009 of the European Parliament and of the Council on\ntrade in seal products, adopted on 16 September 2009 (the \"Regulation\"), which\nestablishes a harmonized EC regime for the importation and marketing of seal\nproducts;\n1 and\n\n− any related measures adopted by the EC or its member States that guide, amend,\nsupplement, replace, and/or implement the rules set forth in the Regulation, whether\nadopted pursuant to the Regulation or not.\n\n The EC seal regime imposes a general prohibition on the importation and sale of processed\nand unprocessed seal products in the EC, thereby de priving Norway of access to a significant market\nfor its exports of these products. The Regulation cont ains certain exceptions that appear to afford\nprivileged access to the EU market to seal products originating in the EC and in certain third\ncountries, but not Norway.\n\n The EC seal regime appears to be incons istent with the EC's obligations under the Agreement\non Agriculture, the TBT Agreement and the GATT 1994, in particular:\n\n (i) Article 4.2 of the Agreement on Agriculture;\n (ii) Articles 2.1 and 2.2 of the TBT Agreement; and,\n (iii) Articles I:1, III:4, and XI:1 of the GATT 1994.\n\n1 Official Journal of the European Union, L 286/36, published 31.10.2009.\nWT/DS401/1, G/L/912,\nG/TBT/D/37, G/AG/GEN/88\n\n These violations appear to nullify or impair bene fits accruing to Norway directly or indirectly\nunder the covered agreements within the meaning of Article XXIII:1(a) of the GATT 1994.\n\n Moreover, the EC seal regime appears to nu llify or impair benefits accruing to Norway\ndirectly or indirectly under the covered agreements within the meaning of Article XXIII:1(b) of the\nGATT 1994.\n\n Norway reserves its rights to raise additional matters during the course of these consultations\nand in any future request for panel proceedings.\n\n Norway looks forward to the EC's reply to this request, and to fixing a mutually acceptable\ndate for consultations."},"processing_date":{"kind":"string","value":"2026-03-15T15:54:33.139579"}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":65,"numItemsPerPage":100,"numTotalItems":9414,"offset":6500,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc3OTU5NDY2OCwic3ViIjoiL2RhdGFzZXRzL2RlYW4yMjAyOS9XVE9fRG9jcyIsImV4cCI6MTc3OTU5ODI2OCwiaXNzIjoiaHR0cHM6Ly9odWdnaW5nZmFjZS5jbyJ9.srp2yBD1-ruvjGsWeExe4wyceGf7uxR-8eA-gzJlFZqV1Jru-E2Oev4Q5gzD4eP_TZNeH_JvQn2krbhCFIwiCQ","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":9414,"numBytesParquet":235278256}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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397 | 397 | DS397_SEQ41_Report_Of_Appellate_Body_02.pdf | DS397_SEQ41_Report_Of_Appellate_Body_02.pdf | 41 | Report_Of_Appellate_Body | Report of the Appellate Body | AB_REPORT | null | 2 | EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA AB-2015-7 | 18 January 2016 | WT/DS397/AB/RW | ['China'] | ['EU'] | ['Brazil', 'Canada', 'Chile', 'Colombia', 'India', 'Japan', 'Norway', 'Taiwan', 'Thailand', 'Turkey', 'U.S.'] | Implementation & Compliance | Art. 6, 9, 5, 2, 3, 4 Anti-dumpingArt. I, X:3(a), VI:1 GATT 1994Art. XVI:4 Agreement Establishing the World Trade Organization | The summary below was up-to-date at
22 February 2016
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 31 July 2009, China requested consultations with the European Communities concerning Article 9(5) of Council Regulation (EC) No. 384/96 (the EC's Basi... | 98 | EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES ON
CERTAIN IRON OR STEEL FASTENERS FROM CHINA
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA
AB-2015-7
Report of the Appellate Body
ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Appellate Body Report Appellate Body Report, European Communities – Defini... | 2026-03-15T15:54:13.192130 | |
397 | 397 | DS397_SEQ42_Report_Of_Appellate_Body_Add.pdf | DS397_SEQ42_Report_Of_Appellate_Body_Add.pdf | 42 | Report_Of_Appellate_Body | RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA 2015-7 Report of the Appellate Body Addendum | AB_REPORT | Add | null | EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA | 18 January 2016 | WT/DS397/AB/RW/Add.1; WT/DS397/AB/RW. | ['China'] | ['EU'] | ['Brazil', 'Canada', 'Chile', 'Colombia', 'India', 'Japan', 'Norway', 'Taiwan', 'Thailand', 'Turkey', 'U.S.'] | Implementation & Compliance | Art. 6, 9, 5, 2, 3, 4 Anti-dumpingArt. I, X:3(a), VI:1 GATT 1994Art. XVI:4 Agreement Establishing the World Trade Organization | The summary below was up-to-date at
22 February 2016
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 31 July 2009, China requested consultations with the European Communities concerning Article 9(5) of Council Regulation (EC) No. 384/96 (the EC's Basi... | 33 | EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON
OR STEEL FASTENERS FROM CHINA
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA
2015-7
Report of the Appellate Body
Addendum
This Addendum contains Annexes A to C to the Report of the Appellate Body circulated as
document
The Notices of Appeal and Ot... | 2026-03-15T15:54:13.209157 | |
398 | 394 | DS394_SEQ01_Status_Report.pdf | DS394_SEQ01_Status_Report.pdf | 1 | Status_Report | Status Report by China | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 7 December 2012 | WT/DS394/19; WT/DS395/18; WT/DS398/17 | ['U.S.'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Mexico', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, Part I, para. 8.2, Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS395 and DS398)
On 23 June 2009, the United States requested consultations with China with respect to China's restraints on the expor... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Status Report by China
The following communication, dated 6 Decembe r 2012, from the delegation of China to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the DSU.
Status Report Regarding Implementation o... | 2026-03-15T15:54:13.233653 | |
398 | 394 | DS394_SEQ02_Addendum_Add.pdf | DS394_SEQ02_Addendum_Add.pdf | 2 | Addendum | Addendum | NUMBERED | Add | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS STATUS REPORT BY CHINA | 18 January 2013 | WT/DS394/19/Add.1; WT/DS395/18/Add.1; WT/DS398/17/Add.1 | ['U.S.'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Mexico', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, Part I, para. 8.2, Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS395 and DS398)
On 23 June 2009, the United States requested consultations with China with respect to China's restraints on the expor... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
STATUS REPORT BY CHINA
Addendum
The following communication, dated 17 January 2013, from the delegation of China to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the DSU.
Status Report Regarding Implementa... | 2026-03-15T15:54:13.234295 | |
398 | 394 | DS394_SEQ03_Report_Of_Appellate_Body.pdf | DS394_SEQ03_Report_Of_Appellate_Body.pdf | 3 | Report_Of_Appellate_Body | Appellate Body Reports and Panel Reports Action by the Dispute Settlement Body | AB_REPORT | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 24 February 2012 | WT/DS394/16; WT/DS395/15; WT/DS398/14; WT/DS394/AB/R; WT/DS395/AB/R; WT/DS398/AB/; WT/DS394/R; WT/DS395/R; WT/DS398/R | ['U.S.'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Mexico', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, Part I, para. 8.2, Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS395 and DS398)
On 23 June 2009, the United States requested consultations with China with respect to China's restraints on the expor... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Appellate Body Reports and Panel Reports
Action by the Dispute Settlement Body
At its meeting on 22 February 2012, the Dis pute Settlement Body adopted the Appellate Body
reports on China – Measures Related to the Ex portation of Various Raw Mater... | 2026-03-15T15:54:13.234800 | |
398 | 398 | DS398_SEQ01_Request_To_Join_Consultations_00.pdf | DS398_SEQ01_Request_To_Join_Consultations_00.pdf | 1 | Request_To_Join_Consultations | Request to Join Consultations Communication from the European Communities | NUMBERED | null | 0 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 31 August 2009 | WT/DS398/2 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Request to Join Consultations
Communication from the European Communities
The following communication, dated 28 Augus t 2009, from the delegation of the European
Communities to the delegation of China, the delegation of Mexico and to the Chairman ... | 2026-03-15T15:54:17.988844 | |
398 | 398 | DS398_SEQ02_Request_To_Join_Consultations_01.pdf | DS398_SEQ02_Request_To_Join_Consultations_01.pdf | 2 | Request_To_Join_Consultations | Request to Join Consultations Communication from the United States | NUMBERED | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 31 August 2009 | WT/DS398/3; WT/DS398/1 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Request to Join Consultations
Communication from the United States
The following communication, dated 28 August 2009, from the delegation of the
United States to the delegation of China, the delegation of Mexico and to the Chairman of the Dispute
... | 2026-03-15T15:54:17.989378 | |
398 | 398 | DS398_SEQ03_Request_To_Join_Consultations_02.pdf | DS398_SEQ03_Request_To_Join_Consultations_02.pdf | 3 | Request_To_Join_Consultations | Request to Join Consultations Communication from Colombia | NUMBERED | null | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 8 September 2009 | WT/DS398/4 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Request to Join Consultations
Communication from Colombia
The following communication, dated 4 Septembe r 2009, from the delegation of Colombia to
the delegation of China, the delegation of Mexico and to the Chairman of the Dispute Settlement
Body... | 2026-03-15T15:54:17.989835 | |
398 | 398 | DS398_SEQ04_Request_To_Join_Consultations_03.pdf | DS398_SEQ04_Request_To_Join_Consultations_03.pdf | 4 | Request_To_Join_Consultations | Request to Join Consultations Communication from Canada | NUMBERED | null | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 8 September 2009 | WT/DS398/5 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Request to Join Consultations
Communication from Canada
The following communication, dated 7 Septembe r 2009, from the delegation of Canada to the
delegation of China, the delegation of Mexico and to the Chairman of the Dispute Settlement Body, is... | 2026-03-15T15:54:17.990371 | |
398 | 398 | DS398_SEQ05_Request_For_Establishment_Of_Panel.pdf | DS398_SEQ05_Request_For_Establishment_Of_Panel.pdf | 5 | Request_For_Establishment_Of_Panel | Request for the Establishment of a Panel by Mexico | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 9 November 2009 | WT/DS398/6 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 9 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Request for the Establishment of a Panel by Mexico
The following communication, dated 4 November 2009, from the delegation of Mexico to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.
On 21 August 20... | 2026-03-15T15:54:17.995820 | |
398 | 398 | DS398_SEQ06_Note_By_Secretariat.pdf | DS398_SEQ06_Note_By_Secretariat.pdf | 6 | Note_By_Secretariat | Constitution of the Panel Established at the Requests of the United States, the European Communities1 and Mexico Note by the Secretariat | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 30 March 2010 | WT/DS394/8; WT/DS395/8; WT/DS398/7; WT/DS394/7; WT/DS395/7; WT/DS398/6 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Constitution of the Panel Established at the Requests of the United States,
the European Communities1 and Mexico
Note by the Secretariat
1. At its meeting on 21 December 2009, the Di spute Settlement Body (DSB) established a single
panel pursuant ... | 2026-03-15T15:54:17.996722 | |
398 | 398 | DS398_SEQ07_Communication_00.pdf | DS398_SEQ07_Communication_00.pdf | 7 | Communication | Communication from the Panel The Panel has asked the Chairman of the Di spute Settlement Body to circulate to the Members for their information, the following commun ication dated 7 May 2010 from the Panel to the Parties. | NUMBERED | null | 0 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 18 May 2010 | WT/DS394/9; WT/DS395/9; WT/DS398/8 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 11 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Communication from the Panel
The Panel has asked the Chairman of the Di spute Settlement Body to circulate to the
Members for their information, the following commun ication dated 7 May 2010 from the Panel to the
Parties.
By means of this communic... | 2026-03-15T15:54:18.003237 | |
398 | 398 | DS398_SEQ08_Communication_01.pdf | DS398_SEQ08_Communication_01.pdf | 8 | Communication | Communication from the Chairman of the Panel | NUMBERED | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 21 October 2010 | WT/DS394/10; WT/DS395/10; WT/DS398/9 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Communication from the Chairman of the Panel
The following communication, dated 19 Octobe r 2010, addressed to the Chairman of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 12.9 of the Dispute
Settlement Understanding ... | 2026-03-15T15:54:18.003705 | |
398 | 398 | DS398_SEQ09_Notification_Of_Appeal.pdf | DS398_SEQ09_Notification_Of_Appeal.pdf | 9 | Notification_Of_Appeal | Notification of an Appeal by China under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 2 September 2011 | WT/DS394/11; WT/DS395/11; WT/DS398/10 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 4 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Notification of an Appeal by China under Article 16.4 and Article 17
of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), and under Rule 20(1)
of the Working Procedures for Appellate Review
The following notifica... | 2026-03-15T15:54:18.006112 | |
398 | 398 | DS398_SEQ10_Working_Procedures.pdf | DS398_SEQ10_Working_Procedures.pdf | 10 | Working_Procedures | Notification of an Other Appeal by Mexico under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 23(1) of the Working Procedures for Appellate Review | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 12 September 2011 | WT/DS398/11 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Notification of an Other Appeal by Mexico
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review
The following n... | 2026-03-15T15:54:18.007316 | |
398 | 398 | DS398_SEQ11_Communication_02.pdf | DS398_SEQ11_Communication_02.pdf | 11 | Communication | Communication from the Appellate Body | NUMBERED | null | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 8 December 2011 | WT/DS394/13; WT/DS395/13; WT/DS398/12 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Communication from the Appellate Body
The following communication, dated 28 Octobe r 2011, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Bo dy, is circulated in accordance with Article 17.5
of the Understandi... | 2026-03-15T15:54:18.007905 | |
398 | 398 | DS398_SEQ12_Communication_03.pdf | DS398_SEQ12_Communication_03.pdf | 12 | Communication | Communication from the Appellate Body | NUMBERED | null | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 1 February 2012 | WT/DS394/15; WT/DS395/14; WT/DS398/13; WT/DS394/AB/R; WT/DS395/AB/R; WT/DS398/AB/R. | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Communication from the Appellate Body
The following communication, dated 30 January 2012, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Bo dy, is circulated in accordance with Article 17.5
of the Understandin... | 2026-03-15T15:54:18.008264 | |
398 | 398 | DS398_SEQ13_Communication_04.pdf | DS398_SEQ13_Communication_04.pdf | 13 | Communication | Communication from Mexico and China concerning Article 21.3(c) of the DSU | NUMBERED | null | 4 | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 16 April 2012 | WT/DS398/15 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Communication from Mexico and China concerning
Article 21.3(c) of the DSU
The following communication, dated 11 April 2012, from the delegation of Mexico and the
delegation of China to the Chairperson of the Disput e Settlement Body, is circul ated... | 2026-03-15T15:54:18.008891 | |
398 | 398 | DS398_SEQ14_Agreement_Art_21_3.pdf | DS398_SEQ14_Agreement_Art_21_3.pdf | 14 | Agreement_Art_21_3 | Agreement under Article 21.3(b) of the DSU | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 30 May 2012 | WT/DS398/16 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Agreement under Article 21.3(b) of the DSU
The following communication, dated 24 May 2012, from the delegation of China and the
delegation of Mexico to the Chairperson of the Di spute Settlement Body, is circulated in accordance
with Article 21.3(b... | 2026-03-15T15:54:18.009344 | |
398 | 398 | DS398_SEQ15_Agreed_Procedures.pdf | DS398_SEQ15_Agreed_Procedures.pdf | 15 | Agreed_Procedures | Agreed Procedures | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS UNDERSTANDING BETWEEN CHINA AND MEXICO REGARDING PROCEDURES UNDER ARTICLES 21 AND 22 OF THE DSU | 23 January 2013 | WT/DS398/18 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
UNDERSTANDING BETWEEN CHINA AND MEXICO
REGARDING PROCEDURES UNDER ARTICLES 21 AND 22 OF THE DSU
The following communication, dated 17 January 2013, from the delegation of China and the
delegation of Mexico to the Chairperson of the Dispute Settlement... | 2026-03-15T15:54:18.010862 | |
398 | 398 | DS398_SEQ16_Request_For_Consultations.pdf | DS398_SEQ16_Request_For_Consultations.pdf | 16 | Request_For_Consultations | Request for Consultations by Mexico | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 26 August 2009 | WT/DS398/1; G/L/892 | General Council | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 5 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Request for Consultations by Mexico
The following communication, dated 21 August 2009, from the delegation of Mexico to the
delegation of China and to the Chairman of the Dis pute Settlement Body, is ci rculated in accordance
with Article 4.4 of th... | 2026-03-15T15:54:18.013361 |
398 | 398 | DS398_SEQ17_Addendum_Add.pdf | DS398_SEQ17_Addendum_Add.pdf | 17 | Addendum | Reports of the Panel Addendum | NUMBERED | Add | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 5 July 2011 | WT/DS394/R/Add.1; WT/DS395/R/Add.1; WT/DS398/R/Add.1; WT/DS394/R; WT/DS395/R; WT/DS398/R. | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 189 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Reports of the Panel
Addendum
This addendum contains Annexes A to F to the Reports of the Panel to be found in documents
, and
ANNEX A
SUBMISSIONS OF THE UNITED STATES
CONTENTS PAGE
A-1 Executive Summary of the first writte n submission of the ... | 2026-03-15T15:54:18.116776 | |
398 | 398 | DS398_SEQ18_Report_Of_Panel.pdf | DS398_SEQ18_Report_Of_Panel.pdf | 18 | Report_Of_Panel | Reports of the Panel | PANEL_REPORT | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 5 July 2011 | WT/DS394/R; WT/DS395/R; WT/DS398/R | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 315 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Reports of the Panel
I. INTRODUCTION
A. C
OMPLAINTS OF THE UNITED STATES, THE EUROPEAN UNION AND MEXICO
1.1 On 23 June 2009, the United States and the European Communities 2 and on 21 August 2009,
Mexico, each requested consultations with the People... | 2026-03-15T15:54:18.317777 | |
398 | 398 | DS398_SEQ19_Report_Of_Panel_Corr.pdf | DS398_SEQ19_Report_Of_Panel_Corr.pdf | 19 | Report_Of_Panel | Reports of the Panel Corrigendum Paragraph 1.9, last sentence should read as follows: "The Panel Reports were circulated to WTO Members on 5 July 2011." CHINE – MESURES RELATIVES À L'EXPORTATION DE DIVERSES MATIÈRES PREMIÈRES | PANEL_REPORT | Corr | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 17 August 2011 | WT/DS394/R/Corr.1; WT/DS395/R/Corr.1; WT/DS398/R/Corr.1 | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
Reports of the Panel
Corrigendum
Paragraph 1.9, last sentence should read as follows:
"The Panel Reports were circulated to WTO Members on 5 July 2011."
CHINE – MESURES RELATIVES À L'EXPORTATION
DE DIVERSES MATIÈRES PREMIÈRES
Rapport du Groupe s... | 2026-03-15T15:54:18.318167 | |
398 | 398 | DS398_SEQ20_Report_Of_Appellate_Body.pdf | DS398_SEQ20_Report_Of_Appellate_Body.pdf | 20 | Report_Of_Appellate_Body | Appellate Body Report | AB_REPORT | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS | 30 January 2012 | WT/DS394/AB/R; WT/DS395/AB/R; WT/DS398/AB/R; WT/DS394/AB/R; WT/DS395/AB/R; WT/DS398/AB/R.; WT/DS394/AB/R; WT/DS395/AB/R; WT/DS398/AB/R | ['Mexico'] | ['China'] | ['Argentina', 'Brazil', 'Canada', 'Chile', 'Colombia', 'Ecuador', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Taiwan', 'Turkey', 'Saudi Arabia', 'U.S.'] | Appellate Body | Art. VIII:1, VIII:4, X:1, X:3, XI:1 GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2 Protocol of Accession | The summary below was up-to-date at
6 May 2013
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Mexico. (See also DS394 and DS395)
On 21 August 2009, Mexico requested consultations with China with respect to China's restraints on the export from China of various... | 204 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS
AB-2011-5
Reports of the Appellate Body
Note:
The Appellate Body is issuing these Reports in the form of a single document constituting three separate
Appellate Body Reports: ; ; and The cover page,
preliminary pages, Sections I through VIII and t... | 2026-03-15T15:54:18.418561 | |
399 | 399 | DS399_SEQ01_Request_For_Consultations_01.pdf | DS399_SEQ01_Request_For_Consultations_01.pdf | 1 | Request_For_Consultations | Request for Consultations by China | NUMBERED | null | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 16 September 2009 | WT/DS399/1; G/L/893; G/SG/D36/1 | General Council; Safeguards (SG) | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 2 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Request for Consultations by China
The following communication, dated 14 Septem ber 2009, from the delegation of China to the
delegation of the United States and to the Chairman of the Dispute Settlement Body, is... | 2026-03-15T15:54:20.605619 |
399 | 399 | DS399_SEQ02_Request_For_Establishment_Of_Panel.pdf | DS399_SEQ02_Request_For_Establishment_Of_Panel.pdf | 2 | Request_For_Establishment_Of_Panel | Request for the Establishment of a Panel by China | NUMBERED | null | null | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 11 December 2009 | WT/DS399/2 | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 2 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Request for the Establishment of a Panel by China
The following communication, dated 9 December 2009, from the delegation of China to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article... | 2026-03-15T15:54:20.606836 | |
399 | 399 | DS399_SEQ03_Note_By_Secretariat.pdf | DS399_SEQ03_Note_By_Secretariat.pdf | 3 | Note_By_Secretariat | Constitution of the Panel Established at the Request of China Note by the Secretariat | NUMBERED | null | null | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 16 March 2010 | WT/DS399/3; WT/DS399/2; WT/DS399/2 | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF
CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Constitution of the Panel Established at the Request of China
Note by the Secretariat
1. At its meeting on 19 January 2010, the Dis pute Settlement Body ("DSB") established a panel
pursuant to the request of Chin... | 2026-03-15T15:54:20.607435 | |
399 | 399 | DS399_SEQ04_Communication_00.pdf | DS399_SEQ04_Communication_00.pdf | 4 | Communication | Communication from the Chairman of the Panel | NUMBERED | null | 0 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 1 June 2010 | WT/DS399/4 | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN
PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Communication from the Chairman of the Panel
The following communication, dated 31 May 2010 , addressed to the Chairman of the Dispute
Settlement Body (DSB), is circulated pursuan t to Article 12.9 of the Dispute... | 2026-03-15T15:54:20.607863 | |
399 | 399 | DS399_SEQ05_Request_For_Decision.pdf | DS399_SEQ05_Request_For_Decision.pdf | 5 | Request_For_Decision | Joint Request by China and the United States for a Decision by the DSB | NUMBERED | null | null | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 28 January 2011 | WT/DS399/5 | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Joint Request by China and the United States
for a Decision by the DSB
The following communication, dated 27 January 2011, from the delegation of China and the
delegation of the United States to the Chairman of ... | 2026-03-15T15:54:20.608409 | |
399 | 399 | DS399_SEQ06_Notification_Of_Appeal.pdf | DS399_SEQ06_Notification_Of_Appeal.pdf | 6 | Notification_Of_Appeal | Notification of an Appeal by China under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review | NUMBERED | null | null | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 27 May 2011 | WT/DS399/6 | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 5 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Notification of an Appeal by China
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appe... | 2026-03-15T15:54:20.611032 | |
399 | 399 | DS399_SEQ07_Communication_01.pdf | DS399_SEQ07_Communication_01.pdf | 7 | Communication | Communication from the Appellate Body | NUMBERED | null | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 27 July 2011 | WT/DS399/7 | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Communication from the Appellate Body
The following communication, dated 22 July 2011, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Bo dy, is circulated in accordance with... | 2026-03-15T15:54:20.611516 | |
399 | 399 | DS399_SEQ08_Communication_02.pdf | DS399_SEQ08_Communication_02.pdf | 8 | Communication | Communication from the Appellate Body | NUMBERED | null | 2 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 5 September 2011 | WT/DS399/8; WT/DS399/AB/R. | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Communication from the Appellate Body
The following communication, dated 5 Septem ber 2011, from the Chair of the Appellate
Body addressed to the Chair of the Dispute Settle ment Body, is circulated in accordance... | 2026-03-15T15:54:20.612218 | |
399 | 399 | DS399_SEQ09_Executive_Summary_02.pdf | DS399_SEQ09_Executive_Summary_02.pdf | 9 | Executive_Summary | WT/DS399/R Page A-1 ANNEX A EXECUTIVE SUMMARIES OF THE FIRST WRITTEN SUBMISSIONS OF THE PARTIES Contents Page Annex A-1 Executive Summary of the First Written Submission of China A-2 | NUMBERED | null | 2 | null | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 20 | ANNEX A
EXECUTIVE SUMMARIES OF THE FIRST WRITTEN
SUBMISSIONS OF THE PARTIES
Contents Page
Annex A-1 Executive Summary of the First Written Submission of China A-2
Annex A-2 Executive Summary of the First Written Submission of the
United States
A-11
ANNEX A-1
EXECUTIVE SUMMARY OF THE FIRST
WRITTEN SUBMISSION OF CHIN... | 2026-03-15T15:54:20.623250 | ||
399 | 399 | DS399_SEQ10_Executive_Summary_03.pdf | DS399_SEQ10_Executive_Summary_03.pdf | 10 | Executive_Summary | WT/DS399/R Page B-1 ANNEX B EXECUTIVE SUMMARIES OF THIRD PARTIES' WRITTEN SUBMISSIONS Contents Page Annex B-1 Executive Summary of the Third Party Written Submission of the European Union B-2 Annex B-2 Executive Summary of the Third Party Written Submission of | NUMBERED | null | 3 | null | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 8 | ANNEX B
EXECUTIVE SUMMARIES OF THIRD PARTIES'
WRITTEN SUBMISSIONS
Contents Page
Annex B-1 Executive Summary of the Third Party Written Submission of the
European Union B-2
Annex B-2 Executive Summary of the Third Party Written Submission of
Japan B-4
ANNEX B-1
EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION... | 2026-03-15T15:54:20.626838 | ||
399 | 399 | DS399_SEQ11_Submission_04.pdf | DS399_SEQ11_Submission_04.pdf | 11 | Submission | WT/DS399/R Page C-1 ANNEX C ORAL STATEMENTS OF THE PARTIES AT THE FIRST SUBSTANTIVE MEETING OF THE PANEL OR EXECUTIVE SUMMARIES THEREOF Contents Page | NUMBERED | null | 4 | null | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 20 | ANNEX C
ORAL STATEMENTS OF THE PARTIES AT THE FIRST
SUBSTANTIVE MEETING OF THE PANEL OR
EXECUTIVE SUMMARIES THEREOF
Contents Page
Annex C-1 Executive Summary of the Oral Statement of China at the First
Meeting of the Panel
C-2
Annex C-2 Executive Summary of the Oral Statement of the United States at
the First Meeting... | 2026-03-15T15:54:20.637661 | ||
399 | 399 | DS399_SEQ12_Submission_05.pdf | DS399_SEQ12_Submission_05.pdf | 12 | Submission | WT/DS399/R Page D-1 ANNEX D ORAL STATEMENTS OF THIRD PARTIES OR EXECUTIVE SUMMARIES THEREOF Contents Page Annex D-1 Oral Statement of the European Union D-2 Annex D-2 Oral Statement of Japan D-3 | NUMBERED | null | 5 | null | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 4 | ANNEX D
ORAL STATEMENTS OF THIRD PARTIES OR
EXECUTIVE SUMMARIES THEREOF
Contents Page
Annex D-1 Oral Statement of the European Union D-2
Annex D-2 Oral Statement of Japan D-3
ANNEX D-1
ORAL STATEMENT OF THE EUROPEAN UNION
Mr Chairman, members of the Panel,
1. The European Union would like to thank the Pa nel for ... | 2026-03-15T15:54:20.639500 | ||
399 | 399 | DS399_SEQ13_Executive_Summary_06.pdf | DS399_SEQ13_Executive_Summary_06.pdf | 13 | Executive_Summary | WT/DS399/R Page E-1 ANNEX E EXECUTIVE SUMMARIES OF THE SECOND WRITTEN SUBMISSIONS OF THE PARTIES Contents Page Annex E-1 Executive Summary of the Second Written Submission of China E-2 | NUMBERED | null | 6 | null | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 18 | ANNEX E
EXECUTIVE SUMMARIES OF THE SECOND WRITTEN
SUBMISSIONS OF THE PARTIES
Contents Page
Annex E-1 Executive Summary of the Second Written Submission of China E-2
Annex E-2 Executive Summary of th e Second Written Submission of the
United States
E-11
ANNEX E-1
EXECUTIVE SUMMARY OF THE SECOND
WRITTEN SUBMISSION OF... | 2026-03-15T15:54:20.650323 | ||
399 | 399 | DS399_SEQ14_Submission_07.pdf | DS399_SEQ14_Submission_07.pdf | 14 | Submission | WT/DS399/R Page F-1 ANNEX F ORAL STATEMENTS OF THE PARTIES AT THE SECOND SUBSTANTIVE MEETING OF THE PANEL OR EXECUTIVE SUMMARIES THEREOF Contents Page | NUMBERED | null | 7 | null | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 22 | ANNEX F
ORAL STATEMENTS OF THE PARTIES AT THE SECOND
SUBSTANTIVE MEETING OF THE PANEL OR
EXECUTIVE SUMMARIES THEREOF
Contents Page
Annex F-1 Executive Summary of the Oral Statement of China at the
Second Meeting of the Panel
F-2
Annex F-2 Executive Summary of the Oral Statement of the United States at
the Second Meet... | 2026-03-15T15:54:20.662672 | ||
399 | 399 | DS399_SEQ15_Request_For_Establishment_Of_Panel_08.pdf | DS399_SEQ15_Request_For_Establishment_Of_Panel_08.pdf | 15 | Request_For_Establishment_Of_Panel | WT/DS399/R Page G-1 ANNEX G REQUEST FOR CONSULTATIONS AND REQUEST FOR THE ESTABLISHMENT OF A PANEL BY CHINA Contents Page Annex G-1 Request for Consultations by China G-2 | NUMBERED | null | 8 | null | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 6 | ANNEX G
REQUEST FOR CONSULTATIONS AND REQUEST
FOR THE ESTABLISHMENT
OF A PANEL BY CHINA
Contents Page
Annex G-1 Request for Consultations by China G-2
Annex G-2 Request for the Establishment of the Panel by China G-4
ANNEX G-1
REQUEST FOR CONSULTATIONS BY CHINA
UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN... | 2026-03-15T15:54:20.664641 | ||
399 | 399 | DS399_SEQ16_Report_Of_Panel_01.pdf | DS399_SEQ16_Report_Of_Panel_01.pdf | 16 | Report_Of_Panel | Report of the Panel | PANEL_REPORT | null | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 13 December 2010 | WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 128 | UNITED STATES – MEASURES AFFECTING IMPORTS
OF CERTAIN PASSENGER VEHICLE AND
LIGHT TRUCK TYRES FROM CHINA
Report of the Panel
I. INTRODUCTION
1.1 On 14 September 2009, the People's Republic of China ("China") requested consultations
with the United States pursuant to Article XXIII:1 of the GATT 1994, Articles 1 and 4 ... | 2026-03-15T15:54:20.742415 | |
399 | 399 | DS399_SEQ17_Appellate_Body_Report_And_Panel_Report.pdf | DS399_SEQ17_Appellate_Body_Report_And_Panel_Report.pdf | 17 | Appellate_Body_Report_And_Panel_Report | Appellate Body Report and Panel Report Action by the Dispute Settlement Body | AB_REPORT | null | null | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 7 October 2011 | WT/DS399/9; WT/DS399/AB/R; WT/DS399/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 1 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Appellate Body Report and Panel Report
Action by the Dispute Settlement Body
At its meeting on 5 October 2011, the Disput e Settlement Body adopted the Appellate Body
report on () and the Panel report (), as uph... | 2026-03-15T15:54:20.743014 | |
399 | 399 | DS399_SEQ18_Report_Of_Appellate_Body.pdf | DS399_SEQ18_Report_Of_Appellate_Body.pdf | 18 | Report_Of_Appellate_Body | Report of the Appellate Body | AB_REPORT | null | null | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA | 5 September 2011 | WT/DS399/AB/R | ['China'] | ['U.S.'] | ['EU', 'Japan', 'Taiwan', 'Turkey', 'Vietnam'] | Appellate Body | Art. 16.1, 16.3, 16.4, 16.6 Protocol of AccessionArt. I:1, II, XIX GATT 1994 Safeguards | The summary below was up-to-date at
21 October 2011
See also: One-page summary of key findings of this dispute
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased tariffs on certain passenger vehicle and light truck tyres ... | 137 | UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN
PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
AB-2011-4
Report of the Appellate Body
APPELLATE BODY
China, Appellant
United States, Appellee
European Union, Third Participant
Japan, Third Participant
Separate Customs Territory of Taiwan, Penghu,
Kinmen an... | 2026-03-15T15:54:20.812904 | |
400 | 400 | DS400_SEQ01_Request_To_Join_Consultations_00.pdf | DS400_SEQ01_Request_To_Join_Consultations_00.pdf | 1 | Request_To_Join_Consultations | Request to Join Consultations Communication from Iceland | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 18 November 2009 | WT/DS400/2 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request to Join Consultations
Communication from Iceland
The following communication, dated 16 Nove mber 2009, from the delegation of Iceland to
the delegation of the European Communities, the de legation of Canada and to the... | 2026-03-15T15:54:26.544631 | |
400 | 400 | DS400_SEQ02_Request_To_Join_Consultations_01.pdf | DS400_SEQ02_Request_To_Join_Consultations_01.pdf | 2 | Request_To_Join_Consultations | Request to Join Consultations Communication from Norway | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 2 November 2010 | WT/DS400/3 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request to Join Consultations
Communication from Norway
The following communication, dated 29 Octobe r 2010, from the delegation of Norway to the
delegation of the European Union 1, the delegation of Canada and to the Chairma... | 2026-03-15T15:54:26.545286 | |
400 | 400 | DS400_SEQ03_Request_For_Establishment_Of_Panel.pdf | DS400_SEQ03_Request_For_Establishment_Of_Panel.pdf | 3 | Request_For_Establishment_Of_Panel | Request for the Establishment of a Panel by Canada | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 14 February 2011 | WT/DS400/4 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 3 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request for the Establishment of a Panel by Canada
The following communication, dated 11 February 2011, from the delegation of Canada to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the... | 2026-03-15T15:54:26.546791 | |
400 | 400 | DS400_SEQ04_Communication_00.pdf | DS400_SEQ04_Communication_00.pdf | 4 | Communication | COMMUNICATION FROM | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE PANEL | 5 February 2013 | WT/DS400/6; WT/DS401/7 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 5 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE PANEL
The following communication, dated 1 February 2013, was received from the Chairperson of
the Panel with the request that it be circulated to the Dispute Settlement Body (DSB).
On 19 December 2012, ... | 2026-03-15T15:54:26.550241 | |
400 | 400 | DS400_SEQ05_Communication_01.pdf | DS400_SEQ05_Communication_01.pdf | 5 | Communication | COMMUNICATION FROM | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL | 5 April 2013 | WT/DS400/7; WT/DS401/8 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL
The following communication, dated 4 April 2013, addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 12.9 of the Dispute
Set... | 2026-03-15T15:54:26.550826 | |
400 | 400 | DS400_SEQ06_Working_Procedures_00.pdf | DS400_SEQ06_Working_Procedures_00.pdf | 6 | Working_Procedures | AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS NOTIFICATION OF AN APPEAL BY CANADA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | 29 January 2014 | WT/DS400/8 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
NOTIFICATION OF AN APPEAL BY CANADA
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
T... | 2026-03-15T15:54:26.552405 | |
400 | 400 | DS400_SEQ07_Working_Procedures_01.pdf | DS400_SEQ07_Working_Procedures_01.pdf | 7 | Working_Procedures | AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR A... | 31 January 2014 | WT/DS400/9; WT/DS401/10 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 4 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR A... | 2026-03-15T15:54:26.555415 | |
400 | 400 | DS400_SEQ08_Communication_02.pdf | DS400_SEQ08_Communication_02.pdf | 8 | Communication | COMMUNICATION FROM | NUMBERED | null | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE APPELLATE BODY | 26 March 2014 | WT/DS400/10; WT/DS401/11 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 24 March 2014, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Body, is circulated to Members in accordance
with Artic... | 2026-03-15T15:54:26.556083 | |
400 | 400 | DS400_SEQ09_Communication_03.pdf | DS400_SEQ09_Communication_03.pdf | 9 | Communication | COMMUNICATION FROM | NUMBERED | null | 3 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE APPELLATE BODY | 23 May 2014 | WT/DS400/12; WT/DS401/13; WT/DS400/AB/R; WT/DS401/AB/R. | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 22 May 2014, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Body, is circulated to Members in accordance
with Article... | 2026-03-15T15:54:26.556416 | |
400 | 400 | DS400_SEQ10_Communication_04.pdf | DS400_SEQ10_Communication_04.pdf | 10 | Communication | COMMUNICATION FROM | NUMBERED | null | 4 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM CANADA AND THE EUROPEAN UNION CONCERNING ARTICLE 21.3(C) OF THE DSU | 30 July 2014 | WT/DS400/14; WT/DS400/AB/R; WT/DS400/R; WT/DS400/R/Add.1 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM CANADA AND THE EUROPEAN UNION CONCERNING
ARTICLE 21.3(C) OF THE DSU
The following communication, dated 24 July 2014, from the delegation of Canada and the
delegation of the European Union to the Chairper son of... | 2026-03-15T15:54:26.557218 | |
400 | 400 | DS400_SEQ11_Communication_05.pdf | DS400_SEQ11_Communication_05.pdf | 11 | Communication | communication from | NUMBERED | null | 5 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU | 8 September 2014 | WT/DS400/15 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU
The following communication, dated 5 September 2014, from the delegation of Canada and the
delegation of the European Union to the Chairper son of the Dispute Settlement Body, is circula... | 2026-03-15T15:54:26.557794 | |
400 | 400 | DS400_SEQ12_Status_Report.pdf | DS400_SEQ12_Status_Report.pdf | 12 | Status_Report | STATUS REPORT | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 13 March 2015 | WT/DS400/16; WT/DS401/17 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
The following communication, dated 12 March 2015, fr om the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the DSU... | 2026-03-15T15:54:26.558618 | |
400 | 400 | DS400_SEQ13_Addendum_Add.pdf | DS400_SEQ13_Addendum_Add.pdf | 13 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 10 April 2015 | WT/DS400/16/Add.1; WT/DS401/17/Add.1 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 9 April 2015, from the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of ... | 2026-03-15T15:54:26.559317 | |
400 | 400 | DS400_SEQ14_Addendum_Add2.pdf | DS400_SEQ14_Addendum_Add2.pdf | 14 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 8 May 2015 | WT/DS400/16/Add.2; WT/DS401/17/Add.2 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 7 May 2015, from the delegation of the European Union to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of th... | 2026-03-15T15:54:26.560028 | |
400 | 400 | DS400_SEQ15_Addendum_Add3.pdf | DS400_SEQ15_Addendum_Add3.pdf | 15 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 9 June 2015 | WT/DS400/16/Add.3; WT/DS401/17/Add.3 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 8 June 2015, fr om the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of ... | 2026-03-15T15:54:26.560722 | |
400 | 400 | DS400_SEQ16_Addendum_Add4.pdf | DS400_SEQ16_Addendum_Add4.pdf | 16 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 10 July 2015 | WT/DS400/16/Add.4; WT/DS401/17/Add.4 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 9 July 2015, from the delegation of the European Union to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of t... | 2026-03-15T15:54:26.561438 | |
400 | 400 | DS400_SEQ17_Addendum_Add5.pdf | DS400_SEQ17_Addendum_Add5.pdf | 17 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 21 August 2015 | WT/DS400/16/Add.5; WT/DS401/17/Add.5 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 20 August 2015, from the delegation of the European Union
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 o... | 2026-03-15T15:54:26.562132 | |
400 | 400 | DS400_SEQ18_Addendum_Add6.pdf | DS400_SEQ18_Addendum_Add6.pdf | 18 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 18 September 2015 | WT/DS400/16/Add.6; WT/DS401/17/Add.6 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 17 September 2015, from the delegation of the European
Union to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.... | 2026-03-15T15:54:26.562925 | |
400 | 400 | DS400_SEQ19_Addendum_Add7.pdf | DS400_SEQ19_Addendum_Add7.pdf | 19 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY EUROPEAN UNION | 16 October 2015 | WT/DS400/16/Add.7; WT/DS401/17/Add.7 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY EUROPEAN UNION
Addendum
The following communication, dated 15 October 2015, from the delegation of European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the D... | 2026-03-15T15:54:26.564091 | |
400 | 400 | DS400_SEQ20_Addendum_Add.pdf | DS400_SEQ20_Addendum_Add.pdf | 20 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS REPORTS OF THE PANEL | 25 November 2013 | WT/DS400/R/Add.1; WT/DS401/R/Add.1; WT/DS400/R; WT/DS401/R. | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 95 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING
THE IMPORTATION AND MARKETING OF SEAL PRODUCTS
REPORTS OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Reports of the Panel to be found in
documents ,
•
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures ... | 2026-03-15T15:54:26.627741 | |
400 | 400 | DS400_SEQ21_Request_For_Consultations_00.pdf | DS400_SEQ21_Request_For_Consultations_00.pdf | 21 | Request_For_Consultations | Request for Consultations by Canada | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 4 November 2009 | WT/DS400/1; G/L/909; G/TBT/D/36; G/AG/GEN/87 | Agriculture (AG); General Council; Technical Barriers to Trade (TBT) | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request for Consultations by Canada
The following communication, dated 2 November 2009, from the delegation of Canada to the
delegation of the European Communities and to th e Chairman of the Dispute Settlement Body, is
circul... | 2026-03-15T15:54:26.628537 |
400 | 400 | DS400_SEQ22_Request_For_Consultations_01.pdf | DS400_SEQ22_Request_For_Consultations_01.pdf | 22 | Request_For_Consultations | Request for Consultations by Canada Addendum | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 21 October 2010 | WT/DS400/1/Add.1; G/L/909/Add.1; G/TBT/D/36/Add.1; G/AG/GEN/87/Add.1 | Agriculture (AG); General Council; Technical Barriers to Trade (TBT) | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request for Consultations by Canada
Addendum
The following communication, dated 18 Octobe r 2010, from the delegation of Canada to the
delegation of the European Union
1 and to the Chairman of the Dispute Settlement Body, is ... | 2026-03-15T15:54:26.629498 |
400 | 400 | DS400_SEQ23_Report_Of_Panel.pdf | DS400_SEQ23_Report_Of_Panel.pdf | 23 | Report_Of_Panel | Panel Report | PANEL_REPORT | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS REPORTS OF THE PANEL | 25 November 2013 | WT/DS400/R; WT/DS401/R; WT/DS400/R; WT/DS401/R.; WT/DS400/R; WT/DS401/R; WT/DS400/R | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 186 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE
IMPORTATION AND MARKETING OF SEAL PRODUCTS
REPORTS OF THE PANEL
Note by the Secretariat:
These Panel Reports are in the form of a single document constituting two separate Panel Reports:
and The cover page, preliminary pages, sections 1 through 7 are
common to both Rep... | 2026-03-15T15:54:26.788167 | |
400 | 400 | DS400_SEQ24_Report_Of_Appellate_Body_00.pdf | DS400_SEQ24_Report_Of_Appellate_Body_00.pdf | 24 | Report_Of_Appellate_Body | Appellate Body Report | AB_REPORT | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE APPELLATE BODY | 19 May 2014 | WT/DS400/11; WT/DS401/12 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 16 May 2014, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Body, is circulated to Members in accordance
with Article... | 2026-03-15T15:54:26.788591 | |
400 | 400 | DS400_SEQ25_Report_Of_Appellate_Body_01.pdf | DS400_SEQ25_Report_Of_Appellate_Body_01.pdf | 25 | Report_Of_Appellate_Body | APPELLATE BODY REPORT | AB_REPORT | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS APPELLATE BODY REPORTS AND PANEL REPORTS ACTION BY THE DISPUTE SETTLEMENT BODY | 19 June 2014 | WT/DS400/13; WT/DS401/14; WT/DS400/AB/R; WT/DS401/AB/R; WT/DS400/R; WT/DS400/R/Add.1; WT/DS401/R; WT/DS401/R/Add.1 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
APPELLATE BODY REPORTS AND PANEL REPORTS
ACTION BY THE DISPUTE SETTLEMENT BODY
At its meeting on 18 June 2014, the Dispute Settlement Body adopted the Appellate Body reports
on European Communities – Measures Prohibiting the Impo... | 2026-03-15T15:54:26.789306 | |
400 | 400 | DS400_SEQ26_Report_Of_Appellate_Body_02.pdf | DS400_SEQ26_Report_Of_Appellate_Body_02.pdf | 26 | Report_Of_Appellate_Body | Reports of the Appellate Body Note by the Secretariat: The Appellate Body is issuing these Reports in th e form of a single document constituting two separate Appellate Body Reports: WT/DS400/AB/R; and WT/DS401/AB/R. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to both Reports. Th... | AB_REPORT | null | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS AB-2014-1 AB-2014-2 | 22 May 2014 | WT/DS400/AB/R; WT/DS401/AB/R; WT/DS400/AB/R; WT/DS401/AB/R.; WT/DS400/AB/R; WT/DS401/AB/R | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 208 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE
IMPORTATION AND MARKETING OF SEAL PRODUCTS
AB-2014-1
AB-2014-2
Reports of the Appellate Body
Note by the Secretariat:
The Appellate Body is issuing these Reports in th e form of a single document constituting two
separate Appellate Body Reports: ; and The cover page,
pre... | 2026-03-15T15:54:26.949758 | |
400 | 401 | DS401_SEQ01_Note_By_Secretariat.pdf | DS401_SEQ01_Note_By_Secretariat.pdf | 1 | Note_By_Secretariat | Constitution of the Panel Established at the Requests of Canada and Norway Note by the Secretariat | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 5 October 2012 | WT/DS400/5; WT/DS401/6; WT/DS400/4; WT/DS401/5 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Constitution of the Panel Established at the Requests of Canada and Norway
Note by the Secretariat
1. At its meeting on 25 March 2011, the Disput e Settlement Body (DSB ) established a panel
pursuant to the request of Canada i... | 2026-03-15T15:54:26.963824 | |
400 | 401 | DS401_SEQ02_Note_By_Secretariat_Rev.pdf | DS401_SEQ02_Note_By_Secretariat_Rev.pdf | 2 | Note_By_Secretariat | Constitution of the Panel Established at the Requests of Canada and Norway Note by the Secretariat Revision | NUMBERED | Rev | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 5 November 2012 | WT/DS400/5/Rev.1; WT/DS401/6/Rev.1; WT/DS400/4; WT/DS401/5 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Constitution of the Panel Established at the Requests of Canada and Norway
Note by the Secretariat
Revision
1. At its meeting on 25 March 2011, the Disput e Settlement Body (DSB ) established a panel
pursuant to the request o... | 2026-03-15T15:54:26.964664 | |
401 | 400 | DS400_SEQ01_Communication_00.pdf | DS400_SEQ01_Communication_00.pdf | 1 | Communication | COMMUNICATION FROM | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE PANEL | 5 February 2013 | WT/DS400/6; WT/DS401/7 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 5 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE PANEL
The following communication, dated 1 February 2013, was received from the Chairperson of
the Panel with the request that it be circulated to the Dispute Settlement Body (DSB).
On 19 December 2012, ... | 2026-03-15T15:54:32.609282 | |
401 | 400 | DS400_SEQ02_Communication_01.pdf | DS400_SEQ02_Communication_01.pdf | 2 | Communication | COMMUNICATION FROM | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL | 5 April 2013 | WT/DS400/7; WT/DS401/8 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL
The following communication, dated 4 April 2013, addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 12.9 of the Dispute
Set... | 2026-03-15T15:54:32.609782 | |
401 | 400 | DS400_SEQ03_Working_Procedures.pdf | DS400_SEQ03_Working_Procedures.pdf | 3 | Working_Procedures | AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR A... | 31 January 2014 | WT/DS400/9; WT/DS401/10 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 4 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR A... | 2026-03-15T15:54:32.612537 | |
401 | 400 | DS400_SEQ04_Communication_02.pdf | DS400_SEQ04_Communication_02.pdf | 4 | Communication | COMMUNICATION FROM | NUMBERED | null | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE APPELLATE BODY | 26 March 2014 | WT/DS400/10; WT/DS401/11 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 24 March 2014, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Body, is circulated to Members in accordance
with Artic... | 2026-03-15T15:54:32.613141 | |
401 | 400 | DS400_SEQ05_Communication_03.pdf | DS400_SEQ05_Communication_03.pdf | 5 | Communication | COMMUNICATION FROM | NUMBERED | null | 3 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE APPELLATE BODY | 23 May 2014 | WT/DS400/12; WT/DS401/13; WT/DS400/AB/R; WT/DS401/AB/R. | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 22 May 2014, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Body, is circulated to Members in accordance
with Article... | 2026-03-15T15:54:32.613491 | |
401 | 400 | DS400_SEQ06_Status_Report.pdf | DS400_SEQ06_Status_Report.pdf | 6 | Status_Report | STATUS REPORT | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 13 March 2015 | WT/DS400/16; WT/DS401/17 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
The following communication, dated 12 March 2015, fr om the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the DSU... | 2026-03-15T15:54:32.614191 | |
401 | 400 | DS400_SEQ07_Addendum_Add.pdf | DS400_SEQ07_Addendum_Add.pdf | 7 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 10 April 2015 | WT/DS400/16/Add.1; WT/DS401/17/Add.1 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 9 April 2015, from the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of ... | 2026-03-15T15:54:32.614904 | |
401 | 400 | DS400_SEQ08_Addendum_Add2.pdf | DS400_SEQ08_Addendum_Add2.pdf | 8 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 8 May 2015 | WT/DS400/16/Add.2; WT/DS401/17/Add.2 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 7 May 2015, from the delegation of the European Union to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of th... | 2026-03-15T15:54:32.615614 | |
401 | 400 | DS400_SEQ09_Addendum_Add3.pdf | DS400_SEQ09_Addendum_Add3.pdf | 9 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 9 June 2015 | WT/DS400/16/Add.3; WT/DS401/17/Add.3 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 8 June 2015, fr om the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of ... | 2026-03-15T15:54:32.616331 | |
401 | 400 | DS400_SEQ10_Addendum_Add4.pdf | DS400_SEQ10_Addendum_Add4.pdf | 10 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 10 July 2015 | WT/DS400/16/Add.4; WT/DS401/17/Add.4 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 9 July 2015, from the delegation of the European Union to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of t... | 2026-03-15T15:54:32.617043 | |
401 | 400 | DS400_SEQ11_Addendum_Add5.pdf | DS400_SEQ11_Addendum_Add5.pdf | 11 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 21 August 2015 | WT/DS400/16/Add.5; WT/DS401/17/Add.5 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 20 August 2015, from the delegation of the European Union
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 o... | 2026-03-15T15:54:32.617747 | |
401 | 400 | DS400_SEQ12_Addendum_Add6.pdf | DS400_SEQ12_Addendum_Add6.pdf | 12 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY THE EUROPEAN UNION | 18 September 2015 | WT/DS400/16/Add.6; WT/DS401/17/Add.6 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY THE EUROPEAN UNION
Addendum
The following communication, dated 17 September 2015, from the delegation of the European
Union to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.... | 2026-03-15T15:54:32.618546 | |
401 | 400 | DS400_SEQ13_Addendum_Add7.pdf | DS400_SEQ13_Addendum_Add7.pdf | 13 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS STATUS REPORT BY EUROPEAN UNION | 16 October 2015 | WT/DS400/16/Add.7; WT/DS401/17/Add.7 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
STATUS REPORT BY EUROPEAN UNION
Addendum
The following communication, dated 15 October 2015, from the delegation of European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the D... | 2026-03-15T15:54:32.619603 | |
401 | 400 | DS400_SEQ14_Addendum_Add.pdf | DS400_SEQ14_Addendum_Add.pdf | 14 | Addendum | Addendum | NUMBERED | Add | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS REPORTS OF THE PANEL | 25 November 2013 | WT/DS400/R/Add.1; WT/DS401/R/Add.1; WT/DS400/R; WT/DS401/R. | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 95 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING
THE IMPORTATION AND MARKETING OF SEAL PRODUCTS
REPORTS OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Reports of the Panel to be found in
documents ,
•
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures ... | 2026-03-15T15:54:32.684152 | |
401 | 400 | DS400_SEQ15_Report_Of_Panel.pdf | DS400_SEQ15_Report_Of_Panel.pdf | 15 | Report_Of_Panel | Panel Report | PANEL_REPORT | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS REPORTS OF THE PANEL | 25 November 2013 | WT/DS400/R; WT/DS401/R; WT/DS400/R; WT/DS401/R.; WT/DS400/R; WT/DS401/R; WT/DS400/R | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 186 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE
IMPORTATION AND MARKETING OF SEAL PRODUCTS
REPORTS OF THE PANEL
Note by the Secretariat:
These Panel Reports are in the form of a single document constituting two separate Panel Reports:
and The cover page, preliminary pages, sections 1 through 7 are
common to both Rep... | 2026-03-15T15:54:32.846584 | |
401 | 400 | DS400_SEQ16_Report_Of_Appellate_Body_00.pdf | DS400_SEQ16_Report_Of_Appellate_Body_00.pdf | 16 | Report_Of_Appellate_Body | Appellate Body Report | AB_REPORT | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM THE APPELLATE BODY | 19 May 2014 | WT/DS400/11; WT/DS401/12 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 16 May 2014, from the Chair of the Appellate Body
addressed to the Chair of the Dispute Settlement Body, is circulated to Members in accordance
with Article... | 2026-03-15T15:54:32.846994 | |
401 | 400 | DS400_SEQ17_Report_Of_Appellate_Body_01.pdf | DS400_SEQ17_Report_Of_Appellate_Body_01.pdf | 17 | Report_Of_Appellate_Body | APPELLATE BODY REPORT | AB_REPORT | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS APPELLATE BODY REPORTS AND PANEL REPORTS ACTION BY THE DISPUTE SETTLEMENT BODY | 19 June 2014 | WT/DS400/13; WT/DS401/14; WT/DS400/AB/R; WT/DS401/AB/R; WT/DS400/R; WT/DS400/R/Add.1; WT/DS401/R; WT/DS401/R/Add.1 | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
APPELLATE BODY REPORTS AND PANEL REPORTS
ACTION BY THE DISPUTE SETTLEMENT BODY
At its meeting on 18 June 2014, the Dispute Settlement Body adopted the Appellate Body reports
on European Communities – Measures Prohibiting the Impo... | 2026-03-15T15:54:32.847504 | |
401 | 400 | DS400_SEQ18_Report_Of_Appellate_Body_02.pdf | DS400_SEQ18_Report_Of_Appellate_Body_02.pdf | 18 | Report_Of_Appellate_Body | Reports of the Appellate Body Note by the Secretariat: The Appellate Body is issuing these Reports in th e form of a single document constituting two separate Appellate Body Reports: WT/DS400/AB/R; and WT/DS401/AB/R. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to both Reports. Th... | AB_REPORT | null | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS AB-2014-1 AB-2014-2 | 22 May 2014 | WT/DS400/AB/R; WT/DS401/AB/R; WT/DS400/AB/R; WT/DS401/AB/R.; WT/DS400/AB/R; WT/DS401/AB/R | ['Canada'] | ['EU'] | ['Argentina', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Norway', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1, XXIII:1(b) GATT 1994Art. 2.1, 2.2, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.2.3, 5.6, 7.1 Technical Barriers to Trade (TBT) | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Canada. (See also DS401)
On 2 November 2009, Canada requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the Europ... | 208 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE
IMPORTATION AND MARKETING OF SEAL PRODUCTS
AB-2014-1
AB-2014-2
Reports of the Appellate Body
Note by the Secretariat:
The Appellate Body is issuing these Reports in th e form of a single document constituting two
separate Appellate Body Reports: ; and The cover page,
pre... | 2026-03-15T15:54:33.007776 | |
401 | 401 | DS401_SEQ01_Request_To_Join_Consultations_00.pdf | DS401_SEQ01_Request_To_Join_Consultations_00.pdf | 1 | Request_To_Join_Consultations | Request to Join Consultations Communication from Iceland | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 18 November 2009 | WT/DS401/2 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request to Join Consultations
Communication from Iceland
The following communication, dated 16 Nove mber 2009, from the delegation of Iceland to
the delegation of the European Communities, the de legation of Norway and to the... | 2026-03-15T15:54:33.128689 | |
401 | 401 | DS401_SEQ02_Request_To_Join_Consultations_01.pdf | DS401_SEQ02_Request_To_Join_Consultations_01.pdf | 2 | Request_To_Join_Consultations | Request to Join Consultations Communication from Canada | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 24 November 2009 | WT/DS401/3 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request to Join Consultations
Communication from Canada
The following communication, dated 20 Nove mber 2009, from the delegation of Canada to
the delegation of the European Communities, the de legation of Norway and to the C... | 2026-03-15T15:54:33.129326 | |
401 | 401 | DS401_SEQ03_Request_To_Join_Consultations_02.pdf | DS401_SEQ03_Request_To_Join_Consultations_02.pdf | 3 | Request_To_Join_Consultations | Request to Join Consultations Communication from Canada | NUMBERED | null | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 1 November 2010 | WT/DS401/4 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request to Join Consultations
Communication from Canada
The following communication, dated 28 Octobe r 2010, from the delegation of Canada to the
delegation of the European Union 1, the delegation of Norway and to the Chairma... | 2026-03-15T15:54:33.129986 | |
401 | 401 | DS401_SEQ04_Request_For_Establishment_Of_Panel.pdf | DS401_SEQ04_Request_For_Establishment_Of_Panel.pdf | 4 | Request_For_Establishment_Of_Panel | Request for the Establishment of a Panel by Norway | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 15 March 2011 | WT/DS401/5 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 3 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request for the Establishment of a Panel by Norway
The following communication, dated 14 March 2011, from the delegation of Norway to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the... | 2026-03-15T15:54:33.131718 | |
401 | 401 | DS401_SEQ05_Note_By_Secretariat.pdf | DS401_SEQ05_Note_By_Secretariat.pdf | 5 | Note_By_Secretariat | Constitution of the Panel Established at the Requests of Canada and Norway Note by the Secretariat | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 5 October 2012 | WT/DS400/5; WT/DS401/6; WT/DS400/4; WT/DS401/5 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Constitution of the Panel Established at the Requests of Canada and Norway
Note by the Secretariat
1. At its meeting on 25 March 2011, the Disput e Settlement Body (DSB ) established a panel
pursuant to the request of Canada i... | 2026-03-15T15:54:33.132449 | |
401 | 401 | DS401_SEQ06_Note_By_Secretariat_Rev.pdf | DS401_SEQ06_Note_By_Secretariat_Rev.pdf | 6 | Note_By_Secretariat | Constitution of the Panel Established at the Requests of Canada and Norway Note by the Secretariat Revision | NUMBERED | Rev | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 5 November 2012 | WT/DS400/5/Rev.1; WT/DS401/6/Rev.1; WT/DS400/4; WT/DS401/5 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Constitution of the Panel Established at the Requests of Canada and Norway
Note by the Secretariat
Revision
1. At its meeting on 25 March 2011, the Disput e Settlement Body (DSB ) established a panel
pursuant to the request o... | 2026-03-15T15:54:33.133256 | |
401 | 401 | DS401_SEQ07_Working_Procedures.pdf | DS401_SEQ07_Working_Procedures.pdf | 7 | Working_Procedures | AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | NUMBERED | null | null | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS NOTIFICATION OF AN APPEAL BY NORWAY UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | 29 January 2014 | WT/DS401/9 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 4 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
NOTIFICATION OF AN APPEAL BY NORWAY
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
T... | 2026-03-15T15:54:33.136160 | |
401 | 401 | DS401_SEQ08_Communication_00.pdf | DS401_SEQ08_Communication_00.pdf | 8 | Communication | COMMUNICATION FROM | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS COMMUNICATION FROM NORWAY AND THE EUROPEAN UNION CONCERNING ARTICLE 21.3(C) OF THE DSU | 30 July 2014 | WT/DS401/15; WT/DS401/AB/R; WT/DS401/R; WT/DS401/R/Add.1 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
COMMUNICATION FROM NORWAY AND THE EUROPEAN UNION CONCERNING
ARTICLE 21.3(C) OF THE DSU
The following communication, dated 24 July 2014, from the delegation of Norway and the
delegation of the European Union to the Chairper son of... | 2026-03-15T15:54:33.137005 | |
401 | 401 | DS401_SEQ09_Communication_01.pdf | DS401_SEQ09_Communication_01.pdf | 9 | Communication | communication from | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU | 8 September 2014 | WT/DS401/16 | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND
MARKETING OF SEAL PRODUCTS
AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU
The following communication, dated 5 September 2014, from the delegation of Norway and the
delegation of the European Union to the Chairper son of the Dispute Settlement Body, is circula... | 2026-03-15T15:54:33.137509 | |
401 | 401 | DS401_SEQ10_Request_For_Consultations_00.pdf | DS401_SEQ10_Request_For_Consultations_00.pdf | 10 | Request_For_Consultations | Request for Consultations by Norway Addendum | NUMBERED | null | 0 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 21 October 2010 | WT/DS401/1/Add.1; WT/DS401/1; G/L/912/Add.1; G/TBT/D/37/Add.1; G/AG/GEN/88/Add.1; G/L/912; G/TBT/D/37; G/AG/GEN/88 | Agriculture (AG); General Council; Technical Barriers to Trade (TBT) | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request for Consultations by Norway
Addendum
The following communication, dated 19 Octobe r 2010, from the delegation of Norway to the
delegation of the European Union
∗ and to the Chairman of the Dis pute Settlement Body, is... | 2026-03-15T15:54:33.138753 |
401 | 401 | DS401_SEQ11_Request_For_Consultations_01.pdf | DS401_SEQ11_Request_For_Consultations_01.pdf | 11 | Request_For_Consultations | Request for Consultations by Norway | NUMBERED | null | 1 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND MARKETING OF SEAL PRODUCTS | 10 November 2009 | WT/DS401/1; G/L/912; G/TBT/D/37; G/AG/GEN/88 | Agriculture (AG); General Council; Technical Barriers to Trade (TBT) | ['Norway'] | ['EU'] | ['Argentina', 'Canada', 'China', 'Colombia', 'Ecuador', 'Iceland', 'Japan', 'Mexico', 'Namibia', 'Russia', 'U.S.'] | Appellate Body | Art. I:1, III:4, XI:1 GATT 1994Art. 2.1, 2.2, 5, 9.2, 9.3, 6, 7.1, 7.4, 7.5 Technical Barriers to Trade (TBT)Art. 4.2 Agriculture | The summary below was up-to-date at
8 October 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Norway. (See also DS400)
On 5 November 2009, Norway requested consultations with the European Communities concerning Regulation (EC) No. 1007/2009 of the European Pa... | 2 | EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION
AND MARKETING OF SEAL PRODUCTS
Request for Consultations by Norway
The following communication, dated 5 November 2009, from the delegation of Norway to the
delegation of the European Communities and to th e Chairman of the Dispute Settlement Body, is
circul... | 2026-03-15T15:54:33.139579 |
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