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Measures with Multiple Purposes: Puzzles from EC—Seal Products

Part of: WTO EC-Seal Products Case

Published online by Cambridge University Press:  20 January 2017

Donald H. Regan
Donald H. Regan*
Affiliation:
University of Michigan Law School
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European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued mul-tiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of these puzzles is unique to the Agreement on Technical Barriers to Trade (TBT); the second and third concern the TBT, the General Agree-ment on Tariffs and Trade (GATT), and probably other agreements.

Type
Symposium: WTO EC-Seal Products Case
Information
AJIL Unbound , Volume 108 , 2014 , pp. 315 - 322
Copyright
Copyright © American Society of International Law 2014

References

1 Appellate Body Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (Adopted June 18, 2014) [hereinafter Appellate Body Report, EC—Seal Products].

2 Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres, WT/332/AB/R (Adopted Dec. 17, 2007).

3 Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 UNTS 120.

4 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187.

5 Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (Text with EEA relevance), 2009 O.J. (L 286) 36.

6 Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (Text with EEA relevance), 2010 O.J. (L 216) 1.

7 For discussion of a variety of important questions about this case that do not specially implicate multiple purposes, see Philip Levy & Donald Regan, EC—Seal Products: Seals and Sensibilities (TBT Aspects of the Panel and Appellate Body Reports), 14 World Trade REV.337 (2015).

8 Appellate Body Report, European Communities—Measures Affecting Asbestos and Products Containing Asbestos, WT/DS235/AB/R (Adopted Apr. 5, 2001).

9 Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, para. 7.104, WT/DS400/R, WT/DS401/R (Adopted June 18, 2014).

10 Alexia Herwig makes the same point in Too much Zeal on Seals? Animal Welfare, Public Morals and Consumer Ethics at the Bar of the WTO, 15 WORLD TRADE REV. 109 (2016).

11 Appellate Body Report, EC—Seal Products, supra note 1, at para. 5.45.

12 Id. at para. 5.58.

13 Agreement onthe Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493.

14 Note in passing that the “technical content” approach could still allow us, without great strain, to regard all labeling rules as technical regulations, even if they are about “non-technical” aspects of the product. The label is an important aspect of a product as people consider purchasing it; and we can test the efficacy of various labels in communicating information.

15 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Adopted Nov. 6, 1998).

16 Lorand Bartels, The Chapeau of the General Exceptions in the WTO GATT and GATS Agreement, 109 AJIL 95 (2015).

17 Appellate Body Report, EC—Seal Products, supra note 1, at para. 5.45.

18 SeeKevin McGwin, EU ban blamed for rapid decline of Greenland sealing, ARCTIC J.(Mar. 14, 2014).

19 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, supra note 15.

20 Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres, supra note 2, at para. 227, discussing Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, supra note 15, at para. 165 (citations omitted).

21 Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres, supra note 2, at para. 234, n.445.

22 SeeKevin McGwin, supra note 18, and accompanying text.

23 Appellate Body Report, EC—Seal Products, supra note 1, at para. 5.320.