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Sealed with a Doubt

EU, Seals, and the WTO

Published online by Cambridge University Press:  20 January 2017

Petros C. Mavroidis
Petros C. Mavroidis*
Affiliation:
CLS, EUI
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Abstract

In EC–Seal Products, the WTO Appellate Body (AB) issued a(nother) controversial report. This paper argues that the analysis followed by the AB is wrong. To prove this point, we ask two questions. Would the AB have concluded the same way if it had constructed the EU measure as two separate measures and not one? Did the AB adequately control for the regulatory intent of the EU, indeed the quintessential element for deciding whether the EU was indeed pursuing a societal preference of no commercial character? We responded in the negative to both questions.

Type
Symposium on the EU–Seal Products Case
Information
European Journal of Risk Regulation , Volume 6 , Issue 3 , September 2015 , pp. 388 - 395
Copyright
Copyright © Cambridge University Press 2015

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References

1 Regulation (EC) No. 1007/2009 of the European Parliament and of the Council on trade in seal products, OJ 2009 L 286. The exceptions are contained in Commission Regulation (EU) No. 737/2010 laying down detailed rules for implementation of the Basic Regulation, OJ 2010 L 216.

2 European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Notification of an Appeal by Norway, WT/DS401/9, 29 Jan. 2014, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Appellate Body, WTO Doc., WT/DS400/AB/R, WT/DS401/AB/R, 22 May 2014, paras 2.1ff.

3 European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Notification of an Appeal by Canada, WT/DS400/8, 29 Jan. 2014, Reports of the Appellate Body, EC-Seal Products, paras 2.2 ff.

4 European Communities - Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Panel, WT/DS400/R, WT/DS401/R, 25 November 2013, para 7.1, Reports of the Appellate Body, EC-Seal Products, para 6.1.

5 Reports of the Appellate Body, EC-Seal Products, para 6.1.c-d.

6 Compare for example, Howse and Langille on the one hand, to Perisin on the other. Robert Howse, and Joanna Langille, “Permitting Pluralism: the Seals Products Dispute and why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values”,37 The Yale Journal of International Law (2012) pp. 368 et sqq.;Google Scholar Perisin, Tamara, Tamara, . 2013. “Is the EU Seals Regulation a Sealed Deal? EU and WTO Law Challenges”, 62 International and Comparative Law Quarterly (2013), pp. 373 et sqq.CrossRefGoogle Scholar Howse, Langille and Sykes briefly discuss the Appellate Body Report here; Rob Howse, Joanna Langille and Katie Sykes, “Sealing the Deal: The WTO's Appellate Body Report in EC – Seal Products” ASIL Insights, available on the internet at http://www.asil.org/insights/volume/18/issue/12/sealing-deal-wto%E2%80%99s-appellate-body-report-ec-%E2%80%93-seal-products#_edn15 (accessed 20 July 2014)..

7 See Paola Conconi and Tania Voon, “EC-Seal Products: The Tension between Public Morals and International Trade Agreements”, World Trade Review, 2016, forthcoming. The authors show in their paper that the original draft of the EU regulation contained no exception at all. Exceptions were introduced at a later stage in order to take care of concerns advanced by Germany and Finland (since both countries engaged in transshipping seal skins), as well, the processing industry mainly in Denmark, and Italy. Denmark emerged as a key player in this discussion because of its special ties to Greenland.

8 United States-Standards for Reformulated and Conventional Gasoline, Appellate Body Report (adopted 26 April 1996) WT/DS2/AB/R, p. 22; United States –Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report (adopted 12 October 1998) WT/DS58/AB/R paras 119-121.

9 ibid.

10 Appellate Body Report, US-Gasoline, p. 22-23.

11 Reports of the Appellate Body, EC-Seal Products, para 5.302.

12 Reports of the Appellate Body, EC-Seal Products, para2.107, para 2.134, para 2.140.

13 Reports of the Appellate Body, EC-Seal Products, para5.203, para 6.1.

14 Reports of the Appellate Body, EC-Seal Products, para5.194 ff.

15 Reports of the Appellate Body, EC-Seal Products, para 5.316, paras 5.336-339.

16 Reports of the Appellate Body, EC-Seal Products, para2.104.

17 Reports of the Appellate Body, EC-Seal Products, para 5.339.

18 Reports of the Appellate Body, EC-Seal Products, para 5.326.

19 Perisin (2013) op cit.

20 EC-Seals, Reports of the Appellate Body, para. 5.141ff., and especially paras. 5.145–146.

21 Reports of the Appellate Body, EC-Seal Products, para 5.339 and para. 6.1.

22 Lorand Bartels, “The Chapeau of Article XX GATT: A New Interpretation”, University of Cambridge Faculty of Law Legal Studies Research Paper Series, Paper No. 40/2014 (July 2014), pp. 7, 10-14.

23 European Communities-Measures Affecting Asbestos and Asbestos- Containing Products, Report of the Appellate Body (adopted 12 March 2001) WT/DS135/AB/R, paras 115, 122-123.

24 This is so because the VCLT does not explain what is the relevance of each and every one of the elements included therein.

25 Mattoo, Aaditya, and Mavroidis, Petros C.. 1997. “Trade, Environment and the WTO: The Dispute Settlement Practice Relating to Art. XX of the GATT”, in Ernst Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System (Kluwer: Amsterdam, 1997) , pp. 325 et sqq. Google Scholar

26 EC_Seals, Report of the Appellate Body, para. 5.211.

27 Ibid., at para. 5.218.

28 Brazil-Measures Affecting Imports of Retreaded Tyres, Appellate Body Report (adopted 3 December 2007) WT/DS332/AB/R, para 227.

29 Reports of the Appellate Body, EC-Seal Products, para. 5.221.

30 Ibid., at paras. 5.222-223.

31 Ibid. at para. 5.225.