European Communities – Measures Prohibiting the Importation and Marketing of Seal Products Cecilia J Flores Elizondo
The case of European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seal Products)2 raised the issue of whether the EU Seal Regime3, which prohibits the importation and marketing of seal products, was justified under the right to protect public morals. Besides this issue, the complainants – Canada and Norway – challenged the discriminatory nature of the ban, and the exceptions thereof, which allegedly discriminated against their industries. In May 2014, the Appellate Body (AB) issued its decision in a very complex and controversial case. Although on different grounds, the AB upheld the Panel’s finding that the EU Seal Regime was in some respects discriminatory under Articles I:1 (Most-Favoured Nation) and III:4 (National Treatment) of the General Agreement on Tariffs and Trade 1994 (GATT). But, the AB confirmed the Panel’s finding that the EU Seal Regime was justified under Article XX (a) of the GATT public morals exception. The AB, however, found that the EU Seal Regime was not applied in a manner that met the requirements of the Chapeau Article XX of the GATT. The AB asserted that the design of the EU Seal Regime could lead to the arbitrary and unjustifiable discrimination between countries where the same conditions for seal welfare prevailed. In addition to this, the AB decision provides an interpretation of de facto discrimination under Articles 1:1 and III:4 of the GATT, as well as shedding some light on the constitution of ‘technical regulations’ according to the WTO Agreement on Technical Barriers to Trade (TBT).