With the adoption of Regulation 2015/1775 in October 2015, there seems to have come an end to a fascinating legal dispute concerning the EU’s ban on trade in seal products. The ban was challenged multiple times, both before the CJEU and the WTO. The dispute gave an insight into the litigation tactics of actors involved in multiple international proceedings concerning a single legal regime.
The original Regulation 1007/2009 prohibited the placing on the market of seal products, except for products obtained from seals hunted by Inuit (IC exception) and seals hunted for marine resource management (MRM exception), while travelers were also allowed to bring a small number of products into the European Union. A first challenge to the Regulation, brought by several Inuit associations, was held inadmissible by the General Court (appeal dismissed). In response to a second challenge, this time targeting implementing Regulation 737/2010, the General Court ruled that the action was unfounded, as the basic Regulation was properly based on Article 95 EC (now Article 114 TFEU) and did not breach principles of subsidiarity, proportionality or fundamental rights (comment). The subsequent appeal was dismissed (comment).
At the WTO, the EU seals regime was challenged by Norway and Canada. The Panel found that the IC and MRM exceptions violated various non-discrimination provisions in the TBT Agreement and the GATT, as, in practice, virtually all domestic and Greenlandic products benefited from the exceptions, whereas Canadian and Norwegian products did not. The Panel further found that the regime was in principle justified by the aim of protecting public morals, but that the IC and MRM exceptions did not fulfill the conditions of the chapeau of Article XX GATT (comment). The Appellate Body upheld most of the findings under the GATT. In response, the EU removed the MRM exception and adapted the IC exception in the new Regulation.
An interesting question that arose in both forums concerned the purpose of the EU seal regime. Interestingly, the EU took rather divergent approaches on this matter. Before the CJEU, the EU had to prove that the object of the regime was to regulate the internal market, in order to justify recourse to Article 114 TFEU. The General Court found that this condition was fulfilled: ‘it is clear from the basic regulation that its principal objective is not to safeguard the welfare of animals but to improve the functioning of the internal market’ (para. 35).
Before the WTO, the EU argued that the objective of the seal regime was ‘to address the moral concerns of the EU public with regard to the welfare of seals’ (para. 7.367). Norway argued that the object of market harmonization, mentioned by the EU as the ‘immediate objective’, could not justify a trade restriction under the WTO Agreements. The EU ceded that point and argued that the proportionality analysis should instead focus on the objective of addressing the moral concerns of the EU public with respect to the welfare of seals (7.371).
The different approaches taken by the EU before the CJEU and the WTO leave unclear what the primary objective of the seal regime was: market harmonisation or public concerns about animal welfare. The different responses can be understood in the light of the different requirements posed by EU law and WTO law. Nonetheless, an interesting question is to what extent a legal actor can credibly rely on different purposes to justify a certain measure depending on the forum in which it is challenged.
JOHANNES HENDRIK FAHNER (PhD Student University of Luxembourg).Julie Fonseca