Stefano Iuretich Ada Modzelewska Alexandra Schwarz Friday, December 14, 2012

1. Use the seal ban in the EU to explain legal conflicts and integration between the EU and WTO legal orders Stefano Iuretich Ada Modzelewska Alexandra Schwarz Friday, December 14, 2012

2. Presentation Outline • What is the seal ban? • What are the arguments for and against the seal ban by Canada and the European Union? • How does this ban exemplify conflict and integration of WTO and EU legal orders? • Where do we go from here?

3. The EU seal ban • 2009 the European Parliament voted for the ban of import, export and sale of seal products • Seal products: “all products, either processed or unprocessed, deriving or obtained from seals, including meat, oil, blubber, organs, and fur skins ...”

4. Exceptions • Very rigid • Seal products that are from subsistence hunts traditionally conducted by Inuit and other indigenous communities • Where it is of an occasional nature and for the exclusive use of the travelers or their families • By-product of hunting that is regulated by national law and conducted for the sole purpose for the sustainable management of marine resources (non-profit based)

5. Objections Opposition from Norway and Canada • Significant part of the economy of the region • No alternatives for other economic activities • Negative influence of a growing seals population on fish stocks • The seal hunt is humane Failed negotiations Complaint to the WTO

6. Article I:1 Non-discrimination principle • Does the ban affect some exporters and not others? Canada: • Yes Advantage is given to Inuit and Aboriginal communities who continue to access the market EU: • No, Inuit are very narrow exception

7. Art. XI:1 • “ No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.” • Canada: • Bans fall within the scope of this article Canada-Periodicals case • EU tries to justify the ban  Article XX

8. Article XX(b) • “necessary to protect human, animal or plant life or health” • Animal health? • Necessary? EU: Yes, no alternatives are as effective to achieve the policy objective Canada: No, exemptions for humane killings, labelling techniques

9. Article XX (g) • Does the measure relate to the conservation of exhaustible natural resources? • Can the resource be depleted? EU: Yes Canada: Seals are not engangered • Is there a direct relationship between the measure and the goal of conservation?

10. Article XX(a) • “necessary to protect public morals” • Public morals: a nation's perceptions of right and wrong. • Job of government to protect those who cannot protect themselves • Public horror regarding seal’s suffering • BUT necessity?

11. XX Chapeau • Unjustified Discrimination • Efforts to negotiate with affected parties • Measure sufficiently flexible • Arbitrary Discrimination • Is application predictable and consistent? • Base on achievement of an objective • Disguised Restriction on Trade • Only feasible way to achieve objective • No domestic seal industry to protect

12. The relationship between EU and WTO Twolegalorders • EU is a party of the Agreement • Monistic or dualisticvision?

13. Possible incompatibility? Assumingthat the Seal Ban in EU isdeemednot in compliance with the rules of WTO Possibleconsequences • A decision of the Dispute Settlement Body (DSU) against the Union • Issuch a rulingenforceable by the winning party?

14. The force of international agreements within EU Art. 216 1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope. 2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.

15. An international treaty prevails over the inconsistent national law but... 2 types of agreements: 1. self-executing: they don't require further measures to be adopted 2. non self-executing: they set only the objectives while leaving margin of discretion to the contracting parties 12/12/12

16. Which category does WTO belong to? • The European Court of Justicehasalwaysregarded the GATT agreement (the WTO'spredecessor) as NON self-executing (joint cases 21-24/72 International Fruit) • Therefore, itsprovisionswerenotenforceable in EU legalframework, northeycouldhavedirecteffect

17. Differences between GATT and WTO: Less discretion A body entrusted to settle dispute whose decisions are binding has been established (DSU) 12/12/12

18. Does WTO law take precedence? • As of today, the ECJ has confirmed its past jurisprudence, notwithstanding GATT has been superseded by WTO (landmark case C-149/96, Portugal v. Council): • The WTO rules cannot be used as a ground of review either in the action for annulment (art. 263 TFUE) or following a preliminary reference in order to assess the validity of an act (art. 267 TFUE) • Exceptions: acts implementing WTO provisions – so-called Nakajima and Fediol doctrines

19. The ECJ has interpreted such exceptions very narrowly. Only in case of: Implementation of a particular obligation or When a clear reference to WTO law is made 12/12/12

20. A controversial issue • Scholars are divided • In favour of the ECJ (ex. Eeckhout) • Critical (ex. Griller) • Twoargumentsused by ECJ to denyanyeffect (except the need to adoptinterpretation in conformityifpossible) • Lack of reciprocity (USA and Japan mainly) • To recognize the bindingeffect of DSU'sdecisions and/or to conferdirecteffect to WTO ruleswouldinterfere with the margin of maneuverleft to EuropeanInstitutions

21. Further arguments • The ECJ still views the WTO as an agreement where the parties are granted the possibility to negotiate on the single issues • Moreover, it is unlikely that the provisions included therein may have the character of precision, clarity and unconditionality required to have direct effect – by giving rights to individuals which can be invoked before a national court • WTO and EU are thus two distinct legal orders, not integrated, although the ECJ regards the former as binding

22. Conclusion • This is still an open question with no clear answer • Perhaps the ECJ will change its approach • Interesting to see how the DSU handles the seal ban • Questions?