From the first EU written submission in the Seal Products dispute:
257. Canada argues that the Indigenous Communities exception de facto violates Article 2.1 of the TBT Agreement since such exception effectively permits 100% of Greenlandic seal products to be placed on the EU market, but excludes virtually all Canadian seal products from the same market, thereby modifying the conditions of competition to the detriment of Canadian seal products and resulting in inequality of competitive opportunities. Furthermore, Canada posits that the detrimental impact on Canadian seal products does not stem exclusively from a legitimate regulatory distinction, but simply on the ethnicity ("indigenous") of the hunter.
The measure at issue here is the general ban on placing seal products on the market in the EU, in combination with an exception for seal products that result from "hunts traditionally conducted by Inuit and other indigenous communities and contributing to their subsistence".
So let's stipulate that there is a large disparate impact on Canada's products, as compared to Greenland's.
Does it matter whether the EU intended to favor Greenland's products over Canada's? Does the existing jurisprudence allow the panel to take this into account? Should they take it into account? Is the "legitimate regulatory distinction" element a proxy for determining whether the EU officials were trying to favor Greenland over Canada? Will the panelists secretly take the EU's intent into account even if they don't say so in the reasoning?
And to complicate matters, how should the same issues be dealt with under GATT Article I:1? See paras. 546-563 for the EU's arguments there. Here's the opening:
Whether the advantage granted to the group of products from other origin is granted "unconditionally" to the group of like imported products (less favourable treatment)
546. The European Union submits that, for the same reasons as those mentioned in the context of Canada's claim under Article 2.1 of the TBT Agreement, the EU Seal Regime, through the IC exception, does not provide for less favourable treatment to the group of imported products.
What will the GATT Article I:1 standard look like in the context of the Seal Product case? Disparate impact plus legitimate regulatory distinction? Or something else entirely?
