From the first EU written submission in the Seal Products dispute:
322. Canada argues that 90-95% of its seal products, which derive from large-scale commercial hunts, cannot be placed on the EU market whereas seal products of certain EU Member States may potentially be placed on the market because they fall within the scope of the MRM exception. In view of this, Canada submits that the EU Seal Regime provides for less favourable treatment to imported products in comparison to domestic like products.
Here is the EU response on the point:
324. When the treatment granted to the group of Canadian seal products (including both seal products derived from Inuit and large-scale commercial hunts) is compared to the treatment granted to the group of like products from domestic/other origin covered by the EU Seal Regime (including seal products derived from Inuit and small-scale/non-profit hunts), the result is that no discrimination arises.
The measure at issue here differs from the one mentioned in the last post. Here, it 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 conducted for the sole purpose of the sustainable management of marine resources" (the "MRM exception"). The products must be place on the market on a "non-profit basis" and in a "non-systematic way."
My question here is: Does the degree of disparate impact matter? The above excerpts are in the context of TBT 2.1. Here's a bit from GATT III:4:
519. Further, the European Union notes that, as a matter of fact, and as a very recent development, only seal products originating in Sweden and accompanied by the relevant document in accordance with Article 5.2 of the Implementing Regulation can be placed on the market under the MRM exception. The products of any other EU Member State, such as Finland or the United Kingdom (Scotland), are not allowed to be placed on the EU market. In fact, no public entity in any of those countries, allegedly targeted by the MRM exception, have even requested the necessary authorisation to the European Commission to have recognised bodies which could issue attesting documents. Thus, Canada's allegation about the purpose of the MRM exception (as seeking only to benefit EU products) is pure speculation.
So let's stipulate that Canadian products cannot take advantage of this exception. What if, on the EU side of the equation, only Swedish products can use it? That would seem to constitute a disparate impact, but perhaps a fairly small one. Should the size of the impact play a role in the less favorable treatment analysis?
