This is from the second EU written submission in the Seal Products case:
The legal standard under Articles I:1 and III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement with respect to their non-discrimination obligations is fundamentally the same
339. Both Canada and Norway argue that the legal analysis under Articles I:1 and III:4 of the GATT 1994 is fundamentally different from the analysis that the Panel has to make under Article 2.1 of the TBT Agreement. They argue that where de facto discrimination is claimed, the non-discrimination obligations under Articles I:1 and III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement require an analysis of whether the measure at issue modifies the conditions of competition to the detriment of imported goods, in particular the complainant. For both this is the case where the origin-neutral regulatory criteria disproportionately advantage, in terms of competitive opportunities, products from certain sources over like products from other sources (what the European Union refers to as the "quantitative approach"). Both Canada and Norway consider that under Articles I:1 and III:4 of the GATT 1994 no further analysis is required in order to find a violation of these provisions. In Canada's and Norway's views, the defendant may seek to justify the violation of Articles I:1 and III:4 of the GATT 1994 by showing that the detrimental impact results exclusively from a legitimate regulatory distinction covered by Article XX of the GATT 1994. In contrast, under Article 2.1 of the TBT Agreement, both Canada and Norway opine that the consideration of whether a detrimental impact results exclusively from a legitimate regulatory distinction is part of the analysis under Article 2.1 itself. Both seem to rely on the Appellate Body's statement in US – Tuna II (Mexico) that the "scope and content of [Article 2.1 and Articles I:1 and III:4 of the GATT 1994 are] not the same".
340. The European Union respectfully disagrees with those assertions.
In support of this view, the EU says:
345. Therefore, the national treatment obligations of Article 2.1 and Article III:4 are "built around the same core terms". The contours of the basic nondiscrimination obligations in Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994 are similarly crafted as there would be no point in recognising the regulatory space in the TBT Agreement if then the same regulatory autonomy were to be undermined under Article III:4 of the GATT 1994.
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350. ... the list of exceptions under Article XX of the GATT 1994 is exhaustive whereas the list of objectives that may be legitimately pursued by technical regulations is merely illustrative. If both the GATT 1994 and the TBT Agreement are intended to strike a balance between trade liberalisation and regulatory autonomy, then it makes little (if any) sense for technical regulations to enjoy a much broader scope of policy space than all other types of internal regulations.
The EU acknowledges the Appellate Body's statement in US – Tuna II (Mexico) that the "scope and content of [Article 2.1 and Articles I:1 and III:4 of the GATT 1994 are] not the same." What did the Appellate Body mean by this? How different are these provisions? What further clarification will the Appellate Body offer us in the event of an appeal in the Seal Products case?
