From the EU response to the Seal Products panel's first set of questions:
Question 23 (All parties) Based on Table 1 and specific cells comprising the table, please identify the groups of products to be compared for the purpose of the Panel's analysis of the complainants' claims under Articles I:1 and III:4 the GATT 1994. Should different groups of products be compared for each element of relevant provisions, such as 'like product' and 'less favourable treatment'?
80. With respect to the complaints' claim under Article I:1 of the GATT 1994, the European Union considers that the relevant groups of products to be examined are Norway's and Canada's seal products (B+E) and Other Foreign seal products (C+F). In order to determine whether the EU Seal Regime provides for "less favourable treatment" the treatment granted to products in B should be compared with the treatment of products in C (as the group of non-conforming products and the group of non-conforming like imported products). Likewise, the treatment granted to products in E (or more precisely E, H and K) should be compared with the treatment of products in F (or more precisely F, I and L) (as the group of conforming products and the group of conforming like imported products).53
81. With respect to the complainants' claims under Article III:4 of the GATT 1994, the European Union considers that the relevant groups of products to be examined are Norway's and Canada's seal products (B+E) and Domestic seal products (A+D). In order to determine whether the EU Seal Regime provides for "less favourable treatment", B should be compared with A (as the group of non-conforming imported products and the group of non-conforming like domestic products) and the treatment granted to E (or more precisely E, H and K) should be compared with D (D, G and H in the table provided by the European Union) (as the group of conforming imported products and the group of conforming like domestic products).54
82. That being said, the European Union observes that in order to determine whether there is a violation of Articles I:1 or III:4 of the GATT 1994, the Panel has to examine whether there is discrimination in the treatment granted to the group of imported products when compared to the group of like domestic/other origin products. This entails comparing the aggregate competitive opportunities afforded, on the one hand, to imported seal products that are derived from hunts conducted for commercial, subsistence and marine resource management purposes and, on the other hand, to domestic/other origin like seal products that are the result of these three kinds of hunts. This further requires an analysis of the various categories of the products at issue, i.e. by comparing imported seal products and domestic/other origin like seal products derived from seal hunts for commercial purposes, imported seal products and domestic/other origin like seal products derived from seal hunts for subsistence purposes, and imported seal products and domestic/other origin like seal products derived from seal hunts for managing marine resources purposes. When making a category-to-category comparison within the group of products, it should be concluded that there is no alteration of the aggregate competitive opportunities in favour of domestic/other origins group of products. Put in simple terms, such approach shows that there is no discrimination contrary to Articles I:1 and III:4 of the GATT 1994 since each category in the same situation (by reference to the purpose of the hunt) is treated equally and have identical access to (or prohibition to access) the EU market.
I couldn't copy the table referenced in this question; you'll have to look at the document itself.
I don't think it's any secret that I'm a big supporter of the group comparison. In that regard, for me it's not relevant to compare individual cells in these kinds of tables as part of the less favorable treatment analysis. See the EU response to Question 25 and the accompanying table on this point.
One issue that I didn't see addressed by the panel's questions was the relevance of the degree of disparate impact in the group comparison. A situation where, say, 100% of imports get the worse treatment under the "regulatory distinction" at issue while 20% of domestic products get the worse treatment is very different from a situation where 60% of imports get the worse treatment and 50% of domestic products get the worse treatment.
