From the EU response to the Seal Products panel's first set of questions:
Question 48 (All parties) What kind of evidence is necessary to establish the existence of "public morals" under Article XX(a) of the GATT 1994? Does it differ depending on the type of public moral in question? What differentiates a public moral from public opinion?
161. Previous panels have noted that the content of the concept of public morals "can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values"85 and that, for this reason, Members should be given some scope to define and apply for themselves the concepts of 'public morals' in their respective territories, according to their own systems and scales of values. 86
162. The European Union agrees with the above views. Panels are not bound by the responding Member's own characterization of the measure in dispute as being based on "public morals". Nevertheless, panels should accord appropriate deference to such characterization and be very careful not to substitute its own definition of public morals.
163. Having regard to the above, the European Union considers that the starting point of the enquiry should be the measure itself, including its preamble, and the legislative history. Where, as in the present case, the measure at issue has been adopted in accordance with a democratic and open process by representative political institutions, those institutions are best placed, and uniquely legitimised, to recognise and interpret the moral concerns of the population that they represent. The adoption in good faith of a measure by such institutions with the objective of addressing the moral concerns of the population should, in principle, be regarded as evidence of such moral concerns.
164. Where the examination of the measure is inconclusive or if there are elements that cast doubt on the responding Member's own characterization of the measure, it may be relevant to look, inter alia, at the following other types of evidence in order to confirm whether the measure pursues a genuine public morals objective:
165. First, it may be relevant to examine whether the measure reflects prescriptions of religious origin or the doctrines of a moral school of thought.87
166. Second, it may be relevant to examine whether the measure is part of a broader regulatory policy or similar to other measures which are themselves regarded as pursuing a public moral objective in the responding Member.88
167. Third, it may be relevant to examine whether other Members89 or international organizations90 have taken similar measures on public moral grounds or otherwise expressed views indicating that they regard the subject matter addressed by the measure at issue as a matter of public morals.91
168. Last, opinion polls may be useful, but are not indispensable. In previous disputes have been able to conclude that the measures at issue pursued a public morals objective despite the absence of any opinion polls. Indeed, the definition of “public morals” from US-Gambling above quoted clearly shows that the standards of right and wrong do not necessarily have to originate with the citizens themselves. They can be set by the government “on behalf of” a community. Authoritarian and paternalistic governments often impose from above measures based on public morals which do not enjoy public support. Even in democratic states with representative institutions, governments do not have to poll first the views of the population in order to enact measures based on public morals.
The EU states that: "the measure at issue has been adopted in accordance with a democratic and open process by representative political institutions, those institutions are best placed, and uniquely legitimised, to recognise and interpret the moral concerns of the population that they represent." Does that mean it should be harder for authoritarian states to invoke the public morals defense?
