From the EU response to the Seal Products panel's first set of questions:
Question 36 (European Union) The European Union argues in paragraph 261 of its first written submission that if the legitimacy of an objective is established, then a fortiori, the regulatory distinction at issue is also legitimate. Please elaborate on this argument, including whether the legitimacy of an objective under Article 2.2 of the TBT Agreement is sufficient enough to establish legitimate regulatory distinction under Article 2.1.
122. The European Union considers that, if an objective is considered to be legitimate under Article 2.2 of the TBT Agreement, the regulatory distinction made pursuant to the measure based on that objective would also be legitimate (provided that such a regulatory distinction is designed and applied in a non-discriminatory, even-handed manner).
123. Indeed, the Appellate Body has relied on Article 2.2 of the TBT Agreement, and in particular on the terms "legitimate objective" contained therein, to provide meaning to Article 2.1 of the TBT Agreement.72 The Appellate Body has also relied on the objectives contained in the sixth recital of the TBT Agreement (also reproduced in Article 2.2 of the TBT Agreement) in the context of Article 2.1 of the TBT Agreement, "making clear that technical regulations may pursue the objectives listed therein".73
124. As mentioned before, Articles 2.1 and 2.2 of the TBT Agreement (like Articles I:1, III:4 and XX of the GATT 1994) are intended to strike a balance between trade liberalisation and regulatory autonomy. Thus, if the legitimacy of an objective is established, then any even-handed regulatory distinction based on such objective would also represent the exercise of legitimate (as opposed to protectionist) regulatory autonomy and thus should be taken into account when examining allegations of de facto discrimination.
To some extent, there is overlap between Articles 2.1 and 2.2. Is it useful to have these as separate obligations? Could they be collapsed in to a single, clearer obligation?