From the EU response to the Seal Products panel's second set of questions:
Question 105 (All parties) The parties have referred to animal welfare outcomes in the killing of other wild animals as well as animals in commercial slaughterhouses in these proceedings. Please explain their factual and legal relevance to the animal welfare outcomes relating to seals.
22. The Complainants have argued that the EU Seal Regime is unnecessarily restrictive because the European Union does not ban the placing on the market of products from other animal species which, according to them, are killed in a manner involving worse welfare outcomes.
23. As clarified by the case law of the Appellate Body, the consideration by the Panel of measures applied to other species of animals could be relevant only in so far as such measures concerned sufficiently similar situations7 and then only as a mere "indication" of the availability of alternative measures.8
24. The measures applied by the European Union to other species cited by the Complainants in this dispute are not relevant as examples of available alternative measures because, as explained by the European Union, there are major differences between the situations concerned.9
25. At any rate, even if the situations concerned were sufficiently similar, Article 2.2 of the TBT and Article XX of the GATT do not impose a requirement of "consistency".10 Members are entitled to select different levels of protection in respect of different products or, as in this case, in respect of different species of animals.11
26. The European Union has compared the animal welfare outcomes in the slaughterhouses with those observed in the commercial seal hunts in response to the Complainants' suggestions that the commercial seal hunt is as humane, or even more humane, than the killing of animals at slaughterhouses.
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28. The European Union has shown that, in fact, there are inherent and widespread practices in commercial sealing that would never be accepted in an abattoir, including high wounding rates18, long and unavoidable delays between stunning, monitoring and bleeding19 or the use of painful procedures (gaffing) prior to bleeding.20
Is the EU being "inconsistent" in its consideration of the welfare of seals and the welfare of other animals? Is "consistency" in public policy goals at all relevant for either TBT Article 2.1 or Article 2.2?
