From the EU response to the Seal Products panel's first set of questions:
Question 35 (All parties) In US-COOL, the Appellate Body stated: [S]ome technical regulations that have a de facto detrimental impact on imports may not be inconsistent with Article 2.1 when such impact stems exclusively from a legitimate regulatory distinction. In contrast, where a regulatory distinction is not designed and applied in an even handed manner — because, for example, it is designed or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination — that distinction cannot be considered "legitimate", and thus the detrimental impact will reflect discrimination prohibited under Article 2.1. In assessing even handedness, a panel must carefully scrutinize the particular circumstances of the case, that is, the design, architecture, revealing structure, operation, and application of the technical regulation at issue." (para. 271)
...
b. What does an assessment of a measure's "even-handedness" entail? For instance, to examine whether a regulatory distinction is "designed or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination", should the Panel examine factors similar to those examined under the chapeau of Article XX of the GATT 1994 in previous disputes? If so, what specific factors should be taken into account? If not, what other factors should be examined?
120. The assessment of a measure's "even-handedness" entails examining whether the measure is "fair", "non-discriminatory" and "calibrated" to the purpose its pursues. In this respect, the European Union observes that the dictionary meaning of "evenhanded" refers to "fair, evenly-balanced; free of bias or preference".68 The concept of "even-handeness", like discrimination, refers to whether two similar factual situations are treated differently69 and whether the specific measure is "calibrated" (and does not go beyond what it is necessary) to achieve its purpose.70
121. That being said, the straightforward application of the chapeau of Article XX of the GATT 1994 may not be entirely appropriate since the chapeau deals with issues concerning the application of the measure, whereas the language employed by the Appellate Body refers to the "design" as well.71
The Appellate Body introduced the term "even handed" into this issue. What did it mean by that? Are "fair" and "calibrated" useful terms here? Is" fair" too broad? Does "calibrated" bring the concept of "necessity" into Article 2.1?
