The Appellate Body says the Panel erred in finding that the EU seal products measure is a technical regulation:
5.58. Having reviewed the relevant aspects of the EU Seal Regime, we see only one feature that may suggest that the measure lays down product characteristics, while all others suggest that this is not the case. For example, to the extent that the measure regulates the placing on the EU market of pure seal products, which is a part of the integral and essential aspects of the measure, it does not prescribe or impose any "characteristics" on the products themselves. To the extent the measure prohibits the placing on the EU market of seal-containing products, it could be seen as imposing certain "objective features, qualities or characteristics" on all products by providing that they may not contain seal. However, as stated above, we are not persuaded that this part of the Regulation constitutes the main feature of the measure at issue. Moreover, the EU Seal Regime's prohibition of "mixed" products differs, to a considerable extent, from the prohibitive aspects of the French Decree under EC – Asbestos. More importantly, as noted by the Panel, the EU Seal Regime "consists of both prohibitive and permissive components and should be examined as such".967 As we see it, when the prohibitive aspects of the EU Seal Regime are considered in the light of the IC and MRM exceptions, it becomes apparent that the measure is not concerned with banning the placing on the EU market of seal products as such. Instead, it establishes the conditions for placing seal products on the EU market based on criteria relating to the identity of the hunter or the type or purpose of the hunt from which the product is derived. We view this as the main feature of the measure. That being so, we do not consider that the measure as a whole lays down product characteristics. This is not changed by the fact that the administrative provisions under the EU Seal Regime may "apply" to products containing seal.
5.59. In the light of the above, we reverse the Panel's findings, in paragraphs 7.111 and 7.112 of the Panel Reports, that the EU Seal Regime lays down product characteristics. The Panel's conclusion that the EU Seal Regime constitutes a "technical regulation" relied on its intermediate finding that the EU Seal Regime lays down product characteristics. Accordingly, having reversed this finding by the Panel, we also reverse the Panel's findings in paragraphs 7.125 and 8.2(a) of the Panel Reports that the EU Seal Regime constitutes a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement.
More to come, as I and others sort through the reasoning.
ADDED: This will take some time to digest, but if I'm reading these passages correctly, does this mean that if the EU banned all seal products, it would be a technical regulation?
MORE: I made some slight edits to this post, because I kind of rushed to get it up there, and I didn't like some of my original word choices.
