[Tamara Perisin is a member of the faculty of law at the University of Zagreb]This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.The article by Rob Howse and Joanna Langille on the EU Seal Products Regulations goes far beyond a case study on a challenged measure and pending dispute. The article places the WTO challenge in the context of the development of a regulator-friendly world trading scheme sensitive to Members' values, such as animal welfare. At the core of the article lies a pluralist vision of the WTO allowing diversity and a high level of protection of non-protectionist aims. This is a vision to which I also personally subscribe.
However, beyond the underlying premises of the article, which I fully support, there are subtleties in the analysis of the particular EU measures which lead me to some different conclusions from those Howse and Langille reach. These conclusions, though, are not intended to endorse seal hunting. In this online symposium, I would like to open up several questions for discussion.
As a preliminary point, I have to admit that my views of the EU Seal Products Regulation and its Implementing Regulation are influenced by the legality and legitimacy problems which these measures face internally, within the EU. Both Regulations are currently under challenge before the ECJ as they might be contrary to the principles of conferred competences, subsidiarity and proportionality. The Seal Products Regulation was adopted on the basis of Article 114 TFEU which is supposed to serve for the establishment and functioning of the internal market. The EU legislature interpreted this legal basis very broadly to regulate a matter which is not very connected to the internal market, but (arguably) achieves animal health or moral aims for which the EU does not have the competence. Broad interpretations of this competence leave little room for any diversity, pluralism, and decision-making at levels closer to citizens (which are among the EU's basic principles). So an entirely pluralist view actually goes against EU regulations in this area, as EU Member States themselves would have chosen different regulatory solutions for seal protection had they been left with that choice.
As regards the measures' compliance with WTO law, this comment relies on the detailed analysis in Permitting Pluralism, and just focuses attention on the aims, coherence and necessity of the measures.