8 Trade in seal products
| (29938)
12604/08
+ ADDs 1-2
COM(08) 469
| Draft Regulation concerning trade in seal products
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| Legal base | Article 95EC; co-decision; QMV
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| Department | Environment, Food and Rural Affairs
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| Basis of consideration | SEM of 9 March 2009 and Minister's letter of 3 June 2009
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| Previous Committee Report | HC 16-xxxi (2007-08), chapter 3 (15 October 2008)
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| To be discussed in Council | 25 June 2009
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
8.1 Although the Community currently prohibits the imports of
certain seal skins (and products derived from them), this is in
the main related to their conservation, and does not therefore
address the extent to which the way in which seals are killed
and skinned may cause avoidable pain, distress and other forms
of suffering. The Commission has observed that this is now a major
public concern, and that two Member States have introduced national
measures restricting trade in seal products; that another is considering
doing so; and that other Member States may well follow suit.
8.2 Since it considers that this could lead increasingly
to a fragmentation of the internal market, it forward in July
2008 this proposal, which would ban the placing of seal products
on the Community market, and their import into, transit through,
and export from the Community (though imports for the personal
use of travellers would still be permitted). Trade in seal products
would also still be possible where it can be demonstrated that
humane killing conditions have been met and effectively enforced,
and where products are derived from hunts traditionally conducted
by Inuit communities and which contribute to their subsistence.
These derogations would be accompanied by appropriate certification
and labelling or marking provisions to demonstrate compliance
with the necessary conditions.
8.3 The Commission noted that the Treaty does not
provide a specific legal basis for addressing these kind of ethical
issues, but that a reliance on ethical provisions does not prevent
it from adopting measures in areas where it has the power to legislate.
In particular, it noted that the case law of the European Court
of Justice has established that, where different national laws
adopted may directly affect the functioning of the internal market,
Community measures are justified, and that the Court has recognised
that the protection of animal welfare is a legitimate public interest.
It also pointed out that, insofar as the measures proposed would
apply to intra-Community trade as well, they would be non-discriminatory,
and hence compatible with the General Agreement on Trade and Tariffs
(GATT).
8.4 As we noted in our Report of 15 October 2008,
the Government had said that there is no commercial or recreational
hunting of seals in the UK, although the UK does import and export
seal products, and may also have some involvement in the preparation
of processed products incorporating ingredients derived from seals.
However, it had been lobbied heavily in recent years to extend
the current Community prohibition, and its current policy is to
pursue an extension of the existing Community ban to include commercial
imports of seal skin products from all harp and hooded seals,
irrespective of age. It suggested that that the current proposal
went beyond this, in it applies to all seal products, not just
skins, and to exports and goods in transit and for sale as well
as imports.
8.5 Despite this, the Government welcomed the proposal
in principle, and would like to see a workable ban implemented
as soon as possible, though it also noted that some Member States
had challenged the proposed legal base, and had also suggested
that the proposal could be vulnerable to challenge in either the
World Trade Organisation, the European Court of Justice, or the
national courts, points which were being considered further by
the Council Legal Services. In addition, there was a risk of challenge
— albeit a low one — under the European Convention
on Human Rights.
8.6 In commenting that the proposal raised a number
of important political issues on which we expected to receive
further information in the Government's promised Impact Assessment,
we observed that it also gave rise to two legal points —
the use of Articles 95 and 133 of the Treaty to address a matter
which involves essentially ethical considerations, and the extent
to which what is proposed is compatible with the European Convention
on Human Rights. Consequently, whilst we were drawing the document
to the attention of the House, we intended to hold it under scrutiny,
pending further information, including the Impact Assessment which
the Government had said it would produce following its formal
consultation with trade and other interests.
Supplementary Explanatory Memorandum of 9 March
2009
8.7 We subsequently received a Supplementary Explanatory
Memorandum of 9 March 2009 from the then Minister of State (Farming
and the Environment) at the Department for Environment, Food and
Rural Affairs (Jane Kennedy), enclosing an Impact Assessment which
said that, although it had not been possible to quantify the costs
and benefits of the proposal, a Community-wide ban with no derogations
would be the simplest approach to implement, and would meet the
UK's objectives at the lowest cost. The Assessment also said that
the proposal would have a fairly limited impact on consumers and
business in the UK, since imports of seal products in 2007 were
only some €250,000 (though it added that, if a checking regime
was needed to establish that imported products came from seals
killed in a humane fashion, this could give rise to administrative
costs for HM Revenue and Customs, the level of which would depend
upon the degree of enforcement chosen).
8.8 However, the Minister added that a ban with no
derogations could be vulnerable to challenge in the WTO, and would
not provide incentives to improve the welfare standards associated
with the seal hunt. The UK was therefore prepared to consider
a limited exemption for products from Inuit subsistence hunting,
even though this could be more expensive to regulate and difficult
to enforce. However, since she did not refer to the more general
exemption proposed where humane killing conditions had been met,
our Chairman wrote to her on 18 March asking for clarification
on this point.
Minister's letter of 3 June 2009
8.9 We have now received from the Minister a letter
of 3 June 2009, in which she says that, following trilogue discussions
between the Commission, Council and European Parliament, a compromise
proposal was adopted by the Parliament on 8 May, and is expected
to go to the Council on 25 June for formal agreement.
This would specify that
the placing on the market (defined essentially as import and intra-Community
trade) of seal products would only be allowed where the products:
- result from traditional hunts
conducted by Inuit and other indigenous communities;
- are for personal use;
- result from hunts regulated under national law
with the sole purpose of the sustainable management of marine
resources and where the products are marketed on a non-profit
basis.
Export and transit trade would however still be permitted
on the basis that this should help to reduce the chance of a successful
WTO challenge.
8.10 The Minister also refers to the use of Articles
95 and 133 of the Treaty to address a matter which involves ethical
considerations. She says that the Commission is now basing the
proposal solely on Article 95, having decided not to rely jointly
on Article 133. She adds that Article 95 can only be used if it
can be shown that the ban contributes to the functioning of the
internal market, and that, whilst ECJ case law suggests that the
Commission does not need a great deal of evidence that a measure
is suitable to improve the functioning of the internal market,
it does need to be presented with a plausible case. Consequently,
the Commission has strengthened the justification for the measure
in the preamble to the draft Regulation, although she comments
that there will still be a risk of a successful challenge within
the domestic courts or the ECJ, if there is a lack of evidence
to support the assertions made.
8.11 She says that there is also a risk of challenge
within the WTO on the basis that the ban poses a restriction on
trade, but she suggests that the removal of the export and transit
bans in the current version reduces the grounds for such a challenge,
adding that, if it cannot be successfully argued that the measure
does not pose a trade restriction contrary to WTO rules, the Commission
will have to argue that the measure is necessary to protect public
morals. However, she comments that public morality arguments have
been little tested before the WTO, making it difficult to predict
its approach to this exception.
8.12 Finally, the Minister refers to the compatibility
of the proposal with the European Convention on Human Rights.
She says that the UK does not consider the trade ban will affect
the human rights of those involved in seal hunting activities
in the UK as the products involved are not used for commercial
purposes. So far as secondary processing is concerned, she suggested
that the proposed ban might be challenged on the grounds that
it could affect the right to the peaceful enjoyment of one's possessions,
but that an act which limits the use to which possessions can
be put (rather than depriving someone of them) is only a breach
of human rights if it is for a manifestly unreasonable purpose
or is disproportionate to the objective. She says that the UK
believes that the ban can be justified in the public or general
interest.
8.13 The Minister concludes by saying that there
is clear and strong public support for measures to curb seal hunting,
and that on balance, despite the risk of a possible challenge,
the Government sees merit in supporting the revised text. She
adds that a failure to reach agreement now will postpone the adoption
of new measures until 2010 at the earliest, and that the latest
proposal will make a meaningful contribution to the welfare of
seals. The Government therefore sees no reason to delay its formal
endorsement of these measures.
Conclusion
8.14 Although the Minister has told us that it
has not been possible to quantify the costs and benefits of the
proposal, we note that the impact within the UK is expected to
be limited, given the relatively low volume of imported seal products.
We also recognise the strong public support for measures to curb
seal hunting, and that the proposal no longer contains the potentially
troublesome derogation for products where it can be demonstrated
that humane killing conditions can be effectively enforced. In
view of this, and bearing in mind also the Government wish not
to delay the formal endorsement of the proposal at the Council
on 25 June, we are now content to clear it.
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