What is the difference between the 1983 Seal Pup Directive and the Basic Regulation?

The difference between the Seal Pup Directive and the Basic Regulation is that whereas the 1983 Directive applied to products made o f specific seal pups, the Basic regulation has a much

the seal products m arket even fo r Inuit co m m u n ities...T h e sam e result is to b e expected w ith the im plem enting regulation.’

322 See M alo u f (n 315).

323 ibid

324 ibid; see also M arket and Industry A nalysts (n 316).

325 Specifically, the N etherlands and Belgium . 325 ch 1 s 1.6.4; ch 6 s 6 .1 .

wider scope because under it all imports into the EU and commercial transactions within the EU involving any products from any species o f pinnipeds are prohibited.^^^ According to Article 2(2) o f the Basic Regulation, seal products specifically include: ‘[a]ll products, either processed or unprocessed, deriving or obtained from seals, including meat, oil, blubber, organs, raw fur skins and fur skins, tanned or dressed, including fur skins assembled in plates, crosses and similar forms, and articles made from fiir skins’.

As noted in section 2.2.2, another notable difference between the 1983 Seal Pup Directive and the Basic Regulation is that the former contained no implementing measures. Article 3 o f the Seal Pup Directive merely stipulated that it applies exclusively to products o f non-Inuit origin.

However, the implementation o f the Inuit exemption under the Basic Regulation is rather complex since qualifying products must fulfil all the conditions outlined in Articles 3(1), 6 and 7 o f the Implementing R egulation.^^* The exemptions under the Basic Regulation are considered next.

2.3 Exemptions under the Basic Regulation

The Basic Regulation contains three explicit exemptions and one implicit exemption to the general sale and import ban. Since this thesis investigates whether the EU balances fairly the protection o f seals against the rights o f indigenous peoples, the Inuit exemption found in Article 3(1) o f the Basic Regulation is the most relevant for the purposes o f this section. It stipulates that

‘[t]he placing on the market o f seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence’. For the completeness o f the argument, this section briefly introduces the three other instances in which seal products are exempted from the general sale and import ban. Under Article 3(2), by-products o f hunts ‘conducted for the sole purpose o f the sustainable management o f marine resources’ can be placed on the EU market, provided that the transactions involving

327 R egulation 1007/2009, arts 2(1), 3 and 8.

328 s 2.3.1.

these products are non-commercial and non-profit in character.^^^ Similarly, occasional imports

‘o f goods for the personal use o f travellers or their families’ are exempt from the import ban, if there are not involved in commercial transactions within the EU.^^®

Additionally, albeit the EU legislation does not explicitly mention this, seal products, which are merely transiting through the EU on their way to other markets, are excluded from the scope o f the import ban. Consequently, the warehousing and processing o f seal products is permitted in duty-free zones within the EU on their way to the Russian and Asian markets, provided that they do not enter local commerce.^^* The ban was not extended to these products because it was anticipated to have a significant adverse impact on processing operations, logistics firms, and traders in several EU Member States, including Germany, Finland, Denmark, and I t a l y I n d e e d , this reveals that the implicit exemption was a compromise between those Member States who wanted to ban seal products due to ‘concerns o f citizens and consumers’^^^ and those Member States who had a significant interest in facilitating trade in seal products to markets

outside the EU.^^'‘ '

The implicit exemption is critical for the purposes o f this thesis because this exemption should have a much more significant role in determining the success o f the EU ’s objective o f improving animal welfare outside the EU. This thesis argues that the transit trade diminishes the achievement o f the EU ’s objective, which is to protect seals from cruelty outside the EU’s borders.

This argument is supported by the findings o f the COWI, which noted in 2010 that the EU

329 R egulation 1007/2009, art 3(2)(b). A lso know n as the ‘m arine resources’ exem ption.

339 ibid art 3(2)(a).

33' ch 6 s 6.6.

332 See eg P eter Fitzgerald, ‘“M orality” m ay not be enough to ju stify the E U seal products ban: anim al w elfare m eets international trade law ’ (2011) 14 J o f Inti W ildlife L aw and Policy 85

D O I: 10.1080/13880292.2011.583578.

333 R egulation 1007/2009, pream ble, recital 5. See also ch 1 s 1.1.

334 In 2006, several M em ber States traded in considerable num bers o f raw furskins. In total 4,536,511 sealskins w ere im ported to and w ithin the EU -27. M em ber States involved in intra-E U trade were: Finland, the U K and Sw eden w ho processed approxim ately 40% o f all sealskins and im ported them to Italy and Greece. Sealskins from R ussia w ere im ported directly to Italy, w hereas sealskins from C anada and G reenland w ere im ported prim arily to D enm ark. COW I R eport 2008 (n 81) 25 and 105.

legislation was unlikely to result in improved animal welfare outside the EU, if trade flows were diverted to markets outside the EU:

Policy measures - such as prohibitions o f market access for seal products - might reduce the size o f the hunting and thus the number o f seals suffering. However, animal welfare gains will be reduced by the extent such policy measures imply that seal products are diverted to others markets - which might have lower requirements to animal welfare aspects

It appears that there was a significant export o f seal products, particularly ‘o f tanned or dressed furskins o f seal, whole, with or without heads, tails or paws, not assembled (excl. white- coat pups o f harp seal or blueback pups o f hooded seal)’^^^ ffom the EU-27 to Russia before the adoption o f the EU ban. Therefore, it is understandable that certain EU Member States wanted to continue trading in these products despite the restrictions imposed on the trading on the EU ’s internal market.

It can nevertheless be argued that the implicit exemption for transit trade undermines the EU’s objective under the EU legislation.^^^ Additionally, the explicit exemptions have not resulted in the desired outcomes, since the exempted products have not been able to enter the market.^^*

In conclusion, the exemptions to the EU seal products legislation appear to reflect a compromise between different interests EU Member States had in seal products. Whereas several Member States had a vested interest in this trade, others sought to prohibit the entry o f all seal products into the EU market.^39 As a compromise the institutions inserted three explicit exemptions in the general sale and import ban for allowing products originating from Greenland and EU Member States to enter the internal market. Additionally, products from commercial seal hunts were allowed to transit through the Member States, provided that such products are not available for the EU public. As is seen in Chapter 7 these exemptions have nevertheless had only moderate

335 COW I R eport 2008 (n 81) table 5.1.1. See also ch 2 s 2.5.

335 COW I R eport 2008 (n 81) 104-105.

337 ch 7 s 7.2.1.2.

338 ch 7 ss 1.1.13 and 7.3.1-7.3.3.

339 s 2.4.

success in guaranteeing the achievement o f the E U ’s multiple objectives under the seal products legislation.^'*®