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Simulation des Europäischen Gerichtshofes www.meuc.eu Louisa Hall Berlin, 16.12.2010 Dimitrina Hristova Tone Sverresdotter Knapstad David Krappitz Contact address Humboldt Universität zu Berlin Juristische Fakultät Unter den Linden 9 D-10099 Berlin Cour de justice de l'Union européenne L- 2925 Luxembourg Legal Remedy Second Submission In case T- 19/10 R By The European Parliament As represented by Louisa Hall, Dimitrina Hristova, Tone Sverresdotter Knapstad and David Krappitz Rottenfields Brockhaus Dillinger Rechtsanwaltskanzlei Against The Action of annulment of Regulation 1007/2009 Against the Inuit Tapiriit Kanatami, Nativak Hunters and Trappers Association, Pangnirtung Hunters and Trappers Association, Mr Jaypootie Moesesie, Mr Allen Kooneeliusie, Mr Toomasie Newkingnak, Mr David Kuptana, Ms Karliin Aariak, Mr Efstathios Andreas Agathos, Canadian Seal Marketing Group, Ta Ma Su Seal Products, Fur Institute of Canada, NuTan Furs, Inc., GC Rieber Skinn AS, Inuit Circumpolar Conference Greenland (ICC), Mr Johannes Egede and Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK) As represented by Miya Cara Akselgraad, Laurence Meyer, Amaryllis Müller and Henning Stuhr S.A.M.M. Rechtsanwaltskanzlei Table of content I. Preliminary observations A. Introduction B. Admissibility II. Argumentation A. Lack of competence – Infringement of an essential procedural requirement i. Invalid legal basis (95 EC – 133 EC) ii. Missing reference to Art 133 EC iii. Disproportionality iv. Infringement of WTO law B. Infringement of the Treaties and rules of law relating to their application – misuse of power i. Free movement of goods ii. General principles of law – equality C. Disregard of Fundamental Human Rights i. ECHR ii. First protocol iii. United Nations Declaration on the Rights of Indigenous People III. Compensation for damages IV. Conclusion I. Preliminary observations A. Introduction 1. The Parliament replies to the second submission and action brought by the applicants to the Court of Justice ('the court') seeking annulment of Regulation 1007/2009 ('the Regulation'). The admissibility cannot be based on Article 263 TFEU. The Parliament argues that there has not been any infringement of any procedural requirement, treaty or general principle of law nor disregard of fundamental Human Rights. 2. There is no legal basis supporting the argument that the European Parliament should pay damages. The European Parliament holds that the President of the Court should order the applicants to pay the costs of the case. B. Admissibility 3. The applicants base their action seeking annulment of Regulation 1007/2009 on Article 263 TFEU or 230 TEC respectively. Since both contents are identical the following argumentation refers to either of them pending the decision of the Court which to apply. 4. However, the capacity to sue within the boundaries of the treaties is only granted to EU citizens. 5. Hence, an action before the European Court of Justice (‘Court’) by non-EU citizens is not admissible. In response to the arguments by the applicants, it has to be claimed that the main action is inadmissible, because Regulation No 1007/2009 is a legislative act, inasmuch as it was adopted by the co-decision procedure referred to in Article 251 EC. It must therefore be considered as coming within the same category as acts adopted in accordance with Article 294 TFEU, which, according to the terms of Article 289(1) and (3) TFEU, are indeed legislative acts. 6. The regulatory acts referred to in the fourth paragraph of Article 263 TFEU cannot include legislative acts. Furthermore, it has to be maintained that the admissibility of the main action cannot be justified by the fourth paragraph of Article 263 TFEU also on the ground that Regulation No 1007/2009 requires implementing measures, in particular with regard to the definition of the conditions under which the placing on the market of seal products resulting from hunts traditionally conducted by Inuit is to be allowed. In any event, the applicants are not individually concerned by Regulation No 1007/2009. 7. Furthermore, it has to be maintained that, according to the case-law, in proceedings for interim measures the admissibility of the main action must be assessed in regard to each of the applicants in order to prevent applicants who are not individually concerned by the contested measure from nevertheless being able to take advantage of the interim measures by participating in the action brought by other applicants who do fulfil the requisite conditions. II. Argumentation A. Lack of competence – Infringement of an essential procedural requirement 8. The applicants again state “that Art 95 EC as a legal basis for the Regulation is invalid. Moreover, presumed Art 95 EC were a valid legal basis, the Regulation would have had to be laid upon Art 133 EC as well.” i. Invalid legal basis (95 EC – 133 EC) 9. The conditions of Art 95 EC are all met. Art 95 EC therefore represents a valid legal basis for the Regulation. Art 95 EC also can be used as a legal basis on its own and there is no need for recourse to Art 133 EC as well. However, if the court decides otherwise, the conditions of Art. 133 are still met. This argumentation adds to the defendants’ first submission. 10. Art 95 EC can be applied if one out of two alternative conditions is met. Art 95 EC is applicable if differences between the laws, regulations or administrative provisions of the Member States, which are to obstruct the fundamental freedoms, and therefore to directly affect the functioning of the internal market. These differences either have to exist already. This is the case: According to the Commission there are differences between the laws, regulations and administrative provisions of the Member States with respect to seal products. Two national marketing prohibitions had already been in force when this Regulation was proposed. Hence, different trade conditions coexist within the Community varying from one group of Member State to the other group of Member States. As a consequence, the internal market is fragmented as traders need to adjust their commercial practises to the different provisions in force in each Member State. This is in no way hypothetical but on the contrary a matter of fact. Also, Art 95 EC requires no minimum number of Member States having adopted inhomogeneous provisions in comparison to others. Hence the first of two alternative conditions of Art 95 EC is met and it is therefore applicable. 11. Alternatively, Art 95 EC is applicable if the aim is to prevent the emergence of future obstacles to trade resulting from the divergent development of national laws. In addition to different trade conditions already existing divergent development of national laws is conceivable, since other Member States have either notified their intention to implement prohibition provisions or have intense public discussions about the need for such legislation. Hence, the Regulation also aims at preventing further fragmentation of the internal market. Consequently, the second alternative condition is met as well. 12. The case law cited by the applicants is of weak relevance. Not only is it out of date but it merely states that measures adopted on the basis of Art 95 EC must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. This condition is also met by the Regulation. Its primary objective is the approximation of national laws in order to prevent a fragmentation of the internal market; hence Community measures are justified in order to prevent such obstacles. However, the Community legislature cannot be prevented from relying on that legal basis on the ground that – in this case – protection of the environment is a decisive factor in the choices to be made.1 Art 95 (3) 1 Cases C-491/01 British American Tobacco (Investments) and Imperial Tobacco  ECR I-11453, paragraph 60; C-434/02 Arnold André  ECR I-11825, paragraph 30; C-210/03 Swedish Match  ECR I-11893, paragraph 29; Joined Cases C-154/04 and C155/04 Alliance for Natural Health and Others  ECR I-6451, paragraph 28 EC explicitly requires that, in achieving harmonisation, a high level of protection of the environment should be guaranteed.2 13. It is also to be observed that, by using the words ‘measures for the approximation’ in Art 95 EC, the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised.3 Those measures may consist in even provisionally or definitely prohibiting the marketing of a product.4 Concluding, Art 95 EC can be used as a legal basis for the Regulation. ii. Missing reference to Art 133 EC 14. Art 133 (4) EC is of no relevance for the adopting the Regulation. Even if it was, the Regulation was still valid since the incompatibility of the procedures in both articles and hence the more democratic procedure needs to be taken into account, which in this case is the procedure of Art 95 EC involving the Parliament. If the court decides otherwise, the Regulation is still valid as all conditions of Art 133 (4) EC have been met. It has to be noted that the applicants did not provide any evidence showing otherwise. iii. Disproportionality 15. The applicants seem reluctant to accept the fact that the Regulation aims at ensuring the functioning of the internal market. The legislator is required, in achieving harmonisation, to guarantee a high level of protection of the environment. The Regulation hence complies with the proportionality principle for the following reason(s). 16. Labelling alone of seal products is not an alternative to a ban on trade in those products as labelling would only be relevant to assuage the ethical animal welfare concerns of citizens and consumers as and when the killing and skinning methods in force in the sealing countries would accord with the criteria provided for in this Regulation. There should therefore be incentives for sealing countries to adapt their legislation and practice to that effect, which can only be achieved by means of trade prohibitions. Hence, a ban, rather than a labelling method, meets the requirement of a high level of protection of the environment. 17. It is not disproportionate insofar as animal welfare considerations have to be taken into account when approximating national laws in order to establish or to ensure the functioning of the internal market. iv. Infringement of WTO law 18. The Regulation does not violate the General Agreement on Trade and Tariffs (GATT). 19. Firstly, the Member States are allowed to adopt or enforce measures „necessary to protect public morals“, Art XX (a) GATT, unless it causes arbitrary or unjustifiable discrimination or between the countries 2 Case C-380/03 Germany v European Parliament and Council 3 Cases C-66/04 United Kingdom v Parliament and Council  ECR I-10553, paragraph 45; C-217/04 United Kingdom v Parlia- ment and Council  ECR I-3771, paragraph 43 4 Arnold Andre, paragraph 35; Swedish Match, paragraph 34; Alliance for Natural Health and Others, paragraph 33 where the same conditions prevail. Restrictions on seal hunt is clearly such a matter of public morals. And as pointed out by the Parliament in the first submission, the Regulation is non-discriminatory since its prohibitions will apply both to intra-Community trade and to imports and exports. Thus GATT allows the restrictions the Regulation entails, so that the Regulation do not infringe the Agreement. 20. Since the Applicants have not argued against this view, their opinion on the matter is therefore unclear to the Parliaments. The Parliament still holds that the Regulation is a legal restriction after Art. XX (a) GATT, and that it is in compliance with GATT. 21. Secondarily, if the Court does not find Art XX (a) fulfilled, the restriction is also not an infringement of Art XI:1 GATT. The Regulation does not entail a quantitative restriction, as the Applicants claim. 22. The Regulation allows placing seal products on the market as long as it originates from traditional hunt conducted by Inuit or other indigenous communities. This way, there are no quotas or other set limits to the amount of seal products that can be placed on the market. The condition is the way the seal is hunted, and thus only a certain type of seal products are allowed.. 23. Such requirements to the origin of the products, in this case how the hunt is conducted, will naturally limit the amount of products that fulfil the conditions, without it being a quantitative restriction. Quite to the contrary, this is a qualitative restriction. Even a broad interpretation of quantitative restrictions cannot be considered to include these. Thus there is no infringement of Art XI:1. B. Infringement of the Treaties and rules of law relating to their application – misuse of power i. The Regulation is an infringement in the free movement of goods 24. The restriction the Regulation entails does not infringe the free movement of goods. 25. Firstly, the Parliament is of the opinion that Art. 95 E can be used as a legal basis for the Regulation. Freeing the market of differences is therefore a relevant argument to why the Regulation does not impede with the freedom of goods, as the Regulation prevent disturbance of the internal market. The growing awareness among the public to the ethical considerations in how seal products are obtained, increases the chances for the Member States to develop different rules reflecting those concerns, and thus obstacles in the free market would occur. This way the it matches the reasoning behind the principle, namely to protect the free movement and flexibility of the market as it seeks to establish uniform conditions for trading of seal products. 26. Further, the Applicants in their second submission point out that the Parliaments justifies infringement in art 30 EC. There has however not been made any opposition to this point, it is therefore maintained as in the first submission lit. A, iii. 27. In accordance with the Protocol on protection and welfare of animals annexed to the Treaty, the Community shall pay full regard to the welfare requirements of animals when formulating and implementing its internal market policy. The Regulation is a clearly suitable measure to secure animal welfare. The argument is not, as claimed, the solely argument to justify the legislation, but a of the harmonization perspective. 28. On the matter of consumers being unable to tell the difference between the products, it is an argument of interest as it currently leads to differences in the internal market, since the governing of the import, production and marketing of seal products varies among the States. This way the consideration of consumers is connected to the protection of the internal market, which is a justification for making restrictions in the free movement of goods. ii. General principles of law – equality 29. The Parliament emphasises that general principles of law are considered to be a major source of European Community law and that their use has been justified by the court by referring to Art 220 (164), 239 (173) and 288 (215) of the EC treaty. It therefore recognises the existence of a general doctrine of equality. This position has been stated correctly by the applicants. 30. Still, the Parliament feels the necessity to once again explain why the Regulation is not arbitrary nor discriminatory and why the doctrine of equality therefore cannot be of any relevance in this case. The principle of equality states that persons in similar situations are not to be treated differently unless the difference in treatment is objectively justified. Thus discrimination can only exist within a framework in which it is possible to draw comparisons. Principles of equality will not apply in situations which are objectively different. The claimant submits that the given case is an example of inequality since no other type of fur makers, meat producers etc. from third countries have been tested for a possible animal welfare infringement. According to the claimants, a comparison can be drawn with them as other types of production which deal with animals are comparable as treatment and slaughter is concerned. The Parliament therefore points to the general context of the Regulation in order to explain why the doctrine of equality has not been violated: Within the Community, seals are killed and skinned in Sweden, Finland and the United Kingdom (Scotland) with a view to obtain products derived from seals, or for pest control reasons. Outside the Community, seals are killed and skinned to the same effect in Canada, Greenland, Namibia, Norway and Russia. The Community has already adopted appropriate legislation seeking to ensure that hunting within and outside the Community would not lead to endanger the conservation status of several seal species. Beyond those conservation concerns, methods used to kill seals and seal pups have raised serious concerns among members of the public, organisations and certain Member States for several years on account of the fear, pain, distress and other form of suffering experienced by seals and seal pups. In addition, the Parliament feels the necessity to once again point to recent studies done by various animal welfare and independent non biased organisations which indicate that an abuse, violation and unacceptable suffering of seals is omnipresent as in 42% of the cases there was not enough evidence of cranial injury to guarantee unconsciousness at the time of skinning5. Due to the fear of endangering the 5 „Ensuring A Sustainable And Humane Seal Harvest“, IFAW, 2001; Daoust PY, Crook A, Bollinger TK, Campbell KG, Wong J (September conservation status of the seal species, special brutal methods of killing and serious concerns among members of the public, seals are in a special position in comparison to other „meat producers etc.“ and their treatment cannot be compared, as affirmed by the applicants. 31. The suffering of seals in comparison with other animals in the fur industry is not only similar to the methods used in commercial slaughterhouse, as stated by the Royal Commission in Seals and the Sealing Industry in Canada but goes beyond. The Parliament points to studies which cannot compare the seal industry to other industries as a whole (as criticised by the applicants) as seals have a very individual stand in animal welfare. Comparing them with other animals in the fur industry as the applicants submit would therefore lead to the discrimination the claimants attack. 32. The applicants state that the Parliament bases its arguments on a biased study which condones the methods of killing as long as they are not being misused. It seems to the Parliament that the applicants have not read any of the quoted studies mentioned in the first submission of the Parliament as the study leads to the conclusion that even if the hakapike can be a human method to kill seals, the study of the 2001 Canadian seal hunt, commissioned by the International Fund for Animal Welfare (IFAW)6 concluded that improper use is leading to „considerable and unacceptable suffering“ which happens in 42% of the cases. Therefore it should be banned and a regulation to protect seals introduced. 33. The Parliament therefore concludes that the Regulation is not arbitrary nor discriminatory. As already stated in i. Invalid legal basis, a „high level of protection“ is required, Art 95 (3) EC. Animal welfare therefore must be considered to be of vital importance. 34. The Parliament still does not understand in how far the Inuit are victims of a media campaign as the the Community has adopted since long appropriate legislation seeking to ensure that hunting within and outside the Community would not lead to endanger the conservation status of several seal species. As for example the fact that on 17 November 2006, the Parliamentary Assembly of the Council of Europe adopted a recommendation on seal hunting inviting member and observer states practising seal hunting, amongst other issues, "to ban all cruel hunting methods, which do not guarantee the instantaneous death, without suffering, of the animals, and to prohibit the stunning of animals with instruments such as hakapikes, bludgeons and guns“7. The interests between the Inuit and those pursued by the Regulation are adequately balanced in regard to the question of proportionality (vide supra). The applicants do not bring any evidence for their affirmation. Their arguments of a „biased regulation“ and a „biased regulator“ are mere assertions and should therefore be dismissed. C. Disregard of Fundamental Human Rights i. ECHR 2002) „Animal welfare and the harp seal hunt in Atlantic Canada“. 6 „Ensuring A Sustainable And Humane Seal Harvest“, IFAW, 2001. 7 Recommendation 1776 (2006), Conseil de l'Europe, „Seal Hunting“; see also Doc 11008, report of the Committee on the Environment, Agriculture and Local and Regional Affairs, rapporteur: Mr Nessa. 35. The applicants submit that Regulation No 1007/2009 infringes Art 8 to 10 combined with Art. 14 ECHR (The European Convention of Human Rights), as well as Art 1 of the First Additional Protocol to the ECHR and the United Nations Declaration on the Rights of Indigenous People. The defendant of the European Parliament agree with the state of the defendant of the Council of the European Union that the ECJ should not consider the Breach of human rights allegation; rather the ECHR and even if the ECJ finds that it should consider these allegations, the Regulation does nit breach any human. 1. Article 8 ECHR 36. Art. 8 ECHR assures the right to privacy. The applicants state that the Regulation, “by limiting the seal hunt, which is an activity performed by 80% of the Inuit, confines one of the fundaments of the Inuit identi- ty, disregarding the Art.8 ECHR“. 37. The ECHR protects people's right to property, privacy, speech and expression while maintaining that nations can restrict personal freedoms when necessary. 38. The Inuit's rights would not be infringed by prohibiting seal skin imports, even if this ban were to include skins obtained by Inuit. The Inuit have maintained that they have the right to continue their traditional subsistence hunting, even though they no longer live in a subsistence economy. The Canadian government has granted the Inuit this right. 39. Selling seal skins to the EU is not a basic human right nor is it consistent with subsistence hunting. Moreover there is not prohibition or “limiting” of the seal hunt. The Regulation No 1007/ 2009 does not ban seal products, which derive from the hunting practiced by the Inuit. 2. Article 9 ECHR 40. Art. 9 ECHR guarantees the freedom of thought, conscience and religion. The applicants state that “the recitals of the Regulation, does not prove that there is no violation of the Art. 9 ECHR” and there is “ex- treme limitation of these hunts to their subsistence” 41. In the Regulation No 1007/2009 is clearly written that the seal products are allowed only when the products result from hunts traditionally conducted by Inuit und other indigenous communities. In fact the Regulation does not ban seal products, derived from Inuit’s hunting, the Regulation protects such hunting. In conclusion the Inuit’s hunting culture is not violated by the Regulation No 1007/2009. 3. Article 10 ECHR 42. There is no doubt that the Inuit culture is protected by the freedom of expression. The Applicants claim that the Regulation denies and judges the lifestyle and culture of the Inuit, and that it therefore is a violation of the freedom of expression Art 10 ECHR. This is false as the Regulation is in conformity with the article. 43. The Inuit are allowed to perform traditional hunt that contribute to their subsistence. Thus they have the right to keep their lifestyle as it always has been, and the Regulation will not have any effect on it. This way, they are not denied from their lifestyle. By securing their right to traditional hunt, the legislator shows that the Inuit culture is important to keep alive and that it shall not be oppressed. And therefore the lifestyle is also not judged. On the contrary, it is by the exception seen valuable to preserve. This also disowns the accusation that the Regulation minimises the importance of freedom of expression, since it, quite opposite to the claims, has been secured. 44. Seeing that the Inuit culture is shielded of the prohibition, the Parliament does not see how animal welfare has been given more weight than Inuit cu 4. Article 14 ECHR 45. The applicants claim that their rights of Art. 9 combined with Art. 14 ECHR are violated. The applicants try to point to a discriminatory interference by pointing to the fact that seal hunts are a constitutive element of the Inuit culture and beliefs so that the extreme limitation of these hunts to their subsistence as, according to the applicants, indicated by the Regulation would consequently lead to a violation of the Inuit freedom of thought, conscience and religion. It remains unclear to the Parliament in how far the Regulation would lead to a violation of the Inuit freedom of thought, conscience and religion as Art. 3 (1) of Regulation No 1007/2009 allows the placing on the market of products which result from hunts conducted by Inuit. The fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence are not adversely affected. The Regulation provides, that the prohibition which it entails does not relate to seal products which derive from the hunting practised by the Inuit. The applicants refer to a notice in the Commission Regulation (EC) No 1771/94 of 19 July 1994 which lays down provisions on the introduction into the Community of pelts and manufactured goods of certain wild animal species. The applicants assert that in the mentioned Commission Regulation (EC) No 1771/94 of 19 July 1994 there has not been any declamation pointing to individual characteristics of animals such as given in the Regulation (recital 1 of the Regulation). The Parliament states that the applicants forget that their mentioned regulation aims at the Protection of animals. The Regulation 1007/2009 does not treat closely related subjects differently but the same as both regulations have animal welfare as their object. Similar subjects are therefore treated with a similar objective. Therefore there is no violation of Art 14 ECHR. ii. First protocol 46. The applicants claim that the first article of Protocol 1, which guarantees the right of property is infringed. Seals cannot be considered to be property of the Inuit. It is not clear to the Parliament, why seals should even be considered „possession“ of the Inuit. Even if seals could be considered to be „possession“ of the Inuit and would therefore lead to property rights, there would only be a deprivation of property if 1.) the seal hunt constitutes the main income of the applicants and 2.) the regulation restricts these means of income. Economic interests of the Innuit are not adversely affected by the Regulation as the placing on the markets of seal products which result from hunts traditionally conducted by Inuit (and other indigenous communities) are allowed. iii. United Nations Declaration on the Rights of Indigenous People 47. The applicants state that „the rights by the United Nations Declaration on the Rights of Indigeous People are very specific“ and they are violated. Once more the Regulation No 1007/2009 does not prejudice the Rights of the Inuit, it guarantees them. III. Compensation for damage 48. The applicants seek compensation for damages on bases of Art. 267, juncto Art. 340 TFEU. By adopting the regulation, the European legislator has not violated any rules of law. Since there has been no violation of Community law, there is no direct cause of damage and no claimed qualified violation. Regulation 1007/2009 does not affect the fundamental econmic and social interests of the Inuit. No proof of individual damage has been shown with a sufficient degree of probability. There is no legal basis for the Parliament to pay damages. 49. The European Parliament holds that the President of the Court should order the applicants to pay the costs of the case. IV. Conclusion 50. The Parliament concludes that the action for annulment brought by the applicants is not admissible. Also the argumentation is not sufficient to cause annulment of the Regulation. Therefore, the European Court of Justice should dismiss the application and order the applicants to pay the costs of the case.
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