From the EU first written submission in Seal Products:
357. It is beyond question that the EU Seals Regime restricts trade to the extent that the General Ban provides for a prohibition, as a general rule, on the placing on the EU market of all seal products, whether domestic or imported. Indeed, the General Ban aims at being very trade-restrictive, consistently with the high level of fulfilment of the EU Seal Regime's policy objective that was sought by the EU Seal Regime.
Since the necessity test that is at issue here involves weighing and balancing of various factors, the precise degree of trade-restrictiveness can be important. Here's my question: How trade-restrictive is a product ban? The EU agrees that the general ban is "very trade-restrictive" (although they point out in the next paragraph that the exceptions make it less so). But is it more trade-restrictive than a discriminatory measure? A discriminatory measure not only restricts overall trade, it also favors certain products over others based on nationality. Is it therefore particularly pernicious, and thus more trade-restrictive, in nature if not quantity, than a total product ban?
In response to this post, Hosuk Lee-Makiyama tweets:
"If the EU falls in the forest, and no one is around to hear it ..."
Point taken! But still, I'm curious about the issue.