Since Greenland has constitutional ties with Denmark, which is an EU Member State, Greenland’s inhabitants are EU citizens. However, as an overseas country (OCT) outside mainland Europe, the European acquis does not apply to Greenland.®®® Instead, the association between
®®* L ov n r 166 a f 12 maj 1965 om m ineralske râstoffer i G ronland (G reenland M ining A ct 1965) stated that the m ineral resources in G reenland belong to D enm ark. U nder the G reenland S elf-G overnm ent A ct 2009, all revenues ‘from m ineral resource activities in G reenland shall accrue to th e G reenland S elf-G overnm ent authorities.’
®®4 Self-G overnm ent A ct 2009, s 2(1): ‘T he G reenland Self-G overnm ent authorities m ay determ ine th at the fields o f responsibility that appear from the Schedule to this A ct shall be transferred to the Self-G overnm ent authorities.’
995 ss 5.5-5.Ô.
992 Treaty on G reenland [1984] O J L29 m eant that the EC T reaty w ould no longer apply to G reenland and established special relations betw een the EC and G reenland m odelled on the rules w hich applied to overseas territories.
Greenland and the EU is governed by the Overseas Association Decision.®®* As noted in Chapter 3, although the EU seeks to integrate indigenous issues into all aspects o f its external policies, indigenous issues are not a matter o f EU law because the Treaties confer no competences on the EU to legislate in this area.®®* However, since Denmark agrees ‘to associate with the Union the non-European countries and territories which have special relations with’ it,®®® Articles 198-203 TFEU apply to Greenland, subject to the specific provisions outlined in the Protocol (No 34) on special arrangements for Greenland annexed to the TFEU,*®®® which grants Greenland quota-free and duty-free access to EU markets in fishery products.*®®*
Articles 198-203 TFEU lay down the nature o f the association between the EU and Greenland.*®®* Article 198(2) specifically stipulates that the purpose o f the association is ‘to promote the economic and social development of...[Greenland] and to establish close economic relations between...[it] and the Union’. Furthermore, the association serves ‘primarily to further the interests and prosperity o f the inhabitants o f [Greenland] in order to lead them to the economic, social and cultural development to which they aspire’.*®®* This indicates that the link between the EU and Greenland is close. In contrast, no comparable association exists between the EU and the Inuit regions o f Canada. Although the association in itself may not be enough to demonstrate that the EU discriminates between Kalaallit and Inuit o f Canada, other Treaty provisions provide more evidence o f ways in which the Treaty obliges the EU to promote economic prosperity o f Greenland.
®®* C ouncil D ecision 2013/755/E U . 998 ch 3 s 3.3.
999 U nder art 198 T FEU , ‘the M em ber States agree to associate w ith the U nion the non-E uropean countries and territories w hich have special relations w ith D enm ark, France, the N etherlands and the U nited K in g d o m ’.
1000 TFEU , art 204.
'°®' T he access is nevertheless conditional on the Fisheries Partnership A greem ent betw een th e EU , D enm ark and G reenland by w hich the EU gains access to G reenland fishing zones. See C ouncil R egulation (EC ) N o 753/2007 o f 28 June 2007 on the conclusion o f the F isheries Partnership A greem ent betw een the European C om m unity on the one hand, and the G overnm ent o f D enm ark and th e H om e R ule G overnm ent o f G reenland, on the other hand [2007] O J L I 72/1.
1002 Yhere is for instance a constant dialogue betw een the C om m ission, G reenland and D enm ark to through the annual O C T -E U forum , regular trilateral m eetings as w ell as partnership m eetings w ith the C om m ission and D enm ark.
1003 TpEU, art 198(3).
Therefore, it is the execution o f the Treaty provisions in practice can be argued to have resulted in discrimination against all other indigenous peoples apart from Kalaallit under the EU’s policy on seal products.
Article 198(3) TFEU specifies that Greenland’s economic and social development must be realised in line with the principles in the Preamble to this Treaty. The principles, which are relevant in this context, stipulate, inter alia, that the Europe as a whole intends to ensure the development o f prosperity o f OCTs to which it is bound by solidarity, in accordance with the principles o f the Charter o f the United Nations.*®®"* Additionally, the Member States aspire to strengthen the unity and harmonious development o f their economies ‘by reducing the differences existing between the various regions and the backwardness o f the less favoured regions’;*®®* and to promote international trade by removing existing obstacles*®®® which in turn ‘calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition’.*®®* Consequently, the Treaty imposes a clear and precise requirement for the EU to promote the interests and prosperity o f Greenland in order to further its economic, social and cultural development, inter alia, by promoting balanced trade, guaranteeing fair competition and reducing differences between o f the metropolitan areas o f Western Europe and the remote Arctic regions.
According to Articles 199(1) and 200 TFEU, the same treatment must be applied to trade between Denmark and Greenland as to the trade between all EU Member States. Additionally, these provisions prohibit the imposition of customs duties on imports into the EU o f goods originating from Greenland. Although the Treaty extends some o f the EU’s internal market principles to Greenland, OCTs are not part o f the EU customs territory, and therefore, products from Greenland are considered ‘non-Community goods’ under EU law.*®®* The requirement to ensure that imports
1004 jF E U , pream ble, recital 8.
*°®* ibid recital 6.
'°°2 ibid recital 7.
'®°7 ibid recital 5.
1008 R egulation 2913/92, art 3(1): ‘T he custom s territory o f th e C om m unity shall co m p rise... the territory o f the K ingdom o f D enm ark, except the Faroe Islands and G reenland’.
from Greenland are treated the same way in the internal market as goods from any EU Member State nevertheless explains why the exemptions*®®® found in the EU seal products legislation seemingly favour goods from Greenland and the EU Member States.*®*® In fact, the different treatment between products from Greenland and those from Inuit regions o f Canada was o f particular relevance in EC-Seal P r o d u c t s where the Panel found that the EU violated its obligations under the WTO agreements because the EU legislation discriminated against imported products originating in non-EU countries, including the Canadian Inuit regions.
Due to the special relationship between the EU and Greenland, the EU also provides regular funding to Greenland. Although according to the Commission, this money is being used to support not only fisheries, but other programmes, such as education,*®** it is possible to argue that the EU rules do not prevent this money being used for other purposes, such as to implement the EU’s traceability regime in Greenland. This can be inferred from the fact that during the November 2009 consultation meeting, the Commission indicated that the money paid to Greenland under the Fisheries Partnership Agreement*®** was a sufficient compensation for Inuit seal hunters for the adverse effects of the EU legislation.*®** Currently, Greenland receives 17,8 million EUR annually from the general EU budget on the basis o f this Agreement.*®** Funding is also available through various initiatives, such as the ‘Northern Periphery Programme’, which aims to ‘help peripheral and remote communities on the northern margins o f Europe to develop their economic, social and
*°®® Specifically, the Inuit and m arine resources exem ptions.
*®*® T he Panel explicitly stated that ‘the legislative history o f the E U Seal R egim e, w hich suggests that the [m arine resources exem ption in A rticle 3(2) o f R egulation 1007/2009] M R M exception w as designed w ith the situation o f E U m em ber States in m in d ’. EC-Seal Products (n 69) para 7.351.
10" ibid
'°'* See C om m ission ‘P rogram m ing D ocum ent for the Sustainable D evelopm ent o f G reenland’ C (2007) 3068
*®** C ouncil D ecision 2 0 I2 /6 5 3 /E U o f 16 July 2012 on the signing, on b e h a lf o f the E uropean U nion, and the provisional application o f the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership A greem ent betw een the E uropean C om m unity on the one hand and the G overnm ent o f D enm ark and the H om e Rule G overnm ent o f G reenland, on the other hand [2012] O J L 293/4.
*®** See Stakeholder M eeting R eport (n 383).
*®** C (2007) 3068; C ouncil D ecision 2 0 I2/653/E U .
environmental potential’.*®*® Although none o f these programmes cover Inuit regions o f Canada, the Commission has stated that the Northern Periphery Programme could possibly be extended to Canada.*®**
In conclusion, the preferential treatment in the field o f trade and the financial compensation scheme sets Greenland apart from Inuit regions o f Canada since no comparable association exists between the latter and the EU, which would enable Canadian Inuit to benefit from any financial compensation due to the seal products ban.*®**