|
|
espa�ol - fran�ais - portugu�s |
Search
|
European Communities - Trade Description of Sardines
AB-2002-3
WORLD TRADE ORGANIZATION
AB-2002-3
Present:
I. Introduction
1. The European Communities appeals from certain issues of law and legal
interpretations in the Panel Report, European Communities - Trade Description of
Sardines (the "Panel Report").1
2. This dispute concerns the name under which certain species of fish may be
marketed in the European Communities. The measure at issue is Council Regulation
(EEC) 2136/89 (the "EC Regulation"), which was adopted by the Council of the
European Communities on 21 June 1989 and became applicable on 1 January 1990.2
The EC Regulation sets forth common marketing standards for preserved sardines.
3. Article 2 of the EC Regulation provides that:
Only products meeting the following requirements may be marketed as preserved
sardines and under the trade description referred to in Article 7:
- they must be covered by CN codes 1604 13 10 and ex
1604 20 50;
- they must be prepared exclusively from fish of the species "Sardina pilchardus
Walbaum";
- they must be pre-packaged with any appropriate covering medium in a
hermetically sealed container;
- they must be sterilized by appropriate treatment. (emphasis added)
4. Sardina pilchardus Walbaum ("Sardina pilchardus "), the fish species refered
to in the EC Regulation, is found mainly around the coasts of the Eastern North
Atlantic Ocean, in the Mediterranean Sea, and in the Black Sea.3
5. In 1978, the Codex Alimentarius Commission (the "Codex Commission"), of the
United Nations Food and Agriculture Organization and the World Health
Organization, adopted a world-wide standard for preserved sardines and
sardine-type products, which regulates matters such as presentation, essential
composition and quality factors, food additives, hygiene and handling,
labelling, sampling, examination and analyses, defects and lot acceptance. This
standard, CODEX STAN 94-1981, Rev.1-1995 ("Codex Stan 94"), covers preserved
sardines or sardine-type products prepared from the following 21 fish species:
- Sardina pilchardus
- Sardinops melanostictus, S. neopilchardus, S. ocellatus,
S. sagax[,] S. caeruleus
- Sardinella aurita, S. brasiliensis, S. maderensis, S. longiceps, S. gibbosa
- Clupea harengus
- Sprattus sprattus
- Hyperlophus vittatus
- Nematalosa vlaminghi
- Etrumeus teres
- Ethmidium maculatum
- Engraulis anchoita, E. mordax, E. ringens
- Opisthonema oglinum.4
6. Section 6 of Codex Stan 94 provides as follows:
6. LABELLING
In addition to the provisions of the Codex General Standard for the Labelling of
Prepackaged Foods (CODEX STAN 1 1985, Rev. 3 1999) the following special
provisions apply:
6.1 NAME OF THE FOOD
The name of the product shall be:
6.1.1 (i) "Sardines" (to be reserved exclusively for Sardina pilchardus
(Walbaum)); or
(ii) "X sardines" of a country, a geographic area, the species, or the common
name of the species in accordance with the law and custom of the country in
which the product is sold, and in a manner not to mislead the consumer.
6.1.2 The name of the packing medium shall form part of the name of the food.
6.1.3 If the fish has been smoked or smoke flavoured, this information shall
appear on the label in close proximity to the name.
6.1.4 In addition, the label shall include other descriptive terms that will
avoid misleading or confusing the consumer.5 (emphasis added)
7. Peru exports preserved products prepared from Sardinops sagax sagax
("Sardinops sagax "), one of the species of fish covered by Codex Stan 94. This
species is found mainly in the Eastern Pacific Ocean, along the coasts of Peru
and Chile.6
8. Sardina pilchardus and Sardinops sagax both belong to the
Clupeidae family
and the Clupeinae subfamily. As their scientific name suggests, however, they
belong to different genus. Sardina pilchardus belongs to the genus Sardina,
while Sardinops sagax belongs to the genus Sardinops.7 Additional factual aspects
of this dispute are set forth in paragraphs 2.1-2.9 of the Panel Report.
9. The Panel in this dispute was established on 24 July 2001. Before the Panel,
Peru argued that the EC Regulation is inconsistent with Articles 2.4, 2.2 and
2.1 of the Agreement on Technical Barriers to Trade (the "TBT Agreement ") and
Article III:4 of the General Agreement on Tariffs and Trade 1994 (the "GATT
1994").8
10. In the Panel Report circulated to Members of the World Trade Organization
(the "WTO") on 29 May 2002, the Panel found that the EC Regulation is
inconsistent with Article 2.4 of the TBT Agreement , and exercised judicial
economy in respect of Peru's claims under Articles 2.2 and 2.1 of the TBT
Agreement and III:4 of the GATT 1994.9 The Panel, therefore, recommended that the
Dispute Settlement Body (the "DSB") request the European Communities to bring
its measure into conformity with its obligations under the TBT Agreement.10
11. On 25 June 2002, the European Communities notified the DSB of its intention
to appeal certain issues of law covered in the Panel Report and certain legal
interpretations developed by the Panel, pursuant to Article 16.4 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (the
"DSU"), and filed a Notice of Appeal with the Appellate Body pursuant
to Rule 20 of the Working Procedures for Appellate Review (the "Working
Procedures"). On 27 June 2002, we received a communication from Peru requesting
a Preliminary Ruling pursuant to Rule 16(1) of the Working Procedures . Peru
requested that we exclude from the appeal four of the nine points raised in the
European Communities' Notice of Appeal, because these points allegedly did not
meet the requirements of Rule 20(2)(d) of the Working Procedures.
12. In a letter dated 27 June 2002, we invited the European Communities and the
third parties to submit, by 2 July 2002, written comments on the issues raised
by Peru in its Request for a Preliminary Ruling.
13. On 28 June 2002, the European Communities sent letters to the Chairman of
the DSB and to the Appellate Body, indicating its intention to withdraw the
Notice of Appeal of 25 June 2002, pursuant to Rule 30 of the Working Procedures ,
conditionally on the right to file a new Notice of Appeal. The European
Communities filed a new Notice of Appeal on the same day.
14. In a letter dated 1 July 2002, we informed the participants and third
parties that neither the European Communities nor the third parties should file
written submissions on the issues raised in the Request for a Preliminary Ruling
submitted by Peru.
15. Peru submitted a letter, dated 2 July 2002, in which it challenged the right
of the European Communities to withdraw conditionally the Notice of Appeal of 25
June 2002, and to file a second Notice of Appeal on 28 June 2002.
16. On 4 July 2002, we informed the participants and third parties that it was
our intention to conduct the appellate proceedings in conformity with the
Working Schedule drawn up further to the Notice of Appeal of 28 June 2002,
without prejudice to the right of the participants and the third participants to
present in their submissions arguments relating to the matters raised in Peru's
letter dated 2 July 2002.
17. The European Communities filed an appellant's submission on 8 July 2002.11
Peru filed an appellee's submission on 23 July 2002.12 Ecuador filed a third
participant's submission on 22 July 2002.13 Canada, Chile, the United States, and
Venezuela filed third participant's submissions on 23 July 2002.14
18. On 23 July 2002, we received a letter from Colombia indicating that,
although it would not file a third participant's submission, it had an interest
in attending the oral hearing in this appeal. Colombia had participated in the
proceedings before the Panel as a third party which had notified its interest to
the DSB under Article 10.2 of the DSU. By letter of 7 August 2002, we informed
the participants and third participants that we were inclined to allow Colombia
to attend the oral hearing as a passive observer, and to notify us if they had
any objection. The European Communities had no objection to Colombia attending
the oral hearing as a third participant, but did object to Colombia attending as
a passive observer. Ecuador had no objection to Colombia attending the hearing,
but found there was no legal basis to apply a passive observer status and deny
them the right to attend as a third participant. On 9 August 2002, we informed
the participants and third participants that Colombia would be permitted to
attend the oral hearing as a passive observer.
19. An amicus curiae brief was received, on 18 July 2002, from a private
individual. The Kingdom of Morocco also filed an amicus curiae brief on 22 July
2002. In a letter dated 26 July 2002, Peru objected to the acceptance and
consideration of both amicus curiae briefs. Ecuador expressed similar objections
in a letter received on 2 August 2002. Canada submitted a letter, on 26 July
2002, requesting that we decide whether or not to accept the briefs in advance
of the oral hearing.
20. By letter of 31 July 2002, the participants and third participants were
informed that they would have an opportunity to address the issues relating to
the amicus curiae briefs during the oral hearing, without prejudice to their
legal status or to any action the we might take in connection with these briefs.
21. The oral hearing in the appeal was held on 13 August 2002. The participants
and third participants presented oral arguments and responded to questions put
to them by Members of the Division hearing the appeal.
II. Arguments of the Participants and the Third Participants
A. Claims of Error by the European Communities - Appellant
22. The European Communities argues that the preliminary objections raised by
Peru on the adequacy of the Notice of Appeal filed by the European Communities
on 25 June 2002 are now moot and settled. The European Communities responded to
this objection by Peru with its letter to the Appellate Body of 28 June 2002 and
the replacement of that Notice of Appeal with a new one of the same day. The
European Communities asserts that, in conditionally withdrawing its initial
Notice of Appeal and then filing a new Notice of Appeal, it proceeded in
conformity with the DSU, the Working Procedures and previous practice.
23. The European Communities also underscores that it proceeded expeditiously
and that the issues listed in the Notice of Appeal of 28 June 2002 were
identical to those in the Notice of Appeal of 25 June 2002. The only difference
between the two Notices of Appeal is that the Notice of Appeal of 28 June 2002
included additional information on the issues being appealed, which was provided
in response to Peru's request.
24. The European Communities asserts that it is absolutely clear that Peru's
rights of defence have not been harmed in any way by the replacement of the
original Notice of Appeal with a new one and by the new Working Schedule drawn
up by the Appellate Body. It also rejects Peru's allegation that the European
Communities was engaging in litigation tactics.
25. The European Communities states that, in any event, the objection submitted
by Peru on 27 June 2002 was clearly unfounded.
2. The Characterization of the EC Regulation as a "Technical Regulation"
26. The European Communities acknowledges that the EC Regulation is a "technical
regulation" for purposes of the TBT Agreement , because it lays down product
characteristics for preserved Sardina pilchardus . The European Communities
claims, however, that the Panel erred in finding that the EC Regulation is a
"technical regulation" relating to preserved Sardinops sagax .
27. According to the European Communities, the EC Regulation does not lay down
product characteristics for Sardinops sagax . The European Communities thus
argues that, with respect to Sardinops sagax , the EC Regulation does not apply
to an identifiable product as required by the Appellate Body in European
Communities - Measures Affecting Asbestos and Asbestos-Containing Products ("EC
- Asbestos ").15
28. The European Communities also argues that a name-as opposed to a label-is
not a product characteristic for purposes of the definition of a "technical
regulation" in the TBT Agreement . It explains that the requirement to state the
name of a product on a label is a labelling requirement. In its view, however,
the requirement to state a certain name on a label involves not only a labelling
requirement, but also a substantive naming rule that is not subject to the TBT
Agreement. The European Communities claims that Article 2 of the EC Regulation
contains such a substantive naming requirement for preserved Sardina pilchardus
and does not contain any labelling requirements for preserved Sardinops sagax .
3. The Temporal Scope of Application of Article 2.4 of the TBT Agreement
29. The European Communities argues that the Panel erred in finding that Article
2.4 of the TBT Agreement applies to technical regulations prepared and adopted
before the TBT Agreement entered into force, and in considering that Article 2.4
applies to the maintenance of a technical regulation and not just to its
adoption. In its view, the text of Article 2.4 indicates no obligation to
reassess existing technical regulations in the light of the adoption of new
international standards.
30. According to the European Communities, Article 2.4 applies only to the
preparation and adoption of technical regulations, not to their maintenance. The
preparation and adoption of the EC Regulation is an act that had "ceased to
exist" when the obligation in Article 2.4 became effective. Article 28 of the
Vienna Convention on the Law of Treaties (the "Vienna Convention")16
states that
provisions of a treaty do not bind a party in relation to any act or fact which
took place or any situation which "ceased to exist" before the treaty came into
effect.
31. The European Communities objects to the Panel's use of EC Measures
Concerning Meat and Meat Products (Hormones) ("EC - Hormones ")17 to support its
finding because the Appellate Body, in that case, based its conclusion on the
wording of Articles 2.2, 2.3, 3.3, and 5.6 of the Agreement on the Application
of Sanitary and Phytosanitary Measures (the "SPS Agreement "), all of which
include the word "maintain".18 Article 2.4 of the TBT Agreement , however, does not
include the word "maintain".
32. The terms "use" and "as a basis for" in Article 2.4 of the TBT Agreement and
the introductory language "where technical regulations are required" imply,
according to the European Communities, that this provision relates to the
drawing up, drafting or preparation of technical regulations. This conclusion,
furthermore, is supported by the inclusion of the word "imminent" in Article
2.4. The European Communities notes that Article 2.4 does not impose an
obligation to use a draft international standard whose completion is not
imminent. It argues, therefore, that it could not have been intended that an
existing technical regulation would become inconsistent with Article 2.4 once
completion of the draft international standard became "imminent", or even once
the standard is actually adopted and becomes "existing".
33. The European Communities further alleges that Article 2.5 of the TBT
Agreement provides contextual support for a conclusion that is the complete
opposite of that reached by the Panel. According to the European Communities,
Article 2.5 shows that when provisions of the TBT Agreement are intended to
cover the application of technical regulations, they say so explicitly. Similar
contextual support is found in Article 12.4, which uses the word "adopt", and in
paragraph F of the Code of Good Practice for the Preparation, Adoption and
Application of Standards, included as Annex 3 to the TBT Agreement , which uses
the word "develops". The European Communities also rejects the Panel's
conclusion that Article 2.6 of the TBT Agreement would be redundant if
Article 2.4 did not apply to existing measures. The objective of Article 2.6 is
the harmonization of technical regulations. Thus, for the European Communities,
it is obvious that WTO Members who have technical regulations on a subject
should be encouraged to participate in the preparation of an international
standard.
34. The European Communities, in addition, disagrees with the Panel's assertion
that excluding existing technical regulations from the scope of application of
Article 2.4 would create "grandfather rights", given that these measures would
be subject to other obligations in the TBT Agreement that do relate to their
maintenance, such as Article 2.3.
4. The Characterization of Codex Stan 94 as a "Relevant International Standard"
35. The European Communities claims that the Panel erred in concluding that
Codex Stan 94 is a relevant international standard for purposes of Article 2.4
of the TBT Agreement .
36. The European Communities contends that only standards adopted by
international bodies by consensus may be considered relevant international
standards. According to the European Communities, this is evident from the
penultimate sentence of the Explanatory note to the definition of "standard" in
Annex 1.2 to the TBT Agreement , which states that standards prepared by the
international standardization community are adopted by consensus. In its view,
the reference to documents not based on consensus found in the last sentence of
the Explanatory note covers documents adopted by entities other than
international bodies. The European Communities asserts that the Panel erred in
failing to verify whether Codex Stan 94 was adopted by consensus.
37. The European Communities alleges further that the Panel erred in law when
interpreting the meaning of Codex Stan 94. According to the European
Communities, the drafting history of Codex Stan 94 demonstrates that section
6.1.1(ii) should be interpreted as allowing the common name for the species of
fish to be a possible name for the preserved "sardine-type" product, and that
the word "sardine" does not have to be part of that name.
38. The European Communities notes that the draft of Codex Stan 94 at Step 7 of
the elaboration procedures for Codex standards, listed "the common name for the
species" in a subsection separate from that which referred to the name "X
sardines". It then explains that because only editorial changes are allowed
between Steps 7 and 8 of the elaboration procedures, the final text of Codex
Stan 94, which contains both "names" in the same subsection, must be interpreted
as providing that the common name of the species is an option independent from
"X sardines". The European Communities contends that the Panel's contrary
reading of the standard, which does not recognize "the common name" as separate
from "X sardines", is not feasible because it would imply that an invalid,
substantive change (as opposed to an editorial one) was made to the draft
standard at Step 8 of the elaboration procedures.
39. The European Communities adds that Codex Stan 94, interpreted consistently
with its drafting history, is not a relevant international standard in this case
for purposes of Article 2.4 of the TBT Agreement , because its scope is different
from that of the EC Regulation. It explains that Article 2 of the EC Regulation
contains only a naming requirement for preserved sardines. For its part, Codex
Stan 94, correctly interpreted, includes as a naming option for preserved
"sardine-type" products the common name of the species alone, without the word
"sardine".
5. Whether Codex Stan 94 was Used "As a Basis For" the EC Regulation
40. The European Communities claims that the Panel erred in concluding that
Codex Stan 94 was not used "as a basis for" the EC Regulation. The European
Communities argues that, despite the finding that the term "use as a basis" does
not mean "conform to or comply with", the Panel applied the "as a basis" test in
this case in such a narrow and restrictive manner as to make it, in practice,
equivalent to the "conform to or comply with" test. In its view, the Panel
erroneously considered that to meet the "as a basis" test, almost every single
section and sentence of Codex Stan 94 must have been used in the technical
regulation.
41. According to the European Communities, the EC Regulation covers only Sardina
pilchardus and does not regulate Sardinops sagax , nor fish of other species. The
European Communities thus argues that the relevant part of Codex Stan 94, for
purposes of Article 2.4 of the TBT Agreement , is section 6.1.1(i), which states
that the name "Sardines" is to be used exclusively for Sardina pilchardus .
According to the European Communities, section 6.1.1(i) of Codex Stan 94 is used
"as a basis for" the EC Regulation. The European Communities contends that
section 6.1.1(ii) is not a relevant part of the standard because it refers to
products that are not regulated by the EC Regulation. Therefore, it need not be
used "as a basis for" the EC Regulation.
42. The European Communities also alleges that the Panel performed an incorrect
analysis to determine whether the relevant international standard was used "as a
basis for" the technical regulation. The appropriate analysis, in its view, is
not whether the European Communities used Codex Stan 94 as the "principal
constituent or fundamental principle" for the purpose of enacting the EC
Regulation, but whether there is a "rational relationship" between them on the
substantive aspects of the standard in question.
43. The European Communities explains that, pursuant to its legitimate
objectives, the EC Regulation reserves the name "sardines" for Sardina
pilchardus. Given that this is expressly foreseen in section 6.1.1(i) of Codex
Stan 94, the European Communities asserts that the EC Regulation has a
substantial relationship with Codex Stan 94. The European Communities concludes
by stating that the substantial relationship between the two documents
demonstrates that Codex Stan 94 was used "as a basis for" the EC Regulation.
6. The Question of the "Ineffectiveness or Inappropriateness" of Codex Stan 94
44. The European Communities claims that the Panel applied an incorrect burden
of proof with respect to the second part of Article 2.4 of the TBT Agreement and
that it erred in finding that Codex Stan 94 is not an "ineffective or
inappropriate means for the fulfilment of the legitimate objectives pursued".
45. According to the European Communities, there is no general rule-exception
relationship between the first and second parts of Article 2.4 and, therefore,
there is no shift in the burden of proof from the complainant to the respondent.
The European Communities rejects the Panel's claim that only the respondent can
spell out the objectives pursued through a regulation, explaining that the
objectives are usually described in the measure itself, as the EC Regulation
demonstrates. Nor are the Panel's concerns regarding the lack of information on
the part of the complainant sufficient, in the European Communities' view, to
shift the burden to the respondent. The European Communities explains that, in
addition to the obligation on a Member to justify a measure under Article 2.5 of
the TBT Agreement , the complaining party may also enquire about a measure during
consultations. The European Communities asserts, furthermore, that the Panel's
finding on the burden of proof is not consistent with how the Appellate Body
applied this burden regarding a similar provision of the SPS Agreement in the
EC
- Hormones case.
46. The European Communities argues that the Panel arrived at an incorrect
finding with respect to the effectiveness or appropriateness of Codex Stan 94,
because it misunderstood the objectives of the EC Regulation. In this regard,
the European Communities explains that the purpose of the EC Regulation is to
lay down marketing standards for preserved Sardina pilchardus and that the
European Communities does not pursue thereby any objectives in relation to
preserved Sardinops sagax .
47. The European Communities claims that the Panel erred in basing its
conclusion regarding the effectiveness or appropriateness of the EC Regulation
on the validity of the factual assumption that consumers in the European
Communities have not always associated the term "sardines" exclusively with
Sardina pilchardus . The European Communities states that even if consumers have
different opinions with respect to what is a sardine, there may still be the
possibility of confusion and the need for measures to improve market
transparency, protect consumers, and maintain product diversity.
48. The European Communities also rejects the Panel's reliance in its reasoning
on whether or not "sardines" is a common name for Sardinops sagax . According to
the European Communities, even if "sardines" were a common name for preserved
Sardinops sagax , this does not change the need to ensure that this product bears
a unique name in the European Communities market.
49. The European Communities argues, finally, that the Panel erred in dismissing
as irrelevant to the question of consumer expectations the domestic legislation
of the member States of the European Communities. In its view, consumer
expectations are generally based on some kind of legal protection.
7. The Objectivity of the Assessment of Certain Facts by the Panel
50. The European Communities claims that the Panel did not conduct "an objective
assessment of the facts of the case" as required by Article 11 of the DSU.
According to the European Communities, the Panel deliberately and without
motivation refused to consider facts that were brought to its attention,
although panels are obliged to examine all relevant facts and evidence presented
to them by the parties or obtained through their own initiative. In the European
Communities' view, the Panel also failed to provide an adequate and reasonable
explanation for its findings. The European Communities then refers to four
specific instances where the Panel allegedly failed to discharge its duty under
Article 11 of the DSU.
51. The first instance referred to by the European Communities is the Panel's
conclusion that the Spanish and French dictionaries submitted by the European
Communities supported the view that the term "sardines" is not limited to
Sardina pilchardus . The European Communities claims next that the Panel should
not have treated as evidence the letter of the United Kingdom Consumers'
Association submitted by Peru, because it was prejudiced and contained a
manifestly incorrect appreciation of United Kingdom law.
52. As a third instance, the European Communities alleges that the Panel
disregarded evidence concerning the actual names given to "sardine-type"
products in the European Communities. This evidence consisted of tins and
supermarket receipts for preserved herring, sardinellas, sprats, mackerel and
anchovies, as well as labels of preserved Sardinops sagax sold in the European
Communities under the name "Pacific Pilchards". The European Communities finally
claims that the Panel erred in refusing to ask the Codex Commission for its
opinion concerning the meaning, status and validity of Codex Stan 94.
8. The References in the Panel Report to Trade-Restrictiveness
53. The European Communities submits that the Panel erred in qualifying the EC
Regulation as trade-restrictive. It rejects the qualification and asserts that
the EC Regulation is neither trade-restrictive with respect to preserved
Sardinops sagax , nor with respect to preserved Sardina pilchardus .
54. In addition, the European Communities argues that the issue of
trade-restrictiveness is not relevant to the analysis under Article 2.4 of the
TBT Agreement and that, having exercised judicial economy with respect to Peru's
other claims, it was improper for the Panel to have examined this issue.
55. The European Communities states, moreover, that Article 15.2 of the DSU does
not permit panels to make additional legal findings at the interim review stage.
56. The European Communities asserts that there are insufficient undisputed
facts in the Panel record for the Appellate Body to complete the legal analysis
in respect of Peru's other claims. It further argues that Articles 2.2 and 2.1
of the TBT Agreement involve complex issues of law that, contrary to Peru's
contention, are completely different from those related to Article 2.4 of the
TBT Agreement , and which have not been clarified by the Appellate Body or by
dispute settlement panels.
1 WT/DS231/R, 29 May 2002, WT/DS231/R/Corr.1, 10 June 2002.
2 OJ No L 212, 22.07.1989, reproduced as Annex 1 to the Panel
Report, pp. 79-81.
3 Panel Report, para. 2.2.
4 Codex Stan 94, as reproduced in Annex 2 to the Panel Report,
section 2.1.1.
5 We note, however, that the text of Codex Stan 94, published
in the print version of the Codex Alimentarius, presents certain differences in
respect to the version used by the Panel and submitted by Peru to the Panel as
Exhibit PERU-3. Section 6 published in the print version of the Codex
Alimentarius reads as follows:
6. LABELLING
In addition to the provisions of the Codex General
Standard for the Labelling of Prepackaged Foods (CODEX STAN 1-1985,
Rev. 1-1991) the following specific provisions apply:
6.1 NAME OF THE FOOD
The name of the product shall be:
6.1.1 (i) "Sardines" (to be reserved
exclusively for Sardina pilchardus (Walbaum)); or
(ii) "X sardines" where "X" is the name of
a country, a geographic area, the species, or the common name of
the species in accordance with the law and custom of the country
in which the product is sold, and in a manner not to mislead the
consumer.
6.1.2 The name of the packing medium shall form part
of the name of the food.
6.1.3 If the fish has been smoked or smoke flavoured,
this information shall appear on the label in close proximity to the
name.
6.1.4 In addition, the label shall include other
descriptive terms that will avoid misleading or confusing the consumer.
(emphasis added)
(Codex Alimentarius (Secretariat of the Joint FAO/WHO Food
Standards Programme, 2001), Volume 9A, Fish and Fishery Products, pp. 75-81)
6 Panel Report, para. 2.2.
7 Panel Report, para. 2.3.
8
Ibid., para. 3.1.
9
Ibid., paras. 8.1 and 7.152.
10
Ibid., para. 8.3.
11 Pursuant to Rule 21 of the Working Procedures .
12 Pursuant to Rule 22 of the Working Procedures .
13 Pursuant to Rule 24 of the Working Procedures .
14 Ibid.
15 Appellate Body Report, WT/DS135/AB/R, adopted 5 April 2001.
16 Done at Vienna, 23 May 1969, 1155 U.N.T.S. 331; 8
International Legal Materials 679.
17 Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/R, adopted 13
February 1998, DSR 1998:I, 135.
18 We note that, although the European Communities refers to
Article 2.3 of the SPS Agreement in its appellant's submission, this
provision does not include the word "maintain".
To continue with
B.
Arguments of Peru - Appellee |
|