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EUROPEAN COMMUNITIES �
The report of the Panel on European Communities - Trade Description of Sardines
is being circulated to all Members, pursuant to the DSU. The report is being
circulated as an unrestricted document from 29 May 2002 pursuant to the
Procedures for the Circulation and Derestriction of WTO Documents
(WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only
parties to the dispute may appeal a panel report. An appeal shall be limited to
issues of law covered in the Panel report and legal interpretations developed by
the Panel. There shall be no ex parte communications with the Panel or Appellate
Body concerning matters under consideration by the Panel or Appellate Body.
(a) Whether the EC Regulation fulfils a legitimate objective
(b) Whether Codex Stan 94 is ineffective or inappropriate to fulfil the
legitimate objectives pursued by the EC Regulation
(a) Trade-restrictive effects
(b) More trade-restrictive than necessary
(a) The European Communities' argument that its Regulation is not a technical
regulation because it deals with naming rather than labelling of a product
(b) The European Communities' argument that its Regulation does not lay down
mandatory labelling requirement for products other than preserved Sardina
pilchardus
(a) Consideration of Codex Stan 94 as a relevant international standard
(b) Consideration of European Communities' temporal argument and its arguments
that Codex Stan 94 is not a relevant international standard
(i) The European Communities' argument that the requirement to use relevant
international standards as a basis does not apply to existing technical
regulations
(ii) The European Communities' argument that the "predecessor standard" to
Codex Stan 94 should have been invoked because Codex Stan 94 is not the relevant
international standard as it did not exist and its adoption was not imminent
when the EC Regulation was adopted
(iii) The European Communities' argument that Codex Stan 94 is not a relevant
international standard because it was not adopted by consensus
(iv) The European Communities' argument that Codex Stan 94 is not a relevant
international standard on the basis that Peru's interpretation would mean that
the Codex Stan 94 is invalid because there was no referral to the Committee even
though there was a substantive change
(v) The European Communities' argument that Codex Stan 94 is not a relevant
international standard because the EC Regulation does not regulate products
other than preserved Sardina pilchardus
I. INTRODUCTION
1.1 In a communication dated 20 March 2001, Peru requested consultations with
the European Communities pursuant to Article 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU"), Article XXII of the
General Agreement on Tariffs and Trade 1994 (the "GATT 1994"), and Article 14 of
the Agreement on Technical Barriers to Trade (the "TBT Agreement"), with respect
to Council Regulation (EEC) No. 2136/89 (the "EC Regulation" or "Regulation")
laying down common marketing standards for preserved sardines.1
1.2 On 31 May 2001, Peru and the European Communities held the requested
consultations but failed to reach a mutually satisfactory solution.
1.3 In a communication dated 7 June 2001,2 Peru requested the establishment of a
panel to examine the EC Regulation, with the standard terms of reference set out
in Article 7 of the DSU. Peru made its request in accordance with Article XXIII
of the GATT 1994, Articles 4 and 6 of the DSU and Article 14 of the TBT
Agreement. In its communication, Peru stated that it considered the EC
Regulation to constitute an unnecessary obstacle to international trade which is
inconsistent with Articles 2 and 12 of the TBT Agreement, Article XI:1 of the
GATT 1994 and the principle of non-discrimination under Articles I and III of
the GATT 1994.
1.4 At its meeting on 24 July 2001, the Dispute Settlement Body ("DSB")
established a panel pursuant to Peru's request in accordance with Article 6 of
the DSU. Canada, Chile, Colombia, Ecuador, the United States and Venezuela
reserved their rights to participate in the Panel proceedings as third parties
in accordance with Article 10 of the DSU.
1.5 At the meeting of the DSB on 24 July 2001, the parties to the dispute agreed
that the Panel should have standard terms of reference provided in Article 2.1
of the DSU. The terms of reference of the Panel are as follows:
To examine, in the light of the relevant provisions of the covered agreements
cited by Peru in document WT/DS231/6, the matter referred to the DSB by Peru in
that document, and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.
1.6 On 31 August 2001, Peru requested the Director-General of the World Trade
Organization ("WTO") to determine the composition of the Panel pursuant to
paragraph 7 of Article 8 of the DSU:
If there is no agreement on the panelists within 20 days after the date of the
establishment of a panel, at the request of either party, the Director-General,
in consultation with the Chairman of the DSB and the Chairman of the relevant
Council or Committee, shall determine the composition of the panel by appointing
the panelists whom the Director-General considers most appropriate in accordance
with any relevant special or additional rules or procedures of the covered
agreement or covered agreements which are at issue in the dispute, after
consulting with the parties to the dispute. The Chairman of the DSB shall inform
the Members of the composition of the panel thus formed no later than 10 days
after the date the Chairman receives such a request.
1.7 On 11 September 2001, the Director-General accordingly composed the Panel as
follows:
1.9 The Panel submitted its interim report to the parties on 28 March 2002. On 3
May 2002, the parties requested the Panel to suspend its proceedings in
accordance with Article 12.12 of the DSU until 21 May 2002 so as to enable the
parties to find a mutually satisfactory solution to the dispute. The Panel
agreed to this request.3 As the parties were unable to reach a mutually
satisfactory solution within the requested period of time, the Panel issued its
final report to the parties on 22 May 2002.
II. FACTUAL ASPECTS
A. BASIC CHARACTERISTICS OF SARDINA PILCHARDUS WALBAUM AND SARDINOPS SAGAX SAGAX
2.1 This dispute concerns Sardina pilchardus Walbaum ("Sardina pilchardus") and
Sardinops sagax sagax ("Sardinops sagax"), two small fish species which belong,
respectively, to genus Sardina and Sardinops of the Clupeinae subfamily of the
Clupeidae family; fish of the Clupeidae family populate almost all oceans.
2.2 Sardina pilchardus is found mainly around the coasts of the Eastern North
Atlantic, in the Mediterranean Sea and in the Black Sea, and Sardinops sagax
is
found mainly in the Eastern Pacific along the coasts of Peru and Chile. Despite
the various morphological differences that can be observed between them, such as
those concerning the head and length, the type and number of gillrakes or bone
striae and size and weight, Sardina pilchardus and Sardinops sagax display
similar characteristics: they live in a coastal pelagic environment, form
schools, engage in vertical migration, feed on plankton and have similar
breeding seasons.
2.3 The taxonomic classification of Sardina pilchardus and Sardinops sagax is as
follows:
"Sardina pilchardus Walbaum" "Sardinops sagax sagax"
B. THE COUNCIL REGULATION (EEC) 2136/89 OF 21 JUNE 1989 LAYING DOWN COMMON
MARKETING STANDARDS FOR PRESERVED SARDINES
2.5 Council Regulation (EEC) No. 2136/89 laying down common marketing standards
for preserved sardines (the "EC Regulation") was adopted on 21 June 1989.4 The EC
Regulation defines the standards governing the marketing of preserved sardines
in the European Communities.
2.6 Article 2 of the EC Regulation provides that only products prepared from
fish of the species Sardina pilchardus may be marketed as preserved sardines.
Article 2 reads as follows:
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 the 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.
C. THE CODEX ALIMENTARIUS COMMISSION STANDARD FOR CANNED SARDINES AND SARDINE
TYPE PRODUCTS (CODEX STAN 94 -1981 REV.1 - 1995)
2.7 The Codex Alimentarius Commission of the United Nations Food and Agriculture
Organization ("FAO") and the World Health Organisation ("WHO") (the "Codex
Alimentarius Commission") adopted in 1978 a standard ("Codex Stan 94") for
canned sardines and sardine-type products.5 Article 1 of Codex Stan 94 states
that this standard applies to "canned sardines and sardine-type products packed
in water or oil or other suitable packing medium" and that it does not apply to speciality products where fish content constitutes less than 50% m/m of the net
contents of the can.
2.8 Article 2.1 of Codex Stan 94 provides that canned sardines or sardine-type
products are prepared from fresh or frozen fish from a list of 21 species,
amongst them Sardina pilchardus and Sardinops sagax.6
2.9 Article 6 of Codex Stan 94 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. 3-1999) the following specific
provisions shall apply:
6.1 NAME OF THE FOOD
The name of the products 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".
III. FINDINGS AND RECOMMENDATIONS REQUESTED BY THE PARTIES
3.1 Peru makes the following requests:
(a) Peru requests the Panel to find that the measure at issue, the EC
Regulation, prohibiting the use of the term "sardines" combined with the name of
the country of origin ("Peruvian Sardines"); the geographical area in which the
species is found ("Pacific Sardines"); the species ("Sardines -
Sardinops sagax");
or the common name of the species Sardinops sagax customarily used in the
language of the member State of the European Communities in which the product is
sold ("Peruvian Sardines" in English or "S�damerikanische Sardinen" in German),
is inconsistent with Article 2.4 of the TBT Agreement because the European
Communities did not use the naming standard set out in paragraph 6.1.1(ii) of
Codex Stan 94 as a basis for its Regulation even though that standard would be
an effective and appropriate means to fulfil the legitimate objectives pursued
by the Regulation.
(b) If the Panel were to find that the EC Regulation is consistent with Article
2.4 of the TBT Agreement, Peru requests the Panel to find that the EC Regulation
is inconsistent with Article 2.2 of the TBT Agreement because it is more
trade-restrictive than necessary to fulfil the legitimate objective of market
transparency that the European Communities claims to pursue.
(c) If the Panel were to find that the EC Regulation is consistent with Articles
2.2 and 2.4 of the TBT Agreement, Peru requests the Panel to find that the
measure is inconsistent with Article 2.1 of the TBT Agreement because it is a
technical regulation that accords Peruvian products prepared from fish of the
species Sardinops sagax treatment less favourable than that accorded to like
European products made from fish of the species Sardina pilchardus.
(d) If the Panel were to find that the measure at issue is consistent with the
TBT Agreement, Peru requests the Panel to find that it is inconsistent with
Article III:4 of the GATT 1994 because it is a requirement affecting the
offering for sale of imported sardines that accords Peruvian products prepared
from fish of the species Sardinops sagax treatment less favourable than that
accorded to like European products made from fish of the species Sardina
pilchardus.
3.2 Peru requests the Panel to recommend that the DSB request the European
Communities to bring its measure into conformity with the TBT Agreement. Peru
further requests the Panel to suggest that the European Communities permit Peru,
without any further delay, to market its sardines in accordance with a naming
standard consistent with the TBT Agreement.
3.3 The European Communities requests the Panel to reject Peru's claims that the
EC Regulation is inconsistent with Articles 2.4, 2.2 and 2.1 of the TBT
Agreement and Article III:4 of the GATT 1994.
1 WT/DS231/1; G/L/449; G/TBT/D/22, 23 April 2001.
2 WT/DS231/6, 8 June 2001.
3 WT/DS231/9, 8 May 2002.
4 The EC Regulation in its entirety is attached as Annex 1.
5 Codex Stan 94 is
attached in its entirety as Annex 2.
6 Article 2.1.1 lists
the following species:
To continue with
IV. ARGUMENTS OF THE PARTIES |
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