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EUROPEAN COMMUNITIES �
(Continued)
7.113 The European Communities contends that Codex Stan 94, by allowing for the
use of the word "sardines" for products other than Sardina pilchardus, is
ineffective or inappropriate to fulfil the objectives of consumer protection,
market transparency and fair competition. The European Communities argues that
its consumers expect that products of the same nature and characteristics will
always have the same trade description, and that consumers in most member States
of the European Communities have always, and in some member States have for at
least 13 years, associated "sardines" exclusively with Sardina pilchardus. With
respect to the objective of promoting fair competition, the European Communities
argues that Peru should not be able to take advantage of the reputation
associated with the term "sardines", but that Peru should "develop its own
reputation with its own name and persuade the consumer to appreciate its product
with its own characteristics".
7.114 In paragraph 7.50, we determined that the European Communities, as the
party asserting that Codex Stan 94 is ineffective or inappropriate to fulfil the
legitimate objectives pursued by the Regulation, has the burden of proving this
assertion. Although the burden of proof rests with the European Communities to
prove that Codex Stan 94 is an ineffective or inappropriate means for the
fulfilment of the legitimate objectives pursued, we note that Peru has provided
sufficient evidence and legal arguments, as set out below, to demonstrate that
Codex Stan 94 is not an ineffective or inappropriate means to fulfil the
legitimate objectives pursued by the EC Regulation.
7.115 In assessing the arguments presented by the European Communities, we must
first determine what should be understood by the term "ineffective or
inappropriate" and what the "legitimate objectives" referred to by this
provision are.
7.116 Concerning the terms "ineffective" and "inappropriate", we note that
"ineffective" refers to something which is not "having the function of
accomplishing", "having a result", or "brought to bear",91 whereas "inappropriate"
refers to something which is not "specially suitable", "proper", or "fitting".92
Thus, in the context of Article 2.4, an ineffective means is a means which does
not have the function of accomplishing the legitimate objective pursued, whereas
an inappropriate means is a means which is not specially suitable for the
fulfilment of the legitimate objective pursued. An inappropriate means will not
necessarily be an ineffective means and vice versa. That is, whereas it may not
be specially suitable for the fulfilment of the legitimate objective, an
inappropriate means may nevertheless be effective in fulfilling that objective,
despite its "unsuitability". Conversely, when a relevant international standard
is found to be an effective means, it does not automatically follow that it is
also an appropriate means. The question of effectiveness bears upon the results
of the means employed, whereas the question of appropriateness relates more to
the nature of the means employed.
7.117 We note that the terms "ineffective" and "inappropriate" are separated in
the text by the disjunctive "or". Thus, it is clear that the party invoking the
affirmative defence under Article 2.4 need not establish that a relevant
international standard is both ineffective and inappropriate. If it is
established by a party that the relevant international standard is either an
ineffective or inappropriate means for the fulfilment of the legitimate
objective pursued, that party would not have to use the international standard
as a basis for its technical regulation.93
7.118 The next question we address concerns the phrase "legitimate objectives
pursued". We first consider that the "legitimate objectives" referred to in
Article 2.4 must be interpreted in the context of Article 2.2, which lists
examples of objectives which are considered legitimate under the TBT Agreement.
As indicated by the phrase "inter alia", this list is illustrative and allows
for the possibility that other objectives, which are not explicitly mentioned,
may very well be legitimate under the TBT Agreement.
7.119 We also note in this respect that the WTO Members expressed in the
preamble to the TBT Agreement their desire that:
[�] technical regulations and standards [�] do not create unnecessary obstacles
to trade [�]; (emphasis added)
and recognized that:
no country should be prevented from taking measures to ensure the quality of its
exports, or for the protection of human, animal or plant life or health, of the
environment, or for the prevention of deceptive practices, at the levels it
considers appropriate, subject to the requirement that they are not applied in a
manner which would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail or a
disguised restriction on international trade [�]. (emphasis added)
7.120 Article 2.2 and this preambular text affirm that it is up to the Members
to decide which policy objectives they wish to pursue and the levels at which
they wish to pursue them. At the same time, these provisions impose some limits
on the regulatory autonomy of Members that decide to adopt technical
regulations: Members cannot create obstacles to trade which are unnecessary or
which, in their application, amount to arbitrary or unjustifiable discrimination
or a disguised restriction on international trade. Thus, the TBT Agreement, like
the GATT 1994, whose objective it is to further, accords a degree of deference
with respect to the domestic policy objectives which Members wish to pursue. At
the same time, however, the TBT Agreement, like the GATT 1994, shows less
deference to the means which Members choose to employ to achieve their domestic
policy goals. We consider that it is incumbent upon the respondent to advance
the objectives of its technical regulation which it considers legitimate.
7.121 Article 2.4 refers to "the legitimate objective pursued". The ordinary
meaning of "to pursue" is "to try to obtain or accomplish" and "to aim at".94
Thus, a "legitimate objective pursued" is a legitimate objective which a Member
aims at or tries to accomplish. Only the Member pursuing the legitimate
objective is in a position to elaborate the objective it is trying to
accomplish. Panels are, however, required to determine the legitimacy of those
objectives. We note in this regard that the panel in Canada - Pharmaceuticals
Patents, in defining the term "legitimate interests", stated that it must be
defined "as a normative claim calling for protection of interests that are
'justifiable' in the sense that they are supported by relevant public policies
or other social norms".95
7.122 Thus, we are obliged to examine whether the objectives outlined by the
European Communities are legitimate in the context of Article 2.4 of the TBT
Agreement. We note, however, that in this case Peru acknowledged that the
objectives identified by the European Communities are legitimate and we see no
reason to disagree with the parties' assessment in this respect. Accordingly, we
will proceed with our examination based on the premise that the objectives
identified by the European Communities are legitimate.
7.123 We now turn to the arguments presented by the European Communities in
support of its position that Codex Stan 94 is ineffective or inappropriate for
the fulfilment of the three legitimate objectives pursued by its Regulation. We
recall that the three legitimate objectives pursued by the EC Regulation are
market transparency, consumer protection and fair competition and these
objectives, as argued by the European Communities, are interdependent and
interact with each other. In this regard, we are mindful of the European
Communities' argument that providing accurate and precise names allows products
to be compared with their true equivalents rather than with substitutes and
imitations whereas inaccurate and imprecise names reduce transparency, cause
confusion, mislead the consumer, i.e., make consumers believe that they are
buying something they are not, allow products to benefit from the reputation of
other different products, give rise to unfair competition and reduce the quality
and variety of products available in trade and ultimately for the consumer. In
light of the fact that the three objectives are closely interrelated, if we were
to find that Codex Stan 94 allows for precise labelling of products so as to
improve market transparency, such finding would have a bearing upon whether
Codex Stan 94 is effective or appropriate in protecting consumers and promoting
fair competition, that is, not misleading consumers and confusing them into
believing that they are buying something that they are not. We also note that
the European Communities' stated objectives are based on the factual premise
that the consumers in the European Communities associate "sardines" exclusively
with Sardina pilchardus. Thus, the persuasiveness of European Communities'
argument will be affected by the extent to which this factual premise is
supported by the evidence and established to be valid.
7.124 Under Codex Stan 94, if a hermetically sealed container contains fish of
species Sardina pilchardus, the product would be labelled "sardines" without any
qualification. A product containing preserved Sardinops sagax, however, would be
labelled "X sardines" with the "X" representing the name of a country, the name
of a geographic area, the name of the species or the common name in accordance
with the law and custom of the country in which the product is sold. If a
hermetically sealed container is labelled simply as "sardines" without any
qualification, the European consumer would know that it contains European
sardines. However, if the product is labelled, for example, "Pacific sardines",
the European consumer would be informed that the product does not contain
sardines originating from Europe. We note that preserved sardines from Morocco,
which contains Sardina pilchardus, sold in the European Communities is labelled
"Sardines Marocaines". Although the product could simply be called "sardines"
because it contains Sardina pilchardus, the label containing the name of a
country provides a precise trade description by informing the European consumers
of the provenance of the preserved Sardina pilchardus.
7.125 The European Communities, however, argued that "X sardines" is ineffective
or inappropriate to fulfil the legitimate objectives pursued by the EC
Regulation because European consumers associate the term "sardines" exclusively
with Sardina pilchardus and even if "sardines" is combined with a qualification,
it would suggest to European consumers that the products are the same but come
from different countries or geographic areas. As noted above, the argument
advanced by the European Communities in support of its claim that Codex Stan 94
is ineffective or inappropriate is based on the underlying factual assumption
that consumers in most member States of the European Communities have always
associated the common name "sardines" exclusively with Sardina pilchardus and
that the use of "sardines" in conjunction with "Pacific", "Peruvian" or
"Sardinops sagax" would therefore not enable the European consumer to
distinguish products made from Sardinops sagax as opposed to Sardina pilchardus.
The European Communities summarizes its argument as follows:
In most parts of the European Communities, especially in the production
countries, the term "sardine" has historically made reference only to the
Sardina pilchardus.96 However, other species like sprats (Sprattus sprattus) were
sold in tiny quantities on the European Communities market with the denomination
"brisling sardines". In view of the confusion that this created in the market
place, the European Communities has constantly tried to clarify the situation,
both externally (note of 16/04/73 to Norway97) and internally (Regulation
2136/89).
This situation has now created uniform consumer expectations throughout the
European Communities, the term "sardine" referring only to a preserve made from
Sardina pilchardus.98
7.126 Thus, the European Communities asserted, on the one hand, that in most
member States the term "sardines" has historically responded to the particular
consumer expectations which in its view underlie its Regulation, and
acknowledged, on the other hand, that in some member States, it is the
Regulation which "created" those "uniform" consumer expectations. The European
Communities therefore made a factual distinction between two situations, and we
will address these two situations separately.
7.127 The European Communities acknowledged that it is the Regulation which in
certain member States "created" the consumer expectations which it now considers
require the maintenance of that same Regulation. Thus, through regulatory
intervention, the European Communities consciously would have "created" consumer
expectations which now are claimed to affect the competitive conditions of
imports. If we were to accept that a WTO Member can "create" consumer
expectations and thereafter find justification for the trade-restrictive measure
which created those consumer expectations, we would be endorsing the
permissibility of "self-justifying" regulatory trade barriers. Indeed, the
danger is that Members, by shaping consumer expectations through regulatory
intervention in the market, would be able to justify thereafter the legitimacy
of that very same regulatory intervention on the basis of the governmentally
created consumer expectations. Mindful of this concern, we will proceed to
examine whether the evidence and legal arguments before us demonstrate that
consumers in most member States of the European Communities have always
associated the common name "sardines" exclusively with Sardina pilchardus and
that the use of "sardines" in conjunction with "Pacific", "Peruvian" or
"Sardinops sagax" would therefore not enable European consumers to distinguish
between products made from Sardinops sagax and Sardina pilchardus.
7.128 As indicated above, the European Communities asserted that in most member
States the consumer expectations allegedly underlying the EC Regulation existed
before the EC Regulation introduced an EC-wide regime. To that effect, the
European Communities submitted copies of pre-1989 Spanish and French regulations
prescribing the common name "sardines" for products made from Sardina
pilchardus. The European Communities also submitted copies of the 1981 and 1996
United Kingdom Food Labelling Regulations and a copy of the 2000 German
Lebensmittelbuch, which the European Communities has described as constituting
"only a guideline". These documents prescribe the common name "sardines" for
Sardina pilchardus, and "Pacific pilchard" or "pilchard" for Sardinops sagax.
Thus, the European Communities argued that for those four European Communities'
member States, domestic regulations reserving the common name "sardines" for
Sardina pilchardus is to be considered probative of consumer perceptions at that
time and thereafter. In other words, governments in those countries would have
"codified" consumer expectations in their domestic regulations. Although it may
be debatable as to whether this will always be so,99 we will proceed on the
assumption that domestic legislation pre-dating100 the EC Regulation may indeed
have such probative value regarding consumer expectations.
7.129 Concerning the pre-1989 versions of Spanish, French and United Kingdom
regulations, we consider that these do indeed demonstrate that the legislative
or regulatory authorities in those countries considered that the common name
"sardines" without any qualification was to be reserved for products made from
Sardina pilchardus, even before the EC Regulation entered into force.101 We note,
however, that these documents, which concern three European Communities' member
States, are not probative of the assertion that the use of a qualifying term,
such as "Pacific", "Peruvian" or "Sardinops sagax", in combination with
"sardines" would not enable European consumers to distinguish products made from
Sardinops sagax as opposed to Sardina pilchardus.
7.130 We also note that in the United Kingdom, which imports 97% of all Peruvian
exports of preserved Sardinops sagax to the European Communities, the 1981 Food
Labelling Regulations also allowed for the use of the common name "pilchards"
for Sardina pilchardus and prescribed the common name "Pacific pilchards" for
Sardinops sagax. Thus, United Kingdom consumers did not associate Sardina
pilchardus exclusively with the common name "sardines", and were able to
distinguish Sardinops sagax from Sardina pilchardus by the simple indication of
a geographical region (i.e., "Pacific"). If the insertion of the geographic area
"Pacific" with the word "pilchard" was used in the United Kingdom to distinguish
between Sardina pilchardus and Sardinops sagax, we fail to see why the inclusion
of the name of a country, name of a geographic area, name of the species or the
common name with the term "sardines" to refer to Sardina sagax would be
ineffective or inappropriate to fulfil the legitimate objectives pursued by the
EC Regulation.
7.131 Contrary to the European Communities' assertion, Peru submitted evidence
to demonstrate that European consumers do not associate "sardines" exclusively
with Sardina pilchardus. It did so by demonstrating that the term "sardines"
either by itself or combined with the name of a country or the geographic area,
is a common name for Sardinops sagax in the European Communities. In support of
its assertion that "sardines" by itself or combined with the name of a country
or geographic region is a common name for Sardinops sagax in the European
Communities, Peru referred to the Multilingual Illustrated Dictionary of Aquatic
Animals and Plants, published in close cooperation with the European Commission
and the member States of the European Communities for the purpose of, inter alia, improving market transparency, which lists the common name of Sardinops
sagax in nine European languages as "sardines" or the equivalent thereof in the
national language combined with the country or geographic area of origin.
Similarly, Peru submitted copies of the electronic publication, Fish Base,
produced with the support of the European Commission, which indicates that a
common name for Sardinops sagax in Italy, the Netherlands, Germany, France,
Sweden and Spain is "sardines" or its equivalent in the national language
combined with the country or geographical area of origin. In addition, Peru
relied on the Multilingual Dictionary of Fish and Fish Products prepared by the Organisation for Economic Cooperation and Development ("OECD") which indicates
that a common name of Sardinops sagax is "sardines", either by itself or
combined with the name of a country or geographic area. According to this
Multilingual Dictionary of Fish and Fish Products, one of the common names in
English is "Pacific Sardine", or "Sardine du Pacifique" in French. Even the
European Communities acknowledged that one of the common names for Sardinops
sagax is "sardines" or its equivalent thereof in the national language combined
with the country or geographical area of origin.102
7.132 According to the Consumers' Association, "a wide array of sardines were
made available to European consumers for many decades prior to the imposition of
this restrictive Regulation".103 Canada submitted evidence showing that a Canadian
company exported Clupea harengus harengus under the trade description "Canadian
sardines" to the Netherlands for thirty years, until 1989. Canada also submitted
evidence showing that there have been exports of Clupea harengus harengus under
the trade description "[company name] sardines in hot tabasco" to the United
Kingdom for forty years, until 1989. We note in this regard that with respect to
the objective of promoting fair competition, the aim of which is to prevent
producers of one product from benefitting from the reputation associated with
another product,104 the underlying premise is that the term "sardines" is
associated only with Sardina pilchardus. However, as species other than Sardina
pilchardus also contributed to the reputation of the term "sardines" and in
light of the fact that "sardines", either by itself or combined with the name of
a country or a geographic area, is a common name for Sardinops sagax in the
European Communities, we do not consider that only Sardina pilchardus developed
the reputation associated with the term "sardines".
7.133 Even if we were to assume that the consumers in the European Communities
associate the term "sardines" exclusively with Sardina pilchardus, the concern
expressed by the European Communities, in our view, was taken into account when
Codex Stan 94 was adopted. By establishing a precise labelling requirement "in a
manner not to mislead the consumer", the Codex Alimentarius Commission
considered the issue of consumer protection in countries producing preserved
sardines from Sardina pilchardus and those producing preserved sardines from
species other than Sardina pilchardus by reserving the term "sardines" without
any qualification for Sardina pilchardus only. The other species enumerated in
Codex Stan 94 are to be labelled as "X sardines" with the "X" denoting the name
of a country, name of a geographic area, name of the species or the common name
in accordance with the law and custom of the country in which the product is
sold. Thus, Codex Stan 94 allows Members to provide precise trade description of
preserved sardines which promotes market transparency so as to protect consumers
and promote fair competition.105
7.134 Negotiating history confirms that Codex Stan 94 takes into account the
European Communities' concern that consumers might be misled if a distinction
were not made between Sardina pilchardus and other species. The Report of Codex
Committee on Fish and Fishery Products on the Seventh Session states:
The traditional canners of this fish [Sardina pilchardus] were adamant that no
other species should be allowed to use "sardines" without some form of
qualification. Nor were they disposed to agree to qualifications which in their
view could lead to confusion as to the species � For [countries producing fish
of other species] any distinction was discriminatory and would result in their
consumers being misled �. The Committee agreed upon the need to protect the
consumer.106 (emphasis added)
7.135 At the Twelfth Session of the Codex Alimentarius Commission where the
Commission adopted the draft standard for canned sardines and sardine-type
products, a proposal was made to include Engraulis mordax and Sardinella
longiceps. In response to this proposal, it is recorded that:
France stated that, in its opinion, the list of species (2.1.2) covered too
broad range of fish which could place the consumer at a disadvantage with regard
to making a sound choice between different products. It was pointed out that the
present standard was a group standard and that the labelling section contained
adequate provisions to safeguard the consumer.107
7.136 Moreover, a 1969 Synopsis of Governments Replies on the Questionnaire on
"Canned Sardines", prepared by the Codex Committee on Fish and Fishery Products,
demonstrates that the governments of several current European Communities'
member States, such as Denmark, Sweden and the United Kingdom, responded
affirmatively to the question "[i]s it accepted that existing practices whereby
sardine-type products are often labelled as sardines but with an appropriate
qualifying phrase should be fully taken into account and provided for so long as
the consumer is not deceived?". These governments considered "that this way of
designating the sardine-type products as sardines has been in use for about one
century in many countries". France was recorded as stating that "only the
species recognized as sufficiently near to Sardina pilchardus might be
designated as 'sardine' followed or preceded by a qualifying term", adding that
"a geographic qualifying term could be acceptable on the condition that the
consumer is not deceived (i.e., Atlantic sardine can mean either Sardina
pilchardus, or another species caught in the Atlantic Ocean)". Of all current
European Communities' members States, only the Federal Republic of Germany,
Portugal and Spain stated that their domestic legislation did "not accept any
designation of 'sardines' even with a qualifying term for species other than
Sardina pilchardus (Walbaum)".
7.137 In light of our considerations above and based on our review of the
available evidence and legal arguments, we find that it has not been established
that consumers in most member States of the European Communities have always
associated the common name "sardines" exclusively with Sardina pilchardus and
that the use of "X sardines" would therefore not enable the European consumer to
distinguish preserved Sardina pilchardus from preserved Sardinops sagax.108,
109 We
also find that Codex Stan 94 allows Members to provide precise trade description
for preserved sardines and thereby promote market transparency so as to protect
consumers and promote fair competition.
7.138 We therefore conclude that it has not been demonstrated that Codex Stan 94
would be an ineffective or inappropriate means for the fulfilment of the
legitimate objectives pursued by the EC Regulation, i.e., consumer protection,
market transparency and fair competition. We conclude that Peru has adduced
sufficient evidence and legal arguments to demonstrate that Codex Stan 94 is not
ineffective or inappropriate to fulfil the legitimate objectives pursued by the
EC Regulation.
6. Overall conclusion with respect to Article 2.4 of the TBT Agreement
7.139 In light of our findings that Codex Stan 94 is a relevant international
standard, that it was not used as a basis for the EC Regulation and that it is
not ineffective or inappropriate to fulfil the legitimate objectives pursued by
the EC Regulation, we find that the EC Regulation is inconsistent with Article
2.4 of the TBT Agreement.
H. CONSIDERATION OF THE EUROPEAN COMMUNITIES' ARGUMENT THAT PERU BROADENED ITS
CLAIMS
7.140 The European Communities argues that Peru's reformulated request for
findings broadens the claims made by Peru in its first written submission and is
therefore inadmissible. The European Communities argues that Peru is claiming in
its second written submission that the European Communities and its member
States cannot use a common name of the species Sardinops sagax according to the
relevant law and custom to designate the preserved product unless it is
accompanied by the word "sardines".
7.141 The European Communities argues that Peru's formulation of its request for
findings seeks to obtain a declaratory judgment that would require the European
Communities to take certain specific action rather than simply remove any
inconsistency and, in the European Communities' view, this request goes beyond
the panel's mandate and is inadmissible. The European Communities argues that
Peru's reformulation of its claim is a consequence of the fact that Peru failed
to properly research the common names of Sardinops sagax in the European
Communities prior to commencing this dispute.
7.142 Concerning the European Communities' argument that Peru broadened its
claim, it is necessary to examine the terms of reference which are set out in
document WT/DS231/16:
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.
7.143 Regarding the term "matter", the Appellate Body in Guatemala - Cement I
stated that the matter consists of the specific measure and the claims relating
to it, both of which must be identified in the request for the establishment of
a panel.110 In its Request for the Establishment of a Panel, Peru invoked the EC
Regulation as the specific measure at issue and claimed that the EC Regulation
is inconsistent with Articles 2 and 12 of the TBT Agreement and Articles I, III
and XI:1 of the GATT 1994. In the so-called reformulated request for findings,
Peru asked the Panel to find that the EC Regulation prohibiting the use of the
term "sardines" combined with the name of a country of origin, name of a
geographic area, name of the species or the common name of Sardinops sagax used
in the language of the member State of the European Communities in which the
product is sold is inconsistent with Article 2.4 of the TBT Agreement. Peru
specifically referred to the EC Regulation and Article 2.4 of the TBT Agreement,
both of which are set out in Peru's Request for the Establishment of a Panel.
Therefore, we do not consider that Peru, even if it broadened the scope of its
request beyond what it originally requested in its first written submission,
made any claims that exceeded the terms of reference.111
7.144 We are well aware that panels can consider only those claims that it has
the authority to consider under the terms of reference which sets out our
mandate. In this regard, a distinction must be made between claims and
arguments.112 We note that the Appellate Body stated:
there is a significant difference between the claims identified in the request
for the establishment of a panel, which establish the panel's terms of reference
under Article 7 of the DSU, and the arguments supporting those claims, which are
set out and progressively clarified in the first written submissions, the
rebuttal submissions and the first and second panel meetings with the parties.113
(emphasis added)
7.145 The request for findings submitted by Peru in its first and second written
submissions, in our view, is a summation of its arguments and do not constitute
claims. And, as arguments, we are not bound by them.
7.146 For the reasons set out above, we reject the European Communities'
argument that Peru's reformulated request broadens the claim and that Peru's
request goes beyond the Panel's mandate.
I. JUDICIAL ECONOMY
7.147 In this dispute, Peru requested us to first examine the consistency of the
EC Regulation with Article 2.4 of the TBT Agreement. Peru requested that we
consider the consistency of the EC Regulation with Article 2.2 of the TBT
Agreement only if we were to find that the EC Regulation is consistent with
Article 2.4 of the TBT Agreement and then examine its claim under Article 2.1 of
the TBT Agreement only if we were to find the EC Regulation is consistent with
Article 2.2 of the TBT Agreement. In the event that we were to find the EC
Regulation consistent with the TBT Agreement, Peru requested that we examine
whether the EC Regulation is consistent with Article III:4 of the GATT 1994. The
European Communities did not contest Peru's requests.
7.148 We note that our obligation as a panel is set out in Article 11 of the DSU
which provides:
a panel should make an objective assessment of the matter before it, including
an objective assessment of the facts of the case and the applicability of and
conformity with the relevant covered agreements, and the make such other
findings as will assist the DSB in making the recommendations or in giving the
rulings provided for in the covered agreements.
7.149 We are mindful that "[n]othing in [Article 11 of the DSU] or in previous
GATT practice requires a panel to examine all legal claims made by the
complaining party"114 but note that the principle of judicial economy has to be
applied bearing in mind the aim of the dispute settlement mechanism which is to
"secure a positive solution to a dispute".
7.150 Panels in a number of disputes have applied the principle of judicial
economy. We are mindful that in some instances, the Appellate Body found that
principle was applied incorrectly; in others, the Appellate Body affirmed the
panel's decision. As initially developed in US - Wool Shirts and Blouses, the
Appellate Body stated that "a panel need only address those claims which must be
addressed in order to resolve the matter at issue".115 This was further qualified
in Australia - Salmon where the Appellate Body stated that:
the principle of judicial economy has to be applied keeping in mind the aim of
the dispute settlement system. The aim is to resolve the matter at issue and to
secure a positive solution to the dispute. To provide only a partial resolution
of the matter at issue would be false judicial economy. A panel has to address
those claims on which a finding is necessary in order to enable the DSB to make
sufficiently precise recommendations and rulings so as to allow for prompt
compliance by a Member with those recommendations and rulings "in order to
ensure effective resolution of disputes to the benefit of all Members".116
7.151 Therefore, in keeping with the principle of judicial economy, we conclude
that it is not necessary for us to consider other claims and arguments raised by
the parties in this dispute. We made an objective assessment of whether the EC
Regulation is consistent with Article 2.4 of the TBT Agreement and found that
the EC Regulation is not consistent with Article 2.4 of the TBT Agreement. This
finding, in our view, produces a positive solution to the current dispute and
also enables the DSB to make sufficiently precise recommendations and rulings
without any further findings under Articles 2.1 and 2.2 of the TBT Agreement and
Article III:4 of the GATT 1994. Although panels are not bound by the complaining
party's request which is not contested by the responding party, we are aided in
our view by the complaining party's specific request that we examine the
consistency of the EC Regulation with other legal provisions invoked by Peru
only if we were to find the EC Regulation is consistent with Article 2.4 of the
TBT Agreement.
7.152 Accordingly, we exercise judicial economy with respect to Peru's claim
under Articles 2.1 and 2.2 of the TBT Agreement and Article III:4 of the GATT
1994.
VIII. CONCLUSIONS AND RECOMMENDATIONS
8.1 In light of the findings above, we conclude that the EC Regulation is
inconsistent with Article 2.4 of the TBT Agreement.
8.2 Pursuant to Article 3.8 of the DSU which provides that "[i]n cases where
there is an infringement of the obligations assumed under a covered agreement,
the action is considered prima facie to constitute a case of nullification and
impairment", we conclude that the EC Regulation nullified and impaired the
benefits of Peru under the WTO Agreement, in particular under the TBT Agreement.
8.3 Peru requested that we suggest in accordance with Article 19.1 of the DSU
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." We note that Article 19.1 states that the panel may suggest a way to
implement the recommendations of the panel and that the panel is not required to
make such suggestion. As the authority under Article 19.1 is one of discretion,
we decline to make a suggestion. We recommend that the DSB request the European
Communities to bring its measure into conformity with its obligations under the
TBT Agreement.
91 The New Shorter Oxford English Dictionary, (Clarendon
Press, 1993), p. 786.
92 Ibid., p. 103.
93 In this case, we observe that the European Communities has
used the terms "ineffective" and "inappropriate" interchangeably throughout its
oral and written statements.
94 The New Shorter Oxford English Dictionary, supra,
p. 2422.
95 Panel Report, Canada - Patent Protection of Pharmaceutical
Products ("Canada -Pharmaceuticals"), WT/DS114/R, adopted 7 April
2000, para. 7.69. Similarly, the panel in US - Section 110(5) Copyright Act
stated that the term has to be considered from a "normative perspective, in the
context of calling for the protection of interests that are justifiable in the
light of the objectives that underlie the protection of exclusive rights". Panel
Report, United States - Section 110(5) of the US Copyright Act ("US -
Section 110(5) Copyright Act"), WT/DS160/R, adopted 27 July 2000, para.
6.224.
96 (footnote original) See Spanish legislation (Exhibit EC-21)
and French legislation (Exhibit EC-22).
97 (footnote original) See Exhibit EC-23.
98 EC's First Submission, paras. 64-65. Emphasis added.
99 See paragraph 7.127 wherein we express our concern that
"Members, by shaping consumer expectations through regulatory intervention in
the market, would be able to justify thereafter the legitimacy of that very same
regulatory invention on the basis of the governmentally created consumer
expectation".
100 With respect to the post-1989 regulations in the United
Kingdom and Germany, we fail to see how these documents could be relevant for
our assessment, considering the European Communities' confirmation that its
Regulation, which predates both documents, "is the law directly applicable" in
all European Communities' member States (EC's Response to Panel Question 42(b)).
Thus, if European Communities' member States are to comply with the EC
Regulation, it would have been surprising to find member State regulations or
guidelines post-1989 which extend the right to use the trade description
"sardines" also to products made from Sardinops sagax, as this would be
clearly inconsistent with Article 2 of the EC Regulation. These documents
therefore do not demonstrate that consumers in most member States of the
European Communities have always, and in some member States have for at least 13
years, associated the trade description "sardines" exclusively with Sardina
pilchardus. They are simply consistent with the EC Regulation, as they can
expected to be.
101 We note, however, that the European Communities have not
provided any evidence regarding this assertion for the twelve other European
Communities' member States.
102 EC's First Submission, paras. 25 and 27-28. The European
Communities lists one of the common names for Sardinops sagax as "sardina"
in Spain and "Pacific sardine" in the United Kingdom.
103 Exhibit Peru-16, p. 8.
104 EC's First Submission, paras. 63, 140 and 141.
105 We note that Article 7(c) of the EC Regulation permits, "by
way of derogation from Article 2, second indent", a can of sardines to be
labelled as "sardine mousse", "sardine paste" or "sardine p�t�", even if the can
is comprised of only 25% Sardina pilchardus and 75% other fish, including
those of Sardinops sagax. In its response to the Panel's question on the
matter, the European Communities confirmed that a can containing at least 25% of
homogenised Sardina pilchardus flesh and the remainder containing "the
flesh of other fish which have undergone the same treatment" can be marketed as
"sardine mousse", "sardine paste", or "sardine p�t�" if the content of the flesh
of any other fish is less than 25%. Thus, as long as the 25% of Sardina
pilchardus is the predominant weight, the product can be marketed as
"sardine mousse", "sardine paste", or "sardine p�t�". For example, if a mousse
is made of 60% fish and 40 % other ingredients, the fish component could,
according to Article 7, be comprised of 25% Sardina pilchardus and 15%
each of five different fish and it would still be a "sardine mousse". On the
other hand, a mousse of which the fish component represents 49.9% Sardina
pilchardus and 50.1% Sardinops sagax, however, would not. The
European Communities argues that consumers will nevertheless be protected by the
indication of the ingredients on the can. However, if the indication of
ingredients on the can is sufficient to inform consumers that their "sardine"
product in reality contains 25% Sardina pilchardus and 75% other fish, we
fail to see why Codex Stan 94 which informs consumers that no Sardina
pilchardus is contained by labelling the product "X sardines" is ineffective
or inappropriate to fulfil the legitimate objectives pursued by the EC
Regulation.
106 Exhibit Canada-3, Report of the Codex Committee on Fish and
Fishery Products, Seventh Session, 2-7 October 1972, ALINORM 74/18, paras. 57
and 59.
107 Exhibit Canada-3, Report of the Twelfth Session of the Joint
FAO/WHO Codex Alimentarius Commission, p. 52.
108 In light of our finding that the
consumers in the European Communities do not necessarily associate sardines
exclusively with Sardina pilchardus, it is worth noting that the
regulation governing tuna and bonito indicates that Atlantic and Pacific bonito,
Atlantic little tuna, Eastern little tuna, black skipjack and other species of
the genus Euthynnuis can be labelled "bonito" without any qualification.
If a requirement that is less precise, especially in respect of the geographic
origin, than that set out in Codex Stan 94 can "ensure market transparency" and
"ensure clarity in the trade description of the products concerned", Codex Stan
94 that allows a more precise trade description to be used is arguably effective
and appropriate to fulfil the objective of promoting market transparency,
protecting consumers and promoting fair competition.
109 With respect to parties' argument about whether the term
"sardines" is generic, we do not consider it necessary to make a determination
on this particular issue.
110 Appellate Body Report, Guatemala - Anti-Dumping
Investigation Regarding Portland Cement from Mexico ("Guatemala - Cement
I"), WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, para. 72.
111 In any event, we note that the findings
requested by Peru as set out in the first and second written submissions are not
substantively different. Peru's second written submission refers to the
prohibition to market the products prepared from Sardinops sagax under
the name "sardines" combined with an indication of the name of the country of
origin, the geographic area, the species and the common name whereas the first
written submission, while similar in all respect, refers to "the prohibition �
to market the products � under 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 (such as 'Peruvian sardine' in English, or 'S�damerikanische
Sardine' in German)". Although the latter does not contain the explicit
reference to the term "sardines" combined with the common name, we note that
examples cited by Peru uses the term "sardines" with the putative common name.
Moreover, Peru argued throughout the proceedings that the term "sardines" has to
be used in combination with the four alternatives set out in Codex Stan 94.
112 The Appellate Body in Korea - Dairy, para. 139, stated
that "[b]y 'claim' we mean a claim that the respondent party has violated, or
nullified or impaired the benefits arising from, an identified provision of a
particular agreement. Such a claim of violation must, as we have already
noted, be distinguished from the arguments adduced by a complaining party
to demonstrate that the responding party's measure does indeed infringe upon the
identified treaty provision" (emphasis original).
113 Appellate Body Report, EC - Bananas III, para. 141.
114 Appellate Body Report, US - Wool Shirts and Blouses,
p. 339. Emphasis original.
115 Appellate Body Report, US - Wool Shirts and Blouses,
p. 340.
116 Appellate Body Report, Australia - Salmon, para. 223.
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