B. Arguments of Peru - Appellee

1. Procedural Issues

57. Before addressing the merits of the appeal, Peru challenges the admissibility of what it terms is a second appeal by the European Communities-that is, the proceedings that began with the Notice of Appeal filed by the European Communities on 28 June 2002, after withdrawing the Notice of Appeal it had filed on 25 June 2002.

58. According to Peru, a notice of appeal cannot be withdrawn and resubmitted in revised form without the consent of the appellee. It notes that there is nothing in the Working Procedures that establishes the right to commence an appeal twice. Peru asserts that, although Rule 30 of the Working Procedures makes clear that an appeal can be withdrawn at any time-which the European Communities did through its communication of 28 June 2002-nothing in that Rule permits the appellant to attach conditions to the withdrawal. Peru submits that if an appellant withdraws its appeal subject to conditions, the appeal must therefore be deemed withdrawn, irrespective of whether or not the conditions are met.

59. Peru argues that unless the Working Procedures are strictly enforced to prevent an appellant from commencing an appeal repeatedly or withdrawing an appeal subject to unilaterally determined conditions, there is immense potential for abuse and disorder in appellate review proceedings.

60. Peru also states that the facts of United States - Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea ("US - Line Pipe ")¹⁹, which the European Communities cites as precedent, are distinguishable from those involved in the present dispute. It explains that in US - Line Pipe, as well as in United States - Tax Treatment for "Foreign Sales Corporations" ("US - FSC ")²⁰, the Notices of Appeal were withdrawn with the agreement of the appellees, while in this case the European Communities adopted a unilateral approach. Moreover, in the two previous cases, the appellants resubmitted an identical Notice of Appeal, which is not the case in this appeal.

61. In Peru's view, the approach adopted by the European Communities in the present appeal presupposes the existence of a fundamental procedural right that neither the DSU nor the Working Procedures accords. Peru asserts that creating procedural rights on an ad hoc basis to address problems caused by one WTO Member in an individual case, rather than through generally applicable new procedures of which all Members are informed in advance, calls into question the principle of equal treatment of all WTO Members.

62. Peru further notes that, even though the Appellate Body has ruled that the Working Procedures should be read so as to give full meaning and effect to the right to appeal, this right is not deprived of meaning and effect just because it can be exercised only once. Peru states, in addition, that when the Appellate Body has addressed an issue that is not provided for in the Working Procedures , the Appellate Body has consulted the participants and third parties. Peru asserts that, as the Appellate Body did not consult the parties at the time that the second Notice of Appeal was filed, it cannot be concluded that the Appellate Body has accepted the European Communities' second appeal. Otherwise, the Appellate Body would have waived Peru's procedural rights, which the Appellate Body has no authority to do under the DSU or under its Working Procedures .

63. Peru argues, moreover, that the circumstances of this case do not allow the Appellate Body to rule that the procedure adopted by the European Communities can be justified under Rule 16(1) of the Working Procedures , because that Rule does not justify the creation of procedural rights that the DSU does not accord.

64. Peru requests, therefore, that the Appellate Body reject the European Communities' second appeal.

65. Peru further objets to the acceptance and consideration of the amicus curiae briefs submitted in this appeal. It states that, while it welcomes non-Member submissions where they are attached to the submission of a WTO Member engaged in dispute settlement proceedings, the DSU makes clear that only WTO Members can make independent submissions to panels and to the Appellate Body. Peru argues further that the DSU already provides conditions under which WTO Members can participate as third parties in dispute settlement proceedings. According to Peru, accepting amicus curiae briefs from WTO Members that did not notify their third party interest to the DSB would be allowing a WTO Member impermissibly to circumvent the DSU.

66. Peru thus requests that the Appellate Body reject the amicus curiae briefs submitted in this appeal.

2. The Characterization of the EC Regulation as a "Technical Regulation"

67. Peru submits that, contrary to the European Communities' contention, the EC Regulation is a "technical regulation" that applies to identifiable products and lays down characteristics for products marketed as sardines. Peru explains that Article 2 of the EC Regulation does not apply to any product, but to products clearly identified as products marketed as preserved sardines. It further claims that these clearly identified products must, according to Article 2 of the EC Regulation, have a number of physical characteristics, including that of having been prepared exclusively from fish of the species Sardina pilchardus . Peru asserts, therefore, that the EC Regulation lays down product characteristics for products that are clearly identified.

68. Peru rejects the European Communities' claim that a name applied to a product is not itself a characteristic of that product. According to Peru, Annex 1.1 to the TBT Agreement provides that any document that lays down product characteristics with which compliance is mandatory is a "technical regulation", irrespective of the purpose for which the product characteristics are laid down. In Peru's view, a regulation that prescribes the characteristics of products marketed under a particular trade name is, therefore, clearly a document which lays down product characteristics and hence a "technical regulation" as defined in Annex 1.1 to the TBT Agreement .

69. According to Peru, the European Communities' argument on this issue is irrelevant to this dispute. It explains that at issue in this dispute is not a "technical regulation" prescribing a particular name for products made from Sardinops sagax , but rather that part of the EC Regulation that requires any product marketed as sardines to be made from Sardina pilchardus . Peru submits that the European Communities would thus not have to prescribe a specific trade name for products made from Sardinops sagax to resolve this dispute.

3. The Temporal Scope of Application of Article 2.4 of the TBT Agreement

70. Peru submits that the Panel correctly relied on Appellate Body rulings and on Article 28 of the Vienna Convention in concluding that, unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. Peru claims that the EC Regulation is a situation that has not ceased to exist and, therefore, Article 2.4 of the TBT Agreement is applicable to the EC Regulation.

71. Peru disagrees with the European Communities' allegation that Article 2.4 of the TBT Agreement applies only to the preparation and adoption of technical regulations. According to Peru, this allegation is based on a distinction between the adoption and maintenance of technical regulations that the text of Article 2.4 does not make. Peru asserts that the obligation to use the existing international standard as a basis for technical regulations arises according to the terms of Article 2.4 "where technical regulations are required"-that is, in situations in which the Member considered the adoption of a technical regulation necessary-and not when Members consider they need to introduce technical regulations, as the European Communities alleges. Peru contends, moreover, that the terms "use" and "as a basis for" in Article 2.4 do not imply that the obligation under that provision arises only when a new technical regulation is drawn up, drafted or prepared.

72. Peru submits that the Panel correctly concluded that the references in other Articles of the TBT Agreement to the application of technical regulations confirm that this Agreement was meant to extend to existing technical regulations.

4. The Characterization of Codex Stan 94 as a "Relevant International Standard"

73. Peru states that the Panel correctly concluded that the TBT Agreement covers international standards that are not based on consensus. Peru notes, in this regard, the last two sentences of the Explanatory note to the definition of the term "standard" in Annex 1.2 to the TBT Agreement . It then asserts that the only logical and reasonable conclusion that can be drawn from these last two sentences is that the drafters wished to note the practice of consensus-based decision-making of the international standardization bodies, but at the same time clarify that consensus-based decision-making was not an absolute requirement.

74. Peru maintains that, in any event, the Codex Commission observes the principle of consensus and followed this principle in the adoption of the Codex standard at issue in this dispute. According to Peru, the report of the Codex Commission on the meeting at which the standard was adopted leaves no doubt that it was adopted without a vote. Peru concludes, therefore, that by asking the Appellate Body to rule that standards which have not been adopted by consensus are not covered by the TBT Agreement , the European Communities is asking the Appellate Body to make a ruling on an issue that need not be resolved to settle the present dispute.

75. In respect of the European Communities' argument that the Panel incorrectly interpreted Codex Stan 94, Peru asserts that the European Communities mistakenly treats this alleged error as an error in interpretation, rather than a failure to conduct an objective assessment of a fact. According to Peru, the Codex standard is not a covered agreement within the meaning of Article 1.1 of the DSU, nor is it a treaty or another source of international law. Peru thus contends that, like municipal law, the Codex standard must be treated by an international tribunal as a fact to be examined, not as law to be interpreted. Peru then states that the European Communities does not claim-and therefore does not attempt to demonstrate-that the Panel's determination that the meaning of this standard is not ambiguous constitutes an error in the assessment of a fact.

76. Peru argues that, even if the Appellate Body were to conclude that its task is to determine whether the Panel's interpretation of the standard is in error, the European Communities' claim should be rejected. In Peru's view, section 6.1.1(ii) of Codex Stan 94 clearly states that the name of sardines other than Sardina pilchardus shall be "X sardines" and, therefore, the text after "X sardines" can only be interpreted as defining what is meant by "X". Peru states, moreover, that whatever ambiguity may result from the use of the comma in the English text of Codex Stan 94-to separate the phrase "or the common name of the species in accordance with the law and custom of the country in which the product is sold"-the French and Spanish versions of the standard, which are equally authentic, leave no uncertainty on this point. Peru thus concludes that the Panel was correct in refraining from basing its interpretation on the standard's drafting history. In any event, Peru submits that the drafting history does not support the European Communities' interpretation of Codex Stan 94.

5. Whether Codex Stan 94 was Used "As a Basis For" the EC Regulation

77. Peru states that the Panel correctly interpreted and applied the term "as a basis for" in Article 2.4 of the TBT Agreement . It agrees with the Panel's conclusion that "basis" means "the principal constituent of anything, the fundamental principle or theory, as of a system of knowledge".

78. Peru submits that the European Communities does not explain according to what interpretative principle the term "as a basis for" could be given the meaning "having a substantive rational relationship". Peru asserts that the ordinary meaning of this term is not "having a substantive rational relationship" and it cannot be given that meaning in the light of its context and the object and purpose of the TBT Agreement .

79. Peru contends, furthermore, that the EC Regulation would not meet the "as a basis" test even if the terms were interpreted according to the definition submitted by the European Communities. In Peru's view, the relevant part of Codex Stan 94 is section 6.1.1(ii) and thus, according to the European Communities' own argument, what would need to be established is a rational and substantive relationship between section 6.1.1(ii) of Codex Stan 94 and the European Communities' prohibition against using the term "sardines" in combination with the name of a country or a geographical area or the species or the common name. Peru asserts that there is no relationship between section 6.1.1(ii) and that prohibition that can be described as "substantive" or "rational".

80. Peru rejects the European Communities' claim that, despite its 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. Peru states, in response, that there is not a single element of the standard foreseen in section 6.1.1(ii) of Codex Stan 94 that is reflected in the EC Regulation.

6. The Question of the "Ineffectiveness or Inappropriateness" of Codex Stan 94

81. Peru asserts that the Panel correctly articulated and applied the principle on burden of proof in this dispute. Peru explains that the Panel applied the principle enunciated by the Appellate Body, namely, that the party asserting the affirmative of a particular claim or defence has the burden of proving its claim. It further states that the question of the distribution of the evidentiary burden should not be considered in the abstract, but in the context of the provision at issue in the dispute.

82. According to Peru, Article 2.4 of the TBT Agreement is expressed in the form of a positive requirement and an exception. It explains that the second part of Article 2.4, which states "except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued", is not a positive requirement, but is rather expressed in the form of an affirmative defence. This means, in Peru's view, that a Member departing from a relevant international standard must show that the relevant international standard is not applicable to its particular set of circumstances.

83. Peru states, additionally, that the Panel correctly considered that the second part of Article 2.4 addresses motives and facts that are privy to the Member imposing a technical regulation. Peru argues that to accept the argument of the European Communities would be to require a complaining party to explain that the deviation from an international standard is not necessary to pursue a "legitimate objective", which would mean requiring a complaining party to prove a negative. Moreover, accepting the European Communities' argument would mean, in Peru's view, that the complaining party would have to speculate on the legitimacy of the objectives pursued by the responding party. Peru therefore argues that it is only logical that the responding Member should carry the burden of proving that its departure from the international standard is necessary to pursue the "legitimate objectives".

84. Peru claims that, even if the Appellate Body were to find that the Panel incorrectly allocated the burden of proof, Peru nevertheless adduced evidence sufficient to show that Codex Stan 94 is not "ineffective or inappropriate" to fulfil the "legitimate objectives" pursued by the European Communities through the EC Regulation.

7. The Objectivity of the Assessment of Certain Facts by the Panel

85. Peru submits that the Panel made "an objective assessment of the matter before it" consistently with its obligations under Article 11 of the DSU. According to Peru, to succeed in this claim the European Communities must show, as stated in EC - Hormones²¹, that the Panel was guilty of "deliberate disregard of, or refusal to consider, the evidence", that there was "wilful distortion or misrepresentation of the evidence", or that the Panel committed an "egregious error that calls into question the good faith" of the Panel. Peru asserts that the European Communities has not shown this.

86. Peru rejects the European Communities' claim that the Panel erred in refraining from seeking the opinion of the Codex Commission. Peru argues that Article 13.2 of the DSU leaves it to the discretion of panels to determine whether or not to seek expert opinion in particular cases and that Article 14.2 of the TBT Agreement gives panels discretion in deciding whether or not to establish a technical expert group. Peru further submits that, because the English text, together with the French and Spanish texts, remove any ambiguity or obscurity regarding the meaning of section 6.1.1(ii) of Codex Stan 94, there was no reason for the Panel to have recourse to its drafting history or to consult the Codex Commission on this issue.

87. Peru asserts that the Panel made proper use of dictionaries and that, in its claim on appeal, the European Communities is mischaracterizing the Panel Report. Peru explains that it referred to several technical dictionaries to support its claim that the term "sardines" is a common term for Sardinops sagax in the European Communities. The Panel referred to this evidence, as well as other evidence presented by the parties, in determining whether Peru had met its burden of proof. According to Peru, the purpose of the Panel's assessment was not, as suggested by the European Communities, to arrive at a definitive conclusion as to the common name for Sardinops sagax in each member State of the European Communities, but to determine whether European consumers would be misled if the trade description of products made from Sardinops sagax comprised the word "sardines" and a geographical qualifier. Peru therefore submits that the Panel used the dictionaries in an appropriate manner to make this determination, consistent with its obligations under Article 11 of the DSU.

88. Peru argues that the Panel did not ignore the evidence submitted by the European Communities concerning the actual names given to "sardine-type" products in the European Communities. Peru states that it is clear from paragraphs 7.125-7.129 of the Panel Report that the Panel looked at this evidence, but disagreed with it.

89. Peru claims that the Panel properly took into account the evidence provided by the United Kingdom Consumers' Association. Peru explains that the Association arrived at the conclusion that European consumers would not be misled if sardines from Europe and sardines from Peru were distinguished by the addition of a geographical indication in the trade name and that the EC Regulation does nothing to promote the interests of European consumers. Contrary to the assertion of the European Communities, Peru argues that these are factual, not legal, conclusions that the Panel could appropriately consider as part of the wide range of evidence submitted to it on this question. Peru therefore concludes that the European Communities has not shown that the Panel distorted this evidence, or that it used this evidence in bad faith.

8. The References in the Panel Report to Trade-Restrictiveness

90. Peru explains that the Panel's statements on trade-restrictiveness should be considered keeping in mind, as background, the fact that Peru requested the Panel to exercise judicial economy with respect to its subsidiary claims, including its claim under Article 2.2 of the TBT Agreement . Peru submits, nonetheless, that the Panel's description of the EC Regulation as trade-restrictive is entirely accurate.

91. Peru recognizes that these statements are not necessary to the Panel's analysis under Article 2.4 of the TBT Agreement and, to the extent that the Panel's finding on that Article is confirmed, requests that the Appellate Body decline to address these statements or rule that they were not necessary or pertinent to the disposition of the issues before the Panel. If the Appellate Body does not confirm the finding that the EC Regulation is inconsistent with Article 2.4, Peru requests that the Appellate Body complete the analysis with respect to Articles 2.2 and 2.1 of the TBT Agreement and, in so doing, that it consider the Panel's statements on the trade-restrictiveness of the EC Regulation.

9. Completing the Legal Analysis

92. Peru submits that, if the Appellate Body concludes that the EC Regulation is consistent with Article 2.4, it would be appropriate in such circumstances for the Appellate Body to complete the Panel's analysis and resolve the dispute by making findings on those provisions of Article 2 of the TBT Agreement on which the Panel did not make any findings. Peru explains that it asked the Panel to exercise judicial economy in accordance with the guidance given by the Appellate Body to panels to address only those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings. Peru then points to several cases where, after reversing a panel's finding, the Appellate Body completed the legal analysis of those claims where the panel had exercised judicial economy.

93. Peru states that it requested the Panel to include in the Panel Report all of the arguments and evidence submitted to it on the legal claims not addressed, so as to provide the Appellate Body with the factual basis to rule on those claims if this became necessary. Peru further asserts that the fundamental rationale of Articles 2.1, 2.2, and 2.4 of the TBT Agreement is the same, so that the facts required to rule on the consistency of a measure with Article 2.4 of the TBT Agreement include those required to rule on the consistency of that measure with Articles 2.1 and 2.2 of that Agreement.

94. Peru therefore requests that, if the Appellate Body concludes that the EC Regulation is consistent with Article 2.4, the Appellate Body complete the Panel's analysis and find that the EC Regulation is inconsistent with Article 2.2. If the Appellate Body concludes that the EC Regulation is consistent with Article 2.2, Peru requests the Appellate Body to complete the Panel's analysis and find that the EC Regulation is inconsistent with Article 2.1 of the TBT Agreement.

C. Arguments of the Third Participants

1. Canada

95. Canada agrees with the Panel's finding that the EC Regulation is a "technical regulation" for the purposes of the TBT Agreement . It submits that the Panel correctly applied the Appellate Body's reasoning in EC - Asbestos, by finding that the EC Regulation identifies a product, namely preserved sardines, lays down product characteristics in a negative form by prohibiting fish of species other than Sardina pilchardus to be marketed as preserved sardines, and is mandatory.

96. Canada further asserts that, pursuant to Article XVI:4 of the Marrakesh Agreement Establishing the World Trade Organization, the European Communities had an obligation on 1 January 1995 to ensure the conformity of its existing technical regulations with its obligations under, inter alia , Article 2.4 of the TBT Agreement . Canada adds that the European Communities failed to comply with this obligation in respect of the EC Regulation.

97. Canada also claims that the Panel correctly found that Codex Stan 94 was not used "as a basis for" the EC Regulation. According to Canada, the EC Regulation is not "founded or built upon" or "supported by" Codex Stan 94, because the EC Regulation prohibits preserved sardines of species other than Sardina pilchardus from being marketed as "sardines", regardless of whether the term "sardine" is used in conjunction with the country, geographical area, species, or common name of the species.

98. Canada agrees with the Panel's finding that under Article 2.4 of the TBT Agreement, the burden rests with the European Communities, as the party asserting the affirmative of a particular claim or defence, to demonstrate that Codex Stan 94 is an "ineffective or inappropriate" means to fulfil the "legitimate objectives" of the EC Regulation. It further notes that, even if this were not the case, Peru provided sufficient evidence and legal arguments to meet this burden.

99. According to Canada, the Panel made an "objective assessment of the matter before it". Canada submits that in order to establish that the Panel acted inconsistently with Article 11 of the DSU, the European Communities must do more than merely contend that the Panel should have reached different factual findings than those it reached.

100. Canada further submits that the Panel's interpretation of Codex Stan 94 is correct and that it was within the Panel's discretion to decline to consult the Codex Commission.

101. Canada disagrees with the Panel's comment that, under Article 2.5 of the TBT Agreement , a regulation that is not in accordance with "relevant international standards" creates an unnecessary obstacle to trade. Canada notes, however, that the Panel's comment played no part in its determination that the EC Regulation is inconsistent with Article 2.4 of the TBT Agreement .

102. Canada submits that, in the event that the Appellate Body finds the EC Regulation to be consistent with Article 2.4 of the TBT Agreement , the Appellate Body has an adequate basis to complete the legal analysis of the claims made by Peru under Articles 2.2 and 2.1 of the TBT Agreement and Article III:4 of the GATT 1994.

103. In referring to the amicus curiae briefs received in this appeal, Canada notes that there is a lack of clear agreement among WTO Members as to the role of amicus curiae briefs in dispute settlement. It also states that the DSU provides WTO Members with the legal right to make submissions in a dispute, but only if they reserve their third party rights at the outset of the dispute settlement process. Canada finally asserts that, in any event, the amicus curiae briefs should be rejected because they are not pertinent or useful.

2. Chile

104. Chile agrees with Peru's claim that the European Communities could not conditionally withdraw its Notice of Appeal of 25 June 2002 and replace it with a new Notice of Appeal.

105. Chile also agrees with the Panel's conclusion that the EC Regulation is a "technical regulation" for purposes of the TBT Agreement .

106. Chile states that the Panel was correct in concluding that Article 2.4 of the TBT Agreement applies to all technical regulations that existed prior to 1 January 1995. According to Chile, the commitment under the TBT Agreement not to restrict trade more than necessary is a permanent and continuous one.

107. Chile rejects the European Communities' contention that Article 2.4 applies only to the preparation and adoption of technical regulations. Chile states that Article 2 of the TBT Agreement is entitled "Preparation, Adoption and Application of Technical Regulations by Central Government Bodies". Given the title of Article 2, Chile argues that if Article 2.4 were limited to the preparation and adoption of technical regulations, its text would have indicated this explicitly or the provision would have been included in a different article.

108. Chile agrees with the Panel's conclusion that Codex Stan 94 is a "relevant international standard". Chile, nevertheless, disagrees with the Panel's interpretation of the Explanatory note to the definition of "standard" in Annex 1.2 to the TBT Agreement . According to Chile, the Explanatory note provides that international standards must be based on consensus, and this was confirmed in the Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 of the Agreement, adopted by the WTO Committee on Technical Barriers to Trade.²² Chile notes, however, that the European Communities has not provided any evidence to demonstrate that Codex Stan 94 was not approved by consensus.

109. Chile submits that the Panel was correct in finding that Codex Stan 94 was not used "as a basis for" the EC Regulation. Chile explains that the EC Regulation monopolizes the term "sardines" for Sardina pilchardus in circumstances where Codex Stan 94 provides otherwise. Chile then asserts that, had the European Communities used Codex Stan 94 "as a basis", the European Communities would have had to incorporate all relevant parts of it, and not only section 6.1.1(i).

110. Chile asserts that the burden of proving that Codex Stan 94 is not "ineffective or inappropriate" rests with the European Communities, because it is impossible for the Panel or for the other Members to prove what are the true "legitimate objectives" pursued by the Member adopting a technical regulation. In Chile's view, the European Communities failed to meet this burden.

111. Chile requests, furthermore, that the Appellate Body reject the amicus curiae briefs received in this appeal. Chile argues that accepting amicus curiae briefs from WTO Members who have not notified the DSB of their interest as third parties would mean that those Members would be accorded more favourable treatment than those accorded passive observer status in an appeal.

3. Ecuador

112. Ecuador requests clarification of the issues raised by the European Communities' conditional withdrawal of the original Notice of Appeal and the submission of a second Notice of Appeal.

113. Ecuador submits that the EC Regulation is a "technical regulation" for purposes of the TBT Agreement . It agrees with the Panel's finding that Codex Stan 94 is a "relevant international standard" which must be used "as a basis for" the adoption and maintenance of the EC Regulation.

114. According to Ecuador, the Panel correctly found that Codex Stan 94 allows Members to provide a precise trade description for preserved sardines, thereby promoting market transparency, consumer protection, and fair competition. Ecuador further agrees with the Panel's finding that Peru presented sufficient evidence to prove that Codex Stan 94 is neither "ineffective" nor "inappropriate" to achieve the "legitimate objectives" pursued by the European Communities through the EC Regulation.

115. Finally, Ecuador objects to the acceptance and consideration of the amicus curiae briefs submitted in this appeal. According to Ecuador, this would accord Morocco more favourable treatment than Colombia who was accorded passive observer status in this appeal.

4. United States

116. According to the United States, the Panel correctly found, as a factual matter, that the EC Regulation lays down product characteristics that must be complied with in order for a product to be labelled and sold as preserved sardines, and that one of those mandatory product characteristics is that the fish must be of the species Sardina pilchardus . It further notes that the European Communities has not contested that the EC Regulation is a "technical regulation", but only that it is a "technical regulation" relating to Sardinops sagax.

117. The United States submits that, contrary to what the European Communities claims, there is no need to prove that the EC Regulation is an explicit "technical regulation" for Sardinops sagax . Although the EC Regulation mentions only Sardina pilchardus by name, the United States asserts that this does not mean that the EC Regulation cannot be challenged by another Member, especially when that Member is precluded from labelling its sardine species as "sardines" by that regulation.

118. The United States also rejects the European Communities' attempt to distinguish between labels and names, and states that the Panel correctly noted that both labelling and naming requirements are means of identifying a product.

119. The United States agrees with the Panel's conclusion that Article 2.4 applies to technical regulations that were in effect when the TBT Agreement came into force. The United States submits that the Appellate Body's reasoning in EC - Hormones²³ regarding the temporal application of the SPS Agreement is also relevant for interpreting Article 2.4 of the TBT Agreement .

120. The United States further asserts that the European Communities' allegation that Article 2.4 applies only to the drafting, drawing up or preparation of technical regulations is not supported by the text of that provision nor by its context. In this regard, the United States argues that this provision "follows fast" upon Article 2.3 of the TBT Agreement , which requires that technical regulations not be maintained if they are no longer necessary or if the objectives can be attained in a less trade-restrictive manner. This provides contextual support, according to the United States, to the conclusion that the phrase "where technical regulations are required" in Article 2.4 can refer to existing technical regulations that are being maintained because they are still required.

121. The United States submits that the Panel correctly found that Codex Stan 94 is a "relevant international standard". It further states that the Panel properly rejected the European Communities' allegations that the international standard at issue does not mean what it says, or is invalid because of drafting changes made in the course of developing the standard.

122. The United States disagrees, however, with the Panel's conclusion that international standards do not have to be based on consensus. According to the United States, this conclusion is contrary to the Explanatory note to the definition of "standard" in Annex 1.2 to the TBT Agreement , which states that international standards are based on consensus. It argues that the TBT Agreement does not impose any obligations on an international body or system with respect to the development of international standards. In the United States' view, the obligations set out in the TBT Agreement apply only to WTO Members and thus do not cover the international standards referred to in Article 2.4. The last phrase of the Explanatory note, referring to the application of the TBT Agreement to documents not adopted by consensus, would cover instead those standards adopted by Members even if not adopted by consensus.

123. The United States, therefore, urges the Appellate Body to modify this aspect of the Panel Report, but clarifies that this would not invalidate the Panel's conclusion that Codex Stan 94 is a "relevant international standard", given the Panel's finding that there was no evidence that Codex Stan 94 was not based on consensus.

124. The United Sates submits that the Panel was correct in finding that the European Communities is not using Codex Stan 94 "as a basis for" the EC Regulation. The United States asserts that the EC Regulation is directly contrary to the international standard because Codex Stan 94 provides that a number of sardine species can be marketed with the name "sardines", appropriately qualified, while the EC Regulation explicitly forbids such marketing.

125. The United States rejects the European Communities' allegation that the Panel effectively required conformity or compliance with the international standard. According to the United States, the Panel simply said that an international standard could not have been used as a basis for a technical regulation if the technical regulation directly contradicts the standard. The United States further states that the EC Regulation would not meet the European Communities' proposed definition for the term "as a basis", given that the only rational relationship between the EC Regulation and Codex Stan 94 is that they contradict each other.

126. The United States also asserts that the European Communities is incorrect to argue that it appropriately used relevant parts of Codex Stan 94 on the grounds that the EC Regulation is based on that part of the standard that permits Members to reserve the name "sardine", without a qualifier, for the species Sardina pilchardus . The United States argues that, given that the EC Regulation also forbids the name "X sardines" for other sardine species, that part of Codex Stan 94 concerning "X sardines" is therefore plainly a relevant part of the standard.

127. The United States claims that the Panel correctly concluded that Codex Stan 94 is not an "ineffective or inappropriate" means for pursuing the European Communities' "legitimate objectives", identified as market transparency, consumer protection, and fair competition, because, inter alia , this international standard provides for conveying accurate information to the consumer concerning the content of the product. The United States also agrees with the Panel's finding that Peru met the burden of showing that Codex Stan 94 is not "ineffective or inappropriate".

128. The United States alleges, however, that the Panel erred in stating that Peru was not required to meet this burden-even though it found that Peru had done so. According to the United States, this reasoning is unnecessary to the Panel's finding and legally erroneous. In the United States' view, it is the complaining party, not the responding party, that has the burden of presenting evidence and arguments sufficient to make a prima facie demonstration of each claim that the measure is inconsistent with a provision of a covered agreement. This includes the demonstration under Article 2.4 of the TBT Agreement that the relevant international standards are not "ineffective or inappropriate". The United States argues, moreover, that this burden does not shift to the responding party because the obligation is characterized as an exception, or because the responding party asserts that the international standard is "ineffective or inappropriate", or because the responding party may have more information at its disposal concerning the "legitimate objectives."

129. The United States, therefore, requests the Appellate Body to modify the portion of the Panel's reasoning dealing with the allocation of the burden of proving that relevant international standards are an "ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued" through the technical regulation.

130. The United States submits that the Appellate Body has the discretion to accept both amicus curiae briefs received in this appeal, but that it need not do so because they are not pertinent or useful.

23 Appellate Body Report, supra, footnote 17.

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