5. Venezuela

131. Venezuela states that the Panel correctly found that the EC Regulation is a "technical regulation". It also agrees with the Panel's finding that Article 2.4 of the TBT Agreement applies to measures adopted before 1 January 1995, but which have not ceased to exist. According to Venezuela, the Panel properly applied the principle set forth in Article 28 of the Vienna Convention²⁴, as interpreted by the Appellate Body.

132. Venezuela agrees with the Panel's conclusion that Codex Stan 94 is a "relevant international standard" and contends that the EC Regulation does not take into account the standard established in Codex Stan 94.

133. Venezuela disagrees with the European Communities' assertion that Codex Stan 94, by authorizing use of the term "sardines" for products other than Sardina pilchardus , is "ineffective or inappropriate" to fulfil the "legitimate objectives" of consumer protection, market transparency, and fair competition. Venezuela also submits that Peru presented sufficient evidence and legal arguments to demonstrate that Codex Stan 94 is not "ineffective or inappropriate" to fulfil the "legitimate objectives" pursued by the European Communities through the EC Regulation.

III. Issues Raised in this Appeal

134. This appeal raises the following issues:

(a) whether the appeal is inadmissible as a result of the conditional withdrawal of the Notice of Appeal filed on 25 June 2002, and the filing of a new Notice of Appeal on 28 June 2002;

(b) whether the amicus curiae briefs submitted by the Kingdom of Morocco and a private individual are admissible, and, if so, whether they assist us in this appeal;

(c) whether the Panel erred by finding that Council Regulation (EEC) 2136/89 (the "EC Regulation") is a "technical regulation" within the meaning of Annex 1.1 of the Agreement on Technical Barriers to Trade (the "TBT Agreement ");

(d) whether the Panel erred by finding that Article 2.4 of the TBT Agreement applies to existing measures, such as the EC Regulation;

(e) whether the Panel erred by finding that CODEX STAN 94-1981, Rev.1-1995 ("Codex Stan 94") is a "relevant international standard" within the meaning of Article 2.4 of the TBT Agreement ;

(f) whether the Panel erred by finding that Codex Stan 94 was not used "as a basis for" the EC Regulation within the meaning of Article 2.4 of the TBT Agreement;

(g) whether the Panel correctly interpreted and applied the second part of Article 2.4 of the TBT Agreement , which allows Members not to use international standards "as a basis for" their technical regulations "when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued";

(h) whether the Panel properly discharged its duty under Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU") to make "an objective assessment of the facts of the case";

(i) whether the Panel has made a determination that the EC Regulation is trade-restrictive, and, if so, whether the Panel erred in making such a determination; and

(j) whether we should complete the analysis under Article 2.2 of the TBT Agreement, Article 2.1 of the TBT Agreement , or Article III:4 of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994"), in the event that we find that the EC Regulation is consistent with Article 2.4 of the TBT Agreement .

IV. Procedural Issues

A. Admissibility of Appeal

135. We begin with the question of the admissibility of the appeal. Peru submits that the Notice of Appeal of 25 June 2002 was withdrawn, that the withdrawal was subject to an "impermissible" condition of filing a new notice of appeal, and that the Notice of Appeal filed on 28 June 2002 is inadmissible because there is no right to appeal twice.²⁵ The European Communities responds that it did not appeal twice, that it withdrew the original Notice of Appeal in response to Peru's request for additional information on the grounds of appeal, and that Peru did not suffer any prejudice as a result of the timely filing of the new Notice of Appeal based on the same legal grounds as the original Notice.²⁶

136. We set out earlier in this Report²⁷ the sequence of events relevant to the filing by the European Communities of a Notice of Appeal on 25 June 2002, the withdrawal of that Notice three days later, and the filing of a replacement Notice of Appeal on 28 June 2002. Before commencing our analysis of the admissibility of the Notice of Appeal of 28 June 2002, we note first that Peru does not request that we rule in this Report on Peru's Request for a Preliminary Ruling, submitted on 27 June 2002, regarding the sufficiency of paragraphs (d), (f), (g), and (h) of the European Communities' Notice of Appeal dated 25 June 2002.²⁸ Peru states in its appellee's submission that "[t]he Division presumably considers the original Notice of Appeal to be withdrawn"²⁹, and Peru does not address further the question of the insufficiency of the original Notice of Appeal. The European Communities submits that "the preliminary objections raised by Peru on the adequacy of the Notice of Appeal filed by the [European Communities] on 25 June 2002 is a matter that is now moot and settled."³⁰ In the light of these submissions, we need not, and, therefore, we do not decide the issues raised in the Request for a Preliminary Ruling filed by Peru regarding the sufficiency of the Notice of Appeal filed on 25 June 2002.

137. We turn to the claim by Peru that the European Communities was not entitled to attach a condition to its withdrawal of the Notice of Appeal filed on 25 June 2002. Rule 30(1) of the Working Procedures for Appellate Review (the "Working Procedures"), which governs the withdrawal of an appeal, provides:

At any time during an appeal, the appellant may withdraw its appeal by notifying the Appellate Body, which shall forthwith notify the DSB.

138. This rule accords to the appellant a broad right to withdraw an appeal at any time. This right appears, on its face, to be unfettered: an appellant is not subject to any deadline by which to withdraw its appeal; an appellant need not provide any reason for the withdrawal; and an appellant need not provide any notice thereof to other participants in an appeal. More significantly for this appeal, there is nothing in the Rule prohibiting the attachment of conditions to a withdrawal. Indeed, in two previous cases, notices of appeal were withdrawn subject to the condition that new notices would be filed.³¹ Nor is the right to withdraw an appeal expressly subject to the condition that no new notice be filed on the same matter after the withdrawal.

139. However, despite this permissive language, we emphasize that the Working Procedures must not be interpreted in a way that could undermine the effectiveness of the dispute settlement system, for they have been drawn up pursuant to the DSU and as a means of ensuring that the dispute settlement mechanism achieves the aim of securing a positive solution to a dispute.³² As we have said:

The procedural rules of WTO dispute settlement are designed to promote � the fair, prompt and effective resolution of trade disputes.³³

140. This obligation to interpret the Working Procedures in a way that promotes the effective resolution of disputes is complemented by the obligation of Members, set out in Article 3.10 of the DSU, to "engage in [dispute settlement] procedures in good faith in an effort to resolve the dispute." Hence, the right to withdraw an appeal must be exercised subject to these limitations, which are applicable generally to the dispute settlement process.

141. Peru submits that nothing in Rule 30 of the Working Procedures permits the attachment of conditions to the withdrawal of a notice of appeal, and that, therefore, this appeal must be deemed to have been withdrawn irrespective of whether the conditions are met. We find no support in Rule 30 for Peru's position. While it is true that nothing in the text of Rule 30(1) explicitly permits an appellant to exercise its right subject to conditions, it is also true that nothing in the same text prohibits an appellant from doing so. As we have just explained, in our view, the right to withdraw a notice of appeal under Rule 30(1) is broad, subject only to the limitations we have described. Therefore, we see no reason to interpret Rule 30 as granting a right to withdraw an appeal only if that withdrawal is unconditional. Rather, the correct interpretation, in our view, is that Rule 30(1) permits conditional withdrawals, unless the condition imposed undermines the "fair, prompt and effective resolution of trade disputes", or unless the Member attaching the condition is not "engag[ing] in [dispute settlement] procedures in good faith in an effort to resolve the dispute." Therefore, it is necessary to examine any such conditions attached to withdrawals on a case-by-case basis to determine whether, in fact, the particular condition in a particular case in any way obstructs the dispute settlement process, or in some way diminishes the rights of the appellee or other participants in the appeal.

142. With this in mind, we examine next whether, by withdrawing the Notice of Appeal of 25 June 2002 subject to the condition of filing a replacement notice of appeal, the European Communities has effectively undermined the "fair, prompt and effective resolution of trade disputes" or has not "engage[d] in [dispute settlement] procedures in good faith in an effort to resolve the dispute."

143. According to the European Communities, it withdrew the Notice of Appeal of 25 June 2002 after receiving Peru's Request for a Preliminary Ruling in order to "enlarge � the description of the points" in paragraphs (d), (f), (g), and (h) of the original Notice and, thus, "clarify the points that Peru considered were not clear".³⁴ The European Communities maintains that the "replacement"³⁵ Notice contained "no new grounds of appeal, or modified ones."³⁶ Moreover, the European Communities contends that "Peru's rights of defense have not been harmed in any way by the replacement of the original Notice of Appeal with a new one and by the new Working Schedule".³⁷ The European Communities submits that it acted in a timely manner, "within the 60 days provided by the DSU [for adoption of panel reports]" and "well in advance of any substantial exchange between the parties".³⁸

144. In our view, attaching the condition to the withdrawal was not unreasonable under the circumstances. The conditioning by the European Communities of its withdrawal of the Notice of Appeal of 25 June 2002 on the right to file a replacement Notice of Appeal arose as a response to the Request for a Preliminary Ruling filed by Peru. Although Peru contests the European Communities' contention that no prejudice was suffered by Peru-arguing that Peru was "forced to address a completely novel procedural issue and waste time on that issue that [Peru] could have used for better purposes"³⁹�we are not persuaded that the European Communities' response in any way obstructed the process or diminished Peru's rights. Indeed, it may well have had the opposite effect. Although the European Communities states that it thought Peru's Request for a Preliminary Ruling "to be without merit"⁴⁰, the European Communities sought to remedy the difficulty perceived by Peru, and not to delay the proceedings further by contesting the allegations of insufficiency.

145. Moreover, the European Communities responded in a timely manner, providing the additional information in a replacement Notice of Appeal the day following receipt of Peru's objections to the Notice of Appeal of 25 June 2002, and only three days after filing the original Notice of Appeal. The replacement Notice was provided well before any submissions were filed. Thus, for the reasons explained, we find that the withdrawal of the original Notice on condition of filing a replacement Notice was appropriate and had the effect of conditionally withdrawing the original Notice.

146. In making this finding, we are mindful of Peru's argument that allowing the withdrawal of a notice of appeal subject to a unilaterally declared condition of the right to file a new notice of appeal, and the filing thereafter of a new notice of appeal, creates an "immense potential for abuse and disorder in appellate review proceedings."⁴¹ Peru suggests a number of examples of possible abusive practices that could result-including the delaying of the adoption of a panel report by submitting a new notice of appeal each time a panel report is before the Dispute Settlement Body (the "DSB"), the amending of allegations of error in the light of arguments made by the appellee or of questions posed by the Division at the oral hearing, and the attempt to have a different division selected or a different date chosen for the oral hearing.⁴² We agree with Peru that there may be situations where the withdrawal of an appeal on condition of refiling a new notice, and the filing thereafter of a new notice, could be abusive and disruptive. However, in such cases, we would have the right to reject the condition, and also to reject any filing of a new notice of appeal, on the grounds either that the Member seeking to file such a new notice would not be engaging in dispute settlement proceedings in good faith, or that Rule 30(1) of the Working Procedures must not be used to undermine the fair, prompt, and effective resolution of trade disputes. We agree with Peru that the rules must be interpreted so as to "ensure that appellate review proceedings do not become an arena for unfortunate litigation techniques that frustrate the objectives of the DSU, and that developing countries do not have the resources to deal with".⁴³ The case before us, however, presents none of these circumstances.

147. In addition, we believe there are circumstances that, although not constituting "abusive practices", would be in violation of the DSU, and would, thus, compel us to disallow the conditional withdrawal of a notice of appeal as well as the filing of a replacement notice. For example, if the conditional withdrawal or the filing of a new notice were to take place after the 60-day deadline in Article 16.4 of the DSU for adoption of panel reports, this would effectively circumvent the requirement to file appeals within 60 days of circulation of panel reports. In such circumstances, we would reject the conditional withdrawal and the new notice of appeal.

148. We turn now to Peru's request that we declare the Notice of Appeal of 28 June 2002 inadmissible because neither the DSU nor the Working Procedures "accord[s] an appellant the right to appeal the same panel report twice on different grounds."⁴⁴ In our view, this argument by Peru is also misplaced, for we do not consider that the European Communities has in fact appealed "twice". The European Communities maintains that it "never intended to appeal twice", and also that it "considered that [the European Communities] only appealed once".⁴⁵ The European Communities contends as well that the replacement Notice contained "no new grounds of appeal, or modified ones."⁴⁶ Peru, for its part, states that the replacement Notice "reformulated the points to which Peru had objected"⁴⁷ and was based on "different allegations of error"⁴⁸, but Peru does not point to any new or modified grounds of appeal.⁴⁹

149. As we have explained, we are of the view that the conditional withdrawal of the Notice of Appeal of 25 June 2002 was appropriate and effective, and that, therefore, the filing of a replacement Notice on 28 June 2002 did not constitute a second appeal. Moreover, we agree with the European Communities that the replacement Notice of Appeal contains no additional grounds of appeal, and that it merely added information to the paragraphs in the initial Notice that Peru considered deficient.

150. Peru alleges that, in sanctioning the approach of the European Communities in this appeal, we would be creating a procedural right for which the DSU has not provided-a right that can only be added to the DSU through a formal amendment by the Members of the World Trade Organization (the "WTO"). We are, however, not creating a new procedural right; we are only upholding the right to withdraw an appeal. In addition, in admitting the replacement Notice of Appeal in this dispute, we are, as we were in United States - Import Prohibition of Certain Shrimp and Shrimp Products ("US - Shrimp"), seeking to:

� give full meaning and effect to the right of appeal and to give a party which regards itself aggrieved by some legal finding or interpretation in a panel report a real and effective opportunity to demonstrate the error in such finding or interpretation.⁵⁰

In that same Report, we added that "an appellee is, of course, always entitled to its full measure of due process."⁵¹ In the circumstances of this case, we believe that Peru has been accorded the full measure of its due process rights, because the withdrawal of the original Notice and the filing of a replacement Notice were carried out in response to objections raised by Peru, the replacement Notice was filed in a timely manner and early in the process, and the replacement Notice contained no new or modified grounds of appeal. Also, Peru has not demonstrated that it suffered prejudice as a result. Moreover, Peru was given an adequate opportunity to address its concerns about the European Communities' actions during the course of the appeal.

151. In our view, the withdrawal of the original Notice of Appeal of 25 June 2002 and its replacement with the Notice of Appeal of 28 June 2002 was not an exercise of abusive litigation techniques by the European Communities, but rather was an appropriate response under the circumstances to Peru's objections regarding the original Notice of Appeal.

152. For all these reasons, we reject Peru's claims that the withdrawal of the Notice of Appeal of 25 June 2002 by the European Communities cannot be subject to a condition, and that the Notice of Appeal of 28 June 2002 by the European Communities is inadmissible.

B. Amicus curiae Briefs

153. We turn next to the second procedural issue in this case, namely whether we may accept and consider the amicus curiae briefs that have been submitted to us. One brief was filed by a private individual, and the other by the Kingdom of Morocco ("Morocco"), a Member of the WTO that did not exercise its third party rights at the panel stage of these proceedings.

154. Peru objects to our acceptance and consideration of these unsolicited submissions. Peru argues that, although 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".⁵² As for the brief submitted by Morocco, a WTO Member, Peru contends that accepting such a brief "would be to allow a WTO Member impermissibly to circumvent the DSU", which "establishes the conditions under which WTO Members can participate as third parties in dispute settlement proceedings."⁵³ On this basis, Peru requests us to reject both of these briefs.

155. The European Communities does not address this issue in its written submission. In response to our questioning at the oral hearing, however, the European Communities stated that the amicus curiae briefs are pertinent, and that we have the discretion to accept them. Among the third participants, Canada argues that there is a lack of clear agreement among WTO Members as to the role of amicus curiae briefs in dispute settlement, and contends that WTO Members have a legal right to participate in dispute settlement proceedings only if they reserve their third party rights at the outset of the dispute settlement process. Moreover, Canada asserts that both amicus curiae briefs should be rejected because they are not pertinent or useful. Chile and Ecuador also ask us to reject the amicus curiae briefs, alleging that the DSU does not permit participation by amici. The United States is of the view that we have the authority to accept both briefs, but believes we should not consider either of them because they are not pertinent or useful.

156. We recall that, in US - Shrimp⁵⁴, we admitted three amicus curiae briefs that were attached as exhibits to the appellant's submission in that appeal. We concluded that those briefs formed part of the appellant's submission, and observed that it is for a participant in an appeal to determine for itself what to include in its submission.⁵⁵ We followed this approach in Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland ("Thailand - H-Beams")⁵⁶, and in United States - Import Prohibition of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 of the DSU by Malaysia ("US - Shrimp (Article 21.5 - Malaysia) ").⁵⁷ In subsequent cases, amicus curiae briefs were submitted by private individuals or organizations separately from participants' submissions. We admitted those briefs as well.⁵⁸

157. We have the authority to accept amicus curiae briefs. We enunciated this authority for the first time in our Report in United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom ("US - Lead and Bismuth II"), where we reasoned:

In considering this matter, we first note that nothing in the DSU or the Working Procedures specifically provides that the Appellate Body may accept and consider submissions or briefs from sources other than the participants and third participants in an appeal. On the other hand, neither the DSU nor the Working Procedures explicitly prohibit[s] acceptance or consideration of such briefs. � [Article 17.9⁵⁹] makes clear that the Appellate Body has broad authority to adopt procedural rules which do not conflict with any rules and procedures in the DSU or the covered agreements. Therefore, we are of the opinion that as long as we act consistently with the provisions of the DSU and the covered agreements, we have the legal authority to decide whether or not to accept and consider any information that we believe is pertinent and useful in an appeal.⁶⁰ (footnote omitted)

158. In that finding, we drew a distinction between, on the one hand, parties and third parties to a dispute, which have a legal right to participate in panel and Appellate Body proceedings, and, on the other hand, private individuals and organizations, which are not Members of the WTO, and which, therefore, do not have a legal right to participate in dispute settlement proceedings. We said there:

We wish to emphasize that in the dispute settlement system of the WTO, the DSU envisages participation in panel or Appellate Body proceedings, as a matter of legal right, only by parties and third parties to a dispute. And, under the DSU, only Members of the WTO have a legal right to participate as parties or third parties in a particular dispute. �

Individuals and organizations, which are not Members of the WTO, have no legal right to make submissions to or to be heard by the Appellate Body. The Appellate Body has no legal duty to accept or consider unsolicited amicus curiae briefs submitted by individuals or organizations, not Members of the WTO. The Appellate Body has a legal duty to accept and consider only submissions from WTO Members which are parties or third parties in a particular dispute.⁶¹ (original emphasis; underlining added; footnotes omitted)

159. We explained further in that appeal that participation by private individuals and organizations is dependent upon our permitting such participation if we find it useful to do so. We observed that:

� we have the legal authority under the DSU to accept and consider amicus curiae briefs in an appeal in which we find it pertinent and useful to do so. In this appeal, we have not found it necessary to take the two amicus curiae briefs filed into account in rendering our decision.⁶²

We have followed this same approach in a number of subsequent appeals.⁶³

160. Peru conceded at the oral hearing that its "position is not exactly supported by the case law of the Appellate Body".⁶⁴ On this, Peru is correct. Accordingly, we believe that the objections of Peru with regard to the amicus curiae brief submitted by a private individual are unfounded. We find that we have the authority to accept the brief filed by a private individual, and to consider it. We also find that the brief submitted by a private individual does not assist us in this appeal.

161. We turn now to the issue of the amicus curiae brief filed by Morocco, which raises a novel issue, as this is the first time that a WTO Member has submitted such a brief in any WTO dispute settlement proceeding. The European Communities is of the view that we should not treat amicus curiae briefs submitted by private individuals differently from amicus curiae briefs submitted by WTO Members.⁶⁵ Peru objects to our accepting Morocco's brief, arguing that such acceptance would circumvent the rules in the DSU setting out the conditions under which WTO Members can participate as third parties in dispute settlement proceedings.⁶⁶ Peru refers specifically to Articles 10.2 and 17.4 of the DSU, which provide, respectively:

Article 10

2. Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a "third party") shall have an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report.

Article 17

4. Only parties to the dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body.

Peru asserts that, because Morocco did not notify its interest to the DSB in accordance with these provisions, Morocco cannot be given an opportunity to be heard by us.

162. We do not agree. As we said earlier, we found in US - Lead and Bismuth II that "nothing in the DSU or the Working Procedures specifically provides that we may accept and consider submissions or briefs from sources other than the participants and third participants in an appeal."⁶⁷ We also stated in that appeal that "neither the DSU nor the Working Procedures explicitly prohibit acceptance or consideration of such briefs."⁶⁸ In so ruling, we did not distinguish between, on the one hand, submissions from WTO Members that are not participants or third participants in a particular appeal, and, on the other hand, submissions from non-WTO Members.

163. It is true that, unlike private individuals or organizations, WTO Members are given an explicit right, under Articles 10.2 and 17.4 of the DSU, to participate in dispute settlement proceedings as third parties. Thus, the question arises whether the existence of this explicit right, which is not accorded to non-Members, justifies treating WTO Members differently from non-WTO Members in the exercise of our authority to receive amicus curiae briefs. We do not believe that it does.

164. We have been urged by the parties to this dispute not to treat Members less favourably than non-Members with regard to participation as amicus curiae.⁶⁹ We agree. We have not. And we will not. As we have already determined that we have the authority to receive an amicus curiae brief from a private individual or an organization, a fortiori we are entitled to accept such a brief from a WTO Member, provided there is no prohibition on doing so in the DSU. We find no such prohibition.

165. None of the participants in this appeal has pointed to any provision of the DSU that can be understood as prohibiting WTO Members from participating in panel or appellate proceedings as an amicus curiae . Nor has any participant in this appeal demonstrated how such participation would contravene the DSU. Peru states only that the DSU provides that participation as a third party is governed by Articles 10.2 and 17.4, and appears to draw from this a negative inference such that Members may participate pursuant to those rules, or not at all. We have examined Articles 10.2 and 17.4, and we do not share Peru's view. Just because those provisions stipulate when a Member may participate in a dispute settlement proceeding as a third party or third participant, does not, in our view, lead inevitably to the conclusion that participation by a Member as an amicus curiae is prohibited.

166. As we explained in US - Lead and Bismuth II, the DSU gives WTO Members that are participants and third participants a legal right to participate in appellate proceedings.⁷⁰ In particular, WTO Members that are third participants in an appeal have the right to make written and oral submissions. The corollary is that we have a duty, by virtue of the DSU, to accept and consider these submissions from WTO Members. By contrast, participation as amici in WTO appellate proceedings is not a legal right, and we have no duty to accept any amicus curiae brief. We may do so, however, based on our legal authority to regulate our own procedures as stipulated in Article 17.9 of the DSU. The fact that Morocco, as a sovereign State, has chosen not to exercise its right to participate in this dispute by availing itself of its third-party rights at the panel stage does not, in our opinion, undermine our legal authority under the DSU and our Working Procedures to accept and consider the amicus curiae brief submitted by Morocco.

167. Therefore, we find that we are entitled to accept the amicus curiae brief submitted by Morocco, and to consider it. We wish to emphasize, however, that, in accepting the brief filed by Morocco in this appeal, we are not suggesting that each time a Member files such a brief we are required to accept and consider it. To the contrary, acceptance of any amicus curiae brief is a matter of discretion, which we must exercise on a case-by-case basis. We recall our statement that:

The procedural rules of WTO dispute settlement are designed to promote � the fair, prompt and effective resolution of trade disputes.⁷¹

Therefore, we could exercise our discretion to reject an amicus curiae brief if, by accepting it, this would interfere with the "fair, prompt and effective resolution of trade disputes." This could arise, for example, if a WTO Member were to seek to submit an amicus curiae brief at a very late stage in the appellate proceedings, with the result that accepting the brief would impose an undue burden on other participants.

168. Having concluded that we have the legal authority to accept the amicus curiae brief submitted by Morocco, we now consider whether Morocco's brief assists us in this appeal.

169. Morocco's amicus curiae brief provides mainly factual information. It refers to the scientific differences between Sardina pilchardus Walbaum ("Sardina pilchardus ") and Sardinops sagax sagax ("Sardinops sagax"), and it also provides economic information about the Moroccan fishing and canning industries. As Article 17.6 of the DSU limits an appeal to issues of law and legal interpretations developed by the panel, the factual information provided in Morocco's amicus curiae brief is not pertinent in this appeal. In addition, Morocco has alleged in its amicus curiae brief that the measure at issue in this appeal is consistent with relevant international standards, including those of the Codex Alimentarius Commission (the "Codex Commission"). Morocco does not elaborate on this allegation, and provides no support for this position. Therefore, this, too, fails to assist us in this appeal. However, some of the legal arguments put forward by Morocco relate to Article 2.1 of the TBT Agreement and to the GATT 1994. Therefore, we will consider whether these arguments are of assistance when we consider Article 2.1 and the GATT 1994 later in this Report.

170. In sum, with the exception of the arguments relating to Article 2.1 of the TBT Agreement and the GATT 1994, to which we will return later, we find that Morocco's amicus curiae brief does not assist us in this appeal.

71 Appellate Body Report, US - FSC, supra, footnote 20, para. 166. In that appeal, we were not referring in the quoted excerpt to the issue of amicus curiae briefs. The issue there related to the exercise of the right of appeal. We nevertheless believe that our views on how to interpret the Working Procedures are of general application and are thus pertinent to the amicus curiae issue as it arises in this case.

To continue with V. The Characterization of the EC Regulation as a "Technical Regulation"

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