WORLD TRADE
ORGANIZATION |
WT/DS231/AB/R
26 September 2002
(02-5137)
|
|
Original: English |
EUROPEAN COMMUNITIES - TRADE DESCRIPTION OF SARDINES
AB-2002-3
Report of the Appellate Body
(Continued)
V. The Characterization of the EC Regulation as a "Technical Regulation"
171. We now turn to whether the Panel erred by finding that the EC Regulation is
a "technical regulation" for purposes of Article 2.4 of the TBT Agreement . We
recall that we have described the measure at issue-the EC Regulation-earlier in
this Report.72
172. The Panel found that:
� the EC Regulation is a technical regulation as it lays down product
characteristics for preserved sardines and makes compliance with the provisions
contained therein mandatory.73
173. The European Communities does not contest that the EC Regulation is a
"technical regulation" per se .74 Instead, on appeal, the European Communities
reiterates two arguments that the Panel rejected. First, the European
Communities argues that the product coverage of the EC Regulation is limited to
preserved Sardina pilchardus . The European Communities contends that the EC
Regulation does not regulate preserved fish made from Sardinops sagax or from
any other species, and that, accordingly, Sardinops sagax is not an identifiable
product under the EC Regulation.75 The European Communities concludes that, in the
light of our ruling in European Communities - Measures Affecting Asbestos and
Asbestos-Containing Products ("EC - Asbestos ")76 that a "technical regulation"
must apply to identifiable products, the EC Regulation is not a "technical
regulation" for Sardinops sagax .77
174. Second, the European Communities contends that a "naming" rule is distinct
from a labelling requirement. The European Communities argues that, "[t]he
requirement to state a certain name on the label � involves not only a labelling
requirement but also a substantive naming rule, which is not subject to the TBT
Agreement."78 Thus, according to the European Communities, even if it were
determined that the EC Regulation relates to Sardinops sagax , the "naming" rule
set out in Article 2 of the EC Regulation-the provision challenged by Peru-is
not a product characteristic.79 On this basis, the European Communities argues
that Article 2 of the EC Regulation-which the European Communities contends sets
out a "naming" rule and not a labelling requirement-does not meet the definition
of the term "technical regulation" provided in the TBT Agreement.80
175. As we explained in EC - Asbestos, whether a measure is a "technical
regulation" is a threshold issue because the outcome of this issue determines
whether the TBT Agreement is applicable.81 If the measure before us is not a
"technical regulation", then it does not fall within the scope of the
TBT
Agreement.82 The term "technical regulation" is defined in Annex 1.1 to the TBT
Agreement as follows:
1. Technical Regulation
Document which lays down product characteristics or their related processes and
production methods, including the applicable administrative provisions, with
which compliance is mandatory. It may also include or deal exclusively with
terminology, symbols, packaging, marking or labelling requirements as they apply
to a product, process or production method.
176. We interpreted this definition in EC - Asbestos.83 In doing so, we set out
three criteria that a document must meet to fall within the definition of
"technical regulation" in the TBT Agreement . First, the document must apply to
an identifiable product or group of products. The identifiable product or group
of products need not, however, be expressly identified in the document.
Second,
the document must lay down one or more characteristics of the product. These
product characteristics may be intrinsic, or they may be related to the product.
They may be prescribed or imposed in either a positive or a negative form.
Third, compliance with the product characteristics must be mandatory. As we
stressed in EC - Asbestos, these three criteria are derived from the wording of
the definition in Annex 1.1. At the oral hearing, both participants confirmed
that they agree with these criteria for determining whether a document is a
"technical regulation" under the TBT Agreement.84
177. The European Communities concedes that the EC Regulation is a "technical
regulation" per se.85 All the same, the European Communities argues that the EC
Regulation is not a "technical regulation" for the purposes of this dispute
because-in relation to Sardinops sagax -it does not fulfil two of the criteria
that a document must meet to be considered a "technical regulation" under the
TBT Agreement.86 The European Communities' assertion that the EC Regulation does
not regulate preserved Sardinops sagax relates to the first criterion, which
requires that a document apply to identifiable products. The European
Communities' argument distinguishing "naming" from labelling requirements
relates to the second criterion, which requires that a document lay down product
characteristics. We will consider each of these arguments in turn.
178. We begin with the European Communities' contention that the EC Regulation
is a "technical regulation" only for preserved Sardina pilchardus , and that
preserved Sardinops sagax is not an identifiable product under the EC
Regulation.
179. The Panel rejected this argument because, in the Panel's view, it:
� disregards the notion that a document may prescribe or impose product
characteristics in either a positive or negative form - that is, by inclusion or
by exclusion.87 (footnote omitted)
The Panel then concluded that:
� by requiring the use of only the species Sardina pilchardus as preserved
sardines, the EC Regulation in effect lays down product characteristics in a
negative form, that is, by excluding other species, such as Sardinops sagax ,
from being "marketed as preserved sardines and under the trade description
referred to in Article 7" of the EC Regulation. It is for this reason that we do
not accept the European Communities' argument that the EC Regulation is not a
technical regulation for preserved Sardinops sagax . This argument would be
persuasive only if technical regulations were to lay down product
characteristics in a positive form.88 (emphasis added)
This excerpt from the Panel Report suggests that the Panel examined the European
Communities' argument on this issue in the light of the second criterion, which
requires that a document lay down product characteristics.89 In our view, the
European Communities' argument, as presented on appeal, relates rather to the
first criterion: the European Communities is claiming that preserved Sardinops
sagax is not an identifiable product under the EC Regulation.90
180. In EC - Asbestos, we made the following observations about the requirement
that a document apply to identifiable products:
A "technical regulation" must, of course, be applicable to an identifiable
product, or group of products. Otherwise, enforcement of the regulation will, in
practical terms, be impossible. This consideration also underlies the formal
obligation, in Article 2.9.2 of the TBT Agreement, for Members to notify other
Members, through the WTO Secretariat, "of the products to be covered " by a
proposed "technical regulation". (emphasis added) Clearly, compliance with this
obligation requires identification of the product coverage of a technical
regulation. However, in contrast to what the Panel suggested, this does not mean
that a "technical regulation" must apply to "given" products which are actually
named, identified or specified in the regulation. (emphasis added) Although the
TBT Agreement clearly applies to "products" generally, nothing in the text of
that Agreement suggests that those products need be named or otherwise expressly
identified in a "technical regulation". Moreover, there may be perfectly sound
administrative reasons for formulating a "technical regulation" in a way that
does not expressly identify products by name, but simply makes them identifiable
- for instance, through the "characteristic" that is the subject of regulation.91
(original emphasis; footnote omitted)
Thus, a product does not necessarily have to be mentioned explicitly in a
document for that product to be an identifiable product. Identifiable
does not
mean expressly identified.
181. The European Communities argues that the Panel erred in failing to
acknowledge that the EC Regulation uses the term "preserved sardines" to
mean-exclusively-preserved Sardina pilchardus.92 The European Communities is of
the view that preserved Sardina pilchardus and preserved Sardinops sagax are not
like products. The European Communities reasons that preserved Sardinops sagax
can neither be an identified nor an identifiable product under the EC
Regulation.93
182. In our view, the Panel correctly found that the EC Regulation is applicable
to an identified product, and that the identified product is "preserved
sardines". This is abundantly clear from a plain reading of the EC Regulation
itself. The EC Regulation is entitled "Council Regulation (EEC) 2136/89 of 21
June 1989 Laying Down Common Marketing Standards for Preserved Sardines".
(emphasis added) Article 1, which sets forth the scope of the EC Regulation,
states that "[t]his Regulation defines the standards governing the marketing of
preserved sardines in the Community." (emphasis added) Article 2 states that
"[o]nly products meeting the following requirements may be marketed as preserved
sardines". (emphasis added)
183. This alone, however, does not dispose of the European Communities'
argument, as the European Communities reproaches the Panel for failing to
acknowledge that the EC Regulation
uses the term "preserved sardines" to mean-exclusively-preserved Sardina
pilchardus. We observe that the EC Regulation does not expressly identify
Sardinops sagax . However, this does not necessarily mean that Sardinops sagax is
not an identifiable product. As we stated in EC - Asbestos, a product need not be expressly identified in the document for it
to be identifiable.94
184. Even if we were to accept, for the sake of argument, the European
Communities' contention that the term "preserved sardines" in the EC Regulation
refers exclusively to preserved Sardina pilchardus , the EC Regulation would
still be applicable to a range of identifiable products beyond Sardina
pilchardus. This is because preserved products made, for example, of Sardinops
sagax are, by virtue of the EC Regulation, prohibited from being identified and
marketed under an appellation including the term "sardines".
185. As we explained in EC - Asbestos, the requirement that a "technical
regulation" be applicable to identifiable products relates to aspects of
compliance and enforcement, because it would be impossible to comply with or
enforce a "technical regulation" without knowing to what the regulation applied.95
As the Panel record shows, the EC Regulation has been enforced against preserved
fish products imported into Germany containing Sardinops sagax .96 This confirms
that the EC Regulation is applicable to preserved Sardinops sagax , and
demonstrates that preserved Sardinops sagax is an identifiable product for
purposes of the EC Regulation. Indeed, the European Communities admits that the
EC Regulation is applicable to Sardinops sagax , when it states in its
appellant's submission that "[t]he only legal consequence of the [EC] Regulation
for preserved Sardinops sagax is that they may not be called 'preserved
sardines'."97
186. Therefore, we reject the contention of the European Communities that
preserved Sardinops sagax is not an identifiable product under the EC
Regulation.
187. Next, we examine whether the EC Regulation meets the second criterion of a
"technical regulation", which is that it must be a document that lays down
product characteristics. According to the European Communities, Article 2 of the
EC Regulation does not lay down product characteristics;
rather, it sets out a "naming" rule. The European Communities argues that,
although the definition of "technical regulation" in the TBT Agreement covers
labelling requirements, it does not extend to "naming" rules. Therefore, the
European Communities asserts that Article 2 of the EC Regulation is not a
"technical regulation".98
188. The Panel rejected this assertion for two reasons. First, the Panel stated:
� even if it were determined that the EC Regulation does not contain a labelling
requirement, it cannot detract from our conclusion that the EC Regulation
constitutes a technical regulation because that conclusion is based on our
finding that it lays down certain product characteristics we have already
identified. A finding to the effect that the EC Regulation does not contain a
related product characteristic in the form of a labelling requirement does not
negate the existence of other product characteristics set out in the EC
Regulation.99
The Panel continued:
Second, we fail to see the basis on which a distinction can be drawn between a
requirement to "name" and a requirement to "label" a product for the purposes of
the TBT Agreement . � Based on the ordinary meaning, we consider that labelling
and naming requirements are essentially "means of identification" of a product
and as such, they come within the scope of the definition of "technical
regulation".
In any event, the distinction which we have been asked to draw between "naming"
and "labelling" requirements is not supported by the text and structure of the
EC Regulation.100 (footnotes omitted)
189. In EC - Asbestos, we examined what it means to lay down product
characteristics, and concluded that:
The heart of the definition of a "technical regulation" is that a "document"
must "lay down" - that is, set forth, stipulate or provide - "product
characteristics". The word "characteristic" has a number of synonyms that are
helpful in understanding the ordinary meaning of that word, in this context.
Thus, the "characteristics" of a product include, in our view, any objectively
definable "features", "qualities", "attributes", or other "distinguishing mark"
of a product. Such "characteristics" might relate, inter alia, to a product's
composition, size, shape, colour, texture, hardness, tensile strength,
flammability, conductivity, density, or viscosity. In the definition of a
"technical regulation" in Annex 1.1, the TBT Agreement itself gives certain
examples of "product characteristics" - "terminology, symbols, packaging,
marking or labelling requirements". These examples indicate that "product
characteristics" include, not only features and qualities intrinsic to the
product itself, but also related "characteristics", such as the means of
identification, the presentation and the appearance of a product. In addition,
according to the definition in Annex 1.1 of the TBT Agreement , a "technical
regulation" may set forth the "applicable administrative provisions" for
products which have certain "characteristics". Further, we note that the
definition of a "technical regulation" provides that such a regulation "may also
include or deal exclusively with terminology, symbols, packaging, marking or
labelling requirements". (emphasis added) The use here of the word "exclusively"
and the disjunctive word "or" indicates that a "technical regulation" may be
confined to laying down only one or a few "product characteristics".101 (original
emphasis; underlining added)
Accordingly, product characteristics include not only "features and qualities
intrinsic to the product", but also those that are related to it, such as "means
of identification".
190. We do not find it necessary, in this case, to decide whether the definition
of "technical regulation" in the TBT Agreement makes a distinction between
"naming" and labelling. This question is irrelevant to the issue before us. As
we stated earlier, the EC Regulation expressly identifies a product, namely
"preserved sardines". Further, Article 2 of the EC Regulation provides that, to
be marketed as "preserved sardines", products must be prepared exclusively from
fish of the species Sardina pilchardus . We are of the view that this
requirement-to be prepared exclusively from fish of the species Sardina
pilchardus�is a product characteristic "intrinsic to" preserved sardines that is
laid down by the EC Regulation.102 Thus, we agree with the Panel's finding in this
regard that:
� one product characteristic required by Article 2 of the EC Regulation is that
preserved sardines must be prepared exclusively from fish of the species Sardina
pilchardus. This product characteristic must be met for the product to be
"marketed as preserved sardines and under the trade description referred to in
Article 7" of the EC Regulation. We consider that the requirement to use
exclusively Sardina pilchardus is a product characteristic as it objectively
defines features and qualities of preserved sardines for the purposes of their
"market[ing] as preserved sardines and under the trade description referred to
in Article 7" of the EC Regulation.103
191. In any event, as we said in EC - Asbestos, a "means of identification" is a
product characteristic.104 A name clearly identifies a product; indeed, the
European Communities concedes that a name is a "means of identification".105 As the
following excerpt from the Panel Report illustrates, the European Communities
itself underscored the important role that a "name" plays as a "means of
identification" when it argued before the Panel that one of the objectives
pursued by the European Communities through the EC Regulation is to provide
precise information to avoid misleading the consumer:
The European Communities argues that the provisions of its Regulation laying
down minimum quality standards, harmonizing the ways in which the product may be
presented and regulating the indications to be contained on the label, all serve
to facilitate comparisons between competing products. It further submits that
some of these objectives are pursued by the Regulation at issue in conjunction
with EC Directive 2000/13. The European Communities argues that this is
particularly true of the name; accurate and precise names allow 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, 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.106
(emphasis added)
192. Before concluding on this second criterion and proceeding to the third
criterion in the definition of "technical regulation", we observe that, although
the European Communities argued before the Panel that Article 2 of the EC
Regulation could not be analyzed in isolation, on appeal, the European
Communities asks us to focus our attention exclusively on whether Article 2,
taken by itself, lays down product characteristics.107 As the Panel correctly
points out, in EC - Asbestos, we stated that "the proper legal character of the
measure at issue cannot be determined unless the measure is examined as a
whole".108 With this in mind, we observe that the Panel analyzed other articles of
the EC Regulation and found that that those, too, lay down product
characteristics.109
193. For all these reasons, we agree with the Panel's conclusion that the EC
Regulation lays down product characteristics.
194. The third and final criterion that a document must fulfil to meet the
definition of "technical regulation" in the TBT Agreement is that compliance
must be mandatory. The European Communities does not contest that compliance
with the EC Regulation is mandatory.110 We also find that it is mandatory.111
195. We, therefore, uphold the Panel's finding, in paragraph 7.35 of the Panel
Report, that the EC Regulation is a "technical regulation" for purposes of the
TBT Agreement , because it meets the three criteria we set out in EC - Asbestos
as necessary to satisfy the definition of a "technical regulation" under the
TBT
Agreement.
VI. The Temporal Scope of Application of Article 2.4 of the TBT Agreement
196. We turn now to the European Communities' claim that Article 2.4 of the
TBT
Agreement does not apply to pre-existing technical regulations because it deals
only with the preparation and adoption of technical regulations and not with
their continued application. On this issue, we begin by recalling that the EC
Regulation and Codex Stan 94 came into effect before the entry into force of the
TBT Agreement on 1 January 1995.
197. The Panel found that:
�the EC Regulation is a "situation or measure that did not cease to exist" and
the TBT Agreement does not reveal a contrary intention to limit the temporal
application of the TBT Agreement to measures adopted after 1 January 1995.
Therefore, Article 2.4 of the TBT Agreement applies to measures that were
adopted before 1 January 1995 but which have not ceased to exist.112
198. The Panel also rejected "the European Communities' argument that Article
2.4 [of the TBT Agreement ] does not apply to existing technical regulations."113
199. The European Communities appeals this finding. The European Communities
"does not argue that the TBT Agreement does not apply to technical regulations
enacted before 1995".114 Instead, the European Communities contends that Article
2.4 of that Agreement does not impose an ongoing obligation on Members to
reassess their existing technical regulations in the light of the adoption of
new international standards, or the revision of existing ones.115
200. We recall that Article 28 of the Vienna Convention on the Law of Treaties
(the "Vienna Convention")116 provides that treaties generally do not apply
retroactively. Article 28 provides:
Non-retroactivity of treaties
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. (emphasis added)
As we have said in previous disputes117, the interpretation principle codified in
Article 28 is relevant to the interpretation of the covered agreements.
201. In the European Communities' view, both the text and the context of Article
2.4 make plain that the scope of application of Article 2.4 is limited to the
preparation and adoption of technical regulations, and not to their
maintenance.118
The European Communities does not contest that the EC Regulation-which is
currently in force-is an act that has not "ceased to exist". However, according
to the European Communities, the preparation and adoption of the EC Regulation
are both "acts that ceased to exist"-in the sense that they were
completed-before the date of the entry into force of the TBT Agreement .
Therefore, the European Communities contends that, consistent with Article 28 of
the Vienna Convention119, Article 2.4 of the TBT Agreement is not applicable to
the EC Regulation.120
202. The text of Article 2.4 of the TBT Agreement provides as follows:
TECHNICAL REGULATIONS AND STANDARDS
Article 2
Preparation, Adoption and Application of Technical Regulations by
Central
Government Bodies
With respect to their central government bodies:
�
2.4 Where technical regulations are required and relevant international
standards exist or their completion is imminent, Members shall use them, or the
relevant parts of them, as a basis for their technical regulations except when
such international standards or relevant parts would be an ineffective or
inappropriate means for the fulfilment of the legitimate objectives pursued, for
instance because of fundamental climatic or geographical factors or fundamental
technological problems.
203. According to the European Communities, it is evident from the text of
Article 2.4 that the temporal scope of the provision is limited to the two
stages of preparation and adoption of technical regulations, and that the
continued existence thereafter of these regulations is not governed by that
provision. The European Communities finds support for this contention in what
the European Communities sees as the time-limited nature of the terms "where
technical regulations are required", "exist", "imminent", "use", and "as a basis
for" in the text of Article 2.4, and also in the absence in the text of that
provision of the words "maintain" or "apply".121
204. The Panel took a contrary view, and concluded that a textual reading does
not support the European Communities' assertion because:
Article 2.4 of the TBT Agreement starts with the language "where technical
regulations are required". We construe this expression to cover technical
regulations that are already in existence as it is entirely possible that a
technical regulation that is already in existence can continue to be required. �
Moreover, we note that the first part of the sentence of Article 2.4 is in the
present tense ("exist") and not in the past tense - "[w]here technical
regulations are required and relevant international standards exist or their
completion is imminent", Members are obliged to use such international
standards as a basis. This supports the view that Members have to use relevant
international standards that currently exist or whose completion is imminent
with respect to the technical regulations that are already in existence. We do
not consider that the word "imminent", the ordinary meaning of which is "likely
to happen without delay", is intended to limit the scope of the coverage of
technical regulations to those that have yet to be adopted. Rather, the use of
the word "imminent" means that Members cannot disregard a relevant international
standard whose completion is imminent with respect to their existing technical
regulations.122 (original emphasis; footnote omitted)
205. We concur with the Panel's view that the text of Article 2.4 of the
TBT
Agreement does not support the European Communities' contention. We fail to see
how the terms "where technical regulations are required", "exist", "imminent",
"use", and "as a basis for" give any indication that Article 2.4 applies only to
the two stages of preparation and adoption of technical regulations. To the
contrary, as the Panel noted, the use of the present tense suggests a continuing
obligation for existing measures, and not one limited to regulations prepared
and adopted after the TBT Agreement entered into force. The European Communities
reads Article 2.4 as if it said "where technical regulations are in preparation
or are to be adopted", which is clearly not the case. The obligation refers to
technical regulations generally and without limitations.
206. The European Communities' claim is also at odds with our reasoning in
EC
Measures Concerning Meat and Meat Products (Hormones) ("EC - Hormones")123,
which, as the Panel correctly
pointed out, is relevant to the issue before us. In EC - Hormones, we addressed
the temporal scope of the Agreement on the Application of Sanitary and
Phytosanitary Measures (the "SPS Agreement"), and stated:
We agree with the Panel that the SPS Agreement would apply to situations or
measures that did not cease to exist, such as the 1981 and 1988 Directives,
unless the SPS Agreement reveals a contrary intention. We also agree with the
Panel that the SPS Agreement does not reveal such an intention. The SPS
Agreement does not contain any provision limiting the temporal application of
the SPS Agreement, or of any provision thereof, to SPS measures adopted after 1
January 1995. In the absence of such a provision, it cannot be assumed that
central provisions of the SPS Agreement, such as Articles 5.1 and 5.5, do not
apply to measures which were enacted before 1995 but which continue to be in
force thereafter. If the negotiators had wanted to exempt the very large group
of SPS measures in existence on 1 January 1995 from the disciplines of
provisions as important as Articles 5.1 and 5.5, it appears reasonable to us to
expect that they would have said so explicitly.124 (emphasis added; footnote
omitted)
207. Like the sanitary measure in EC - Hormones, the EC Regulation is currently
in force. The European Communities has conceded that the EC Regulation is an act
or fact that has not "ceased to exist".125 Accordingly, following our reasoning in
EC - Hormones, Article 2.4 of the TBT Agreement applies to existing measures
unless that provision "reveals a contrary intention".126 As we have said, we see
nothing in Article 2.4 which would suggest that the provision does not apply to
existing measures.
208. Furthermore, like Articles 5.1 and 5.5 of the SPS Agreement, Article 2.4 is
a "central provision" of the TBT Agreement , and it cannot just be assumed that
such a central provision does not apply to existing measures. Again, following
our reasoning in EC - Hormones, we must conclude that, if the negotiators had
wanted to exempt the very large group of existing technical regulations from the
disciplines of a provision as important as Article 2.4 of the TBT Agreement ,
they would have said so explicitly.127 No such explicit exemption is found in the
terms "where technical regulations are required", "exist", "imminent", "use", or
"as a basis for".
209. The European Communities' argument that our ruling in EC - Hormones is not
relevant to Article 2.4 of the TBT Agreement is not persuasive. The European
Communities contends that we based our ruling in EC - Hormones on the wording of
Articles 2.2, 2.3, 3.3, and 5.6 of the SPS Agreement, and that all these
provisions include the word "maintain".128 The European Communities argues that the
word "maintain" implies that a provision applies to measures already prepared
and adopted. The European Communities then notes that Article 2.4 of the TBT
Agreement does not include the word "maintain".129 It is true that, in
EC -
Hormones, we referred to Articles 2.2, 2.3, 3.3, and 5.6 of the SPS Agreement.
But we did so as relevant context.130 Our analysis there focused on the meaning of
Articles 5.1 and 5.5 of the SPS Agreement, which, like Article 2.4 of the TBT
Agreement, do not include the word "maintain".131 As we have explained, we found in
that appeal that Articles 5.1 and 5.5 of the SPS Agreement apply to existing
measures, despite the absence of the word "maintain". Thus, this argument by the
European Communities fails on its own logic.
210. Having considered the European Communities' arguments based on the text of
Article 2.4, we turn to examine the arguments of the European Communities that
are based on the context of that provision. The European Communities argues that
Article 2.5 of the TBT Agreement demonstrates that, when a provision is intended
to cover the application of technical regulations, the provision says so
explicitly. The European Communities finds similar contextual support in Article
12.4 of the TBT Agreement , which uses the word "adopt", and in paragraph F of
the Code of Good Practice for the Preparation, Adoption and Application of
Standards, included as Annex 3 to the TBT Agreement , which uses the word
"develops".132
211. In discussing what it considered the relevant context of Article 2.4, the
Panel looked first to Article 2.5 of the TBT Agreement :
There is contextual support for the interpretation that Article 2.4 applies to
technical regulations that are already in existence. The context provided by
Article 2.5, which explicitly refers to Article 2.4, speaks of "preparing,
adopting or applying" a technical regulation and is not limited to, as the
European Communities claims, to preparing and adopting. A technical regulation
can only be applied if it is already in existence. The first sentence imposes an
obligation on a Member "preparing, adopting or applying" a technical regulation
that may have a significant effect on trade of other Members to provide the
justification for that technical regulation. The second sentence of Article 2.5
states that whenever a technical regulation is "prepared, adopted or applied"
for one of the legitimate objectives explicitly set out in Article 2.2 and is in
accordance with relevant international standards, it is to be rebuttably
presumed not to create an unnecessary obstacle to trade. The use of the term
"apply", in our view, confirms that the requirement contained in Article 2.4 is
applicable to existing technical regulations.133 (original emphasis)
The Panel also looked to Article 2.6 of the TBT Agreement :
Article 2.6 provides another contextual support. It states that Members are to
participate in preparing international standards by the international
standardizing bodies for products which they have either "adopted, or expect to
adopt technical regulations." Those Members that have in place a technical
regulation for a certain product are expected to participate in the development
of a relevant international standard. Article 2.6 would be redundant and it
would be contrary to the principle of effectiveness, which is a corollary of the
general rule of interpretation in the Vienna Convention, if a Member is to
participate in the development of a relevant international standard and then
claim that such standard need not be used as a basis for its technical
regulation on the ground that it was already in existence before the standard
was adopted. Such reasoning would allow Members to avoid using international
standards as a basis for their technical regulations simply by enacting
preemptive measures and thereby undermine the object and purpose of developing
international standards.134 (original emphasis)
212. We agree with the Panel's analysis. Thus, we find no support for the
European Communities' claim in the context of Article 2.4 of the TBT Agreement .
Rather than supporting the European Communities' argument, Articles 2.5 and 2.6
of the TBT Agreement provide support for the argument advanced by Peru that
Article 2.4 of the TBT Agreement regulates measures adopted before the date of
the entry into force of the TBT Agreement . We note also that there is additional
contextual support in the title of Article 2, which reads "Preparation, Adoption
and Application of Technical Regulations by Central Government Bodies".
(emphasis added) This express reference to the application of technical
regulations in the title of Article 2 runs counter to an interpretation of
Article 2.4 that would limit its scope to the preparation and adoption of
technical regulations.
213. Moreover, as general context for all the covered agreements, Article XVI:4
of the Marrakesh Agreement Establishing the World Trade Organization is of great
significance. Article XVI:4 reads:
Each Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed
Agreements.
This provision establishes a clear obligation for all WTO Members to ensure the
conformity of their existing laws, regulations, and administrative procedures
with the obligations in the covered agreements.
214. In our view, the European Communities' reading of Article 2.4 also flies in
the face of the object and purpose of the TBT Agreement . In several of its
provisions, the TBT Agreement recognizes the important role that international
standards play in promoting harmonization and facilitating trade. For example,
Article 2.5 of the TBT Agreement establishes a rebuttable presumption that
technical regulations that are in accordance with relevant international
standards do not create unnecessary obstacles to trade. Article 2.6, for its
part, encourages Members to participate in international standardizing bodies
with a view to harmonizing technical regulations on as wide a basis as possible.
215. The significant role of international standards is also underscored in the
Preamble to the TBT Agreement . The third recital of the Preamble recognizes the
important contribution that international standards can make by improving the
efficiency of production and facilitating the conduct of international trade.
The eighth recital recognizes the role that international standardization can
have in the transfer of technology to developing countries. In our view,
excluding existing technical regulations from the obligations set out in Article
2.4 would undermine the important role of international standards in furthering
these objectives of the TBT Agreement . Indeed, it would go precisely in the
opposite direction.
216. For all these reasons, we uphold the Panel's finding, in paragraph 7.60 of
the Panel Report, that Article 2.4 of the TBT Agreement applies to measures that
were adopted before 1 January 1995 but which have not ceased to exist, such as
the EC Regulation. We also uphold the Panel's finding, in paragraph 7.83 of the
Panel Report, that Article 2.4 of the TBT Agreement applies to existing
technical regulations, including the EC Regulation.
72
Supra, paras. 2-3.
73
Panel Report, para. 7.35.
74
European Communities' appellant's submission, paras. 21 and
23; European Communities' statement at the oral hearing.
75 European Communities' response to questioning at the oral
hearing.
76 Appellate Body Report, supra, footnote 15.
77 European Communities' appellant's submission, para. 49.
78 European Communities' statement at the oral hearing.
79 Article 2 of the EC Regulation reads as follows:
Only products meeting the following requirements may
be marketed as preserved sardines and under the trade description
referred to in Article 7:
- they must be covered by CN codes 1604 13 10 and
ex 1604 20 50;
- they must be prepared exclusively from fish of
the species " Sardina pilchardus Walbaum";
- they must be pre-packaged with any appropriate
covering medium in a hermetically sealed container;
- they must be sterilized by appropriate
treatment.
80 European Communities' statement at the oral hearing.
81 Appellate Body Report, supra, footnote 15, para. 59.
82 The TBT Agreement covers also "standards" and
"conformity assessment procedures". However, none of the participants has
alleged that the measure at issue in this dispute is either a "standard" or a
"conformity assessment procedure".
83 Appellate Body Report, supra, footnote 15, paras.
66-70.
84 European Communities' response to questioning at the oral
hearing; Peru's response to questioning at the oral hearing.
85 European Communities' response to questioning at the oral
hearing.
86
Ibid.
87 Panel Report, para. 7.44.
88
Ibid., para. 7.45.
89 Before examining this argument, the Panel had concluded that
the EC Regulation applies to an identifiable product because it identifies
preserved sardines. (Ibid., para. 7.26)
90 European Communities' appellant's submission, paras. 43-47.
91 Appellate Body Report, supra, footnote 15, para 70.
92 European Communities' appellant's submission, para. 38.
93
Ibid., para. 49.
94 Appellate Body Report, EC - Asbestos, supra,
footnote 15, para. 70.
95
Ibid.
96 Letter from German importer submitted as Exhibit PERU-13 by
Peru to the Panel. Reference to this is also found in Peru's first submission to
the Panel, paras. 5-7; Peru's second submission to the Panel, para. 12; Peru's
appellee's submission, para. 60; and Peru's response to questioning at the oral
hearing.
97 European Communities' appellant's submission, para 43.
98 European Communities' statement at the oral hearing.
99 Panel Report, para. 7.39.
100
Ibid., paras. 7.40-7.41.
101 Appellate Body Report, supra, footnote 15, para. 67.
102 We observe that Article 2 of the EC Regulation lays down
another intrinsic product characteristic in requiring that only products
"sterilized by appropriate treatment" may be marketed as preserved sardines.
103 Panel Report, para. 7.27.
104 Appellate Body Report, supra, footnote 15, para. 67.
105 European Communities' response to questioning at the oral
hearing. The European Communities argues that the distinction between a
labelling requirement and a "naming" rule is similar to the difference between,
on the one hand, requirements relating to markings indicating the origin of a
product, and, on the other hand, rules used to determine the origin of a
product. We are not persuaded by this analogy. A "naming" rule bears no
similarity to a rule of origin. A name is a clear means of identifying a
product. Furthermore, as the facts of this case illustrate, affixing a name to
the label of a product is a highly practical way of identifying a product when
goods are marketed. Indeed, Codex Stan 94 includes the provisions relating to
the name of the product-that is, section 6.1-within the section dealing with
labelling generally.
106 Panel Report, para. 4.71.
107 Panel Report, para. 7.31.
108 Appellate Body Report, supra, footnote 15, para. 64.
109 The Panel referred to Articles 3-7 of the EC Regulation.
(Panel Report, para. 7.28)
110 European Communities' response to questioning at the oral
hearing.
111 Article 9 of the EC Regulation states in relevant part that
"[t]his Regulation shall be binding in its entirety and directly applicable in
all Member States."
112 Panel Report, paras. 7.59-7.60.
113
Ibid., para. 7.83. The Panel addressed this argument in
the context of its analysis of whether Codex Stan 94 is a relevant international
standard.
114 European Communities' statement at the oral hearing.
115
Ibid.
116
Supra, footnote 16.
117 Appellate Body Report, Brazil - Measures Affecting
Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167, at
179-180; Appellate Body Report, Canada - Term of Patent Protection,
WT/DS170/AB/R, adopted 12 October 2000, paras. 71-72; Appellate Body Report,
EC - Hormones, supra, footnote 17, para. 128.
118 European Communities' appellant's submission, paras. 66-83.
119
Supra, footnote 16.
120 European Communities' appellant's submission, para. 63;
European Communities' response to questioning at the oral hearing.
121 European Communities' appellant's submission, paras. 66-67;
European Communities' response to questioning at the oral hearing.
122 Panel Report, para. 7.74.
123 Appellate Body Report, supra, footnote 17.
124 Appellate Body Report, supra, footnote 17, para. 128.
125 European Communities' response to questioning at the oral
hearing.
126 Appellate Body Report, supra, footnote 17, para. 128.
127
Ibid.
128 European Communities' appellant's submission, paras. 62-63; European
Communities' response to questioning at the oral hearing. We note that although
the European Communities refered to Article 2.3,
this provision does not include the word "maintain".
129
Ibid.; European Communities' response to questioning at
the oral hearing.
130 Appellate Body Report, supra, footnote 17, para. 128.
131
Ibid.
132 European Communities' appellant's submission, paras. 75-78;
European Communities' statement at the oral hearing. We note that, although the
European Communities refered, in its statement at the oral hearing, to paragraph
B of the Code of Good Practice for the Preparation, Adoption and Application of
Standards as including the word "develops", this word is found in paragraph F.
133 Panel Report, para. 7.75.
134
Ibid., para. 7.76.
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