WT/DS231/R
29
May 2002 EUROPEAN
COMMUNITIES –
TRADE
DESCRIPTION OF SARDINES
Report
of the Panel
Presentation
of evidence demonstrating the existence of a technical regulation; a
relevant international standard; and the failure of the European
Communities to base the Regulation at issue on the international
standard, Codex Stan 94.
The
Case
(a)
Peru requests the Panel to find that the measure at issue, the EC
Regulation, prohibiting the use of the term "sardines"
combined with the name of the country of origin ("Peruvian
Sardines"); the geographical area in which the species is found
("Pacific Sardines"); the species ("Sardines — Sardinops
sagax"); or the common name of the species Sardinops
sagax customarily used in the language of the member State of the
European Communities in which the product is sold ("Peruvian
Sardines" in English or "Südamerikanische Sardinen" in
German), is inconsistent with Article 2.4 of the TBT Agreement
because the European Communities did not use the naming standard set out
in paragraph 6.1.1(ii) of Codex Stan 94 as a basis for its Regulation
even though that standard would be an effective and appropriate means to
fulfil the legitimate objectives pursued by the Regulation.
(b)
If the Panel were to find that the EC Regulation is consistent
with Article 2.4 of the TBT Agreement, Peru requests the Panel to find
that the EC Regulation is inconsistent with Article 2.2 of the TBT
Agreement because it is more trade-restrictive than necessary to fulfil
the legitimate objective of market transparency that the European
Communities claims to pursue.
(c)
If the Panel were to find that the EC Regulation is consistent
with Articles 2.2 and 2.4 of the TBT Agreement, Peru requests the Panel
to find that the measure is inconsistent with Article 2.1 of the TBT
Agreement because it is a technical regulation that accords Peruvian
products prepared from fish of the species
Sardinops sagax
treatment less favourable than that accorded to like European products
made from fish of the species Sardina
pilchardus.
(d)
If the Panel were to find that the measure at issue is consistent with
the TBT Agreement, Peru requests the Panel to find that it is
inconsistent with Article III:4 of the GATT 1994 because it is a
requirement affecting the offering for sale of imported sardines that
accords Peruvian products prepared from fish of the species Sardinops
sagax treatment less favourable than that accorded to like European products
made from fish of the species Sardina
pilchardus.
The Findings
In
light of our findings that Codex Stan 94 is a relevant international
standard, that it was not used as a basis for the EC Regulation and that
it is not ineffective or inappropriate to fulfil the legitimate
objectives pursued by the EC Regulation, we find that the EC
Regulation is inconsistent with Article 2.4 of the TBT Agreement.
In
light of the findings above, we conclude that the EC Regulation is
inconsistent with Article 2.4 of the TBT Agreement.
Pursuant
to Article 3.8 of the DSU which provides that "[i]n cases where
there is an infringement of the obligations assumed under a covered
agreement, the action is considered prima
facie to constitute a case of nullification and impairment", we
conclude that the EC Regulation nullified and impaired the benefits of
Peru under the WTO Agreement, in particular under the TBT Agreement