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)
VII. The Characterization of Codex Stan 94 as a "Relevant International
Standard"
217. We proceed to the European Communities' claim that the Panel erred in
finding that Codex Stan 94 is a "relevant international standard" within the
meaning of Article 2.4 of the TBT Agreement
218. The Panel found that "Codex Stan 94 is a relevant international standard".135
The European Communities challenges this finding for two reasons. The European
Communities asserts, first, that only standards adopted by international bodies
by consensus are "relevant international standards" under Article 2.4 of the
TBT
Agreement.136 The European Communities argues that the Panel assumed "that Codex
Stan 94 � was adopted by consensus � without undertaking positive steps to
verify the accuracy of the conflicting statements made in this respect by the
parties".137 Second, the European Communities asserts that, even if Codex Stan 94
were considered an international standard, it is not a "relevant international
standard" because its product coverage is different from that of the EC
Regulation. The European Communities contends that the EC Regulation covers only
preserved sardines, while Codex Stan 94 covers that product as well as
"sardine-type" products.138 We will address each of these arguments in turn.
A. The European Communities' Argument that Consensus is Required
219. The European Communities argues that only standards that have been adopted
by an international body by consensus can be relevant for purposes of Article
2.4. The European Communities contends that the Panel did not verify that Codex
Stan 94 was not adopted by consensus, and that, therefore, it cannot be a
"relevant international standard".139
220. However, in our view, the European Communities' contention is essentially
related to whether Codex Stan 94 meets the definition of a "standard" in Annex
1.2 of the TBT Agreement . The term "standard", is defined in Annex 1.2 as
follows:
2. Standard
Document approved by a recognized body, that provides, for common and repeated
use, rules, guidelines or characteristics for products or related processes and
production methods, with which compliance is not 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.
Explanatory note
The terms as defined in ISO/IEC Guide 2 cover products, processes and services.
This Agreement deals only with technical regulations, standards and conformity
assessment procedures related to products or processes and production methods.
Standards as defined by ISO/IEC Guide 2 may be mandatory or voluntary. For the
purpose of this Agreement standards are defined as voluntary and technical
regulations as mandatory documents. Standards prepared by the international
standardization community are based on consensus. This Agreement covers also
documents that are not based on consensus. (emphasis added)
221. The European Communities does not contest that the Codex Commission is an
international standardization body, and that it is a "recognized body" for
purposes of the definition of a "standard" in Annex 1.2.140 The issue before us,
rather, is one of approval. The definition of a "standard" refers to documents
approved by a recognized body. Whether approval takes place by consensus, or by
other methods, is not addressed in the definition, but it is addressed in the
last two sentences of the Explanatory note.
222. The Panel interpreted the last two sentences of the Explanatory note as
follows:
The first sentence reiterates the norm of the international standardization
community that standards are prepared on the basis of consensus. The following
sentence, however, acknowledges that consensus may not always be achieved and
that international standards that were not adopted by consensus are within the
scope of the TBT Agreement.86
This provision therefore confirms that even if not adopted by consensus, an
international standard can constitute a relevant international standard.
86 The record does not demonstrate that Codex Stan 94 was not adopted by
consensus. In any event, we consider that this issue would have no bearing on
our determination in light of the explanatory note of paragraph 2 of Annex 1 of
the TBT Agreement which states that the TBT Agreement covers "documents that are
not based on consensus". 141
We agree with the Panel's interpretation. In our view, the text of the
Explanatory note supports the conclusion that consensus is not required for
standards adopted by the international standardizing community. The last
sentence of the Explanatory note refers to "documents". The term "document" is
also used in the singular in the first sentence of the definition of a
"standard". We believe that "document(s)" must be interpreted as having the same
meaning in both the definition and the Explanatory note. The European
Communities agrees.142 Interpreted in this way, the term "documents" in the last
sentence of the Explanatory note must refer to standards in general, and not
only to those adopted by entities other than international bodies, as the
European Communities claims.
223. Moreover, the text of the last sentence of the Explanatory note, referring
to documents not based on consensus, gives no indication whatsoever that it is
departing from the subject of the immediately preceding sentence, which deals
with standards adopted by international bodies. Indeed, the use of the word
"also" in the last sentence suggests that the same subject is being
addressed-namely standards prepared by the international standardization
community. Hence, the logical assumption is that the last phrase is simply
continuing in the same vein, and refers to standards adopted by international
bodies, including those not adopted by consensus.
224. The Panel's interpretation, moreover, gives effect to the chapeau of Annex
1 to the TBT Agreement , which provides:
The terms presented in the sixth edition of the ISO/IEC Guide 2:1991, General
Terms and Their Definitions Concerning Standardization and Related Activities,
shall, when used in this Agreement, have the same meaning as given in the
definitions in the said Guide �
For the purpose of this Agreement, however, the following definitions shall
apply � (emphasis added)
Thus, according to the chapeau, the terms defined in Annex 1 apply for the
purposes of the TBT Agreement only if their definitions depart from those in the
ISO/IEC Guide 2:1991 (the "ISO/IEC Guide").143 This is underscored by the word
"however". The definition of a "standard" in Annex 1 to the TBT Agreement
departs from that provided in the ISO/IEC Guide precisely in respect of whether
consensus is expressly required.
225. The term "standard" is defined in the ISO/IEC Guide as follows:
Document, established by consensus and approved by a recognized body, that
provides, for common and repeated use, rules, guidelines or characteristics for
activities or their results, aimed at the achievement of the optimum degree of
order in a given context.144 (original emphasis)
Thus, the definition of a "standard" in the ISO/IEC Guide expressly includes a
consensus requirement. Therefore, the logical conclusion, in our view, is that
the omission of a consensus requirement in the definition of a "standard" in
Annex 1.2 of the TBT Agreement was a deliberate choice on the part of the
drafters of the TBT Agreement , and that the last two phrases of the Explanatory
note were included to give effect to this choice. Had the negotiators considered
consensus to be necessary to satisfy the definition of "standard", we believe
they would have said so explicitly in the definition itself, as is the case in
the ISO/IEC Guide. Indeed, there would, in our view, have been no point in the
negotiators adding the last sentence of the Explanatory note.
226. Furthermore, we observe that the Panel found that, in any event, the
European Communities did not prove that Codex Stan 94 was not adopted by
consensus. Instead, the Panel found that, "[t]he record does not demonstrate
that Codex Stan 94 was not adopted by consensus".145
227. Therefore, we uphold the Panel's conclusion, in paragraph 7.90 of the Panel
Report, that the definition of a "standard" in Annex 1.2 to the TBT Agreement
does not require approval by consensus for standards adopted by a "recognized
body" of the international standardization community. We emphasize, however,
that this conclusion is relevant only for purposes of the TBT Agreement . It is
not intended to affect, in any way, the internal requirements that international
standard-setting bodies may establish for themselves for the adoption of
standards within their respective operations. In other words, the fact that we
find that the TBT Agreement does not require approval by consensus for standards
adopted by the international standardization community should not be interpreted
to mean that we believe an international standardization body should not require
consensus for the adoption of its standards. That is not for us to decide.
B. The European Communities' Argument on the Product Coverage of Codex Stan 94
228. We turn now to examine the European Communities' argument that Codex Stan
94 is not a "relevant international standard" because its product coverage is
different from that of the EC Regulation.
229. In analyzing the merits of this argument, the Panel first noted that the
ordinary meaning of the term "relevant" is "bearing upon or relating to the
matter in hand; pertinent".146 The Panel reasoned that, to be a "relevant
international standard", Codex Stan 94 would have to bear upon, relate to, or be
pertinent to the EC Regulation.147 The Panel then conducted the following analysis:
The title of Codex Stan 94 is "Codex Standard for Canned Sardines and
Sardine-type Products" and the EC Regulation lays down common marketing
standards for preserved sardines. The European Communities indicated in its
response that the term "canned sardines" and "preserved sardines" are
essentially identical. Therefore, it is apparent that both the EC Regulation and
Codex Stan 94 deal with the same product, namely preserved sardines. The scope
of Codex Stan 94 covers various species of fish, including Sardina pilchardus
which the EC Regulation covers, and includes, inter alia , provisions on
presentation (Article 2.3), packing medium (Article 3.2), labelling, including a
requirement that the packing medium is to form part of the name of the food
(Article 6), determination of net weight (Article 7.3), foreign matter (Article
8.1) and odour and flavour (Article 8.2). The EC Regulation contains these
corresponding provisions set out in Codex Stan 94, including the section on
labelling requirement.148 (emphasis added; footnote omitted)
230. We do not disagree with the Panel's interpretation of the ordinary meaning
of the term "relevant". Nor does the European Communities.149 Instead, the European
Communities argues that, although the EC Regulation deals only with preserved
sardines-understood to mean exclusively preserved Sardina pilchardus -Codex Stan
94 also covers other preserved fish that are "sardine-type".150
231. We are not persuaded by this argument. First, even if we accepted that the
EC Regulation relates only to preserved Sardina pilchardus , which we do not, the
fact remains that section 6.1.1(i) of Codex Stan 94 also relates to preserved
Sardina pilchardus . Therefore, Codex Stan 94 can be said to bear upon, relate
to, or be pertinent to the EC Regulation because both refer to preserved Sardina
pilchardus.
232. Second, we have already concluded that, although the EC Regulation
expressly mentions only Sardina pilchardus , it has legal consequences for other
fish species that could be sold as preserved sardines, including preserved
Sardinops sagax.151 Codex Stan 94 covers 20 fish species in addition to
Sardina
pilchardus.152 These other species also are legally affected by the exclusion in
the EC Regulation. Therefore, we conclude that Codex Stan 94 bears upon, relates
to, or is pertinent to the EC Regulation.
233. For all these reasons, we uphold the Panel's finding, in paragraph 7.70 of
the Panel Report,
that Codex Stan 94 is a "relevant international standard" for purposes of
Article 2.4 of the TBT Agreement .
VIII. Whether Codex Stan 94 Was Used "As a Basis For" the EC Regulation
234. We turn now to whether Codex Stan 94 has been used "as a basis for" the EC
Regulation. It will be recalled that Article 2.4 of the TBT Agreement requires
Members to use relevant international standards "as a basis for" their technical
regulations under certain circumstances. The Panel found that "the relevant
international standard, i.e., Codex Stan 94, was not used as a basis for the EC
Regulation".153 The European Communities appeals this finding.
235. The starting point of the Panel's analysis was the interpretation of
section 6.1.1(ii) of Codex Stan 94, which reads as follows:
The name of the product shall be:
�
(ii) "X sardines" of a country, a geographic area, the species, or the common
name of the species in accordance with the law and custom of the country in
which the product is sold, and in a manner not to mislead the consumer.
236. Two interpretations of section 6.1.1(ii) of Codex Stan 94 were submitted to
the Panel. The European Communities argued that the phrase "the common name of
the species in accordance with the law and custom of the country in which the
product is sold", found in section 6.1.1(ii) of Codex Stan 94, is intended as a
self-standing option for "naming", independent of the formula
"X sardines", and that, under this section, "each country has the option of
choosing between
'X sardines' and the common name of the species".154
237. For its part, Peru contended that, under section 6.1.1(ii), the species
other than Sardina pilchardus to which Codex Stan 94 refers may be marketed as
"X sardines" where "X" is one of the four following alternatives: (1) a country;
(2) a geographic area; (3) the species; or (4) the common name of the species.155
Thus, in Peru's view, "the common name of the species" is not a stand-alone
option for naming, but rather is one of the qualifiers for naming sardines that
are not Sardina pilchardus . Further, Peru argued that prohibiting the marketing
in the European Communities of Sardinops sagax imported from Peru as, for
example, "Peruvian sardines" would run counter to the first of the four options
in section 6.1.1(ii).
238. The Panel was of the view that a textual reading of section 6.1.1(ii)
favoured the interpretation advocated by Peru, adding that:
We consider that paragraph 6.1.1(ii) of Codex Stan 94 contains four alternatives
and each alternative envisages the use of the term "sardines" combined with the
name of a country, name of a geographic area, name of the species or the common
name of the species in accordance with the law and custom of the country in
which the product is sold.156
239. We agree with Peru and with the Panel that section 6.1.1(ii) permits the
marketing of non-Sardina pilchardus as "sardines" with one of four qualifiers.
The French version of section 6.1.1(ii) supports this approach. It provides:
"Sardines X", "X" d�signant un pays, une zone g�ographique, l'esp�ce ou le nom
commun de l'esp�ce en conformit� des lois et usages du pays o� le produit est
vendu, de mani�re � ne pas induire le consommateur en erreur.
The French language is one official language of the Codex Commission. The French
and English versions are equally authentic. The French version is drafted in a
manner that puts all four qualifiers on an equal footing. In the French version,
there is no comma after the word "esp�ce". The use of the term " 'X' d�signant"
to introduce the enumeration in section 6.1.1(ii) of Codex Stan 94 makes clear
that the common name of the species is one of the qualifiers that may be
attached to the term "sardines" when marketing preserved sardines.157
240. With this understanding of this international standard in mind, we turn to
the requirement that relevant international standards must be used "as a basis
for" technical regulations. We note that the Panel interpreted the word "basis"
to mean "the principal constituent of anything, the fundamental principle or
theory, as of a system of knowledge".158 In applying this interpretation of "basis"
to the measure in this dispute, the Panel contrasted its interpretation of
section 6.1.1(ii) of Codex Stan 94 as setting forth "four alternatives for
labelling species other than Sardina pilchardus " that all "require the use of
the term 'sardines' with a qualification"159, with the fact that, under the EC
Regulation, "species such as Sardinops sagax cannot be called 'sardines' even
when � combined with the name of a country, name of a geographic area, name of
the species or the common name in accordance with the law and custom of the
country in which the product is sold."160 In the light of this contrast, the Panel
concluded that Codex Stan 94 was not used "as a basis for" the EC Regulation.
241. On appeal, the European Communities contends that the Panel erred in
finding that Codex Stan 94 was not used "as a basis for" the EC Regulation. The
European Communities submits that the EC Regulation is "based on" Codex Stan 94
"because it used as a basis paragraph 6.1.1(i) of the Codex standard", and
because this paragraph reserves the term "sardines" exclusively for Sardina
pilchardus.161 According to the European Communities, the term " 'as a basis'
should involve a consideration of the texts as a whole, examining the basic
structure of the domestic measure and deciding whether the international
standard has been used in its preparation and adoption."162 The European
Communities adds that, in order to determine whether a relevant international
standard, or a part of it, is used "as a basis for" a technical regulation, the
criterion to apply is not, as the Panel suggested, whether the standard is the
principal constituent or the fundamental principle of the technical regulation,
but, rather, whether there is a "rational relationship" between the standard and
the technical regulation on the substantive aspects of the standard in question.163
242. The question before us, therefore, is the proper meaning to be attributed
to the words "as a basis for" in Article 2.4 of the TBT Agreement . In EC -
Hormones, we addressed a similar issue, namely, the meaning of "based on" as
used in Article 3.1 of the SPS Agreement, which provides:
Harmonization
1. To harmonize sanitary and phytosanitary measures on as wide a basis as
possible, Members shall base their sanitary or phytosanitary measures on
international standards, guidelines or recommendations, where they exist, except
as otherwise provided for in this Agreement, and in particular in paragraph 3.
(emphasis added)
In EC - Hormones , we stated that "based on" does not mean the same thing as
"conform to".164 In that appeal, we articulated the ordinary meaning of the term
"based on", as used in Article 3.1 of the SPS Agreement in the following terms:
A thing is commonly said to be "based on" another thing when the former "stands"
or is "founded" or "built" upon or "is supported by" the latter.
150
150 L. Brown (ed.), The New Shorter Oxford English Dictionary on Historical
Principles (Clarendon Press), Vol. I, p. 187.165
The Panel here referred to this conclusion in its analysis of Article 2.4 of the
TBT Agreement . In our view, the Panel did so correctly, because our approach in
EC - Hormones is also relevant for the interpretation of Article 2.4 of the
TBT
Agreement.166
243. In addition, as we stated earlier, the Panel here used the following
definition to establish the ordinary meaning of the term "basis":
The word "basis" means "the principal constituent of anything, the fundamental
principle or theory, as of a system of knowledge".90
90 [Webster's New World Dictionary, (William Collins & World Publishing Co.,
Inc., 1976)], p. 117. 167
Informed by our ruling in EC - Hormones , and relying on this meaning of the term
"basis", the Panel concluded that an international standard is used "as a basis
for" a technical regulation when it is used as the principal constituent or
fundamental principle for the purpose of enacting the technical regulation.168
244. We agree with the Panel's approach. In relying on the ordinary meaning of
the term "basis", the Panel rightly followed an approach similar to ours in
determining the ordinary meaning of "based on" in EC - Hormones.169 In addition to
the definition of "basis" in Webster's New World Dictionary that was used by the
Panel, we note, as well, the similar definitions for "basis" that are set out in
the The New Shorter Oxford English Dictionary, and also provide guidance as to
the ordinary meaning of the term:
3 [t]he main constituent. � 5 [a] thing on which anything is constructed and by
which its constitution or operation is determined; a determining principle; a
set of underlying or agreed principles.170
245. From these various definitions, we would highlight the similar terms
"principal constituent", "fundamental principle", "main constituent", and
"determining principle"�all of which lend credence to the conclusion that there
must be a very strong and very close relationship between two things in order to
be able to say that one is "the basis for" the other.
246. The European Communities, however, seems to suggest the need for something
different. The European Communities maintains that a "rational relationship"
between an international standard and a technical regulation is sufficient to
conclude that the former is used "as a basis for" the latter.171 According to the
European Communities, an examination based on the criterion of the existence of
a "rational relationship" focuses on "the qualitative aspect of the substantive
relationship that should exist between the relevant international standard and
the technical regulation".172 In response to questioning at the oral hearing, the
European Communities added that a "rational relationship" exists when the
technical regulation is informed in its overall scope by the international
standard.
247. Yet, we see nothing in the text of Article 2.4 to support the European
Communities' view, nor has the European Communities pointed to any such support.
Moreover, the European Communities does not offer any arguments relating to the
context or the object and purpose of that provision that would support its
argument that the existence of a "rational relationship" is the appropriate
criterion for determining whether something has been used "as a basis for"
something else.
248. We see no need here to define in general the nature of the relationship
that must exist for an international standard to serve "as a basis for" a
technical regulation. Here we need only examine this measure to determine if it
fulfils this obligation. In our view, it can certainly be said�at a minimum�-that
something cannot be considered a "basis" for something else if the two are
contradictory. Therefore, under Article 2.4, if the technical regulation and the
international standard contradict each other, it cannot properly be concluded
that the international standard has been used "as a basis for" the technical
regulation.
249. Thus, we need only determine here whether there is a contradiction
between
Codex Stan 94 and the EC Regulation. If there is, we are justified in concluding
our analysis with that determination, as the only appropriate conclusion from
such a determination would be that the Codex Stan 94 has not been used "as a
basis for" the EC Regulation.
250. In making this determination, we note at the outset that Article 2.4 of the
TBT Agreement provides that "Members shall use [relevant international
standards], or the relevant parts of them, as a basis for their technical
regulations". (emphasis added) In our view, the phrase "relevant parts of them"
defines the appropriate focus of an analysis to determine whether a relevant
international standard has been used "as a basis for" a technical regulation. In
other words, the examination must be limited to those parts of the relevant
international standards that relate to the subject-matter of the challenged
prescriptions or requirements. In addition, the examination must be broad enough
to address all of those relevant parts; the regulating Member is not permitted
to select only some of the "relevant parts" of an international standard. If a
"part" is "relevant", then it must be one of the elements which is "a basis for"
the technical regulation.
251. This dispute concerns the WTO-consistency of the requirement set out in
Article 2 of the EC Regulation that only products prepared exclusively from the
species Sardina pilchardus may be marketed in the European Communities as
preserved sardines. Consequently, the "relevant parts" of Codex Stan 94 are
those elements of Codex Stan 94 that bear upon or relate to the marketing of
preserved fish products under the name "sardines". The term "relevant parts of
them", as used in Article 2.4, implies two things for the case before us. First,
the determination whether Codex Stan 94 has been used "as a basis for" the EC
Regulation must stem from an analysis that is limited to those "parts" of Codex
Stan 94 relating to the use of the term "sardines" for the identification and
marketing of preserved fish products. Those parts include not only sections
6.1.1(i) and 6.1.1(ii), but also section 2.1.1 of Codex Stan 94, which sets out
the various species that may be given the names contemplated in sections
6.1.1(i) and 6.1.1(ii). Second, this analysis must address all of those relevant
provisions of Codex Stan 94, and must not ignore any one of them.
252. In response to our questioning at the oral hearing, the European
Communities expressed the view that, in order to determine whether Codex Stan 94
has been used "as a basis for" the EC Regulation, the whole of the standard and
the whole of the EC Regulation should be compared. We disagree. We do so because
there are several parts of Codex Stan 94 that are not relevant to the use of the
term "sardines" for the identification and marketing of preserved fish products.
We see no reason why this examination under Article 2.4 of the TBT Agreement
should extend beyond Article 2 of the EC Regulation, which is the only provision
of the EC Regulation whose WTO-consistency has been challenged by Peru in this
dispute. There is simply no purpose served in examining other provisions of the
EC Regulation that are irrelevant to this dispute.173
253. As we have said, the European Communities contends that Codex Stan 94 was
used "as a basis for" the EC Regulation "because it used as a basis paragraph
6.1.1(i) of the Codex standard"174, which stipulates that only Sardina pilchardus
may have the name "sardines", and that our examination as to whether Codex Stan
94 has been used "as a basis for" the EC Regulation must be limited to section
6.1.1(i).175 This contention stems from the European Communities' proposition that
the scope of the EC Regulation and that of Codex Stan 94 are different: the
European Communities considers that the EC Regulation lays down prescriptions
and technical requirements for Sardina pilchardus only, whereas Codex Stan 94
has a broader scope, as it also addresses other species, namely "sardine-type"
products. In the view of the European Communities, section 6.1.1(ii) is not a
"relevant part" of Codex Stan 94 for our determination of whether that standard
has been used "as a basis for" the EC Regulation, because section 6.1.1(ii)
concerns species other than Sardina pilchardus , a subject-matter the EC
Regulation does not address.
254. We are not persuaded by this line of reasoning. Article 2 of the EC
Regulation governs the use of the term "sardines" for the identification and
marketing of preserved fish products. Section 6.1.1(ii) of Codex Stan 94 also
relates to this same subject. Therefore, section 6.1.1(ii) is a "relevant part"
of Codex Stan 94 for the purpose of determining whether Codex Stan 94 was used
"as a basis for" the EC Regulation. As we stated earlier, the analysis must
address all of the parts of Codex Stan 94 that relate to the use of the term
"sardines" for the identification and the marketing of preserved fish products,
and not only to selected parts. Moreover, the European Communities' argument
that the EC Regulation does not relate to species other than Sardina pilchardus
is simply untenable. It is tantamount to saying that a regulation stipulating 16
years as the age at which one may obtain a driver's licence, does not relate to
persons that are under 16 years of age. Consequently, contrary to what the
European Communities suggests, the "as a basis for" analysis cannot be
restricted to section 6.1.1(i) of Codex Stan 94; it must, in addition, also
encompass both section 6.1.1(ii), and section 2.1.1 of Codex Stan 94.
255. In the light of all this, we ask now whether there is a contradiction
between the EC Regulation and Codex Stan 94 in the use of the term "sardines"
for the identification and marketing of preserved fish products.
256. We accept the European Communities' contention that the EC Regulation
contains the prescription set out in section 6.1.1(i) of Codex Stan 94. However,
as we have just explained, the analysis must go beyond section 6.1.1(i); it must
extend also to sections 6.1.1(ii) and 2.1.1 of Codex Stan 94. And, a comparison
between, on the one hand, sections 6.1.1(ii) and 2.1.1 of Codex Stan 94 and, on
the other hand, Article 2 of the EC Regulation, leads to the inevitable
conclusion that a contradiction exists between these provisions.
257. The effect of Article 2 of the EC Regulation is to prohibit preserved fish
products prepared from the 20 species of fish other than Sardina pilchardus to
which Codex Stan 94 refers-including Sardinops sagax -from being identified and
marketed under the appellation "sardines", even with one of the four qualifiers
set out in the standard. Codex Stan 94, by contrast, permits the use of the term
"sardines" with any one of four qualifiers for the identification and marketing
of preserved fish products prepared from 20 species of fish other than Sardina
pilchardus. Thus, the EC Regulation and Codex Stan 94 are manifestly
contradictory. To us, the existence of this contradiction confirms that Codex
Stan 94 was not used "as a basis for" the EC Regulation.
258. We, therefore, uphold the finding of the Panel, in paragraph 7.112 of the
Panel Report, 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 .
135 Panel Report, para. 7.70.
136 European Communities' appellant's submission, para. 123.
137
Ibid., para. 134.
138 This argument is based on the European Communities'
interpretation of Codex Stan 94, which differs from that of the Panel. The
European Communities explains that when Codex Stan 94 was in draft form, and
particularly when it was at Step 7 of the elaboration procedures of the Codex
Commission, it provided three naming options: (i) "Sardines" (to be reserved
exclusively for Sardina pilchardus ); (ii) "X Sardines", where "X" is the
name of a country, a geographic area, or the species; and (iii) the common name
of the species. The European Communities claims that the first two
options-"Sardines" and "X Sardines"-apply to sardine products, while the third
option-the common name of the species-was envisaged as a separate option for "sardine-type
products". Given that only editorial changes are allowed between Steps 7 and
8 of the elaboration procedures, when the second and third options were merged,
the European Communities alleges that the draft standard at Step 7 should guide
the interpretation of Codex Stan 94, even though the text approved at Step 8
includes the common name of the species in the same subsection as "X Sardines".
(European Communities' appellant's submission, paras. 135-148; European
Communities' response to questioning at the oral hearing) The Panel's
interpretation of Codex Stan 94 focuses on its final version. The Panel is of
the view that the "common name of the species" is part of the "X Sardines"
option. (See infra, paras. 235-239)
139 European Communities' response to questioning at the oral
hearing.
140 European Communities' response to questioning at the oral
hearing.
141 Panel Report, para. 7.90 and footnote 86 thereto.
142 European Communities' response to questioning at the oral
hearing. The United States agreed. (United States' response to questioning at
the oral hearing)
143 ISO/IEC Guide (6th edition, 1991), submitted as Exhibit EC-1
to the European Communities' appellant's submission.
144
Ibid., subclause 3.2.
145 Panel Report, footnote 86 to para. 7.90. The report of the
meeting of the Codex Commission where Codex Stan 94 was adopted, which Peru
submitted to the Panel, makes no mention of votes being cast before its
approval. (Report of the Twelfth Session of the Joint FAO/WHO Codex Alimentarius
Commission (ALINORM 78/41), submitted as Exhibit Peru-14 by Peru to the Panel)
We note that, at the oral hearing, the European Communities and Peru agreed that
the Panel's conclusion that the record does not demonstrate that Codex Stan 94
was not adopted by consensus is a factual finding, which is beyond the purview
of appellate review.
146 Panel Report, para. 7.68, quoting Webster's New World
Dictionary (William Collins & World Publishing Co., Inc. 1976), p. 1199.
147
Ibid.
148 Panel Report, para. 7.69.
149 European Communities' response to questioning at the oral
hearing.
150
Ibid.
151 See supra, paras. 184-185.
152 The fish species covered by Codex Stan 94 are listed in
section 2.1.1 thereto. (Supra, footnote 4) See also, supra, para.
5.
153 Panel Report, para. 7.112.
154
Ibid., para. 7.101. See also, supra, footnote 138,
explaining why the European Communities interprets this as a stand-alone option.
155 Panel Report, para. 4.43.
156 Panel Report, para. 7.103.
157 Our interpretation is also consistent with the English print
version of section 6.1.1(ii) of Codex Stan 94. See supra, footnote 5.
158 Panel Report, para. 7.110, quoting Webster's New World
Dictionary, supra, footnote 146, p. 117.
159 Panel Report, para. 7.111.
160
Ibid., para. 7.112.
161 European Communities' appellant's submission, para. 150.
162
Ibid., para. 155.
163
Ibid.
164 Appellate Body Report, supra, footnote 17, para. 166.
165
Ibid., para. 163 and footnote 150 thereto.
166 Panel Report, para. 7.110.
167
Ibid. and footnote 90 thereto.
168
Ibid., para. 7.110.
169 In the present case, we do not consider it necessary to
decide whether the term "as a basis", in the context of Article 2.4 of the
TBT Agreement , has the same meaning as the term "based on", in the context
of Article 3.1 of the SPS Agreement.
170
The New Shorter Oxford English Dictionary, L. Brown (ed.)
(Clarendon Press, 1993), Vol. I, p. 188.
171 European Communities' appellant's submission, para. 155.
172
Ibid.
173 The other provisions of the EC Regulation deal with product
presentation (trimming of head, gills, etc.; with or without bones or skin; as
fillets or trunks), covering media (such as olive oil or natural juice),
arrangement in containers, colour, odour, flavour, ratio between weight or
sardines after sterilization and net weight, compliance measures and date of
entry into force.
174 European Communities' appellant's submission, para. 150.
175 European Communities' response to questioning at the oral
hearing.
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