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EUROPEAN COMMUNITIES - TRADE DESCRIPTION OF SARDINES
AB-2002-3 X. The Objectivity of the Assessment of Certain Facts by the Panel
292. We next consider whether the Panel properly discharged its duty under
Article 11 of the DSU to make an "objective assessment" of certain "facts of the
case" before it. We recall that Article 11 reads as follows:
Function of Panels
The function of panels is to assist the DSB in discharging its responsibilities
under this Understanding and the covered agreements. Accordingly, a panel should
make an objective assessment of the matter before it, including an objective
assessment of the facts of the case and the applicability of and conformity with
the relevant covered agreements, and make such other findings as will assist the
DSB in making the recommendations or in giving the rulings provided for in the
covered agreements. Panels should consult regularly with the parties to the
dispute and give them adequate opportunity to develop a mutually satisfactory
solution. (emphasis added)
293. The European Communities contends that, in four specific instances, the
Panel failed to discharge its duty under Article 11 of the DSU to make an
objective assessment of the facts of the case. First, the European Communities
submits that the Panel's treatment of the dictionary definitions of the term
"sardines" amounts to a contravention of Article 11 of the DSU.216 Second, the
European Communities sees a violation of Article 11 of the DSU in the way the
Panel handled a letter from the United Kingdom Consumers' Association and in the
Panel's rejection of letters from other European consumers' associations
submitted by the European Communities at the interim review stage.217 Third, the
European Communities submits that the Panel disregarded evidence in the form of
tins, supermarket receipts, and labels relating to various preserved fish and
thus violated Article 11 of the DSU.218 Fourth, the European Communities finds a
violation of Article 11 of the DSU in the decision of the Panel not to ask the
Codex Commission "about the meaning, status and even validity of � Codex Stan
94".219
294. All four points were raised by the European Communities in the interim
review and addressed by the Panel at that stage of the Panel proceedings. On the
use of the dictionary definitions of the term "sardines", the Panel stated:
[W]e are of the view that the use of the dictionaries referred to by both
parties is an appropriate means to examine whether the term "sardines", either
by itself or combined with the name of a country or geographic area, is a common
name that refers to species other than Sardina pilchardus, especially in light
of the fact that the Multilingual Illustrated Dictionary of Aquatic Animals and
Plants was published in cooperation with the European Commission and member
States of the European Communities for the purposes of, inter alia, improving
market transparency. We note that the electronic publication, Fish Base, was
also produced with the support of the European Commission. In making our
finding, not only did we consider carefully dictionaries referred to by both
parties but also considered other evidence such as the regulations of several
member States of the European Communities, statements made by the Consumers'
Association and the trade description used by Canadian exporters of Clupea
harengus harengus to the Netherlands and the United Kingdom. In our weighing and
balancing of the totality of evidence before us, including the examination of
the Oxford Dictionary referred to by Peru and Canada as well as the Grand
Dictionnaire Encyclop�dique Larousse and Diccionario de la lengua espanola
referred to by the European Communities, we were persuaded, on balance, that the
term "sardines", either by itself or combined with the name of a country or
geographic area, is a common name in the European Communities and that the
consumers in the European Communities do not associate the term "sardines"
exclusively with Sardina pilchardus.220 (original emphasis; footnotes omitted)
295. On the letter from the United Kingdom Consumers' Association, the Panel
replied:
We are � mindful that we are not "required to accord to factual evidence of the
parties the same meaning and weight as do the parties".40 We did consider the
Consumers' Association letter in determining whether the European consumers
associate the term "sardines" exclusively with Sardina pilchardus but, as stated
above, this was not the sole basis on which we made the determination as other
evidence was considered in the overall weighing and balancing process. We
therefore do not agree with the European Communities' argument that our approach
was partial.
296. With respect to the letters from other European consumers' associations
submitted by the European Communities at the interim review stage, the Panel
made the following statement:
The European Communities submitted additional evidence, i.e., letters it had
received lately from other European consumers' associations on the same issue.
In a letter dated 11 April 2002, Peru requested that the new evidence submitted
by the European Communities not be considered. In this regard, Peru referred to
Article 12 of the Panel's Working Procedures which did not provide for the
submission of new evidence at this stage of the Panel proceedings. Article 12 of
the Panel's Working Procedures reads as follows: "Parties shall submit all
factual evidence to the Panel no later than during the first substantive
meeting, except with respect to evidence necessary for purposes of rebuttal
submissions, answers to questions or comments on answers provided by others.
Exceptions to this procedure will be granted upon a showing of good cause. In
such cases, the other party shall be accorded a period of time for comment, as
appropriate". We are obliged to point out that Peru submitted the letter from
Consumers' Association as a part of its rebuttal submission. In light of this,
it is our view that the European Communities should have submitted the evidence
at the second substantive meeting or at least not later than at the time it
submitted answers to the questions posed by the Panel. Further, the European
Communities did not request an extension of time-period to rebut the letter from
Consumers' Association. Nor did the European Communities demonstrate the
requisite "good cause" which must be shown by the party submitting the new
evidence. We do not consider that the interim review stage is the appropriate
time to introduce new evidence. Therefore, we decline to consider the new
evidence submitted by the European Communities.222
297. Regarding the third point-the evidence regarding tins, supermarket
receipts, and labels-the Panel stated:
[T]he European Communities claimed that in paragraph 7.132 we "completely
ignor[ed] the evidence submitted by the European Communities on the range and
diversity of preserved fish products that the European consumers could find in
any European supermarket and that responds to their expectations that each fish
be called by and marketed under its own name". Again, we did not ignore any
evidence and we took note of the fact that there is diverse range of fish
products that are available in European supermarkets. However, we were not
persuaded that the existence of diverse preserved fish products in the European
market suggested that the European consumers associate the term "sardines"
exclusively with Sardina pilchardus . We therefore reject the European
Communities' argument that we "completely ignored" the evidence it submitted.223
298. Finally, the Panel commented on its decision not to seek information from
the Codex Commission:
We recall the European Communities' statement at the Second Substantive Meeting
that "[i]f the Panel should have any doubt that the interpretation of Article
6.1.1(ii) [of] Codex Stan 94 advanced by the European Communities is correct and
considers that it will reach the question of the meaning of Article 6.1.1(ii) of
Codex Stan 94, the European Communities invites the Panel to ask the Codex
Alimentarius to provide its view of the meaning of this text". This request is
reflected in paragraph 4.49 of the descriptive part. In accordance with Article
13 of the DSU, it is the right of the panel to seek or refuse to seek
information.32 In this regard, in EC - Hormones , the Appellate Body stated that
Article 13 of the DSU "enable[s] panels to seek information and advice as they
deem appropriate in a particular case".33 Also, in
US � Shrimp, the Appellate
Body considered that "a panel also has the authority to accept or reject any
information or advice which it may have sought and received, or to make some
other appropriate disposition thereof. It is particularly within the province
and the authority of a panel to determine the need for information and advice in
a specific case�".34 In this case, we determined that there was no need to seek
information from the Codex Alimentarius Commission.
33 European Communities - Measures Concerning Meat and Meat Products ("EC -
Hormones"), WT/DS26/AB/R and WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I,
para. 147.
34 United States - Import Prohibition of Certain Shrimp and Shrimp Products ("US
- Shrimp"), WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, para. 104.224
(original emphasis and underlining)
299. The first three points raised by the European Communities relate to the
task�which we have discussed earlier�of evaluating evidence adduced in
connection with the Panel's inquiry into whether consumers in the European
Communities associate the term "sardines" exclusively with Sardina pilchardus .
As we have stated in several previous appeals, panels enjoy a discretion as the
trier of facts225; they enjoy "a margin of discretion in assessing the value of
the evidence, and the weight to be ascribed to that evidence."226 We have also said
that we will not "interfere lightly" with the Panel's appreciation of the
evidence: we will not intervene solely because we might have reached a different
factual finding from the one the panel reached; we will intervene only if we are
"satisfied that the panel has exceeded the bounds of its discretion, as the
trier of facts, in its appreciation of the evidence".227
300. In particular, we stated, in EC - Hormones , that:
Determination of the credibility and weight properly to be ascribed to (that is,
the appreciation of) a given piece of evidence is part and parcel of the fact
finding process and is, in principle, left to the discretion of a panel as the
trier of facts.228
Furthermore, in Australia - Measures Affecting Importation of Salmon, we
indicated that:
Panels � are not required to accord to factual evidence of the parties the same
meaning and weight as do the parties.229
Moreover, in Korea - Definitive Safeguard Measure on Imports of Certain Dairy
Products, we ruled that:
� under Article 11 of the DSU, a panel is charged with the mandate to determine
the facts of the case and to arrive at factual findings. In carrying out this
mandate, a panel has the duty to examine and consider all the evidence before
it, not just the evidence submitted by one or the other party, and to evaluate
the relevance and probative force of each piece thereof. � The determination of
the significance and weight properly pertaining to the evidence presented by one
party is a function of a panel's appreciation of the probative value of all the
evidence submitted by both parties considered together.230
In the light of the comments made by the Panel at the interim review stage, we
have no reason to believe, nor has the European Communities been able to
persuade us, that the Panel did not examine and consider all the evidence
properly put before it, or that the Panel did not evaluate the relevance and
probative value of each piece of evidence. In particular, the Panel manifestly
did not ignore the evidence in the form of tins, supermarket receipts, and
labels relating to various preserved fish submitted by the European Communities,
for it addressed that evidence specifically in paragraph 6.18 of the Panel
Report. In addition, the Panel specifically stated that its factual finding that
"it has not been established that consumers in most member States of the
European Communities have always associated the common name 'sardines'
exclusively with Sardina pilchardus "231 was the result of an "overall weighing and
balancing process"232 bearing upon a plurality of pieces of evidence. On the other
points raised by the European Communities, we reiterate: the Panel enjoyed a
margin of discretion, as the trier of facts, to assess the value of each piece
of evidence and the weight to be ascribed to them. In our view, the Panel did
not exceed the bounds of this discretion by giving some weight to dictionary
definitions, and to an extract of a letter from a United Kingdom Consumers'
Association.233
301. We also reject the European Communities' contention relating to the letters
it submitted at the interim review stage. The interim review stage is not an
appropriate time to introduce new evidence. We recall that Article 15 of the DSU
governs the interim review. Article 15 permits parties, during that stage of the
proceedings, to submit comments on the draft report issued by the panel234, and to
make requests "for the panel to review precise aspects of the interim report".235
At that time, the panel process is all but completed; it is only�-in the words of
Article 15�-"precise aspects" of the report that must be verified during the
interim review. And this, in our view, cannot properly include an assessment of
new and unanswered evidence. Therefore, we are of the view that the Panel acted
properly in refusing to take into account the new evidence during the interim
review, and did not thereby act inconsistently with Article 11 of the DSU.
302. We also reject the European Communities' claim regarding the fourth
instance of supposed impropriety, which relates to the decision of the Panel not
to seek information from the Codex Commission. Article 13.2 of the DSU provides
that "[p]anels may seek information from any relevant source and may consult
experts to obtain their opinion on certain aspects of the matter." This
provision is clearly phrased in a manner that attributes discretion to panels,
and we have interpreted it in this vein. Our statements in EC � Hormones ,
Argentina � Measures Affecting Imports of Footwear, Textiles, Apparel and Other
Items ("Argentina - Textiles and Apparel ")236, and US
� Shrimp, all support the
conclusion that, under Article 13.2 of the DSU, panels enjoy discretion as to
whether or not to seek information from external sources.237 In this case, the
Panel evidently concluded that it did not need to request information from the
Codex Commission, and conducted itself accordingly. We believe that, in doing
so, the Panel acted within the limits of Article 13.2 of the DSU. A
contravention of the duty under Article 11 of the DSU to make an objective
assessment of the facts of the case cannot result from the due exercise of the
discretion permitted by another provision of the DSU, in this instance Article
13.2 of the DSU.
303. In the light of this, we reject the claim of the European Communities that
the Panel did not conduct "an objective assessment of the facts of the case", as
required by Article 11 of the DSU.
XI. The References in the Panel Report to Trade-Restrictiveness
304. We now turn to the issue whether the Panel made a determination that the EC
Regulation is trade-restrictive, and, if so, whether the Panel erred in making
such a determination, as contended by the European Communities.
305. The Panel stated:
The European Communities acknowledged that it is the Regulation which in certain
member States "created" the consumer expectations which it now considers require
the maintenance of that same Regulation. Thus, through regulatory intervention,
the European Communities consciously would have "created" consumer expectations
which now are claimed to affect the competitive conditions of imports. If we
were to accept that a WTO Member can "create" consumer expectations and
thereafter find justification for the trade-restrictive measure which created
those consumer expectations, we would be endorsing the permissibility of
"self-justifying" regulatory trade barriers. Indeed, the danger is that Members,
by shaping consumer expectations through regulatory intervention in the market,
would be able to justify thereafter the legitimacy of that very same regulatory
intervention on the basis of the governmentally created consumer expectations.
Mindful of this concern, we will proceed to examine whether the evidence and
legal arguments before us demonstrate that consumers in most member States of
the European Communities have always associated the common name "sardines"
exclusively with Sardina pilchardus and that the use of "sardines" in
conjunction with "Pacific", "Peruvian" or "Sardinops sagax" would therefore not
enable European consumers to distinguish between products made from Sardinops
sagax and Sardina pilchardus.238 (emphasis added)
At the interim review in the Panel proceedings, the European Communities asked
the Panel to delete the term "trade-restrictive" in the sixth line of paragraph
7.127 of the Panel Report.239
306. The Panel dismissed this request in the following terms:
The European Communities argued that the question of whether the measure at
issue was trade-restrictive was an issue on which we had exercised judicial
economy and therefore should "refrain from gratuitously qualifying the EC
measure as 'trade-restrictive'". We used the expression "trade-restrictive" as
part of the legal reasoning to state that if Members can create consumer
expectations and then justify the trade restrictive measure, we would be
endorsing the permissibility of self-justifying regulatory trade barriers.
Therefore, we were justified in using the term "trade-restrictive". Moreover, in
our examination of the EC Regulation, we were of the view that the EC Regulation
was more trade-restrictive than the relevant international standard, i.e., Codex
Stan 94. Our characterization of the EC Regulation as such is based on the fact
that the EC Regulation prohibited the use of the term "sardines" for species
other than Sardina pilchardus whereas Codex Stan 94 would permit the use of the
term "sardines" in a qualified manner for species other than Sardina
pilchardus.35
35 In addition, we took note of the context provided by Article 2.5 of the TBT
Agreement which states that if a technical regulation is in accordance with
relevant international standards, "it shall be rebuttably presumed not to create
an unnecessary obstacle to international trade." Because the EC Regulation was
not in accordance with Codex Stan 94, we considered that it created an
"unnecessary obstacle to trade", which, in our view, can be construed to mean
more trade-restrictive than necessary.240
307. On appeal, the European Communities contends that-in paragraphs 7.127 and
6.11, as well as in footnote 35, of the Panel Report-the Panel characterized the
EC Regulation as trade-restrictive. The European Communities considers "the
findings of the Panel (if such they are) in paragraphs [7.127] and 6.11 of the
Panel Report to the effect that the Regulation is 'trade restrictive' or 'more
trade restrictive than the relevant international standard' should be reversed
or considered moot and without legal effect."241
308. In our view, the argument of the European Communities is flawed regarding
paragraph 7.127. We do not agree that the Panel characterized the EC Regulation
as trade-restrictive in paragraph 7.127 of the Panel Report. In that paragraph,
the Panel stated:
If we were to accept that a WTO Member can "create" consumer expectations and
thereafter find justification for the trade-restrictive measure which created
those consumer expectations, we would be endorsing the permissibility of
"self-justifying" regulatory trade barriers. (emphasis added)
This statement by the Panel is made in abstracto; the Panel is not making a
definitive finding here about the EC Regulation. Moreover, this statement is
relevant only for the purposes of Article 2.4 of the TBT Agreement , as it was
part of the Panel's examination whether consumers in the European Communities
associate the term "sardines" exclusively with Sardina pilchardus. We are,
therefore, of the view that, in paragraph 7.127 of the Panel Report, the Panel
did not make a determination that the EC Regulation itself is trade-restrictive
per se as that term is used in Article 2.2 of the TBT Agreement . Accordingly, we
reject the claim of the European Communities insofar as it relates to paragraph
7.127 of the Panel Report.
309. The Panel's statements in paragraph 6.11 and in footnote 35 of the Panel
Report, however, are of a different nature. The relevant excerpt is as follows:
Moreover, in our examination of the EC Regulation, we were of the view that the
EC Regulation was more trade-restrictive than the relevant international
standard, i.e., Codex Stan 94. Our characterization of the EC Regulation as such
is based on the fact that the EC Regulation prohibited the use of the term
"sardines" for species other than Sardina pilchardus whereas Codex Stan 94 would
permit the use of the term "sardines" in a qualified manner for species other
than Sardina pilchardus .35
35 In addition, we took note of the context provided by Article 2.5 of the TBT
Agreement which states that if a technical regulation is in accordance with
relevant international standards, "it shall be rebuttably presumed not to create
an unnecessary obstacle to international trade." Because the EC Regulation was
not in accordance with Codex Stan 94, we considered that it created an
"unnecessary obstacle to trade", which, in our view, can be construed to mean
more trade-restrictive than necessary. (emphasis added)
In this paragraph, the Panel stated that the "the EC Regulation was more
trade-restrictive than the relevant international standard, i.e., Codex Stan
94." Also, in footnote 35, the Panel stated that the EC Regulation "created an
'unnecessary obstacle to trade', which, in [its] view, can be construed to mean
more trade-restrictive than necessary." These two statements do contain
determinations of the trade-restrictive nature of the EC Regulation.
310. The only provision of the WTO Treaty on which the Panel made a ruling was
Article 2.4 of the TBT Agreement . We agree with the European Communities that
the question whether the EC Regulation is trade-restrictive is not relevant for
the purposes of making a finding under Article 2.4. The Panel exercised judicial
economy with respect to other claims where the trade-restrictive character of
the EC Regulation might have been relevant.242 As a consequence, the Panel should
have refrained from making the statements quoted from paragraph 6.11 and
footnote 35 of the Panel Report.243
311. The question whether the EC Regulation is trade-restrictive in nature could
have been relevant to a legal analysis under Article 2.2 of the TBT Agreement .
For this reason, the Panel's statements in paragraph 6.11 and in footnote 35 of
the Panel Report on the trade-restrictive character of the EC Regulation, to the
extent that they could relate to the legal analysis under Article 2.2 of the TBT
Agreement, constitute legal interpretations within the meaning of Article 17.6
of the DSU. Because the Panel had determined not to make legal findings under
Article 2.2, we declare the two statements in paragraph 6.11 and in footnote 35
of the Panel Report on the trade-restrictive character of the EC Regulation moot
and without legal effect.
XII. Completing the Legal Analysis
312. Peru submits that, if we conclude that the EC Regulation is consistent with
Article 2.4, it would be appropriate for us to complete the Panel's analysis and
resolve the dispute by making findings on those provisions of Article 2 of the
TBT Agreement on which the Panel did not make any findings, namely Articles 2.2
and 2.1 of the TBT Agreement.244 Although Peru made a claim before the Panel under
Article III:4 of the GATT 1994, Peru does not ask us to complete the analysis by
addressing that provision. The European Communities objects to the completion of
the analysis, expressing the view that there are not sufficient undisputed facts
in the record to do so.245
313. Because we have found that the EC Regulation is not consistent with Article
2.4 of the TBT Agreement, the conditions to Peru's request have not been met,
and, therefore, we do not think it is necessary for us to make a finding under
Articles 2.2 and 2.1 of the TBT Agreement in order to resolve this dispute.
Equally, we do not think it is necessary to make a finding under Article III:4
of the GATT 1994 in order to resolve this dispute. Therefore, we decline to make
findings on Articles 2.2 and 2.1 of the TBT Agreement , or on Article III:4 of
the GATT 1994.
314. We indicated earlier in this Report that we would return to the question
whether Morocco's amicus curiae brief assists us in this appeal when considering
the issue of completing the legal analysis under Article 2.1 of the TBT
Agreement and the GATT 1994.246 In the light of our decision not to complete the
analysis by making findings on these provisions, we find that the legal
arguments submitted by Morocco in its amicus curiae brief on Article 2.1 of the
TBT Agreement and on the GATT 1994 do not assist us in this appeal.
XIII. Findings and Conclusions
315. For the reasons set out in this Report, the Appellate Body:
(a) finds that the condition attached to the withdrawal of the Notice of Appeal
of 25 June 2002 is permissible, and that the appeal of the European Communities,
commenced by the Notice of Appeal of 28 June 2002, is admissible;
(b) finds that the amicus curiae briefs submitted in this appeal are admissible
but their contents do not assist us in deciding this appeal;
(c) upholds the Panel's finding, in paragraph 7.35 of the Panel Report, that the
EC Regulation is a "technical regulation" under the TBT Agreement ;
(d) upholds the Panel's findings, 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", and, 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;
(e) upholds the Panel's finding, in paragraph 7.70 of the Panel Report, that
Codex Stan 94 is a "relevant international standard" under Article 2.4 of the
TBT Agreement ;
(f) upholds the Panel's finding, 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 ;
(g) reverses the Panel's finding, in paragraph 7.52 of the Panel Report, that,
under the second part of Article 2.4 of the TBT Agreement , the burden of proof
rests with the European Communities to demonstrate that Codex Stan 94 is an
"ineffective or inappropriate means for the fulfilment of the legitimate
objectives pursued" by the European Communities through the EC Regulation, and
finds, instead, that the burden of proof rests with Peru to demonstrate that
Codex Stan 94 is an effective and appropriate means to fulfil those "legitimate
objectives", and, upholds the Panel's finding, in paragraph 7.138 of the Panel
Report, that Peru has adduced sufficient evidence and legal arguments to
demonstrate that Codex Stan 94 is not "ineffective or inappropriate" to fulfil
the "legitimate objectives" of the EC Regulation;
(h) rejects the claim of the European Communities that the Panel did not conduct
"an objective assessment of the facts of the case", as required by Article 11 of
the DSU;
(i) rejects the claim of the European Communities that the Panel made a
determination, in paragraph 7.127 of the Panel Report, that the EC Regulation is
trade-restrictive, and, declares moot and without legal effect the two
statements, in paragraph 6.11 and in footnote 35 of the Panel Report, on the
trade-restrictive character of the EC Regulation; and
(j) finds it unnecessary to complete the analysis under Article 2.2 of the TBT
Agreement, Article 2.1 of the TBT Agreement , or Article III:4 of the GATT 1994.
Therefore, the Appellate Body upholds the Panel's finding, in paragraph 8.1 of
the Panel Report, that the EC Regulation is inconsistent with Article 2.4 of the
TBT Agreement .
316. The Appellate Body recommends that the DSB request the European Communities
to bring the EC Regulation, as found in this Report and in the Panel Report, as
modified by this Report, to be inconsistent with Article 2.4 of the TBT
Agreement, into conformity with its obligations under that Agreement.
Signed in the original at Geneva this 12th day of September 2002 by:
Presiding Member
216 European Communities' appellant's submission, paras. 216-219. 217 Ibid., paras. 220-223. 218 Ibid., paras. 224-226. 219 Ibid., para. 227. 220 Panel Report, para. 6.12. 221 Ibid., para. 6.15 and footnote 40 thereto. 222 Panel Report, para. 6.16. 223 Ibid., para. 6.18. 224 Panel Report, para. 6.8 and footnotes 32-34 thereto. 225 Appellate Body Report, Korea - Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:1, 3, paras. 161-162; Appellate Body Report, EC - Hormones , supra, footnote 17, para. 132; Appellate Body Report, United States - Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities ("US - Wheat Gluten "), WT/DS166/AB/R, adopted 19 January 2001, para. 151. See also, Appellate Body Report, European Communities - Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, 2031, paras. 131-136; Appellate Body Report, Australia - Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DRS 1998:VIII, 3327, paras. 262-267; Appellate Body Report, Japan - Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277, paras. 140-142; Appellate Body Report, India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, DSR 1999:IV, 1763, paras. 149 and 151; and Appellate Body Report, Korea - Dairy, supra, footnote 203, paras. 137-138. 226 Appellate Body Report, EC - Asbestos, supra, footnote 15, para. 161. 227 Appellate Body Report, US - Wheat Gluten, supra, footnote 225, para. 151. 228 Appellate Body Report, supra, footnote 17, para. 132. 229 Appellate Body Report, supra, footnote 225, para. 267. 230 Appellate Body Report, supra, footnote 203, para. 137. 231 Panel Report, para. 7.137. 232 Ibid., para. 6.15. 233 The extract of the letter from a United Kingdom Consumers' Association cited in the Panel Report is the following:
234 Article 15.1 of the DSU provides:
235 Article 15.2 of the DSU provides:
236 Appellate Body Report, WT/DS56/AB/R and Corr.1, adopted 22 April 1998, DSR 1998:III, 1003. 237 In EC - Hormones , we stated that Article 13 of the DSU
"enable[s] panels to seek information and advice as they deem appropriate in a
particular case". (Appellate Body Report, supra, footnote 17, para. 147)
238 Panel Report, para. 7.127. 239 Panel Report, para. 6.11. 240 Ibid. and footnote 35 thereto. 241 European Communities' appellant's submission, para. 234. 242 The claims where such a finding would have been relevant related to Article 2.2 of the TBT Agreement . 243 This approach is along the lines of that which we followed in United States - Import Measures on Certain Products from the European Communities:
In that case, the irrelevance of the statements of the panel resulted from the limits of the terms of reference, rather than from judicial economy. Nevertheless, our views to the effect that a panel should limit its reasoning to relevant and pertinent issues, and that irrelevant statements may have no legal effect, are also pertinent to the case before us. 244 Peru's appellee's submission, para. 181. 245 European Communities' response to questioning at the oral hearing. 246 Supra, paras. 169-170.
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