12 - European Communities – Trade Description of Sardines: Textualism and its Discontent

Summary

Introduction

The facts of EC – Sardines are simple enough. A European Communities (EC) regulation stipulated that the designation Sardines could be used on preserved fish only for the genus Sardina pilchardus. The broad rationale claimed for this measure was to prevent consumer confusion. Allegedly European consumers associated the appellation “Sardines” with the pilchardus genus. Subsequently the Codex Alimentarius Commission set an international standard which effectively would allow other types of fish e.g. the genus Sardinops sagax, to use the word Sardine as part of its packaging designation. Peru, which exports Sardinops to Europe could not, under the Community regulation, use the designation Sardines in any shape or manner even though this prohibition would be contrary to the international standard set by the Codex Commission. Obviously, this would have adverse effects on the marketability of Peruvian sardines. Peru challenged the Community regulation claiming it violated Art. 2.1, 2.2, and 2.4 of the Agreement on Technical Barrier to Trade (TBT) as well as Art. III.4 of the General Agreement on Tariffs and Trade (GATT). The Panel exercised judicial economy and decided the case entirely on the basis of Art. 2.4 TBT, which provides as follows:

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.