European Communities – Trade Description of Sardines (WT/DS231/AB/R, WT/DS231/R): Report of the Appellate Body

Summary

INTRODUCTION

The European Communities appeals from certain issues of law and legal interpretations in the Panel Report, European Communities – Trade Description of Sardines (the “Panel Report”).

This dispute concerns the name under which certain species of fish may be marketed in the European Communities. The measure at issue is Council Regulation (EEC) 2136/89 (the “EC Regulation”), which was adopted by the Council of the European Communities on 21 June 1989 and became applicable on 1 January 1990. The EC Regulation sets forth common marketing standards for preserved sardines.

Article 2 of the EC Regulation provides that:

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. (emphasis added)

Sardina pilchardus Walbaum (“Sardina pilchardus”), the fish species refered to in the EC Regulation, is found mainly around the coasts of the Eastern North Atlantic Ocean, in the Mediterranean Sea, and in the Black Sea.

In 1978, the Codex Alimentarius Commission (the “Codex Commission”), of the United Nations Food and Agriculture Organization and the World Health Organization, adopted a world-wide standard for preserved sardines and sardine-type products, which regulates matters such as presentation, essential composition and quality factors, food additives, hygiene and handling, labelling, sampling, examination and analyses, defects and lot acceptance. This standard, CODEX STAN 94–1981, Rev.1–1995 (“Codex Stan 94”), covers preserved sardines or sardine-type products prepared from the following 21 fish species:

– Sardina pilchardus

– Sardinops melanostictus, S. neopilchardus, S. ocellatus, S. sagax[,] S. caeruleus

– Sardinella aurita, S. brasiliensis, S. maderensis, S. longiceps, S. gibbosa