## Facts

- In 1978, the Codex Alimentarius Commission adopted **Codex Stan 94**, an international food standard for the naming of **canned sardines and sardine-type products**.
- Codex Stan 94 permits fish of the species **_Sardina pilchardus_** to be labeled **“sardines”** and permits certain other listed species (including **_Sardinops sagax sagax_**) to be labeled **“sardines” with a qualifier** (for example, a geographical descriptor such as “Peruvian sardines”).
- In 1989, the European Communities (EC) adopted **Council Regulation (EEC) No. 2136/89**, establishing common marketing standards for preserved sardines.
- The EC regulation effectively reserved the unqualified trade description **“sardines”** to products prepared exclusively from **_Sardina pilchardus Walbaum_**, and prohibited any product from using the word “sardine(s)” in its name if made from other species.
- Peru exported preserved fish products made from **_Sardinops sagax sagax_** and argued that the EC measure restricted access to the EC market by preventing those products from being marketed using the term “sardines,” even with a qualifier.
- Peru initiated WTO dispute settlement proceedings challenging the EC regulation under the **Agreement on Technical Barriers to Trade (TBT Agreement)** and also raised claims under **GATT 1994 Article III:4**; the Panel resolved the dispute on **TBT Article 2.4** and exercised judicial economy on the other claims.
- The Panel found the EC measure inconsistent with **TBT Article 2.4** because it was not based on the relevant Codex standard. The European Communities appealed certain issues of law and legal interpretation.
- The Appellate Body report was circulated on **26 September 2002** and, together with the Panel report, was adopted by the WTO Dispute Settlement Body on **23 October 2002**.

## Issues

1. Whether EC Regulation (EEC) No. 2136/89 is a **“technical regulation”** within the meaning of the TBT Agreement.
2. Whether **Codex Stan 94** qualifies as a **“relevant international standard”** for purposes of **TBT Article 2.4**, including whether consensus adoption is required.
3. How to interpret the obligation in **TBT Article 2.4** to use relevant international standards **“as a basis for”** technical regulations.
4. How the **burden of proof** operates under TBT Article 2.4, including the exception where the international standard would be an **“ineffective or inappropriate”** means to fulfill a Member’s legitimate objectives.
5. Whether the EC regulation violated **TBT Article 2.4** by not being based on Codex Stan 94 and by failing to show that Codex Stan 94 was ineffective or inappropriate for the EC’s stated objectives.

## Decision

- The Appellate Body **upheld** the Panel’s ultimate finding that the EC regulation is **inconsistent with TBT Article 2.4**.
- It **confirmed** that the EC measure is a **technical regulation** because it lays down mandatory product characteristics and related labeling/trade-description requirements as conditions for marketing preserved sardines in the EC.
- It **upheld** that **Codex Stan 94** is a **relevant international standard** and **rejected** the argument that a TBT “standard” must be adopted by consensus to qualify under Article 2.4.
- It **agreed** that the EC measure was **not used “as a basis for”** Codex Stan 94 because it reserved “sardines” to a single species and prevented use of “sardines” with qualifiers for other species covered by Codex Stan 94.
- It **reversed** the Panel’s approach to **burden of proof**, holding that the **complainant** must make a prima facie showing that the relevant international standard would not be ineffective or inappropriate for the respondent’s legitimate objectives; it nevertheless found that **Peru met that burden** on the record.
- The adopted reports recommended that the EC **bring its measure into conformity** with its WTO obligations.

## Legal Principles

- A measure can be a **TBT “technical regulation”** when it sets **mandatory** requirements for marketing a product, including rules that limit the **trade description** or required labeling tied to product characteristics such as species content.
- For **TBT Article 2.4**, a Codex Alimentarius standard can be a **relevant international standard** when adopted by a recognized international standardizing body; **consensus approval is not a condition** for a standard to qualify under the TBT definition.
- Using an international standard **“as a basis for”** a technical regulation requires a substantive connection between the two; a regulation that **contradicts the core approach** of the standard is not “based on” it within the meaning of Article 2.4.
- Under WTO dispute settlement rules applied to **TBT Article 2.4**, the **complainant** bears the initial burden to establish a prima facie case of inconsistency, including that the international standard is **not ineffective or inappropriate** for the respondent’s legitimate objectives; the respondent may then rebut.
- Objectives such as **consumer protection**, preventing deceptive practices, and ensuring market clarity may be legitimate, but they do not excuse a departure from a relevant international standard absent a showing, supported by evidence, that the standard would be **ineffective or inappropriate** for achieving those objectives.

## Conclusion

In EC—Trade Description of Sardines, the WTO Appellate Body held that the EC’s rule reserving the word “sardines” to _Sardina pilchardus_ was a technical regulation that was not based on Codex Stan 94, a relevant international standard allowing qualified “sardines” labeling for multiple species including Peru’s _Sardinops sagax sagax_; although the Appellate Body corrected the Panel’s burden-of-proof analysis, it still concluded Peru established a violation of TBT Article 2.4, and the DSB adopted the reports on October 23, 2002.


European Communities—Trade Description of Sardines, WT/DS231/AB/R (October 23, 2002)