## Facts

- Norway exported canned fish preparations made from *clupea sprattus* (sprats/“brisling”) and *clupea harengus* (herring) to the Federal Republic of Germany.
- Historically, Germany had provided equal customs treatment for canned *sprattus/harengus* and canned *clupea pilchardus* (sardines), reflected in bilateral exchanges in the 1920s.
- During Torquay tariff negotiations, Germany’s draft tariff separated these species into different sub-items but initially proposed the same 30% ad valorem duty across them.
- Germany granted tariff concessions (bound lower duties) on the Norwegian sub-items for sprats and herring; it did not negotiate comparable concessions on the *pilchardus* sub-item.
- After these concessions, Germany implemented measures that treated *clupea pilchardus* more favorably than Norwegian *sprattus/harengus*, including:
  - lower import duties for *pilchardus* than for sprats and herring;
  - a lower charge equivalent to a turnover tax for *pilchardus* than for sprats and herring; and
  - removal of quantitative restrictions for *pilchardus* while maintaining restrictions for sprats and herring.
- Norway brought a complaint under GATT 1947 Article XXIII:1(a), alleging Germany’s measures harmed the value of the negotiated concessions and discriminated against Norwegian products.

## Issues

1. Whether Germany’s differential duties, internal-charge equivalents, and administration of quantitative restrictions were inconsistent with GATT 1947 obligations, particularly Article I:1 (MFN) and Article XIII:1 (non-discriminatory administration of quantitative restrictions), so as to constitute a failure to carry out obligations under Article XXIII:1(a).
2. If no violation was established, whether Germany’s measures nonetheless nullified or impaired benefits accruing to Norway from Germany’s tariff concessions on sprats and herring within the meaning of Article XXIII.

## Decision

- The Panel declined to find that the evidence supported a conclusion that Germany’s measures conflicted with Article I:1 or Article XIII:1.
- The Panel found that Germany’s measures nullified or impaired the value of the tariff concessions Germany had granted to Norway on the sprat and herring tariff sub-items.
- The Panel agreed on a recommendation aimed at assisting Germany and Norway to reach a satisfactory adjustment restoring the value of the concessions, and the recommendation was adopted by the CONTRACTING PARTIES.

## Legal Principles

- A complainant may obtain relief under GATT Article XXIII where a measure nullifies or impairs negotiated benefits even if a specific breach of an identified substantive obligation is not established on the record.
- Findings of inconsistency with MFN (Article I:1) and non-discriminatory administration of quantitative restrictions (Article XIII:1) require an adequate evidentiary basis; absence of sufficient proof may prevent a violation finding.
- For tariff concessions, subsequent measures that materially worsen competitive conditions for the concessioned products relative to competing products can support a finding of nullification or impairment and justify a recommendation for adjustment.

## Conclusion

The Panel did not find proven violations of MFN or quantitative-restriction disciplines, but concluded that Germany’s post-concession treatment of sardine-type products undermined the practical value of Norway’s Torquay concessions and warranted a negotiated adjustment to restore the expected benefits.


Treatment by Germany of Imports of Sardines (Brisling), GATT B.I.S.D. 1st Supp. 53 (1952)