. /.WORLD TRADE
ORGANIZATIONWT/DS231/12
4 July 2002
(02-3738)
Original:  English
EUROPEAN COMMUNITIES – TRADE DESCRIPTION OF SARDINES
Notification of an Appeal by the European Communities
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes ("DSU")
The following notification, dated 28 June 2002, sent by the Permanent Delegation of the
European Commission to the Dispute Settlement B ody ("DSB"), is circulated to Members.  This
notification also constitutes the Notice of Appeal , filed on the same day with the Appellate Body,
pursuant to the Working Procedures for Appellate Review .
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Pursuant to paragraph 4 of Article 16 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (the “DSU ”) and Rule 20 of the Working Procedures for
Appellate Review, the European Communities hereby notifies its decision to appeal to the Appellate
Body certain issues of law and legal interpretations covered in the panel report on European
Communities – Trade Description of Sardines (WT/DS231/R, 29 May 2002).
The Appeal relates to the following issues of law and legal interpretation developed by the
Panel in its report:
(a) The Panel erred in law in finding that Council Regulation (EEC) 2136/89, (“the Regulation”)
and in particular Article 2 thereof, is a technical regulation relating to preserved Sardinops
Sagax .
(b) The Panel erred in law in considering that Article 2.4 of the TBT Agreement  was applicable to
technical regulations prepared and adopted before the WTO Agreement entered into force and
in considering that Article 2.4 of the TBT Agreement  applies to the maintenance of a technical
regulation and not just to its adoption.
(c) The Panel erred in law in its interpretation of the term “relevant international standard” and its
application to Codex Stan 94 and the Regulation.
(d) The Panel erred in law in its interpretation of the Codex Stan-94, in particular by considering
that it is unambiguous, that the names envisaged for sardine-type products in Section 6.1.1(ii)
should always contain the word “sardine” and that  the  reference to “in accordance with the
law and custom of the country in which the product is sold” relates only to the common name
as well as by neglecting to give any real meaning to the requirement that the name used
should not mislead the consumer.  The Panel also erred in law by no properly considering the
negotiating history and the validity of Codex Stan-94.
(e) The Panel erred in law in its interpretation and application of the term "as a basis for" in
Article 2.4 of the TBT Agreement .WT/DS231/12
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(f) The Panel erred in law in its interpretation and application of Article 2.4 of the TBT
Agreement  in respect of the burden and standard of proof thereunder, in particular as regards
the question of whether Codex Stan-94 was a relevant international standard and whether it,
or the relevant part of it, is ineffective or inappropriate to fulfil the legitimate objectives
pursued.
(g) The Panel committed several legal errors in the interpretation of the terms “ineffective or
inappropriate” in Article 2.4 of the TBT Agreement  and in coming to the conclusion that
Codex Stan 94 is not ineffective or inappropriate to fulfil the legitimate objectives pursued
and whether the alternatives proposed by Peru could achieve them as appropriately and
effectively. The Panel also erred in law in refusing to consider domestic law as relevant to the
question of consumer expectations.
(h) The Panel failed its obligation to make an objective assessment of the matter before it under
Article 11 DSU, inter alia with regard to points (c), (d ), and (g) above. More specifically, the
Panel made arbitrary and improper use of, and distorted the meaning of, definitions indictionaries, ignored the evidence concerning the actual names given to sardine-type products
in the European Communities and improperly relied on the opinion of a consumers
association as evidence when this was obviously based on a misapprehension of the law.  Italso failed in its duty to establish the facts by refusing to request information about Codex
Stan 94 from the Codex Alimentarius Commission.
The Panel erred in law in concluding that the EC Regulation is more trade restrictive than the
Codex Stan 94.
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