WRITTEN QUESTION P-1577/01

by Georg Jarzembowski (PPE-DE) to the Commission

(21 May 2001)

Subject: Interpretation of the second indent of Article 2 of Council Regulation (EEC) No 2136/89 of 21 June 1989 laying down common marketing standards for preserved sardines

Article 2 of Council Regulation (EEC) No 2136/89 of 21 June 1989 laying down common marketing standards for preserved sardines(1) lays down requirements with regard to the sardine species which may be marketed as preserved sardines. The second indent of that Article lays down that preserved sardines must be prepared exclusively from fish of the species Sardina pilchardus Walbaum.

However, WTO rules, especially those set out in Article III, Article IX(1) and Article XI(1) of the GATT, stipulate that what are known as like products such as like domestic products or like products from third countries may not be treated less favourably.

Is the Commission aware that the wording of the second indent of Article 2 of Council Regulation (EEC) No 2136/89 breaches GATT rules, especially Article III, Article IX(1) and Article XI(1) thereof, since it prohibits the marketing of like sardine species (such as Sardinops sagax)?

Has the Commission taken on board the fact that a prohibition on such like products breaches the GATT rule on equal treatment of like products?

What will the Commission do in order to prevent a clash between Council Regulation (EEC) No 2136/89 and the GATT rules referred to above and to create legal certainty?

(1) OJ L 212, 22.7.1989, p. 79.

Answer given by Mr Lamy on behalf of the Commission

(22 June 2001)

Council Regulation (EEC) No 2136/89 of 21 June 1989 lays down the common marketing standards for preserved sardines. This Council regulation does not exclude from the Community market other types of fishes, like the sardinops sagax, nevertheless it reserves the use of the name sardine to the Sardine Pilchardus Walbaum. This reserve in the use of the name sardine is in accordance with the traditional use of sardine in the Community and it is done in order to ensure market transparency and prevent the consumer from being mislead. However, other types of sardine-like fishes can be freely marketed in the Community if they use another name that can distinguish them from the sardine pilchardus walbaum.

Concerning the Honourable Member's questions as to the General Agreement on Tariffs and Trade (GATT) compatibility of Regulation (EEC) No 2136/89, the Commission would like to explain that in light of the interpretation of the concept of like products provided by GATT and World Trade Organisation (WTO) panels, sardines and sardinops are not necessarily like products. But more importantly, even if that would be the case, Regulation (EEC) No 2136/89 does not provide less favourable treatment to sardinops than to sardines as both can be freely marketed in the Community without any restriction. It is only because of the need to protect the consumer that the term sardine is in the Community reserved for

the sardine pilchardus walbaum. This reserve is not only justified by a legitimate interest of the Community legislator but it is also in line with international standards on this matter, like the Codex Alimentarius.

Moreover, that Regulation (EEC) No 2136/89 was not enacted as a way to afford protection to the Community industry is shown by the fact that around 38 % of all sardines consumed in the Community are imported.

The Commission would like to take this opportunity to inform the Honourable Member that Peru has requested WTO consultations concerning Regulation (EEC) No 2136/89. The Commission will use these consultations to explain in detail to the Peruvian authorities why Regulation (EEC) No 2136/89 is fully compatible with the Community international obligations.