The WTO Dispute between Peru and the European Community on the EC Trade Description of Sardines

The EC—Sardines controversy saw the confrontation between Peru and the European Community on the EC discipline for the trade description of canned sardines. In spite of the fact that, if compared to the economic interests at stake in other WTO disputes, it may seem a de minimis affaire, the present controversy has given rise to a leading-case. The EC—Sardines dispute is of interest basically for three reasons. In primis, it is the first GATT/WTO case where an internal measure is assessed by the WTO adjudicating bodies in the light of the Multilateral Agreement on Technical Barriers to Trade (TBT Agreement). In fact, apart from the TBT concept of technical regulation, which was considered by the Panel and the Appellate Body in the EC—Asbestos case, the meaning of the different obligations in the TBT Agreement has not previously been the subject of any interpretation or application by either panels or the Appellate Body. The EC—Sardines case therefore provides a first essay of the jurisdictional pillar’s interpretation of the degree to which such Code—“one of the harmonization initiatives” of the multilateral trade system—may constrain domestic regulatory autonomy. In particular, it clarifies that the TBT expression “legitimate objectives” comprises the public values of consumer protection—including the right to be properly informed—, fair competition, and market transparency, and it deals with the kind of “authoritativeness” international standards—i.e. non-mandatory measures—acquire through the referral operated by the TBT Agreement. Secondly, the dispute represents a confrontation between a developing country, Peru, and one of the traditional leading actors of the multilateral trade system, the European Community. Such confrontation is of importance because Peru engaged successfully in it making recourse to the legal counsel provided for by the Advisory Centre on WTO Law (ACWL), the technical assistance body, active since July 2001, set up to enable developing countries to meaningfully participate to the multilateral trade system. The very legalised nature of the WTO, in particular of the dispute settlement mechanism, usually puts the developing countries at a disadvantage against the most powerful WTO Members. The EC—Sardines dispute is thus a very positive example of how a well devised and independent solidarity mechanism can significantly help weak WTO Members to properly enforce their multilateral rights against the States assisted by legal services with the greatest expertise in international trade. Thirdly, the choice of transparency made by the ACWL, thanks to the posting on its website of the submissions prepared on behalf of Peru, attracted the attention of the largest European consumer group, Consumers’ Association, which wrote a brief supporting the position of the Latin-American country. This brief, annexed to the complainant’s memories, had a relevant weight when the Panel assessed the evidence on the European consumers’ views on products presented as “preserved sardines.” The transparency policy observed by the ACWL and the important contribution by the civil society that it generated in favour of Peru show that opening the WTO dispute settlement system to the general public cannot be systematically equated with a further disadvantage for developing countries, as almost always argued by the latter.