On 20 March 2001, Peru requested consultations with the EC concerning Regulation (EEC) 2136/89 which, according to Peru, prevents Peruvian exporters to continue to use the trade description “sardines” for their products.
Peru submitted that, according to the relevant Codex Alimentarius standards (STAN 94-181 rev. 1995), a FAO environmental instrument, the species “sardinops sagax sagax” are listed among those species which can be traded as “sardines”. Peru, therefore, considered that the above Regulation constitutes an unjustifiable barrier to trade. The matte rat stake is, can a State use an international norm which was not enacted by WTO to challenge commercial restrictions ?
The Appellate Body upheld the Panel's finding that the definition of “standard” does not require that a standard adopted by a “recognized body” be approved by consensus. Therefore, the standard in question, Codex Stan 94, fell within the scope of Art. 2.4 as well.
The Appellate Body reversed the Panel's finding that the European Communities had the burden of proving that the relevant international standard was ineffective and inappropriate under Art. 2.4 and found, instead, that the burden rested on Peru to prove that the standard was effective and appropriate to fulfil the legitimate objectives pursued by the European Communities through the EC Regulation. The Appellate Body upheld the Panel's alternative finding that Peru had adduced sufficient evidence and legal arguments to demonstrate that the international standard was not ineffective or inappropriate to fulfil the legitimate objectives pursued by the European Communities (of market transparency, consumer protection and fair competition), since it had not been established that most consumers in most member states of the European Communities have always associated the common name “sardines” only with Sardina pilchardus Walbaum.
Based on: https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds231sum_e.pdf
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds231_e.htm