Harmonization of the application of the SPS

system in the Kyrgyz Republic in view of the

WTO rules and the rules of EAEC

Nuritdin Jamankulov

Seminar: "The development of food exports in Kyrgyzstan."18-19 October 2015, Bishkek, Kyrgyz Republic

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Fundamental WTO regulations in the areas of technical regulations and SPS measures

1. During the Uruguay Round (1986-94) the following mandatory for use documents were prepared and adopted:Agreement on Technical Barriers to Trade (TBT);Agreement on the Application of Sanitary and Phytosanitary Measures (SPS).Соглашение по применению санитарных и фитосанитарных мер (СФС).2. Agricultural products covered by both Agreements on SPS and TBT measures.3. In accordance with item 1.5. TBT Agreement the provisions of this Agreement shall not apply to SPS measures.

A part of SPS measures are included in the technical regulations of the EAEC for agricultural and food products, therefore the technical regulation of the sphere of agricultural products and application of SPS measures in the framework of the EAEC is appropriate to consider together.

The notion of SPS measureSPS measure is any measure applied:(а) to protect the life or health of animals or plants within the territory of a WTO Member from risks arising from the entry, establishment or spread of pests, diseases, harmful organisms;(b) in the protection of life or health of humans or animals within the territory of a WTO Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;(с) to protect human life or health within the territory of a WTO Member from risks arising from diseases carried by animals, plants or products thereof, or in connection with the entry, establishment or spread of pests; or(d) to prevent or limit other damage within the territory of the WTO Member from the entry, establishment or spread of pests.

The notion of SPS measureThe SPS measures are:

laws, regulations, rules, requirements and procedures covering, inter alia, requirements to the end product; methods of processing and production; procedures of testing, inspection, certification and approval; quarantine regulations, including relevant requirements associated with the transportation of animals or plants or the materials necessary for their life activity during transportation;provisions on relevant statistical methods, sampling procedures and methods of risk assessment;requirements for packaging and labeling directly aimed to ensure food safety.

Harmonisation - the establishment, recognition and application of common SPS measures by different WTO members.

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Technical regulation and SPS measures in international trade.

The role of the TBT and SPS measures in international trade is increasing! • As a result of reduction of technical barriers the annual turnover within the framework of the WTO has increased by 15%;•Concerted measures within APEC on the harmonization of technical regulation allowed to increase profits of the APEC members to 0.26% of GDP (the effectiveness due to the tariff reduction (0.14% of GDP); •In high-income countries non-tariff measures in the form of technical barriers to trade in agricultural products add additional 4% to the average import tariffs with the rate of 2%, while the impact of trade policies in countries with high and middle-income countries on the agricultural sector on average accounts for 30% of the cost of production, and thereof 20% are for technical regulations (UNCTAD of materials).

SPS :

WTO: TBT and SPS measures

Protection of people and animals from risks arising from supplements, contaminants, toxins or disease-causing organisms in food, beverages, animal feed.

Protection and animals and plants from pests and diseases

Protection of human health and safety or animal and plant life

National security;

Prevention of deceptive practices;

Environmental protection

TBTObjectives

Protection of human life and health from risks arising from diseases transmitted by animals, plants or products made of them

WTO: TBT and SPS measures

WTO approaches

Every country has the sovereignright to:• adopt technicalregulations, standards, conformity assessment procedures;• use SPS measures

Itshould not create

excessiveobstacles ininternational

trade

BUT

WTO Agreement on SPS

Elimination of excessive obstacles in trade

Non-discrimination

HarmonizationNational modeMutual recognition

ТTransparency

The main principles

WTO Agreement on applying SPS measures мер

Measures that are based on risk assessment

Recognition of pests-free zones

Harmonization

Equivalence

Transparency

Disallowing arbitrary discrimination

Scientificallygroundedmeasures

The main principles

Reduction of negative effects on trade

Participation of the Kyrgyz Republic in international agreements and organizations

The Kyrgyz Republic is a member of:1.World Trade Organization (WTO);2.World Health Organization (WHO);3.World Organization for Animal Health (OIE);4.The International Convention on Plant Protection (IPPC);5.Commissions that exist under "Codex Alimentarius";6.CIS;7.EAEC.

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CIS and EAEC: TBT and SPS

EAEC declares its adherence to the WTO on TBT and SPS measures:

1. Preamble of the EAEC Treaty: “Taking into account the rules, regulations and

principles of the WTO”.

2. EAEC members will take measures to bring the legal system of the EAEC and the

decisions of its organs in accordance with the WTO (from the Customs Union

Agreement on functioning of the CU in the multilateral trading system).

3. The Members of the CIS in the mutual trade are guided by the rules and principles of

the WTO on TBT Agreements on application of SPS measures (from the Free Trade

Agreement of the CIS);

EAEC and WTO1. Each member country has its own EAEC formal WTO commitments.

2. Inclusion of SPS requirements and procedures into technical regulations EAEC on

agricultural commodities.

3. EAEC is a single customs territory and a common market, common technical regulations,

common SPS requirements. However, access of agricultural goods in the territory of the

Member States may be different. Examples :

4. Each member of the EAEC has the right to introduce additional SPS measures;

5. Country exemptions were introduced in the application of veterinary measures on a number

of lines (positions) included in the Uniform list (decision of the CCC as of 23.09.2011 No. 810);

6. Importation of goods to Kazakhstan from third countries is allowed based on veterinary

requirements, different from the Uniform Requirements of EAEC (Protocol on certain matters

of import and circulation of goods in the EAEC as of 16.10.2016).

CIS and EAEC : TBT and SPS4. . When joining the WTO, Russia and Kazakhstan have undertaken obligations that all

SPS measures, technical regulations, standards and conformity assessment

procedures will be developed and applied within the framework of the EAEC, in

accordance with WTO principles and rules (from the report of the WG on accession to

the WTO).

5. Belarus in the process of accession to the WTO creates its own volume of obligations,

which corresponds the most to obligations of Russia (from the Treaty on the

functioning of the Customs Union within the framework of the multilateral trading

system).

Accession of Kyrgyzstan to the EAEC

Accession of the KR to the EAEC means that:The customs territory of the Kyrgyz Republic and the market are a part of the EAEC;The boundaries of the Kyrgyz Republic with Uzbekistan, China and Tajikistan are EAEC customs borders;The absence of customs and other types of control in the supply of goods from Kyrgyzstan in the EAEC countries and vice versa;Conditions of import of the goods in the Kyrgyz Republic from third countries are conditions of import of goods into the EAEC.Products imported into the Kyrgyz Republic from third countries or produced in the Kyrgyz Republic, acquire the status of goods of EAEC.The Kyrgyz Republic establishes the level of the SPS protection, adopted within the framework of the EAEC.

Accession of Kyrgyzstan to the EAEC

From the date of coming into force of the Treaty of Accession of the Kyrgyz Republic to

the Treaty on the EAEC the acts of EAEC bodies, as well as the decision of the Supreme

Eurasian Economic Council, the decision of the ECE (CU Commission), that were in force

on the date of entry into force of the Treaty shall be applied in the territory of the Kyrgyz

Republic with consideration of the provisions specified by the Protocol concerning the

conditions and transitional provisions (Article 4 of the Treaty of accession to the Treaty

on the EAEC).

I.e., technical regulations of CU, Uniform animal health requirements of EAEC, other acts of the ECE in the field of technical regulations and SPS measures are in force from August 12 in the KR.

Accession of Kyrgyzstan to the EAEC

Access modes of goods in the Kyrgyz Republic in the technical aspects of regulation of agricultural products:

The first mode (the transition period). From 12.08.2015 - access of products is regulated by :Technical regulations CU (EAEC) or provisions of the national legislation of the Kyrgyz Republic during the 24 months (for the transitional period). The second mode. From 12.08.17 is governed exclusively by the technical regulations of the CUNote. Documents of conformity, adopted within the framework of national legislation before 12.08.2017 shall be valid until 08.12.2019

Accession of Kyrgyzstan to the EAECYear of Kyrgyzstan's participation in the EAEC. Some conclusions:1. There is a low level of awareness of the EAEC legislation in the field of technical regulation and application of SPS measures both among entrepreneurs and public bodies.2. KR veterinary control system has not yet been recognized as equivalent to the level of animal health protection requirements established by the EAEC.3. Weak inefficient public institutional support in the fields of technical regulations and application of SPS measures.4. Insufficient level of technical competence of the laboratory infrastructure in the Kyrgyz Republic.

EAEC: TBT and SPSOn the system of TBT and SPS in the EAEC in terms of the WTO

:1. The principle of scientific approach and risk assessment: A brief comment :

•It was stated in the EAEC Treaty;

•There are disputes regarding the non-compliance (Example: The levels of tetracycline group in production);

•The SPS measures in the EAEC are not applied based on the risk analysis methods based on the relevant standards of international organizations.

2. The principle of harmonization of SPS measures and technical regulations with international standards: A short comment :

•It was stated in the EAEC Treaty;

•The degree of harmonization of EAEC technical regulations on food products with international standards is 40% (source: Rospotrebnadzor)

EAEC: TBT and SPS3. The principle of non-discrimination. Brief comment:• This principle is not formulated in the EAEC Treaty;

• Cases of discrimination are allowed within the framework of the EAEC:

• Cases of discrimination are allowed within the framework of the EAEC: Decision of the CUC on October 18, 2011 №833 the systems of checking objects of veterinary

control have been established by authorities of Belarus, Kazakhstan and Russia, were recognized equivalent a priori. Kyrgyzstan will have to prove the equivalence of their systems through the assessment (audit).

According to the Protocol on certain issues import and circulation of products in the EAEC of 10/16/2016 to goods from WTO countries can be delivered to Kazakhstan based on veterinary requirements that differ from the Uniform Requirements of EAEC, while, for example, from Kyrgyzstan products must comply only with the Uniform requirements of the EAEC .

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EAEC: TBT and SPS

4. Principle of recognition of equivalence: A brief comment:

• There is a decision of the CCC of October 18, 2011 №835 «On the equivalence of sanitary, veterinary and phytosanitary measures, and a risk assessment." But:

There is no information on the signing of the recognition of equivalence agreements.

• Application of the principle of equivalence in the field of technical regulation has the nature of a recommendation: In developing the EAEC technical regulations the regulations of third countries are used, in particular the EU

countries’ regulations (EEC Council Decision of 20 June 2012 №48).

5. The principle of regionalization: A brief comment:

• In accordance with the decision of the CCC on October 18, 2011 №835 in risk assessment

the recognition of zones free of pests and diseases should be taken into account.

However, there is still no regulatory support from the ECE.

EAEC: TBT and SPS6 The principle of transparency: A brief comment: The obligations under the WTO in terms of ensuring transparency do not apply to the EAEC. Each

country should implement this principle independently. The WTO Secretariat report "Review of the Kyrgyz Republic Trade Policy" dated October 1, 2013

noted the lack of a long-term Reference point for SPS measures. In EAEC there is no coherent picture of the conditions of access of goods to the EAEC in the aspects

of TBT and SPS measures. There is a breach of this principle by the EAEC member states. Example, in February 2016,

Kazakhstan introduced a ban on the import of dried fruits and persimmons without sending a notification.

EAEC: TBT and SPS7 . Principle of voluntary application of standards (TBT Agreement):

Brief comment: According to the EAEC Treaty:

• ECE sets the list of standards, as a result of applying them of a voluntary bases compliance with the requirements of technical regulations of EAEC is ensured. In the case of non-application of the standards included in the above list, conformity assessment is carried out on the basis of risk analysis. (In the absence of documented

procedures established for the analysis of risk, the standards from the List of standards

actually become mandatory).

ECE establishes a closed list of standards for the methods of tests. (1) In some cases,

the standards become mandatory; 2) excludes the right to directly apply international

standards that are not included in this list).

EAEC: TBT and SPS8 . Principle of recognition of conformity assessment results (Article 6 of the TBT Agreement): A brief

comment:

• The application of this principle in the EAEC in relation to third countries is expected in the future in the framework of the EAEC Agreement “On the procedure and conditions for the elimination of technical barriers in trade with third countries.” There is a separate EAEC agreement on CIS countries.

• Within the framework of the EAEC Treaty the Member States mutually recognize accreditation of conformity assessment bodies, but do not recognize accredited in third countries, carried out in the framework of international organizations (ILAC). However, during WTO accession Kazakhstan will accept the results of conformity assessment procedures for the conformity assessment bodies of the WTO members due through membership of the national body for accreditation of Kazakhstan in the international accreditation organizations (ILAC).

ВТО и частные стандарты. WTO and private standards 1. Market access: There are two opinions. The main discussions in the WTO on the private standards of WTO members:1) Private standards allow providers improve the quality of their products and to meet the highest demands.2) Private standards are more restricting access to the market in comparison with the formal requirements. 2. Development: A number of WTO members expressed concern about the costs of compliance with private standards and additional certification costs.3. WTO Legislation: There are two opinions among the members of the WTO:1) The use of private standards is a legitimate private initiative. 2) It is the responsibility of the Governments-importers. Private standards do not meet WTO requirements (transparency, scientific validity of SPS measures) and restrict trade more than is necessary from the point of view of public health.2. In Russia, there is a tendency of establishing private standards by retail nets. Thus:•There are conditions for access of products to the market, established by the state;•There are conditions of providing a commercial place for the production formulated by its owner.

WTO and private standards

Examples of private standards:•GlobalGAP;•The Global Initiative for Food Safety;•ISO 22000: Food safety management systems;•Safe Quality Food / SQF / 1000 and 2000;•ISO 22005: Traceability in the feed and food chain;•Global Standard for Food of the British Retail Consortium;•QS Qualität Sicherheit, Quality Assurance;•The Food and Drink Federation: The technical standard for the delivery of identified genetically unmodified food components and products of the British Retail Consortium.

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