the tbt agreement and harmonization wto, trade and environment division
TRANSCRIPT
The TBT Agreement and Harmonization
WTO, Trade and Environment Division
International Standards International Conformity Assessment Procedures
Stated Preference for
Philosophy of the TBT Agreement
The Preamble of the TBT Agreement
Development of International Standards is Encouraged
Development of International Standards is Encouraged
The Preamble of the TBT Agreement
Important to Improve Efficiency of Production
Important to Improve Efficiency of Production
Important to Facilitate International Trade
Important to Facilitate International Trade
Important to the Transfer of Technology from developed to
developing countries
Important to the Transfer of Technology from developed to
developing countries
Applicability of the TBT Agreement
Technical RegulationTechnical Regulation StandardStandard
Conformity Assessment ProcedureConformity Assessment Procedure
Mandatory Measures
Mandatory Measures
Voluntary Measures
Voluntary Measures
Definitions in theTBT Agreement
What is a Standard ?
What is a Standard ?
TBT Annex 1.2
Approved by a Recognized Body
Approved by a Recognized Body
Provides, for common and repeated use, rules, guidelines or characteristics for products
or related processes and production methods
Provides, for common and repeated use, rules, guidelines or characteristics for products
or related processes and production methods
Compliance is voluntaryCompliance is voluntary
International Standardizing Bodies ?
They are not explicitly recognized in the TBT Agreement
They are not explicitly recognized in the TBT Agreement
International body or system
TBT Annex 1.4
Body or system whose Membership is open to the relevant bodies of at
least all Members
Body or system whose Membership is open to the relevant bodies of at
least all Members
International standards?
TBT Annex 1.2
Standards prepared by the international standardization
community are based on consensus.
Standards prepared by the international standardization
community are based on consensus.
This Agreement covers also documents that are not based on
consensus.
This Agreement covers also documents that are not based on
consensus.
Based or not based on consensus? and the Sardines Case
The first sentence reiterates the norm of the international standardization community that
standards are prepared on the basis of consensus.
The first sentence reiterates the norm of the international standardization community that
standards are prepared on the basis of consensus.
The following sentence, however, acknowledges that consensus may not always be achieved and that international standards that were not adopted by
consensus are within the scope of the TBT Agreement.
The following sentence, however, acknowledges that consensus may not always be achieved and that international standards that were not adopted by
consensus are within the scope of the TBT Agreement.
This provision therefore confirms that even if not adopted by consensus, an international standard can constitute a relevant international standard.
This provision therefore confirms that even if not adopted by consensus, an international standard can constitute a relevant international standard.
Relevant Provisions of the TBT Agreement
2 aspects
Provisions on the role of international standards in the
elaboration of technical regulations
Provisions on the role of international standards in the
elaboration of technical regulations
Provisions on the Preparation, adoption and application of national
standards
Provisions on the Preparation, adoption and application of national
standards
Article 2
Code of good practice
TBT Article 2.4
Where technical regulations are required and relevant international standards exist or
their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except
when such international standards or relevant parts would be an ineffective or
inappropriate means for the fulfilment of the legitimate objectives pursued, for
instance because of fundamental climatic or geographical factors or fundamental
technological problems
TBT Article 2.4
Members shall use IS as a basis for their technical regulations
Members shall use IS as a basis for their technical regulationsThen
For example, fundamental climatic or geographical factors or fundamental technological problems
For example, fundamental climatic or geographical factors or fundamental technological problemsBecause of
Technical regulations are requiredTechnical regulations are required
Relevant international standards (IS) existRelevant international standards (IS) exist
If +
When such IS would be an ineffective or inappropriate means
When such IS would be an ineffective or inappropriate means
ExceptThe fulfilment
of the legitimate objectives
The fulfilment of the legitimate
objectivesFor
TBT Article 2.4
Members shall use relevant international standardsrelevant international standardsMembers shall use relevant international standardsrelevant international standards
Except when inappropriate or ineffective for the fulfilment of a Legitimate objective for instance because
Climatic factorsClimatic factors
Geographical factorsGeographical factors
Technological problemsTechnological problems
......
Article 2.4 and the Sardines Case
What is a relevant international standard?What is a relevant international standard?
Members shall use them as a basis for their technical regulations
Members shall use them as a basis for their technical regulations
Except when such international standards would be an ineffective or inappropriate
means for the fulfillment of the legitimate objectives pursued
Except when such international standards would be an ineffective or inappropriate
means for the fulfillment of the legitimate objectives pursued
Article 2.4 and the Sardines Case
What is a relevant international standard?What is a relevant international standard?
Article 2.4 and the Sardines Case
Consensus?Consensus? NotNot required for the adoption of a standard
NotNot required for the adoption of a standard
Product Coverage?
Product Coverage?
Bearing on or related to the matter in hand; pertinent
Bearing on or related to the matter in hand; pertinent
Article 2.4 and the Sardines Case
Members shall use them as a basis for their technical regulations
Members shall use them as a basis for their technical regulations
Article 2.4 and the Sardines Case
“as a basis”“as a basis”
“main constituent”, “determining principle”
“main constituent”, “determining principle”
“Based on”: SPS (EC-Hormones)
“Based on”: SPS (EC-Hormones)
Article 2.4 and the Sardines Case
Except when such international standards would be an ineffective or inappropriate
means for the fulfillment of the legitimate objectives pursued
Except when such international standards would be an ineffective or inappropriate
means for the fulfillment of the legitimate objectives pursued
Article 2.4 and the Sardines Case
InappropriateIneffective
Not specially fitting, suitable
Not having a result
Closely related
Article 2.4 and the Sardines Case
Legitimate Objectives
To be interpreted in the context of Article 2.2
Article 2.4 and the Sardines Case
Legitimate objectives
National security requirements
Protection of human health or safety
Protection of animal or plant life or health
Protection of the environment
Prevention of deceptive practices
…Inter alia…
TBT Art. 2.2
TBT Article 2.5 – 1st Sentence
“A Member preparing, adopting or applying a technical regulation which may have a significant effect on trade of other Members shall, upon the request of another Member, explain the justification for that technical regulation in terms of the provisions of paragraphs 2 to 4”
TBT Article 2.5 – 1st Sentence
AB in EC–Sardines
Art. 2.5 establishes a mechanism for Members to seek information about objectives of technical regulations
+ Enquiry Point (Art. 10.1)
TBT Article 2.5 – 2nd Sentence
“… Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade”
TBT Article 2.5 – 2nd Sentence
2 conditions 2 conditions
A Member bases a technical regulation on an international standard
A Member bases a technical regulation on an international standard
The technical regulation is for one of the legitimate objectives explicitly mentioned
in Art. 2.2
The technical regulation is for one of the legitimate objectives explicitly mentioned
in Art. 2.2
It’s rebuttably presumed not to create an unnecessary obstacle to international trade
TBT Article 2.6
Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of international standards, guides or recommendations for products for which they have adopted or expect to adopt technical regulations
TBT Article 2.6
In the preparation by appropriate international international standardizing bodiesstandardizing bodies of international standards,
guides or recommendations
In the preparation by appropriate international international standardizing bodiesstandardizing bodies of international standards,
guides or recommendations
Products for which Members have adopted/expected to adopt technical regulations
Products for which Members have adopted/expected to adopt technical regulations
For What ?
Members shallshall play a full partMembers shallshall play a full part
Within the limits of their resourcesWithin the limits of their resources
The Importance of Participation in International Standards-Setting Activities
Takes note of the actions taken by the Director-General to facilitate the increased participation of Members at
different levels of development in the work of the relevant international standard setting organizations as well as his
efforts to coordinate with these organizations and financial institutions in identifying TBT-related technical
assistance needs and how best to address them
Doha Ministerial Conference: The mandate to the Director General
Paragraph 5.3 (i) of the Decision on Implementation-Related Issues and Concerns, adopted in Doha, 14 November 2001.
Urges the Director-General to continue his cooperative efforts with international standard setting
organizations and financial institutions, including with a view to according priority to the effective
participation of least-developed countries and facilitating the provision of technical and financial
assistance for this purpose
Doha Ministerial Conference: The mandate to the Director General
Paragraph 5.3 (ii) of the Decision on Implementation-Related Issues and Concerns, adopted in Doha, 14 November 2001.
WORLD TRADE
ORGANIZATION G/TBT/W/172 27 February 2002
(02-0972)
Committee on Technical Barriers to Trade Original: English
ACTIONS TO INCREASE PARTICIPATION OF DEVELOPING COUNTRY
MEMBERS IN THE WORK OF RELEVANT INTERNATIONAL STANDARD SETTING ORGANIZATIONS
Information from International Organizations
Report of the Director-General
At the twenty-sixth meeting of the Committee on Technical Barriers to Trade on 9 October 2001, the Secretariat was requested to issue the following Director-General report to the General Council as a document of the Committee.
Actions to Increase Participation of Developing Countries
Information was received from the following International Organizations
BIPM (Bureau International des Poids et des Mesures) BIPM (Bureau International des Poids et des Mesures)
FAO and FAO/WHO Codex AlimentariusFAO and FAO/WHO Codex Alimentarius
IAF (International Accreditation Forum)IAF (International Accreditation Forum)
ILAC (International Laboratory Accreditation Cooperation)ILAC (International Laboratory Accreditation Cooperation)
ISO (International Organization for Standardization)ISO (International Organization for Standardization)
IEC (International Electrotechnical Commission)IEC (International Electrotechnical Commission)
Actions to Increase Participation of Developing Countries
Information was received from the following International Organizations
UNCTAD (United Nations Conference on Trade and Development)
UNCTAD (United Nations Conference on Trade and Development)
UN/ESCAP (Economic & Social Commission for Asia and the Pacific)
UN/ESCAP (Economic & Social Commission for Asia and the Pacific)
UNIDO (United Nations Industrial Development Organization)UNIDO (United Nations Industrial Development Organization)
The World BankThe World Bank
OIML (International Organization for Legal Metrology)OIML (International Organization for Legal Metrology)
Decision of the TBT Committee regarding the development of
international standards, guides and recommendations
(2nd Triennial Review, Annex 4)
Harmonization
Principles for the Development of International Standards, Guides and Recommendations
Transparency
Impartiality and consensus
Openness
Coherence
Effectiveness and relevance
Development Dimension
Transparency
General Principle
Easily accessible essential information
Easily accessible essential information
On current work programmes, proposals and
final results
On current work programmes, proposals and
final results
To provide for adequate time for written comments
To provide for adequate time for written comments Establish proceduresEstablish procedures
At least all interested parties in at least all WTO
Members
At least all interested parties in at least all WTO
Members
For
Transparency
Transparency Procedures
Early notice of the ISB’s proposal to develop a standard
Early notice of the ISB’s proposal to develop a standard
Upon request, prompt provision of the draft standard
Upon request, prompt provision of the draft standard
Adequate period of time for commentsAdequate period of time for comments
Prompt publication of a standard upon adoption
Prompt publication of a standard upon adoption
Publish periodically a work programme
Publish periodically a work programme
Early communication to members of the ISB of the draft standard
Early communication to members of the ISB of the draft standard
Openness
Membership of an ISB should be open
Membership of an ISB should be open
On a non-discriminatory basisOn a non-discriminatory basis
To relevant bodies of at least all WTO Members
To relevant bodies of at least all WTO Members
Openness with respect to
Openness with respect to
Policy developmentPolicy development
Every stage of standards development
Every stage of standards development
Any interested member of the ISB, especially developing country members, with an interest in a specific standardization activity
should be provided with meaningful opportunities to participate at all stages of standard development
Any interested member of the ISB, especially developing country members, with an interest in a specific standardization activity
should be provided with meaningful opportunities to participate at all stages of standard development
Openness
Openness at every stage of standard
development, such as
Openness at every stage of standard
development, such as
Proposal and acceptance of new work items
Proposal and acceptance of new work items
Technical discussion on proposalsTechnical discussion on proposals
Submission of comments on draftsSubmission of comments on drafts
Reviewing existing standardsReviewing existing standards
Voting and adoption of standardsVoting and adoption of standards
Dissemination of the adopted standards
Dissemination of the adopted standards
Impartiality and consensus
Impartiality should be accorded throughout all the standards development process with respect to
Impartiality should be accorded throughout all the standards development process with respect to
Decision-making through consensus
Decision-making through consensus
Obtaining information and documents
Obtaining information and documents
……
Consideration of views expressed
Consideration of views expressed
Access to participation in work
Access to participation in work
Impartiality and consensus
Consensus procedures should be established
that seek to
Consensus procedures should be established
that seek to
Take into account the views of all parties concerned
Take into account the views of all parties concerned
Reconcile any conflicting arguments
Reconcile any conflicting arguments
All relevant bodies of WTO Members
should be provided
All relevant bodies of WTO Members
should be provided
With meaningful opportunities to contribute to the elaboration of an IS
With meaningful opportunities to contribute to the elaboration of an IS
Effectiveness and relevance
Give preference to characteristics of specific countries when different interests exist in
other countries
Give preference to characteristics of specific countries when different interests exist in
other countries
IS shouldIS should Be performance based rather than based on design or descriptive characteristics
Be performance based rather than based on design or descriptive characteristics
IS should not
IS should not
Distort the global marketDistort the global market
Have adverse effects on fair competitionHave adverse effects on fair competition
Stifle innovation and technological development
Stifle innovation and technological development
Effectiveness and relevance
It’s important that ISIt’s important that IS
Put in place procedures aimed at improving communication with the WTO
Put in place procedures aimed at improving communication with the WTO
Take account of relevant regulatory or market needs in the elaboration of standards
Take account of relevant regulatory or market needs in the elaboration of standards
Put in place procedures aimed at identifying and reviewing standards that have become obsolete, inappropriate or ineffective for various reasons
Put in place procedures aimed at identifying and reviewing standards that have become obsolete, inappropriate or ineffective for various reasons
Coherence
It’s important that ISBIt’s important that ISB
In this respect, cooperation and coordination with other relevant international bodies is essential
In this respect, cooperation and coordination with other relevant international bodies is essential
Avoid duplication of, or overlap with, the work of other international standardizing bodies
Avoid duplication of, or overlap with, the work of other international standardizing bodies
Development dimension
The impartiality and openness of any international standardization process requires that developing
countries are not excluded de facto from the process
The impartiality and openness of any international standardization process requires that developing
countries are not excluded de facto from the process
Constraints on developing countries should be taken into consideration in the standards development
process
Constraints on developing countries should be taken into consideration in the standards development
process
Technical assistance and capacity building
Technical assistance and capacity building
The first TBT case: EC - Trade Description
of Sardines (Peru)
Products at issue
2 small fish species
Sardina pilchardus(the “European Sardine”)
Sardina pilchardus(the “European Sardine”)
Sardinops sagax (the “Peruvian Sardine”)
Sardinops sagax (the “Peruvian Sardine”)
The measure at stake
Only fish from the species Sardina pilchardus can be marketed as sardines
Only fish from the species Sardina pilchardus can be marketed as sardines
EC Regulation laying down common marketing standards for preserved
sardines (1989)
Codex Stan 94 for canned sardines (1978)
The standard
The name of the products
shall be
"Sardines""Sardines" Exclusively for Sardina pilchardus
Exclusively for Sardina pilchardus
or
"X sardines" of"X sardines" of
a countrya country
a geographic areaa geographic area
the speciesthe species
or the common name of the species
or the common name of the species
The standard
Codex Stan 94 for canned sardines (1978)
The standard
Codex Stan 94 for canned sardines (1978)
Findings requestedby Peru
EC Regulation TBT Art. 2.4X
Why ?
EC did not use the naming standard set out in Codex Stan 94 as a basis
for its Regulation
EC did not use the naming standard set out in Codex Stan 94 as a basis
for its Regulation
Even though that standard would be an effective and appropriate means to
fulfil the legitimate objectives pursued by the Regulation
Even though that standard would be an effective and appropriate means to
fulfil the legitimate objectives pursued by the Regulation
To reject Peru's claims To reject Peru's claims
Findings requestedby the EC
Is the EC Regulation a Technical Regulation?
The Panel & AB Findings
Terminology
Technical Regulation
TBT Annex 1.1
It lays down product characteristics
It lays down product characteristics
Compliance is mandatory
Compliance is mandatory
Is the EC Regulation a Technical Regulation?
YES
It lays down product characteristics
It lays down product characteristics
Compliance with the EC Regulation is mandatory
Compliance with the EC Regulation is mandatory
The Panel & AB Findings
Is Codex Stan 94 a Is Codex Stan 94 a relevant international standard ?relevant international standard ?
The Panel & AB Findings
2 questions
Is it a standard?Is it a standard? Is it a relevant standard?
Is it a relevant standard?
Is Codex Stan 94 a Is Codex Stan 94 a standard ?standard ?
The Panel & AB Findings
What is a Standard ?
TBT Annex 1.2
Approved by a Recognized Body
Approved by a Recognized Body
Provides, for common and repeated use, rules, guidelines or characteristics for products
or related processes and production methods
Provides, for common and repeated use, rules, guidelines or characteristics for products
or related processes and production methods
Compliance is voluntaryCompliance is voluntary
Is Codex Stan 94 a Is Codex Stan 94 a standard ?standard ?
YES
It provides for common and repeated use,
rules, guidelines or characteristics for
products
It provides for common and repeated use,
rules, guidelines or characteristics for
productsCompliance is not
mandatory
Compliance is not mandatory
The Panel & AB Findings
It’s approved by a recognized body
(Codex)
It’s approved by a recognized body
(Codex)
Is Codex Stan 94 a Is Codex Stan 94 a relevant relevant standardstandard ? ?
The Panel & AB Findings
YES
Both the EC Regulation and Codex Stan 94 deal with the same product,
namely preserved sardines
Both the EC Regulation and Codex Stan 94 deal with the same product,
namely preserved sardines
NO
NO
Was Codex Stan 94 used as a basis for the EC Regulation?
Was Codex Stan 94 an ineffective or inappropriate means for the fulfilment of
the legitimate objectives pursued?
The EC Regulation is inconsistent with Article 2.4 of the TBT
Agreement
The Panel & AB Findings
Mutually Agreed Solution
EC Regulation No 1181/2003 of 2 July 2003 amending Council Regulation No 2136/89 laying
down common marketing standards for preserved sardines
“Preserved sardines" means products prepared from fish of the species Sardina pilchardus (« European Sardine »)
“Preserved sardines" means products prepared from fish of the species Sardina pilchardus (« European Sardine »)
“Preserved sardine-type products" means products prepared from fish of the following species :
“Preserved sardine-type products" means products prepared from fish of the following species :
Sardinops sagax (“Peruvian Sardine”)
Sardinops sagax (“Peruvian Sardine”)
... 19 other species... 19 other species
Mutually Agreed Solution
EC Regulation No 1181/2003 of 2 July 2003 amending Council Regulation No 2136/89 laying
down common marketing standards for preserved sardines
Preserved sardine-type products may be marketed in the EC under a trade
description consisting of the word 'sardines' joined together with the
scientific name of the species
Preserved sardine-type products may be marketed in the EC under a trade
description consisting of the word 'sardines' joined together with the
scientific name of the species
Mutually Agreed Solution
EC Regulation No 1181/2003 of 2 July 2003 amending Council Regulation No 2136/89 laying
down common marketing standards for preserved sardines