The WTO-SPS and TBT Agreements and the Multilateral Trading System of the WTO Workshop of the Confederation of Nepalese Industries (CNI) Patan, July 20th/21st Achim Seiler, Trade Consultant and Capacity Building Specialist EU-Project: Trade and Private Sector Development (TPSD) TPSD is implemented by in cooperation with and

The Process leading to the WTO The Kennedy Round (1964-67) - achieved substantial reductions of tariff barriers The Tokyo Round (1973-1979) - first negotiations on non-tariff barriers - creation of plurilateral codes - establishment of the enabling clause The Uruguay Round (1986-1994) - creation of the WTO - transformation of Tokyo Round plurilateral codes into multilateral agreements - streamlining of the dispute settlement system - incorporation of new agreements on trade in services and trade-related aspects of IPRs

The Structure of the WTO Ministerial Conference General Council General Council (Dispute Settlement Body) General Council (Trade Policy Review Body) Council for Trade in Goods Council for Trade in Services Council for TRIPs

The Structure of the WTO (II) General Council Council for Trade in Goods Council for Trade in Services Council for TRIPs Committees on Market Access, SPS, TBT, RoO, Subsidies, etc. Committees on Trade in Financial Services, etc.

The Multilateral Agreements of the WTO GATT 1994 Agreement on Agriculture Agreement on Sanitary and Phytosanitary Measures Agreement on Technical Barriers to Trade Anti-Dumping Agreement Agreement on Investment Measures Agreement on Customs Valuation Agreement on Pre-Shipment Inspection Agreement on Import Licencing Agreement on Rules of Origin Agreement on Subsidies and Countervailing Measures Safeguards Agreement

The Multilateral Agreements of the WTO GATS Agreement TRIPs Agreement Dispute Settlement Mechanism Newly added: Trade Facilitation Agreement

Functions of the WTO The main functions of the WTO are to: administer trade agreements serve as a forum for trade negotiations settle trade disputes review member´s trade policies assist developing countries with trade policy issues, through technical assistance and training programs cooperate with other international organizations

Fundamental principles of the WTO Non-discrimination is the fundamental principle of the multilateral trading system. It is embodied by the most favoured nation (MFN) treatment obligation and the national treatment (NT) obligation MFN: every favor granted to another country (such as lower customs duties on a specific product) must be granted immediately and unconditionally to all other WTO members. NT: The National Treatment principle prohibits a Member from favouring its domestic products over the imported products of other Member countries

Coverage TBT Measures necessary to ensure the quality of exports, or for the protection of human, animal or plant life and health, of the environment, or for the prevention of deceptive practices, at the levels considered appropriate (…) necessary for the protection of essential security interests (preamble)

Coverage SPS Measures to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade (preamble)

Interface between SPS and TBT TBT: The provisions of the Agreement do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures (Art. 1.5) SPS: Nothing in this Agreement shall affect the rights of Members under the Agreement on Technical Barriers to Trade with respect to measures not within the scope of the Agreement (Art. 1.4)

SPS-Measures Protection of: Against risks arising from: Diseases carried by animals, plants or their products Additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs Diseases, disease-carrying organisms or disease-causing organisms Entry, establishment or spread of pests Human Life or Health Animal Life Plant Life Member’s Territory

Against risks arising from: Protection of: Against risks arising from: Diseases carried by animals, plants or their products Additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs Diseases, disease-carrying organisms or disease-causing organisms Entry, establishment or spread of pests Human Life or Health Animal Life Plant Life Member’s Territory

Against risks arising from: Protection of: Against risks arising from: Diseases carried by animals, plants or their products Additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs Diseases, disease-carrying organisms or disease-causing organisms Entry, establishment or spread of pests Human Life or Health Animal Life Plant Life Member’s Territory

SPS and/or TBT Source: Codex

Common Features Harmonization Establishment, recognition and application of common measures by different Members Equivalence Acceptance of another country’s procedures as equivalent whenever the same level of protection is achieved Transparency Designation of a national notification point, establishing one (or more) enquiry points Technical Assistance Assistance to Developing Country Members to enable their compliance with the stipulations of the SPS and TBT agreements. S+D Longer transitional periods Dispute Settlement Unified WTO dispute settlement procedure (additional options under SPS)

Based on.... Technical Regulation Regulation Int. Standard TBT SPS

In Conformity/Harmony with...versus Based on... Regulation Technical Regulation 1:1 Int. Standard Int. Standard Int. Standard TBT SPS

Based on.... Technical Regulation Regulation Int. Standard TBT AND SPS

Mandatory or voluntary Main Differences (I) Mandatory or voluntary voluntary VC Operators mandatory ‚SHALL‘ ‚SHALL‘ Regulators/ Legislators SPS TBT

Int. Standards and the appropriate level of protection (ALOP) a) b) c)

Main Differences (II) Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade (SPS-Agreement, Art. 2.3)

Main Differences (III) With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade. (SPS-Agreement, Art. 5.5)

Identical or Similar Conditions Main differences (IV) Measures (ALOP) Identical or Similar Conditions

Main differences (V) ALOP ALOP Different Situations

Pertinent case law The Appellate Body adressed the question of how to ascertain the level of sanitary protection chosen by a Member and found that: Members have an implicit obligation under the SPS Agreement to positively determine their appropriate level of protection; There is no obligation to determine it in quantitative terms; In cases where a member does not determine its appropriate level of protection, or does so with insufficient precision, such level may be established by panels on the basis of the level reflected in the SPS measure actually applied

The Panel had noted that „imposing the same sanitary measure for different situations does not necessarily result in the same level of protection“. The Appelate Body did not disagree with this observation Different Situations

Thank You Seiler.achim@yahoo.de (www.eu-tpsd.com)