The TBT Agreement and Harmonization WTO, Trade and Environment Division

Philosophy of the TBT Agreement Stated Preference for International Standards International Conformity Assessment Procedures

The Preamble of the TBT Agreement Development of International Standards is Encouraged

The Preamble of the TBT Agreement Important to Improve Efficiency of Production Important to Facilitate International Trade Important to the Transfer of Technology from developed to developing countries

Applicability of the TBT Agreement Technical Regulation Standard Mandatory Measures Voluntary Measures Conformity Assessment Procedure

Definitions in the TBT Agreement

What is a Standard ? Example... VHS Betamax

Approved by a Recognized Body Compliance is voluntary What is a Standard ? Approved by a Recognized Body Provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods TBT Annex 1.2 Compliance is voluntary

International Standardizing Bodies ? They are not explicitly recognized in the TBT Agreement

International body or system Body or system whose Membership is open to the relevant bodies of at least all Members TBT Annex 1.4

International standards? Standards prepared by the international standardization community are based on consensus. TBT Annex 1.2 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 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.

Relevant Provisions of the TBT Agreement

2 aspects Article 2 Code of good practice Provisions on the role of international standards in the elaboration of technical regulations Article 2 Provisions on the Preparation, adoption and application of national standards 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 If Then Except For Because of Technical regulations are required Relevant international standards (IS) exist If + Members shall use IS as a basis for their technical regulations Then When such IS would be an ineffective or inappropriate means Except The fulfilment of the legitimate objectives For For example, fundamental climatic or geographical factors or fundamental technological problems Because of

Members shall use relevant international standards TBT Article 2.4 Members shall use relevant international standards Climatic factors Geographical factors Technological problems ... Except when inappropriate or ineffective for the fulfilment of a Legitimate objective for instance because

Article 2.4 and the Sardines Case What is a relevant international standard? 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

Article 2.4 and the Sardines Case What is a relevant international standard?

Article 2.4 and the Sardines Case Relevant International Standard Product Coverage? Bearing on or related to the matter in hand; pertinent Consensus? Not required for the adoption of a standard

Article 2.4 and the Sardines Case Members shall use them as a basis for their technical regulations

Article 2.4 and the Sardines Case "Use as a Basis" “Based on”: SPS (EC-Hormones) “as a basis” “main constituent”, “determining principle”

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

Article 2.4 and the Sardines Case Ineffective or Inappropriate Means For Fulfillment of Legitimate Objectives Closely related Ineffective Inappropriate Not having a result Not specially fitting, suitable

Article 2.4 and the Sardines Case Ineffective or Inappropriate Means For Fulfillment of Legitimate Objectives Legitimate Objectives To be interpreted in the context of Article 2.2

Article 2.4 and the Sardines Case National security requirements Protection of human health or safety Legitimate objectives Protection of animal or plant life or health Protection of the environment TBT Art. 2.2 Prevention of deceptive practices …Inter alia…

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 A Member bases a technical regulation on an international standard 2 conditions 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

Members shall play a full part Within the limits of their resources 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 What ? Products for which Members have adopted/expected to adopt technical regulations

The Importance of Participation in International Standards-Setting Activities

Doha Ministerial Conference: The mandate to the Director General 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 Paragraph 5.3 (i) of the Decision on Implementation-Related Issues and Concerns, adopted in Doha, 14 November 2001.

Doha Ministerial Conference: The mandate to the Director General 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 Paragraph 5.3 (ii) of the Decision on Implementation-Related Issues and Concerns, adopted in Doha, 14 November 2001.

Actions to Increase Participation of Developing Countries Information was received from the following International Organizations BIPM (Bureau International des Poids et des Mesures) FAO and FAO/WHO Codex Alimentarius IAF (International Accreditation Forum) IEC (International Electrotechnical Commission) ILAC (International Laboratory Accreditation Cooperation) ISO (International Organization for Standardization)

Actions to Increase Participation of Developing Countries Information was received from the following International Organizations OIML (International Organization for Legal Metrology) UNCTAD (United Nations Conference on Trade and Development) UN/ESCAP (Economic & Social Commission for Asia and the Pacific) UNIDO (United Nations Industrial Development Organization) The World Bank

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 Coherence Transparency Development Dimension Openness Impartiality and consensus Effectiveness and relevance

Transparency General Principle For Easily accessible essential information On current work programmes, proposals and final results At least all interested parties in at least all WTO Members For To provide for adequate time for written comments Establish procedures

Transparency Transparency Procedures Early notice of the ISB’s proposal to develop a standard Early communication to members of the ISB of the draft standard Upon request, prompt provision of the draft standard Transparency Procedures Publish periodically a work programme Prompt publication of a standard upon adoption Adequate period of time for comments

Openness On a non-discriminatory basis Membership of an ISB should be open On a non-discriminatory basis To relevant bodies of at least all WTO Members Openness with respect to Policy 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

Openness Proposal and acceptance of new work items Technical discussion on proposals Openness at every stage of standard development, such as Submission of comments on drafts Dissemination of the adopted standards Reviewing existing standards Voting and adoption of standards

Impartiality and consensus Impartiality should be accorded throughout all the standards development process with respect to Access to participation in work Consideration of views expressed Obtaining information and documents Decision-making through consensus …

Impartiality and consensus All relevant bodies of WTO Members should be provided With meaningful opportunities to contribute to the elaboration of an IS Take into account the views of all parties concerned Consensus procedures should be established that seek to Reconcile any conflicting arguments

Effectiveness and relevance Distort the global market Have adverse effects on fair competition IS should not Stifle innovation and technological development Give preference to characteristics of specific countries when different interests exist in other countries IS should Be performance based rather than based on design or descriptive characteristics

Effectiveness and relevance It’s important that IS 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 improving communication with the WTO

It’s important that ISB Coherence It’s important that ISB Avoid duplication of, or overlap with, the work of other international standardizing bodies In this respect, cooperation and coordination with other relevant international bodies is essential

Development dimension Constraints on developing countries should be taken into consideration in the standards development process The impartiality and openness of any international standardization process requires that developing countries are not excluded de facto from the process Technical assistance and capacity building

The first TBT case: EC - Trade Description of Sardines (Peru)

Products at issue Sardina pilchardus (the “European Sardine”) 2 small fish species Sardinops sagax (the “Peruvian Sardine”)

The measure at stake Sardina pilchardus Sardines Only fish from the species Sardina pilchardus can be marketed as sardines EC Regulation laying down common marketing standards for preserved sardines (1989) Sardina pilchardus Sardines

Codex Stan 94 for canned sardines (1978) The standard Codex Stan 94 for canned sardines (1978) "Sardines" Exclusively for Sardina pilchardus The name of the products shall be or "X sardines" of a country a geographic area the species or the common name of the species

Codex Stan 94 for canned sardines (1978) The standard Codex Stan 94 for canned sardines (1978) Sardina pilchardus Sardines

Codex Stan 94 for canned sardines (1978) The standard Codex Stan 94 for canned sardines (1978) Sardinops sagax Peruvian Sardines + 20 other species Pacific Sardines Sardines — Sardinops sagax Südamerikanische Sardinen

Findings requested by Peru X EC Regulation TBT Art. 2.4 Why ? 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

Findings requested by the EC To reject Peru's claims

Is the EC Regulation a Technical Regulation? The Panel & AB Findings Is the EC Regulation a Technical Regulation?

It lays down product characteristics Compliance is mandatory Terminology Technical Regulation It lays down product characteristics TBT Annex 1.1 Compliance is mandatory

Is the EC Regulation a Technical Regulation? The Panel & AB Findings Is the EC Regulation a Technical Regulation? YES It lays down product characteristics Compliance with the EC Regulation is mandatory

The Panel & AB Findings 2 questions Is Codex Stan 94 a relevant international standard ? 2 questions Is it a relevant standard? Is it a standard?

Is Codex Stan 94 a standard ? The Panel & AB Findings Is Codex Stan 94 a standard ?

Approved by a Recognized Body Compliance is voluntary What is a Standard ? Approved by a Recognized Body Provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods TBT Annex 1.2 Compliance is voluntary

The Panel & AB Findings YES Is Codex Stan 94 a standard ? It provides for common and repeated use, rules, guidelines or characteristics for products It’s approved by a recognized body (Codex) Compliance is not mandatory

Is Codex Stan 94 a relevant standard ? The Panel & AB Findings Is Codex Stan 94 a relevant standard ? YES Both the EC Regulation and Codex Stan 94 deal with the same product, namely preserved sardines

Was Codex Stan 94 used as a basis for the EC Regulation? The Panel & AB Findings Was Codex Stan 94 used as a basis for the EC Regulation? NO Was Codex Stan 94 an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued? NO The EC Regulation is inconsistent with Article 2.4 of the TBT Agreement

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 sardine-type products" means products prepared from fish of the following species : Sardinops sagax (“Peruvian Sardine”) ... 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

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 Sardinops sagax Sardines - Sardinops sagax