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