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The TBT Agreement and Harmonization WTO, Trade and Environment Division.

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Presentation on theme: "The TBT Agreement and Harmonization WTO, Trade and Environment Division."— Presentation transcript:

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2 The TBT Agreement and Harmonization WTO, Trade and Environment Division

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

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

5 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

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

7 Definitions in the TBT Agreement

8 What is a Standard ?

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

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

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

12 International standards? TBT Annex 1.2 Standards prepared by the international standardization community are based on consensus. This Agreement covers also documents that are not based on consensus.

13 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.

14 Relevant Provisions of the TBT Agreement

15 2 aspects Provisions on the role of international standards in the elaboration of technical regulations Provisions on the Preparation, adoption and application of national standards Article 2 Code of good practice

16 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

17 TBT Article 2.4 Members shall use IS as a basis for their technical regulations Then For example, fundamental climatic or geographical factors or fundamental technological problems Because of Technical regulations are required Relevant international standards (IS) exist If + When such IS would be an ineffective or inappropriate means Except The fulfilment of the legitimate objectives For

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

19 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

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

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

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

23 Article 2.4 and the Sardines Case as a basis main constituent, determining principle Based on: SPS (EC-Hormones)

24 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

25 Article 2.4 and the Sardines Case InappropriateIneffective Not specially fitting, suitable Not having a result Closely related

26 Article 2.4 and the Sardines Case Legitimate Objectives To be interpreted in the context of Article 2.2

27 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

28 TBT Article 2.5 – 1 st 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

29 TBT Article 2.5 – 1 st 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)

30 TBT Article 2.5 – 2 nd 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

31 TBT Article 2.5 – 2 nd Sentence 2 conditions 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 Its rebuttably presumed not to create an unnecessary obstacle to international trade

32 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

33 TBT Article 2.6 international standardizing bodies In the preparation by appropriate international standardizing bodies of international standards, guides or recommendations Products for which Members have adopted/expected to adopt technical regulations For What ? shall Members shall play a full part Within the limits of their resources

34 The Importance of Participation in International Standards-Setting Activities

35 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.

36 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.

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38 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) ILAC (International Laboratory Accreditation Cooperation) ISO (International Organization for Standardization) IEC (International Electrotechnical Commission)

39 Actions to Increase Participation of Developing Countries Information was received from the following International Organizations 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 OIML (International Organization for Legal Metrology)

40 Decision of the TBT Committee regarding the development of international standards, guides and recommendations (2 nd Triennial Review, Annex 4)

41 Harmonization Principles for the Development of International Standards, Guides and Recommendations Transparency Impartiality and consensus Openness Coherence Effectiveness and relevance Development Dimension

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

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

44 Openness 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

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

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

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

48 Effectiveness and relevance 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 IS should not Distort the global market Have adverse effects on fair competition Stifle innovation and technological development

49 Effectiveness and relevance Its important that IS Put in place procedures aimed at improving communication with the WTO 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

50 Coherence Its important that ISB 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

51 Development dimension 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 Technical assistance and capacity building

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

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

54 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)

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

56 The standard Codex Stan 94 for canned sardines (1978)

57 The standard Codex Stan 94 for canned sardines (1978)

58 Findings requested by Peru EC Regulation TBT Art. 2.4 X 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

59 To reject Peru's claims Findings requested by the EC

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

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

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

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

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

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

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

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

68 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

69 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

70 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

71 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


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