International Standards and the TBT Agreement Ludivine Tamiotti WTO, Trade and Environment Division Legal Affairs Officer

TBT Article 1.3 “All products, including industrial and agricultural products, shall be subject to the provisions of this Agreement.” What products are subject to TBT provisions? TBT applies to....

What products are subject to TBT provisions? TBT does not apply to Sanitary and phytosanitary (SPS) measures Purchasing specifications prepared by governments Regulations and standards related to services

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

Technical Regulation TBT Annex 1.1 It lays down product characteristics Compliance is mandatory...or their related processes and production methods

Technical Regulation TBT Annex 1.1 terminology requirements packaging requirements symbols requirements marking requirements labelling requirements

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 Standard

To determine that relevant requirements in technical regulations or standards are fulfilled What for ? TBT Annex 1.3 Conformity Assessment Procedure

Evaluation, verification and assurance of conformity What kind ? Sampling, testing and inspection Registration, accreditation and approval...as well as their combinations TBT Annex 1.3 Conformity Assessment Procedure

Philosophy of the TBT Agreement Right to Take Regulatory Measures Avoid Unnecessary Obstacles to Trade

Core Disciplines Avoid Discrimination Unnecessary Obstacles to Trade Using Harmonization Equivalence Mutual Recognition of Conformity Assessment Results Transparency

Non-Discrimination Treatment no Less Favourable to Like Products Treatment no Less Favourable to Like Products Originating Of national origin National Treatment From any other country Most-Favoured Nation (MFN)

Avoid unnecessary obstacles to trade Create unnecessary obstacles to international trade Technical Regulations, Standards, and Conformity Assessment Procedures Must not be prepared, adopted or applied so as to

Avoid unnecessary obstacles to trade Technical Regulations shall Not be more Trade Restrictive than Necessary to Fulfil a Legitimate Objective, taking Account of the Risks Created by Non-Fulfilment

Avoid unnecessary obstacles to trade Legitimate objectives National security requirements Protection of animal or plant life or health Protection of the environment Prevention of deceptive practices …Inter alia… Protection of human health or safety

Harmonization Principle

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

Benefits of Harmonization Reduce costs and allow economies of scales As producers do not have to design and manufacture a product in many variations to meet varying, different standards Result in lower costs to consumers Who may compare and chose from a larger number of suppliers Facilitate market access As the products conforming to the same standards may be accepted more widely

Benefits of Harmonization Ease production and trading conditions for producers, importers and exporters Ultimately... Minimize obstacles to international trade Promote trade of developing countries

The Harmonization Principle 2 key requirements Members must use international standards, guidelines and recommendations as a basis for their national TBT measures Members must participate in international standardizing bodies

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

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

Decision of the TBT Committee at the Second Triennial Review Principles for the Development of International Standards, Guides and Recommendations Transparency Impartiality and consensus Openness Coherence Effectiveness and relevance Development Dimension

Harmonization explained: Dispute “EC - Trade Description of Sardines (Peru)”

Products at issue 2 small fish species Sardina pilchardus (the “European 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)

The standard Codex Stan 94 for canned sardines (1978)

The standard Codex Stan 94 for canned sardines (1978)

TBT Article 2.4 Members shall use IS as a basis for their technical regulations Then 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

NO Was Codex Stan 94 used as a basis for the EC Regulation? Would Codex Stan 94 have been 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 YES Was the EC Regulation a Technical Regulation? YES Was Codex Stan 94 a Relevant International Standard?

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

International Standards and the TBT Agreement Ludivine Tamiotti WTO, Trade and Environment Division Legal Affairs Officer