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

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

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

4. 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

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

6. Definitions in the TBT Agreement

7. What is a Standard ?
Example...
VHS
Betamax

8. 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

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

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

11. 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.

12. 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.

13. Relevant Provisions of the TBT Agreement

14. 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

15. 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

16. + 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

17. 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

18. 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

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

20. 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

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

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

23. 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

24. 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

25. 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

26. 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…

27. 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”

28. 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)

29. 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”

30. 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

31. 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

32. 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

33. The Importance of Participation in International Standards-Setting Activities

34. 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.

35. 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.

37. 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)

38. 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

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

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

41. 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

42. 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

43. 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

44. 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

45. 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 …

46. 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

47. 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

48. 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

49. 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

50. 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

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

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

53. 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

54. 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

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

56. 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

57. Findings requested by PeruX
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

58. Findings requested by the EC
To reject Peru's claims

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

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

61. 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

62. 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?

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

64. 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

65. 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

66. 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

67. 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

68. 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”)
other species

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 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

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
Sardinops sagax
Sardines -
Sardinops sagax