TBT Agreement1 Edit

8/12/2019 TBT Agreement1 Edit

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Technical Barrier to Trade

Agreement


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TBT AgreementObjective and scope of application

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General objective of the TBTAgreement

Recognizes

But, at the

same time

The right of WTO Members to adopt

Technical Regulations, Standards and

Conformity Assessment Procedures

Ensures that such measures do not

create unnecessary obstacles to trade


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The TBT Agreement seeks to ensure that:

mandatory product regulations,

voluntary product standards, and

conformity assessment procedures (i.e., proceduresdesigned to test a products conformity with mandatoryregulations or voluntary standards)

do not become unnecessary obstacles tointernational trade and are not employed byWTO Members to obstruct trade.


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Scope of the TBT Agreement:

Technical Regulations;

Standards; and

Conformity assessment procedures.


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Temporal Scope of Application:

The TBT Agreementapplies to measures adopted priorto the entry into force of the WTO Agreement(1 January1995) provided that the trade measure at issue has not ceasedto exist.

This was confirmed by the EC Sardines Appellate Bodydecision.


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Technical Regulation:

Document which lays down productcharacteristics or their related processes and

production methods, including the applicableadministrative provisions, with which compliance ismandatory.

It may also include or deal exclusively withterminology, symbols, packaging, marking or labellingrequirements as they apply to a product, process orproduction method.

DefinitionsAnnex 1


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A law stating that only

refrigerators that areone meter high can be

sold in State X

A law stating

that all product

packaging mustbe recyclable

Examples of Technical Regulations



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In theEC Sardines dispute, the AppellateBody made reference to its previous decision intheEC Asbestos dispute, wherea three-parttest for determining if a measure is a technicalregulation had been established:

the document applies to an identifiable product orgroup of products;

the document must lay down one or more productcharacteristics; and

compliance with these characteristics must bemandatory.


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Standard:

Document approved by a recognized body, thatprovides, for common and repeated use, rules,guidelines or characteristics for products or related

processes and production methods, with whichcompliance is not mandatory.

It may also include or deal exclusively withterminology, symbols, packaging, marking or labellingrequirements as they apply to a product, process or

production method.

DefinitionsAnnex 1


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A government guideline

saying that all eggs

weighing 62 grams or

more are entitled to be

labelled Grade Ais astandard (provided that

eggs weighing less may

still be sold).

A guideline defining the

products that may

display a recyclable

symbolis a standard(provided that the

products not bearing the

symbol may still be sold).

Examples of Standards

TBT Agreement3. Objective and scope of application


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DefinitionsAnnex 1

StandardsTechnical Regulations

Technical Requirements

Mandatory Voluntary


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Conformity Assessment Procedure:

Any procedure used, directly or indirectly, todetermine whether the relevant requirements laid outin technical regulations or standards are met.

DefinitionsAnnex 1


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The TBT Agreement applies to allproducts, including industrial andagricultural products

Except to:-Sanitary and phytosanitary measures;

-Regulations and standards related to services;

-Purchasing specifications for production or consumption by

governments.

SPS

TBT


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The main differences between the SPS andTBT Agreements reside in:

the scope of their application;

the use of international standards;

the reasons that call for the application andmaintenance of the measures.


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Scope of the TBT and SPS Agreements:

The TBT Agreement

covers:

technical regulations;

voluntary standards;

and

conformity assessment

procedures.

Except when these are SPS measures as

defined by the SPS Agreement.

The SPS Agreement covers all measures

whose purpose is to protect:

human or animal health from so called food-borne risks;

human health from animal or plant diseases;

and

plants and animals from pests or diseases.


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Examples of TBT and SPS measures:

TBT measures typically deal with:

labelling of composition or quality of

food, drink and drugs;

quality requirements for fresh food;

volume, shape and appearance of

packaging;

testing of vehicles and accessories;

regulations for ships and related

equipment;

safety regulations for toys and

others.

SPS measures typically deal with:

additives in food or drink;

contaminants in food or drink;certification: food safety, animal or

plant health;

processing methods with implications

for food safety;

other sanitary requirements for

imports;

labelling requirements directly related

to food safety and others.


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The use of international standards for TBTand SPS measures:

Under the SPS Agreement, WTO Members are

compelled to use international standards unless theycan show a specific scientific justification based on anassessment of the possible risk.

WTO Members may set TBT measures that deviate

from the international standards for other reasons,including technological difficulties or geographicaldifferences.


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The reasons behind the application andmaintenance of SPS and TBT measures:

SPS measures may only be applied to the extentnecessary to protect human, animal or plant life orhealth, based on scientific principles and notmaintained without sufficient scientific evidence.

TBT measures may be applied and maintained for otherreasons, including national security or to preventdeceptive practices, as long as they do not create

unnecessary obstacles to international trade and are notmore trade-restrictive than necessary to fulfill alegitimate objective.


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TBT AgreementMain principles

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Main principles of the TBTAgreement:

1. Non-discrimination;2. Avoidance of unnecessary obstacles to trade;

3. Harmonization;

4. Equivalence;

5. Mutual recognition;

6. Transparency.


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The principle of non-discrimination is found in thefollowing provisions of the TBT Agreement:

For technical

regulations

Article 2.1

For standards

Annex 3(D)(Code of Good

Practice)

For conformity

assessment

procedures

Article 5.1.1.

TBT Agreement4.1. Non - discrimination


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TBT AgreementNon discrimination

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The non-discrimination principle is anobligation not to discriminate between importedand domestic like productsnor amongimported like products.

The principle of non-discrimination has twoelements:

The most-favoured-nation(MFN) treatment - an obligation not todiscriminate between like productsimported from different WTOMembers; and

National treatment- an obligation not to discriminate between domesticand imported like products.


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TBT AgreementNon discrimination

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The non-discrimination principle is only applicableto like products. If two products are not likeproducts, the non-discrimination principle doesnot apply.

Whether two products are like productsis one ofthe most difficult legal problems in the WTOAgreement.


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What is a like productfor thepurposes of the TBT Agreement?

Likeness is determined on a case-by-case basis

4 criteria

Physical characteristics;

Tariff classification;

Product end-users.

Consumerstastes and habits;

TBT AgreementNon - discrimination

TBT A t


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TBT Agreement4Avoidance of unnecessary obstacles to trade

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The obligation to prevent unnecessary obstaclesto international trade is set forth in the

following provisions of the TBT Agreement:

For technical

regulations

Article 2.2

For standards

Annex 3(E)(Code of Good

Practice)

For conformity

assessment

procedures

Article 5.1.2.


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TBT AgreementAvoidance of unnecessary obstacles to trade

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For technical

regulations:

[Article 2.2]

They must not be more trade-

restrictive than necessary to

achieve a policy goal (the

least-trade-restrictive

measure), and

The must fulfill a legitimate

objective, taking into accountthe risks that non-fullfilment

would create.

TBT A t


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TBT Agreement4.2. Avoidance of unnecessary obstacles to trade

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For standards:

[Annex 3(E) tothe Code of

Good Practice]

The prevention of unnecessary

obstacles to international trade is not

defined in either Article 3 of the TBT

Agreement nor in the Code of GoodPractice. It has also not been defined

or interpreted in any WTO panel or

Appellate Body decision relating to

the TBT Agreement.

Given the similarities between technical regulations and standards it is probable

that the same definition that is applicable to technical regulations would also be

applied in the case of standards, but this remains to be proven.


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For conformityassessment

procedures:

[Article 5.1.2]

conformity assessment

procedures shall not be more strict

or be applied more strictly than isnecessary to give the importing

Member adequate confidence that

products conform with the

applicable technical regulations or

standards, taking account of therisks non-conformity would

create.


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The understanding of the concepts of:

necessity;legitimate objective; and

changed circumstances

is essential to comprehend what constitutes anunnecessary obstacle to international trade.


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TBT Agreement4.2. Avoidance of unnecessary obstacles to trade30

Necessityfor the purposes of Article 2.2

can be interpreted as having no other alternativemeasure consistent with the TBT Agreement, orless inconsistent with it, which a WTO Membercould reasonablybe expected to employ toachieve its legitimate regulatory objective (forexample, health policy).


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Legitimateobjectives

Protection of animal life or health;

Prevention of deceptive practices;

Protection of human health or safety;

National security requirements;

Protection of the environment;

Other undefined objectives.

TBT A t


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Changed circumstances:

In order to ensure that unnecessary obstacles tointernational trade are avoided, Article 2.3 of the TBT

Agreement provides that, with respect to technicalregulations,if circumstances change or an objective can be

addressed in a less trade-restrictive manner, the morerestrictive trade measure must be removed.


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TBT AgreementHarmonization

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Harmonization is a central pillar of the TBTAgreement.

The emphasis on harmonization is based on theview that:

trade is less disrupted if WTO Members use internationallyagreed standards as a basis for their domestic regulations andstandards; and

producers and consumers benefit from a degree ofharmonization (because of economies of scale and questionsof technical compatibility, respectively).

TBT A


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The relevant provisions of the TBT Agreementrelating to harmonization and the use of

relevant international standards are:

For technical

regulations:

[Articles 2.4-2.6]

For standards:

[Annex 3(F)-(G) to the

Code of Good Practice]

For conformity

assessment

procedures:

[Articles 5.4-5.5]


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TBT Agreement4.3. Harmonization

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WTO Members are encouraged:

to participate in the process of international

harmonization of standards, and

to use recognized international standards as a basis fortheir domestic technical regulations and standards.


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TBT Agreement4.3. Harmonization

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The provisions of the TBT Agreement relatingto an obligation to participate in the work ofinternational standardization organizations

are:

For technical

regulations:

[Article 2.6]

For standards:

[Annex 3(G) to the

Code of Good Practice]

For conformity

assessment

procedures:

[Article 5.5]


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International Standardizing Bodies:

International Organization for Standardization (ISO);

International Telecommunications Union (ITU);

International Electro-Technical Commission (IEC);

Codex Alimentarius Commission.

However, these international organizations are not explicitly

recognized by the TBT Agreement.

TBT A t


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International standards may not be used ifthey were to be ineffective or inappropriatemeans for the fulfilment of the legitimateobjective pursued because of:

Climatic factors;

Geographical factors; and

Technological problems.

TBT A t


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Principles for the Development of InternationalStandards, Guides and Recommendations

Openness

CoherenceTransparency

Impartiality and consensus

Effectiveness

and relevance

Development dimension

TBT Agreement


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TBT Agreement

Equivalence

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What is equivalence?

Technical barriers to international trade could be eliminatedif WTO Members were to accept that technical regulationsdifferent from their own fulfill the same policy objectives

even if through different means.

TBT A t


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TBT AgreementEquivalence

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The provisions of the TBT Agreement onequivalenceare:

For technical

regulations:

[Article 2.7]

For standards:

[Article 2.7]

For conformity

assessment

procedures:

[Article 6]

A


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TBT AgreementMutual recognition

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WTO Members are encouraged to enter intonegotiations for the mutual recognition of theresults of conformity assessment procedures.

By accepting the results of another WTOMembers conformity assessment procedures,testing costs are reduced and less time is lost

in administrative and technical inspections.

TBT Agreement


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TBT Agreement4.6. Transparency

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Transparency:

Transparency is the process whereby the creation, terms, andapplication of technical regulations, standards and

conformity assessment procedures are made public, andopportunities are provided for the public (including otherWTO Members) to comment on proposed technicalregulations, standards and conformity assessmentprocedures.


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TBT AgreementTransparency

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The provisions of the TBT Agreement ontransparency are:

For technical

regulations:

[Articles 2.9 and 10]

For conformity

assessment procedures:

[Articles 5.5 and 10]

For standards:[Annex 3(J)-(Q) of the

Code of Good

Practice and Article

10]

TBT Agreement


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TBT Agreement

Transparency

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Transparency

Notifications

Enquiry Points

TBT Committee

TBT A t


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TBT AgreementNotifications

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Notifications

What doWTO

Members

have to

notify?

Implementation and administration of

the Agreement;

Draft technical regulations and adopted

urgent measures;

Bilateral and multilateral agreements;

Adherence or withdrawal to the Code of

Good Practice and work programme.

TBT Agreement


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TBT AgreementTBT Committee

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TBT Committee

Composition Representatives of each WTO Member

ObjectiveConsulting on any matters relating to

the operation of the TBT Agreement

Chairperson Elected by the TBT Committee

Meetings

[Articles 13,15.3 and 15.4]

As necessary, but not less than once

a year

TBT Agreement


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TBT Agreement4.6. Transparency

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Review of the TBT Committee:

The TBT Committee must review annually the operationand implementation of the TBT Agreement.

Every three years, the TBT Committee must review theimplementation and operation of the TBT Agreementwith a view to recommending an adjustment of therights and obligations of the Agreement, wherenecessary to ensure mutual economic advantage and

balance of rights and obligations.

TBT Agreement


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TBT Agreement5. Provisions for Developing Countries

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Provisions for Developing Countries:

Technical Assistance; and

Special and Differential Treatment

Technical assistance can be defined as theprovision of expert assistance by other WTOMembers, the WTO Secretariat, or third parties.


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TBT Agreement

Provisions for Developing Countries50

Technical assistance if requested and

on mutually agreed terms

Preparation oftechnical regulations

Facilitate access to

systems

Priority to the needs

of least-developed

country Members

Facilitate participation in

international system

Establishment of

standardizing bodies

and regulatory bodies

TBT Agreement


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TBT Agreement5. Provisions for Developing Countries

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Special and Differential Treatment:

Pursuant to Article 12 of the TBT Agreement, WTOMembers are required to provide special and differential(i.e., more favourable treatment) to Developing Country

Members in a number of different forms.

TBT Agreement


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TBT AgreementProvisions for Developing Countries

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Shall only use

international norms

appropriate to their

needs

Can be granted specified,

time-limited exceptions

from obligations of the TBT

Agreement

Developing Country Members

TBT Agreement


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TBT AgreementProvisions for Developing Countries

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All WTO Members must:

Take into account the special needs of

Developing Country Members

Avoid creating unnecessary obstacles to the exports of

Developing Country Members (through regulatory activities)

Facilitate active and representative participation of Developing

Country Members in international standardizing bodies

Facilitate preparation of international standards concerning

products of special interest to Developing County Members

TBT Agreement


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TBT AgreementDispute settlement

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EC - Butter (WT/DS72)

The dispute concerned the tariff treatment by the

EC Commission and the Customs and ExciseDepartment of the United Kingdom of certain butterproducts from New Zealand. However, since the partiesnotified the DSB that they had reached a MutuallyAgreed Solution, the Panel only issued a report

containing a brief description of the case.

TBT Agreement


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TBT AgreementDispute settlement

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EC Scallops (WT/DS7, 12, 14)

The dispute concerned the official names and

permitted trade descriptions of scallops in France.Canada, Chile and Peru challenged the French Ordergoverning this issue under Article 2 of the TBTAgreement and Articles I and III of the GATTAgreement. The DSB established a single panel for thethree complaints. Since the parties notified the DSB

that they had reached a Mutually Agreed Solution, thePanel issued a report containing a brief description ofthe case.

TBT Agreement


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g

Dispute settlement

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EC Asbestos (WT/DS135)

Canada claimed that the French measure banning

any product containing asbestos created anunnecessary obstacle to international trade contrary tothe Article 2.2 and 2.4 of the TBT Agreement. The Panelreport confirmed that the ban was justified on healthgrounds. The prohibition of asbestos can be maintainedas such. Canada appealed. The AB report upheld that

the French ban is not in violation of the WTOagreements.

TBT Agreement


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TBT Agreement6. Dispute settlement

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EC - Sardines (WT/DS231)

The dispute concerned the trade description of

"sardines" made by the EC which could only be used forthe type of sardine namedSardina pilchardusWalbaumand consequently not for the type of sardinenamedSardinops sagaxsagax.Peru requested thePanel to find that the EC measure was inconsistent withArticles 2.1, 2.2 and 2.4 of the TBT Agreement. ThePanel and the Appellate Body found that the EC

Regulation 2136/89 was in breach of Article 2.4 of theTBT Agreement.

TBT Agreement


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TBT AgreementTBT and Doha

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Doha Implementation Decision and the TBTAgreement:

Technical assistance;

Time to adjust to new regulations;

Participation of Developing Countries in the work ofinternational standards-setting organizations;

Technical assistance for Least-Developed Countries.


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Terima Kasih

Thank You

Documents

TBT Agreement1 Edit