The TBT Agreement and Harmonization

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The TBT Agreement and Harmonization

• WTO, Trade and Environment Division

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Philosophy of the TBT Agreement
Stated Preference for
International Standards
International Conformity Assessment Procedures
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The Preamble of the TBT Agreement
Development of International Standards is
Encouraged
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The Preamble of the TBT Agreement
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Applicability of the TBT Agreement
Technical Regulation
Standard
Mandatory Measures
Voluntary Measures
Conformity Assessment Procedure
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Definitions in theTBT Agreement
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What is a Standard ?
Example...
VHS
Betamax
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What is a Standard ?
TBT Annex 1.2
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International Standardizing Bodies ?
They are not explicitly recognized in the TBT
Agreement
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International body or system
Body or system whose Membership is open to the
relevant bodies of at least all Members
TBT Annex 1.4
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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.
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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.
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Relevant Provisions of the TBT Agreement
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2 aspects
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
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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

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TBT Article 2.4
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TBT Article 2.4
Members shall use relevant international standards
Except when inappropriate or ineffective for the
fulfilment of a Legitimate objective for instance
because
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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
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Article 2.4 and the Sardines Case
What is a relevant international standard?
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Article 2.4 and the Sardines Case
Relevant International Standard
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Article 2.4 and the Sardines Case
Members shall use them as a basis for their
technical regulations
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Article 2.4 and the Sardines Case
"Use as a Basis"
as a basis
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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
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Article 2.4 and the Sardines Case
Ineffective or Inappropriate Means
For Fulfillment of Legitimate Objectives
Closely related
Inappropriate
Ineffective
Not specially fitting, suitable
Not having a result
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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
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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
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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

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TBT Article 2.5 1st Sentence
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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

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TBT Article 2.5 2nd Sentence
2 conditions
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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
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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
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The Importance of Participation in International
Standards-Setting Activities
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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.
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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.
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(No Transcript)
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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)
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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
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Decision of the TBT Committee regarding the
development of international standards, guides
and recommendations(2nd Triennial Review, Annex
4)
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Harmonization
Principles for the Development of International
Standards, Guides and Recommendations
Coherence
Transparency
Development Dimension
Openness
Impartiality and consensus
Effectiveness and relevance
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Transparency
General Principle
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Transparency
Transparency Procedures
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Openness
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
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Openness
Openness at every stage of standard development,
such as
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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
Decision-making through consensus
Obtaining information and documents

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Impartiality and consensus
Take into account the views of all parties
concerned
Consensus procedures should be established that
seek to
Reconcile any conflicting arguments
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Effectiveness and relevance
IS should not
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Effectiveness and relevance
Its 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
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Coherence
Its 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
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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
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The first TBT case EC - Trade Description of
Sardines (Peru)
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Products at issue
Sardina pilchardus(the European Sardine)
2 small fish species
Sardinops sagax (the Peruvian Sardine)
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The measure at stake
Sardina pilchardus
Sardines
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The standard
Codex Stan 94 for canned sardines (1978)
The name of the products shall be
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The standard
Codex Stan 94 for canned sardines (1978)
Sardina pilchardus
Sardines
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The standard
Codex Stan 94 for canned sardines (1978)
Sardinops sagax
Peruvian Sardines
20 other species
Pacific Sardines
Sardines Sardinops sagax
Südamerikanische Sardinen
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Findings requestedby Peru
X
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Findings requestedby the EC
To reject Peru's claims
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The Panel AB Findings
Is the EC Regulation a Technical Regulation?
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Terminology
Technical Regulation
TBT Annex 1.1
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The Panel AB Findings
Is the EC Regulation a Technical Regulation?
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The Panel AB Findings
Is Codex Stan 94 a relevant international
standard ?
2 questions
Is it a relevant standard?
Is it a standard?
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The Panel AB Findings
Is Codex Stan 94 a standard ?
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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
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The Panel AB Findings
Is Codex Stan 94 a standard ?
YES
Its approved by a recognized body (Codex)
It provides for common and repeated use, rules,
guidelines or characteristics for products
Compliance is not mandatory
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The Panel AB Findings
Is Codex Stan 94 a relevant standard ?
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The Panel AB Findings
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?
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Mutually Agreed Solution
Preserved sardines" means products prepared from
fish of the species Sardina pilchardus
( European Sardine )
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Mutually Agreed Solution
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
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Mutually Agreed Solution
Sardinops sagax
Sardines - Sardinops sagax