Presentation for Kaliningrad
SELECTED TOPICS ON THE
INTERPRETATION OF THE TBT
AGREEMENT
Geneva, 15 May 2014
Fernando González-Rojas
Outline
Part 1. The Definition of a “Technical
Regulation” under Annex 1.1 of the TBT
Agreement
Part 2. The Equilibrium between Trade
Liberalization and the WTO Member’s Ability to
Exercise their Legitimate Regulatory Powers
Part 1
The Definition of a “Technical
Regulation”
Annex 1.1
Document
which
lays
down
product
characteristics or their related processes and
production methods, including the applicable
administrative
provisions,
with
which
compliance is mandatory. It may also include or
deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as
they apply to a product, process or production
method.
Annex 1.1
Document
which
lays
down
product
characteristics or their related processes and
production methods, including the applicable
administrative
provisions,
with
which
compliance is mandatory. It may also include or
deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as
they apply to a product, process or production
method.
Annex 1.1
Document
which
lays
down
product
characteristics or their related processes and
production methods, including the applicable
administrative
provisions,
with
which
compliance is mandatory. It may also include or
deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as
they apply to a product, process or production
method.
Annex 1.1
Document
which
lays
down
product
characteristics or their related processes and
production methods, including the applicable
administrative
provisions,
with
which
compliance is mandatory. It may also include or
deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as
they apply to a product, process or production
method.
Elements of the Definition
• Applies to an identifiable product
• Lays down product characteristics or their
related processes and production methods
• It is mandatory
EC – Asbestos (AB)
“The heart of the definition of a ‘technical regulation’ is that a ‘document’ must ‘lay down’ –
that is, set forth, stipulate or provide – ‘product characteristics’. […] Thus, the ‘characteristics’
of a product include, in our view, any objectively definable ‘features’, ‘qualities’, ‘attributes’, or
other ‘distinguishing mark’ of a product”.
“[T]he TBT Agreement itself gives certain examples of ‘product characteristics’ – ‘terminology,
symbols, packaging, marking or labelling requirements’. These examples indicate that ‘product
characteristics’ include, not only features and qualities intrinsic to the product itself, but also
related ‘characteristics’, such as the means of identification, the presentation and the
appearance of a product”.
“Further, we note that the definition of a ‘technical regulation’ provides that such a regulation
‘may also include or deal exclusively with terminology, symbols, packaging,
marking or labelling requirements’. The use here of the word ‘exclusively’ and the disjunctive
word ‘or’ indicates that a ‘technical regulation’ may be confined to laying down only one or a
few ‘product characteristics’.
EC – Asbestos (AB)
“It may also include
or deal exclusively”
“Including”
“It may also include
or deal exclusively”
“In addition”
“terminology,
symbols, packaging,
marking or labelling
requirements”
“product
characteristics”
Annex 1.1
Document
which
lays
down
product
characteristics or their related processes and
production methods, including the applicable
administrative
provisions,
with
which
compliance is mandatory. It may also include or
deal exclusively with terminology, symbols,
packaging, marking or labelling requirements
as they apply to a product, process or
production method.
Typical Example of Non-Related PPM
Fishing Techniques
Recent Cases
US - Tuna II
7.79. We do not find it necessary to
consider in addition whether the
labelling
requirements
in
the
US dolphin-safe labelling provisions also
fall within the scope of the first sentence
as "product characteristics or related
production or processing methods",
since, as the Appellate Body has
observed, the terms of the second
sentence make it clear that the subjectmatter of a technical regulation may be
confined to one of the items enumerated
in the second sentence.
US - COOL
7.214. We therefore find that, by
imposing a country of origin labelling
requirement, the COOL measure
fulfils the criterion of laying down
one or more product characteristics.
Implication
Technical
Regulation
NonRelated
PPM
Related
PPM
Some Reactions: “The End of the PPM
Distinction?”
• “[…] WTO members can be legitimately concerned
about the welfare of animals (here dolphins) outside of
their own territory […] at least to the extent their
action is limited to avoiding that their own, domestic
market is used to encourage adversely affecting those
animals. What many observers […] would see as
“extraterritorial
legislation”
thereby
becomes
legitimate/territorial legislation at least when it is
limited to the sale of products […] on the domestic
market of the regulating country”.
• Joost Pauwelyn. May 22, 2012.
Elements of the Definition
• Applies to an identifiable product
• Lays down product characteristics or their
related processes and production methods
– Positive: Must have X; or
– Negative: Must not have X
• It is mandatory
Ordinary Meaning of Mandatory
Dictionary Definition
(The New Shorter Oxford English Dictionary)
“Of the nature of, pertaining to, or conveying a
command or mandate. Obligatory in
consequence of a command, compulsory”
EC – Asbestos (AB)
• 68. […] A “technical regulation” must, in other
words, regulate the “characteristics” of
products in a biding or compulsory fashion. It
follows that, with respect to products, a
“technical regulation” has the effect of
prescribing or imposing one or more
“characteristics” – “features”, “qualities”,
“attributes”, or other “distinguishing mark”.
Criteria Used by the Panels
I.1.2. What are the requirements for a document to be considered "mandatory" within the meaning of Annex 1.1?
US - Clove Cigarettes (7.39)
Panel
US - Tuna II (7.111/7.150, 7.151)
The criteria are:
The criteria are:
The document in question must:
• the language of the measure;
• the language of the measure;
• prescribe or impose in a
binding or compulsory fashion
• its effect; and
•
the effects;
• that certain product must or
must not possess certain
• the existence of enforcement • the existence of enforcement
characteristics, terminology,
provisions.
mechanisms; and
symbols, packaging, marking
or labels or
• the type of instrument in
question;
• that it must or must not be
produced by using certain
processes and production
methods.
US - Clove Cigarettes
AB
US - COOL (7.156, 7.179, 7.192)
US - Tuna II
US - COOL
Labelling Requirements in Both
Definitions
Technical Regulation
Standard
Document which lays down product
characteristics or their related processes
and production methods, including the
applicable administrative provisions,
with which compliance is mandatory. It
may also include or deal exclusively with
terminology,
symbols,
packaging,
marking or labelling requirements as
they apply to a product, process or
production method.
Document approved by a recognized
body, that provides, for common and
repeated use, rules, guidelines or
characteristics for products or related
processes and production methods, with
which compliance is not mandatory. It
may also include or deal exclusively with
terminology,
symbols,
packaging,
marking or labelling requirements as
they apply to a product, process or
production method.
Difference between “Requirement”
and “Mandatory”
Labeling
Requirements
Mandatory
Singularity of Labelling Schemes
Use of Dolphin-Safe
Label
Use of COOL Label
Not necessary to
market product in US
Necessary to market
product in US
US – Tuna II (dissenting)
One of the panelists, in a separate opinion,
considered that a technical regulation is
mandatory if the use of the label is required to
sell the products on the market.
Different TBT Regimes
Technical
Regulations
Standards
Conformity
Assessment
Procedures
Definitions in Annex 1
Technical Regulation
Standard
Document which lays down product
characteristics or their related
processes and production methods,
including
the
applicable
administrative
provisions,
with
which compliance is mandatory.
Document approved by a recognized
body, that provides, for common and
repeated use, rules, guidelines or
characteristics for products or
related processes and production
methods, with which compliance is
not mandatory.
It may also include or deal
exclusively
with
terminology,
symbols, packaging, marking or
labelling requirements as they apply
to a product, process or production
method.
It may also include or deal
exclusively
with
terminology,
symbols, packaging, marking or
labelling requirements as they apply
to a product, process or production
method.
AB’s Findings
193. “[…] They also prohibit any reference to dolphins, porpoises, or marine
mammals on the label for tuna products if the tuna contained in such
products does not comply with the labelling conditions spelled out in the
DPCIA. Other labelling schemes that do not satisfy the specific requirements
in the US measure are therefore prohibited by virtue of the measure at issue.
Consequently, the measure establishes a single and legally mandated set of
requirements for making any statement with respect to the broad subject of
‘dolphin-safety’ of tuna products in the United States. As the Panel found,
the US ‘dolphin-safe’ labelling provisions set out ‘certain requirements that
must be complied with in order to make any claim relating to the manner in
which the tuna contained in [a] tuna product was caught, in relation to
dolphins’. The US measure covers the entire field of what ‘dolphin-safe’
means in relation to tuna products in the United States. We attach
importance to these characteristics of the measure at issue in assessing
whether it can properly be characterized as a ‘technical regulation’ within the
meaning of the TBT Agreement”.
Conditioning other Advantages
Part 2
The Preservation of the Ability to
Adopt Legitimate Regulations
Balance
“96. The balance set out in the preamble of the
TBT Agreement between, on the one hand, the
desire to avoid creating unnecessary obstacles
to international trade and, on the other hand,
the recognition of Members’ right to regulate, is
not, in principle, different from the balance set
out in the GATT 1994, where obligations such as
national treatment in Article III are qualified by
the general exceptions provision of Article XX”.
Article XX
General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on
international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party
of measures:
(a)
necessary to protect public morals;
(b)
necessary to protect human, animal or plant life or health;
(c)
relating to the importations or exportations of gold or silver;
(d)
necessary to secure compliance with laws or regulations which are not inconsistent with the
provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under
paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive
practices;
(e)
relating to the products of prison labour;
(f)
imposed for the protection of national treasures of artistic, historic or archaeological value;
(g)
relating to the conservation of exhaustible natural resources if such measures are made effective in
conjunction with restrictions on domestic production or consumption;
(h)
undertaken in pursuance of obligations under any intergovernmental commodity agreement which
conforms to criteria submitted to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not
so disapproved;*
(i)
involving restrictions on exports of domestic materials necessary to ensure essential quantities of such
materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price
as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the
protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to nondiscrimination;
involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic
processing industry during periods when the domestic price of such materials is held below the world price as part of a
governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection
afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination;
(j)
essential to the acquisition or distribution of products in general or local short supply; Provided that
any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the
international supply of such products, and that any such measures, which are inconsistent with the other provisions of the
Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist. The CONTRACTING PARTIES
shall review the need for this sub-paragraph not later than 30 June 1960.
The Controls in Article XX
Article XX
CONSISTENCY TEST: EVEN-HANDED
General Exceptions
Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a disguised restriction on
international trade, nothing in this Agreement shall be construed to prevent the
adoption or enforcement by any contracting party of measures:
WEIGHING & BALANCING: PROPORTIONALITY TEST
[…]
(b)
LESS TRADE RESTRICTIVE ALTERNATIVE: EFFICIENCY TEST
necessary to protect human, animal or plant life or health;
LETIMACY TEST
US – Clove Cigarettes
Clove Cigarettes
Menthol Cigarettes
Even-Handed Requirement
Article 2.1
“225. […] To the extent that this particular characteristic is present in
both clove and menthol cigarettes, menthol cigarettes have the same
product characteristic that, from the perspective of the stated
objective of Section 907(a)(1)(A), justified the prohibition of clove
cigarettes”
No setting on
dolphins
No setting on No killings or
serious injuries
dolphins
Even-Handed Requirement
Even-Handed Requirement
CONSISTENCY TEST: EVEN-HANDED
2.1 Members shall ensure that in respect of
technical regulations, products imported from
the territory of any Member shall be accorded
treatment no less favourable than that accorded
to like products of national origin and to like
products originating in any other country.
Legitimacy Test
2.2
Members shall ensure that technical regulations are
not prepared, adopted or applied with a view to or with the
effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulations shall not be
more trade-restrictive than necessary to fulfil a legitimate
objective, taking account of the risks non-fulfilment would
create. Such legitimate objectives are, inter alia: national
security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or
health, or the environment. In assessing such risks, relevant
elements of consideration are, inter alia: available scientific
and technical information, related processing technology or
intended end-uses of products.
Legitimacy Test
2.2
Members shall ensure that technical regulations are
not prepared, adopted or applied with a view to or with the
effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulations shall not be
more trade-restrictive than necessary to fulfil a legitimate
objective, taking account of the risks non-fulfilment would
create. Such legitimate objectives are, inter alia: national
security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or
health, or the environment. In assessing such risks, relevant
elements of consideration are, inter alia: available scientific
and technical information, related processing technology or
intended end-uses of products.
LETIMACY TEST
Legitimacy Test
2.2
Members shall ensure that technical regulations are
not prepared, adopted or applied with a view to or with the
effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulations shall not be
more trade-restrictive than necessary to fulfil a legitimate
objective, taking account of the risks non-fulfilment would
create. Such legitimate objectives are, inter alia: national
security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or
health, or the environment. In assessing such risks, relevant
elements of consideration are, inter alia: available scientific
and technical information, related processing technology or
intended end-uses of products.
Contribution
Measure needs to be apt to make a material contribution
Qualitative Analysis is also acceptable
2
1
4
3
5
Quantitative analysis is not indispensable
LEGITIMATE
OBJECTIVE
PURSUED
The necessity test
Weighing and Balancing
Confirmation:
Comparison
reasonably available
alternatives
40
Alternative
Level of Protection
Is there a reasonably available alternative that would achieve the same level
of protection with less-trade restrictive effects?
Trade Restrictiveness
US – Tuna II (AB)
“318. […] In the context of Article 2.2, the assessment of "necessity" involves a relational
analysis of the trade-restrictiveness of the technical regulation, the degree of contribution that it
makes to the achievement of a legitimate objective, and the risks non-fulfilment would create.
We consider, therefore, that all these factors provide the basis for the determination of what is
to be considered "necessary" in the sense of Article 2.2 in a particular case”.
“322. […] This suggests a further element of weighing and balancing in the determination of
whether the trade-restrictiveness of a technical regulation is "necessary" or, alternatively,
whether a possible alternative measure, which is less trade restrictive, would make an
equivalent contribution to the relevant legitimate objective, taking account of the risks nonfulfilment would create, and would be reasonably available”.
“322. […] In most cases, a comparison of the challenged measure and possible alternative
measures should be undertaken.".
Efficiency Test
2.2
Members shall ensure that technical regulations are
not prepared, adopted or applied with a view to or with the
effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulations shall not be
more trade-restrictive than necessary to fulfil a legitimate
objective, taking account of the risks non-fulfilment would
create. Such legitimate objectives are, inter alia: national
security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or
health, or the environment. In assessing such risks, relevant
elements of consideration are, inter alia: available scientific
and technical information, related processing technology or
intended end-uses of products.
THANK YOU FOR
YOUR ATTENTION !
fernando.gonzalez-rojas@wto.org