International Standards and the TBT Agreement Ludivine Tamiotti

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International Standards
and the TBT Agreement
Ludivine Tamiotti
WTO, Trade and Environment Division
Legal Affairs Officer
[email protected]
What products are subject
to TBT provisions?
TBT applies to ....
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 does not apply to
Sanitary and
phytosanitary
(SPS) measures
Regulations and
standards related
to services
Purchasing
specifications prepared
by governments
Applicability of the TBT Agreement
Technical Regulation
Standard
Mandatory
Measures
Voluntary
Measures
Conformity Assessment Procedure
Technical Regulation
It lays down product
characteristics
TBT Annex 1.1
...or their related processes
and production methods
Compliance is mandatory
Technical Regulation
terminology requirements
symbols requirements
TBT Annex 1.1
packaging requirements
marking requirements
labelling requirements
Standard
Approved by a Recognized
Body
TBT Annex 1.2
Provides, for common and
repeated use, rules, guidelines
or characteristics for products
or related processes and
production methods
Compliance is voluntary
Conformity Assessment Procedure
What for ?
TBT Annex 1.3
To determine that relevant
requirements in technical regulations
or standards are fulfilled
Conformity Assessment Procedure
What kind ?
TBT Annex 1.3
Sampling, testing and inspection
Evaluation, verification and assurance of conformity
Registration, accreditation and approval
...as well as their combinations
Philosophy of the TBT Agreement
Right to Take
Regulatory
Measures
Avoid Unnecessary
Obstacles to Trade
Core Disciplines
Discrimination
Avoid
Unnecessary Obstacles to Trade
Harmonization
Equivalence
Using
Mutual Recognition of
Conformity Assessment Results
Transparency
Non-Discrimination
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
Technical Regulations, Standards, and
Conformity Assessment Procedures
Must not be prepared, adopted or
applied so as to
Create unnecessary obstacles to
international trade
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
National security
requirements
Protection of human
health or safety
Legitimate
objectives
Protection of animal
or plant life or health
Protection of the
environment
Prevention of
deceptive practices
…Inter alia…
Harmonization Principle
The Preamble of the
TBT Agreement
Development of International
Standards is Encouraged
Benefits of Harmonization
Facilitate market access
Reduce costs and allow
economies of scales
Result in lower costs to
consumers
As the products conforming to
the same standards may be
accepted more widely
As producers do not have to
design and manufacture a
product in many variations to
meet varying, different standards
Who may compare and chose
from a larger number of
suppliers
Benefits of Harmonization
Ultimately...
Ease production and trading conditions for
producers, importers and exporters
Minimize obstacles to international trade
Promote trade of developing countries
The Harmonization Principle
Members must use international
standards, guidelines and
recommendations as a basis for
their national TBT measures
2 key
requirements
Members must participate in
international standardizing
bodies
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
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
Openness
Impartiality and consensus
Coherence
Development
Dimension
Effectiveness and relevance
Harmonization explained:
Dispute “EC - Trade
Description of Sardines (Peru)”
Products at issue
Sardina pilchardus
(the “European Sardine”)
2 small fish species
Sardinops sagax
(the “Peruvian Sardine”)
The measure at stake
EC Regulation laying down common
marketing standards for preserved
sardines (1989)
Only fish from the species Sardina pilchardus
can be marketed as sardines
The standard
Codex Stan 94 for canned
sardines (1978)
The standard
Codex Stan 94 for canned
sardines (1978)
TBT Article 2.4
Technical regulations are required
+
If
Relevant international standards (IS) exist
Then
Members shall use IS as a basis for their technical
regulations
Except
When such IS would
be an ineffective or
inappropriate means
For
The fulfilment
of the legitimate
objectives
The Panel & AB Findings
Was the EC Regulation a Technical Regulation?
YES
Was Codex Stan 94 a Relevant International Standard?
YES
Was Codex Stan 94 used as a basis for the EC Regulation?
NO
Would Codex Stan 94 have been 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
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
[email protected]
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