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XIII. Article 12 back to top
A. Text of Article 12
Article 12: Special and Differential Treatment of Developing Country Members
12.1 Members shall provide differential and more favourable treatment to developing country Members to this Agreement, through the following provisions as well as through the relevant provisions of other Articles of this Agreement.
12.2 Members shall give particular attention to the provisions of this Agreement concerning developing country Members’ rights and obligations and shall take into account the special development, financial and trade needs of developing country Members in the implementation of this Agreement, both nationally and in the operation of this Agreement’s institutional arrangements.
12.3 Members shall, in the preparation and application of technical regulations, standards and conformity assessment procedures, take account of the special development, financial and trade needs of developing country Members, with a view to ensuring that such technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to exports from developing country Members.
12.4 Members recognize that, although international standards, guides or recommendations may exist, in their particular technological and socio-economic conditions, developing country Members adopt certain technical regulations, standards or conformity assessment procedures aimed at preserving indigenous technology and production methods and processes compatible with their development needs. Members therefore recognize that developing country Members should not be expected to use international standards as a basis for their technical regulations or standards, including test methods, which are not appropriate to their development, financial and trade needs.
12.5 Members shall take such reasonable measures as may be available to them to ensure that international standardizing bodies and international systems for conformity assessment are organized and operated in a way which facilitates active and representative participation of relevant bodies in all Members, taking into account the special problems of developing country Members.
12.6 Members shall take such reasonable measures as may be available to them to ensure that international standardizing bodies, upon request of developing country Members, examine the possibility of, and, if practicable, prepare international standards concerning products of special interest to developing country Members.
12.7 Members shall, in accordance with the provisions of
Article 11, provide technical assistance to developing country Members to ensure that the preparation and application of technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to the expansion and diversification of exports from developing country Members. In determining the terms and conditions of the technical assistance, account shall be taken of the stage of development of the requesting Members and in particular of the least-developed country Members.
12.8 It is recognized that developing country Members may face special problems, including institutional and infrastructural problems, in the field of preparation and application of technical regulations, standards and conformity assessment procedures. It is further recognized that the special development and trade needs of developing country Members, as well as their stage of technological development, may hinder their ability to discharge fully their obligations under this Agreement. Members, therefore, shall take this fact fully into account. Accordingly, with a view to ensuring that developing country Members are able to comply with this Agreement, the Committee on Technical Barriers to Trade provided for in
Article 13 (referred to in this Agreement as the “Committee”) is enabled to grant, upon request, specified, time-limited exceptions in whole or in part from obligations under this Agreement. When considering such requests the Committee shall take into account the special problems, in the field of preparation and application of technical regulations, standards and conformity assessment procedures, and the special development and trade needs of the developing country Member, as well as its stage of technological development, which may hinder its ability to discharge fully its obligations under this Agreement. The Committee shall, in particular, take into account the special problems of the least-developed country Members.
12.9 During consultations, developed country Members shall bear in mind the special difficulties experienced by developing country Members in formulating and implementing standards and technical regulations and conformity assessment procedures, and in their desire to assist developing country Members with their efforts in this direction, developed country Members shall take account of the special needs of the former in regard to financing, trade and development.
12.10 The Committee shall examine periodically the special and differential treatment, as laid down in this Agreement, granted to developing country Members on national and international levels.
B. Interpretation and Application of Article 12
No jurisprudence or decision of a competent WTO body.
Institutions, Consultation And Dispute Settlement
XIV. Article 13
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A. Text of Article 13
Article 13: The Committee on Technical Barriers to Trade
13.1 A Committee on Technical Barriers to Trade is hereby established, and shall be composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall meet as necessary, but no less than once a year, for the purpose of affording Members the opportunity of consulting on any matters relating to the operation of this Agreement or the furtherance of its objectives, and shall carry out such responsibilities as assigned to it under this Agreement or by the Members.
13.2 The Committee shall establish working parties or other bodies as may be appropriate, which shall carry out such responsibilities as may be assigned to them by the Committee in accordance with the relevant provisions of this Agreement.
13.3 It is understood that unnecessary duplication should be avoided between the work under this Agreement and that of governments in other technical bodies. The Committee shall examine this problem with a view to minimizing such duplication.
B. Interpretation and Application of Article 13
1. General
(a) Rules of procedure
51. At its meeting on 1 January 1996, the Council for Trade in Goods approved the Rules of Procedure adopted by the TBT Committee on 21 April
1995.(66)
(b) Observer status
52. Annexes 1 and
2 to the Rules of Procedure adopted by the TBT Committee contain Guidelines for Observer Status for Governments in the WTO
(Annex
1) and for Intergovernmental Organizations in the WTO (Annex 2).(67)
XV. Article 14
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A. Text of Article 14
Article 14: Consultation and Dispute Settlement
14.1 Consultations and the settlement of disputes with respect to any matter affecting the operation of this Agreement shall take place under the auspices of the Dispute Settlement Body and shall follow,
mutatis mutandis, the provisions of Articles XXII and
XXIII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding.
14.2 At the request of a party to a dispute, or at its own initiative, a panel may establish a technical expert group to assist in questions of a technical nature, requiring detailed consideration by experts.
14.3 Technical expert groups shall be governed by the procedures of
Annex 2.
14.4 The dispute settlement provisions set out above can be invoked in cases where a Member considers that another Member has not achieved satisfactory results under
Articles 3, 4,
7, 8 and
9 and its trade interests are significantly affected. In this respect, such results shall be equivalent to those as if the body in question were a Member.
B. Interpretation and Application of Article 14
1. Invocation of the TBT Agreement in disputes
53. The following table lists the disputes in which Appellate Body and/or panel reports have been adopted where the provisions of the
TBT Agreement were invoked:
| |
Case Name |
Case Number |
Invoked
Articles |
| 1 |
US — Gasoline |
WT/DS2 |
Articles 2.1, 2.2 |
| 2 |
Argentina — Textiles and Apparel |
WT/DS56 |
Articles 2.1, 2.2 |
| 3 |
EC — Hormones (US) |
WT/DS26 |
Articles 2.1, 2.2 |
| 4 |
EC — Hormones (Canada) |
WT/DS48 |
Articles 2.1, 2.2 |
| 5 |
EC — Asbestos |
WT/DS135 |
Articles 2.1, 2.2, 2.4, 2.8 |
| 6 |
EC — Sardines |
WT/DS231 |
Articles 2.1, 2.2, 2.4 |
2. Article 14.2
54. In EC
—
Asbestos, the Panel, having determined that the case raised scientific or technical issues, decided to consult experts on an individual basis, rather than in the form of a technical expert group, as foreseen in
Article 14 and Annex 2 of the
TBT Agreement. In response to an argument by the European Communities that expert consultations under the
TBT Agreement should be conducted in the form of technical expert groups, the Panel observed:
“[T]hat, if the measure at issue should be deemed to fall under the TBT Agreement, which the Communities contest,
Article 14.2 of that Agreement would require the establishment of an expert review group for any scientific or technical matter, and the EC position that pursuant to
Article 1:2 of the DSU, that provision would prevail over those of
Article 13 to the DSU. Article 14:2 of the TBT Agreement is among the provisions mentioned in
Appendix 2 to the DSU and which, under Article 1:2 of that Understanding, will prevail over the provisions of the Understanding to the extent that there-is a difference between the two. The Panel notes, however, that it is only ‘to the extent that there is a difference’ between the rules and procedures of the Understanding and a special or additional rule or procedure in
Appendix 2 to the DSU that the latter will prevail. Yet, as stated by the Appellate Body, it is only where the provisions of the DSU and the special or additional rules of
Appendix 2 cannot be read as complementing each other that the special or additional provisions will prevail over those of the DSU, that is, in a situation where the two provisions would be mutually
incompatible.(68) In the present case,
Article 14:2 of the TBT Agreement provides that a panel ‘may’ establish a technical expert group. Like
Article 13:2 of the DSU, this text envisages the possibility of establishing a technical expert group and lays down the procedures that would be applicable in the event. Nevertheless, it does not exclusively prescribe the establishment of a technical expert group, and this possibility, in our opinion, is not incompatible with the general authorization given under
Article 13 of the DSU to consult with individual experts. The two provisions can be read as complementing each other.
The Panel believes that in this case the consultation of experts on an individual basis is the more appropriate form of consultation, inasmuch as it is the one that will better enable the panel usefully to gather opinions and information on the scientific or technical issues raised by this dispute. Considering in particular the range of areas of competence that might be required, it is appropriate in this case to gather information and different individual opinions rather than asking for a collective report on the various scientific or technical matters in question. In the light of the foregoing, the Panel wishes to underline that its decision to consult experts on an individual basis is without prejudice to the applicability of the TBT Agreement to the measure in question, on which the parties disagree.”(69)
XVI. Article 15
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A. Text of Article 15
Article 15: Final Provisions
Reservations
15.1 Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.
Review
15.2 Each Member shall, promptly after the date on which the WTO Agreement enters into force for it, inform the Committee of measures in existence or taken to ensure the implementation and administration of this Agreement. Any changes of such measures thereafter shall also be notified to the Committee.
15.3 The Committee shall review annually the implementation and operation of this Agreement taking into account the objectives thereof.
15.4 Not later than the end of the third year from the date of entry into force of the WTO Agreement and at the end of each three-year period thereafter, the Committee shall review the operation and implementation of this Agreement, including the provisions relating to transparency, with a view to recommending an adjustment of the rights and obligations of this Agreement where necessary to ensure mutual economic advantage and balance of rights and obligations, without prejudice to the provisions of
Article 12. Having regard,
inter alia, to the experience gained in the implementation of the Agreement, the Committee shall, where appropriate, submit proposals for amendments to the text of this Agreement to the Council for Trade in Goods.
B. Interpretation and Application of Article 15
1. Article 15.2
55. The TBT Committee agreed on the following decision concerning the contents of written statements to be made by members in response to
Article 15.2 of the
TBT Agreement:
“1. The statement should cover the legislative, regulatory and administrative action taken as a result of the negotiation of the Agreement or currently in existence to ensure that the provisions of the Agreement are applied. If the Agreement itself has been incorporated into domestic law, the statement should indicate how this has been done. In other cases, the statement should describe the content of the relevant laws, regulations, administrative orders, etc. All necessary references should also be provided.
2. In addition, the statement should specify
(a) The names of the publications used to announce that work is proceeding on draft technical regulations or standards and procedures for assessment of conformity and those in which the texts of technical regulations and standards or procedures for assessment of conformity are published under
Articles 2.9.1, 2.11;
3.1 (in relation to 2.9.1 and
2.11); 5.6.1,
5.8; 7.1,
8.1 and 9.2 (in relation to
5.6.1 and 5.8); and
paragraphs J, L and O of Annex 3 of the
Agreement;
(b) the expected length of time allowed for presentation of comments in writing on technical regulations, standards or procedures for assessment of conformity under
Articles 2.9.4 and 2.10.3;
3.1 (in relation to 2.9.4 and
2.10.3); 5.6.4 and
5.7.3; 7.1,
8.1 and 9.2 (in relation to
5.6.4 and 5.7.3); and
paragraph L of Annex 3 of the Agreement;
(c) the name and address of the enquiry point(s) foreseen in
Articles 10.1 and 10.3 of the Agreement with an indication as to whether it is/they are fully operational; if for legal or administrative reasons more than one enquiry point is established, complete and unambiguous information on the scope of responsibilities of each of them;
(d) the name and address of any other agencies that have specific functions under the Agreement, including those foreseen in
Articles 10.10 and 10.11 of the
Agreement; and
(e) measures and arrangements to ensure that national and sub-national authorities preparing new technical regulations or procedures for assessment of conformity, or substantial amendments to existing ones, provide early information on their proposals in order to enable the Member in question to fulfil its obligations on notifications under
Articles 2.9, 2.10,
3.2, 5.6,
5.7 and 7.2 of the
Agreement.”(70)
2. Article 15.3
56. The Committee carried out, at its meeting of 23 March 2004, the Ninth Annual Review of the Implementation and Operation of the Agreement under
Article 15.3(71) and the Ninth Annual Review of the Code of Good Practice for the Preparation, Adoption and Application of Standards based on the following background documents: a list of standardizing bodies that have accepted the Code in
2003(72), a list of standardizing bodies that have accepted the Code since 1 January
1995(73) and the ninth edition of the WTO TBT Standards Code Directory prepared by the ISO/IEC Information Centre.
3. Article 15.4
57. The Committee concluded the
First,(74) Second(75) and
Third(76) Triennial Reviews of the Operation and Implementation of the Agreement on Technical Barriers to Trade on 13 November 1997, 10 November 2000, and 7 November 2003, respectively.
XVII. Annex 1
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A. Text of Annex 1
Annex 1: Terms and their
definitions for the purpose of this Agreement
The terms presented in the sixth edition of the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning Standardization and Related Activities, shall, when used in this Agreement, have the same meaning as given in the definitions in the said Guide taking into account that services are excluded from the coverage of this Agreement.
For the purpose of this Agreement, however, the following definitions shall apply:
1. Technical regulation
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.
Explanatory note
The definition in ISO/IEC Guide 2 is not self-contained, but based on the so-called “building block” system.
2. Standard
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.
Explanatory note
The terms as defined in ISO/IEC Guide 2 cover products, processes and services. This Agreement deals only with technical regulations, standards and conformity assessment procedures related to products or processes and production methods. Standards as-defined by ISO/IEC Guide 2 may be mandatory or-voluntary. For the purpose of this Agreement standards are defined as voluntary and technical regulations as mandatory documents. Standards prepared by the international standardization community are based on consensus. This Agreement covers also documents that are not based on consensus.
3. Conformity assessment procedures
Any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled.
Explanatory note
Conformity assessment procedures include, inter alia, procedures for sampling, testing and inspection; evaluation, verification and assurance of conformity; registration, accreditation and approval as well as their combinations.
4. International body or system
Body or system whose membership is open to the relevant bodies of at least all Members.
5. Regional body or system
Body or system whose membership is open to the relevant bodies of only some of the Members.
6. Central government body
Central government, its ministries and departments or any body subject to the control of the central government in respect of the activity in question.
Explanatory note:
In the case of the European Communities the provisions governing central government bodies apply.
However, regional bodies or conformity assessment systems may be established within the European Communities, and in such cases would be subject to the provisions of this Agreement on regional bodies or conformity assessment systems.
7. Local government body
Government other than a central government (e.g. states, provinces, Länder, cantons, municipalities, etc.), its ministries or departments or any body subject to the control of such a government in respect of the activity in question.
8. Non-governmental body
Body other than a central government body or a local government body, including a non-governmental body which has legal power to enforce a technical regulation.
B. Interpretation and Application of Annex 1
1. Technical regulation
58. In EC
—
Asbestos, the Appellate Body clarified the term “technical regulation” and held, inter alia, that “[a] ‘technical regulation’ must … regulate the ‘characteristics’ of products in a binding or compulsory fashion”:
“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’. The word ‘characteristic’ has a number of synonyms that are helpful in understanding the ordinary meaning of that word, in this context. Thus, the ‘characteristics’ of a product include, in our view, any objectively definable ‘features’, ‘qualities’, ‘attributes’, or other ‘distinguishing mark’ of a product. Such ‘characteristics’ might relate,
inter alia, to a product’s composition, size, shape, colour, texture, hardness, tensile strength, flammability, conductivity, density, or viscosity. In the definition of a ‘technical regulation’ in
Annex 1.1, the 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. In addition, according to the definition in
Annex 1.1 of the
TBT Agreement, a ‘technical regulation’ may set forth the ‘applicable administrative provisions’ for products which have certain ‘characteristics’. 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’. (emphasis added) 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’. The definition … also states that ‘compliance’ with the ‘product characteristics’ laid down in the ‘document’ must be ‘mandatory’. A ‘technical regulation’ must, in other words, regulate the ‘characteristics’ of products in a binding 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’.
‘Product characteristics’ may … be prescribed or imposed with respect to products in either a positive or a negative form. That is, the document may provide, positively, that products
must possess certain ‘characteristics’, or the document may require, negatively, that products
must not possess certain ‘characteristics’. In both cases, the legal result is the same: the document ‘lays down’ certain binding ‘characteristics’ for products, in one case affirmatively, and in the other by negative implication.”(77)
59. Regarding the products to which a technical regulation applies, the Appellate Body in
EC — Asbestos further held that while a technical regulation must be applicable to an
identifiable product or groups of products, this did not signify that the products in question must be actually named or identified in the regulation at issue:
“A ‘technical regulation’ must, of course, be applicable to an
identifiable product, or group of products. Otherwise, enforcement of the regulation will, in practical terms, be impossible. This consideration also underlies the formal obligation, in
Article 2.9.2 of the
TBT Agreement, for Members to notify other Members, through the WTO Secretariat, of ‘the
products to be covered’ by a proposed ‘technical regulation’. (emphasis added) Clearly, compliance with this obligation requires identification of the product coverage of a technical regulation.
However, in contrast to what the Panel suggested, this does not mean that a ‘technical regulation’ must apply to ‘given’ products which are actually
named, identified or specified in the regulation. (emphasis added) Although the
TBT Agreement clearly applies to ‘products’ generally, nothing in the text of that Agreement suggests that those products need be named or otherwise
expressly identified in a ‘technical regulation’. Moreover, there may be perfectly sound administrative reasons for formulating a ‘technical regulation’ in a way that does
not expressly identify products by name, but simply makes them identifiable
— for instance, through the ‘characteristic’ that is the subject of regulation.”(78)
60. In EC
— Sardines, the Appellate Body summarized its interpretation of the definition of a “technical regulation”:
“We interpreted this definition in EC — Asbestos. In doing so, we set out
three criteria that a document must meet to fall within the definition of ‘technical regulation’ in the
TBT Agreement. First, the document must apply to an identifiable product or group of products. The
identifiable product or group of products need not, however, be expressly
identified in the document. Second, the document must lay down one or more characteristics of the product. These product characteristics may be intrinsic, or they may be related to the product. They may be prescribed or imposed in either a positive or a negative form.
Third, compliance with the product characteristics must be mandatory. As we stressed in
EC — Asbestos, these three criteria are derived from the wording of the definition in
Annex 1.1. At the oral hearing, both participants
confirmed that they agree with these criteria for determining whether a document is a ‘technical regulation’ under the
TBT Agreement.”(79)
61. In EC
— Asbestos, the Appellate Body further elaborated on the first criterion —
the requirement that the document apply to an identifiable product or group of products
— confirming that “the product does not necessarily have to be mentioned explicitly in a document for that product to be an identifiable product. Identifiable does not mean expressly identified”.(80) The Appellate Body noted:
“The European Communities argues that the Panel erred in failing to acknowledge that the EC Regulation uses the term ‘preserved sardines’ to mean
— exclusively — preserved
Sardina pilchardus. The European Communities is of the view that preserved
Sardina pilchardus and preserved Sardinops sagax are not like products. The European Communities reasons that preserved
Sardinops sagax can neither be an identified nor an identifiable product under the EC Regulation.
…
As we explained in EC — Asbestos, the requirement that a ‘technical regulation’ be applicable to
identifiable products relates to aspects of compliance and enforcement, because it would be impossible to comply with or enforce a ‘technical regulation’ without knowing to what the regulation applied. As the Panel record shows, the EC Regulation has been enforced against preserved fish products imported into Germany containing
Sardinops sagax. This confirms that the EC Regulation is applicable to preserved
Sardinops sagax, and demonstrates that preserved Sardinops sagax is an
identifiable product for purposes of the EC Regulation. Indeed, the European Communities admits that the EC Regulation is applicable to
Sardinops sagax, when it states in its appellant’s submission that ‘[t]he only legal consequence of the [EC] Regulation for preserved
Sardinops sagax is that they may not be called “preserved sardines” ‘.
Therefore, we reject the contention of the European Communities that preserved
Sardinops sagax is not an identifiable product under the EC Regulation.”(81)
62. With regard to the second criterion
— the requirement that the document must lay down one or more characteristic of the product
— the Appellate Body rejected, in
EC — Sardines, an argument by the European Communities that the measure at issue did not lay down product characteristics, but rather constituted a “naming rule”. The Appellate Body found that “product characteristics include not only ‘features and qualities intrinsic to the product’, but also those that are related to it, such as ‘means of identification’.”(82) It agreed with the panel’s ruling that the measure at issue did lay down product characteristics:
“As we stated earlier, the EC Regulation expressly identifies a product, namely ‘preserved sardines’. Further,
Article 2 of the EC Regulation provides that, to be marketed as ‘preserved sardines’, products must be prepared exclusively from fish of the species
Sardina pilchardus. We are of the view that this requirement — to be prepared exclusively from fish of the species
Sardina pilchardus — is a product characteristic ‘intrinsic to’ preserved sardines that is laid down by the EC Regulation. …
In any event, as we said in EC — Asbestos, a ‘means of identification’
is a product characteristic. A name clearly identifies a product; indeed, the European Communities concedes that a name is a ‘means of identification’. … the European Communities itself underscored the important role that a ‘name’ plays as a ‘means of identification’ when it argued before the Panel that one of the objectives pursued by the European Communities through the EC Regulation is to provide precise information to avoid misleading the consumer …
. “(83)
2. Standards
(a) Relationship between the definitions under the TBT Agreement and the definitions in the ISO/IEC Guide
63. In EC
— Sardines, in the context of an analysis relating to the notion of “relevant international standard” under
Article 2.4, the Appellate Body considered the relationship between the definitions under
Annex 1 of the TBT Agreement and the ISO/IEC Guide:
“[A]ccording to the chapeau [of Annex
1], the terms defined in Annex 1 apply for the purposes of the
TBT Agreement only if their definitions depart from those in the ISO/IEC Guide 2:1991 (the ‘ISO/IEC Guide’). This is underscored by the word ‘however’. The definition of a standard in
Annex 1 to the
TBT Agreement departs from that provided in the ISO/IEC Guide precisely in respect of whether consensus is expressly required.”(84)
(b) Consensus
64. With respect to whether consensus is required to meet the definition of “standard” under
Annex 1.2, the Appellate Body observed in
EC — Sardines that:
“The term ‘standard’ is defined in the ISO/IEC Guide as follows:
Document, established by consensus and approved by a
recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for activities or their results, aimed at the achievement of the optimum degree of order in a given context. (original emphasis)
Thus, the definition of a ‘standard’ in the ISO/IEC Guide expressly includes a consensus requirement. Therefore, the logical conclusion, in our view, is that the omission of a consensus requirement in the definition of a standard in
Annex 1.2 of the TBT Agreement was a deliberate choice on the part of the drafters of the TBT Agreement, and that the last two phrases of the Explanatory note were included to give effect to this choice.
Had the negotiators considered consensus to be necessary to satisfy the definition of ‘standard’, we believe they would have said so explicitly in the definition itself, as is the case in the ISO/IEC Guide. Indeed, there would, in our view, have been no point in the negotiators adding the last sentence of the Explanatory note.”(85)
65. See also the section on the notion of “relevant international standards” under
Article 2.4 (paragraphs 10–12 above).
XVIII. Annex 2
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A. Text of Annex 2
Annex 2: Technical Expert Groups
The following procedures shall apply to technical expert groups established in accordance with the provisions of
Article 14.
1. Technical expert groups are under the panel’s authority. Their terms of reference and detailed working procedures shall be decided by the panel, and they shall report to the panel.
2. Participation in technical expert groups shall be restricted to persons of professional standing and experience in the field in question.
3. Citizens of parties to the dispute shall not serve on a technical expert group without the joint agreement of the parties to the dispute, except in exceptional circumstances when the panel considers that the need for specialized scientific expertise cannot be fulfilled otherwise. Government officials of parties to the dispute shall not serve on a technical expert group. Members of technical expert groups shall serve in their individual capacities and not as government representatives, nor as representatives of any organization. Governments or organizations shall therefore not give them instructions with regard to matters before a technical expert group.
4. Technical expert groups may consult and seek information and technical advice from any source they deem appropriate. Before a technical expert group seeks such information or advice from a source within the jurisdiction of a Member, it shall inform the government of that Member. Any Member shall respond promptly and fully to any request by a technical expert group for such information as the technical expert group considers necessary and appropriate.
5. The parties to a dispute shall have access to all relevant information provided to a technical expert group, unless it is of a confidential nature. Confidential information provided to the technical expert group shall not be released without formal authorization from the government, organization or person providing the information. Where such information is requested from the technical expert group but release of such information by the technical expert group is not authorized, a non-confidential summary of the information will be provided by the government, organization or person supplying the information.
6. The technical expert group shall submit a draft report to the Members concerned with a view to obtaining their comments, and taking them into account, as appropriate, in the final report, which shall also be circulated to the Members concerned when it is submitted to the panel.
B. Interpretation and Application of Annex 2
66. On the issue of whether the establishment of a technical expert group is required under
Article 14, see paragraph 54 above.
XIX. Annex 3
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A. Text of Annex 3
Annex 3: Code of good practice for the preparation, adoption and application of standards
General Provisions
A. For the purposes of this Code the definitions in
Annex 1 of this Agreement shall apply.
B. This Code is open to acceptance by any standardizing body within the territory of a Member of the WTO, whether a central government body, a local government body, or a non-governmental body; to any governmental regional standardizing body one or more members of which are Members of the WTO; and to any non-governmental regional standardizing body one or more members of which are situated within the territory of a Member of the WTO (referred to in this Code collectively as “standardizing bodies” and individually as “the standardizing body”).
C. Standardizing bodies that have accepted or withdrawn from this Code shall notify this fact to the ISO/IEC Information Centre in Geneva. The notification shall include the name and address of the body concerned and the scope of its current and expected standardization activities. The notification may be sent either directly to the ISO/IEC Information Centre, or through the national member body of ISO/IEC or, preferably, through the relevant national member or international affiliate of ISONET, as appropriate.
Substantive Provisions
D. In respect of standards, the standardizing body shall accord treatment to products originating in the territory of any other Member of the WTO no less favourable than that accorded to like products of national origin and to like products originating in any other country.
E. The standardizing body shall ensure that standards are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.
F. Where international standards exist or their completion is imminent, the standardizing body shall use them, or the relevant parts of them, as a basis for the standards it develops, except where such international standards or relevant parts would be ineffective or inappropriate, for instance, because of an insufficient level of protection or fundamental climatic or geographical factors or fundamental technological problems.
G. With a view to harmonizing standards on as wide a basis as possible, the standardizing body shall, in an appropriate way, play a full part, within the limits of its resources, in the preparation by relevant international standardizing bodies of international standards regarding subject matter for which it either has adopted, or expects to adopt, standards. For standardizing bodies within the territory of a Member, participation in a particular international standardization activity shall, whenever possible, take place through one delegation representing all standardizing bodies in the territory that have adopted, or expect to adopt, standards for the subject matter to which the international standardization activity relates.
H. The standardizing body within the territory of a Member shall make every effort to avoid duplication of, or overlap with, the work of other standardizing bodies in the national territory or with the work of relevant international or regional standardizing bodies. They shall also make every effort to achieve a national consensus on the standards they develop. Likewise the regional standardizing body shall make every effort to avoid duplication of, or overlap with, the work of relevant international standardizing bodies.
I. Wherever appropriate, the standardizing body shall specify standards based on product requirements in terms of performance rather than design or descriptive characteristics.
J. At least once every six months, the standardizing body shall publish a work programme containing its name and address, the standards it is currently preparing and the standards which it has adopted in the preceding period. A standard is under preparation from the moment a decision has been taken to develop a standard until that standard has been adopted. The titles of specific draft standards shall, upon request, be provided in English, French or Spanish. A notice of the existence of the work programme shall be published in a national or, as the case may be, regional publication of standardization activities.
The work programme shall for each standard indicate, in accordance with any ISONET rules, the classification relevant to the subject matter, the stage attained in the standard’s development, and the references of any international standards taken as a basis. No later than at the time of publication of its work programme, the standardizing body shall notify the existence thereof to the ISO/IEC Information Centre in Geneva.
The notification shall contain the name and address of the standardizing body, the name and issue of the publication in which the work programme is published, the period to which the work programme applies, its price (if any), and how and where it can be obtained. The notification may be sent directly to the ISO/IEC Information Centre, or, preferably, through the relevant national member or international affiliate of ISONET, as appropriate.
K. The national member of ISO/IEC shall make every effort to become a member of ISONET or to appoint another body to become a member as well as to acquire the most advanced membership type possible for the ISONET member. Other standardizing bodies shall make every effort to associate themselves with the ISONET member.
L. Before adopting a standard, the standardizing body shall allow a period of at least 60 days for the submission of comments on the draft standard by interested parties within the territory of a Member of the WTO. This period may, however, be shortened in cases where urgent problems of safety, health or environment arise or threaten to arise. No later than at the start of the comment period, the standardizing body shall publish a notice announcing the period for commenting in the publication referred to in
paragraph J. Such notification shall include, as far as practicable, whether the draft standard deviates from relevant international standards.
M. On the request of any interested party within the territory of a Member of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of a draft standard which it has submitted for comments. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.
N. The standardizing body shall take into account, in the further processing of the standard, the comments received during the period for commenting. Comments received through standardizing bodies that have accepted this Code of Good Practice shall, if so requested, be replied to as promptly as possible. The reply shall include an explanation why a deviation from relevant international standards is necessary.
O. Once the standard has been adopted, it shall be promptly published.
P. On the request of any interested party within the territory of a Member of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of its most recent work programme or of a standard which it produced. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.
Q. The standardizing body shall afford sympathetic consideration to, and adequate opportunity for, consultation regarding representations with respect to the operation of this Code presented by standardizing bodies that have accepted this Code of Good Practice. It shall make an objective effort to solve any complaints.
B. Interpretation and Application of Annex 3
1. Notification procedure under paragraph J
67. The TBT Committee adopted the following decision relating to the communication of the work programme of standardizing bodies via the Internet:
“The communication of the work programmes of standardizing bodies via the Internet would be another possibility to fulfil
paragraph J obligations on transparency.
Hard copies of such work programmes would, nevertheless, always be made available on request in accordance with
paragraph P of the Code of Code of Good Practice.”(86)
XX. Decision on Proposed Understanding
on WTO-ISO Standards Information
System back to top
A. Text of the Decision
Decision on Proposed Understanding on WTO-ISO Standards Information System
Ministers,
Decide to recommend that the Secretariat of the World Trade Organization reach an understanding with the International Organization for Standardization (“ISO”) to establish an information system under which:
1. ISONET members shall transmit to the ISO/IEC Information Centre in Geneva the notifications referred to in
paragraphs C and J of the Code of Good Practice for the Preparation, Adoption and Application of Standards in
Annex 3 to the Agreement on Technical Barriers to Trade, in the manner indicated there;
2. the following (alpha)numeric classification systems shall be used in the work programmes referred to in
paragraph J:
(a) a standards classification system which would allow standardizing bodies to give for each standard mentioned in the work programme an (alpha)numeric indication of the subject matter;
(b) a stage code system which would allow standardizing bodies to give for each standard mentioned in the work programme an (alpha)numeric indication of the stage of development of the standard; for this purpose, at least five stages of development should be distinguished: (1) the stage at which the decision to develop a standard has been taken, but technical work has not yet begun; (2) the stage at which technical work has begun, but the period for the submission of comments has not yet started; (3) the stage at which the period for the submission of comments has started, but has not yet been completed; (4) the stage at which the period for the submission of comments has been completed, but the standard has not yet been adopted; and (5) the stage at which the standard has been adopted;
(c) an identification system covering all international standards which would allow standardizing bodies to give for each standard mentioned in the work programme an (alpha)numeric indication of the international standard(s) used as a basis;
3. the ISO/IEC Information Centre shall promptly convey to the Secretariat copies of any notifications referred to in
paragraph C of the Code of Good Practice;
4. the ISO/IEC Information Centre shall regularly publish the information received in the notifications made to it under
paragraphs C and J of the Code of Good Practice; this publication, for which a reasonable fee may be charged, shall be available to ISONET members and through the Secretariat to the Members of the WTO.
B. Interpretation and Application of the Decision
No jurisprudence or decision of a competent WTO body.
XXI. Decision on Review of the ISO/IEC Information Centre Publication
back to top
A. Text of the Decision
Decision on Review of the ISO/IEC Information Centre Publication
Ministers,
Decide that in conformity with
paragraph 1 of Article 13 of the Agreement on Technical Barriers to Trade in
Annex 1A of the Agreement Establishing the World Trade Organization, the Committee on Technical Barriers to Trade established thereunder shall, without prejudice to provisions on consultation and dispute settlement, at least once a year review the publication provided by the ISO/IEC Information Centre on information received according to the Code of Good Practice for the Preparation, Adoption and Application of Standards in
Annex 3 of the Agreement, for the purpose of affording Members opportunity of discussing any matters relating to the operation of that Code.
In order to facilitate this discussion, the Secretariat shall provide a list by Member of all standardizing bodies that have accepted the Code, as well as a list of those standardizing bodies that have accepted or withdrawn from the Code since the previous review.
The Secretariat shall also distribute promptly to the Members copies of the notifications it receives from the ISO/IEC Information Centre.
B. Interpretation and Application of the Decision
No jurisprudence or decision of a competent WTO body.
XXII. Relationship with other WTO Agreements
back to top
A. Gatt 1994
68. See the Interpretative Note to
Annex 1A of the
WTO Agreement.
B. SPS Agreement
69. See Article 1.5 and
paragraph 4 above.
Footnotes:
66. G/C/M/7, para. 2.2. The text of the Rules of Procedures for the meetings of the TBT Committee is also contained in
G/TBT/1/Rev.8, pp. 2–9.
back to text
67. The text of the guidelines is contained in
G/TBT/1/Rev.8, pp. 8 and 9. See also
G/TBT/M/1, para. 22. back to text
68. (footnote original) Appellate Body Report on
Guatemala — Cement,
paras. 65–66.
back to text
69. Panel Report on
EC — Asbestos, paras. 5.18–5.19.
back to text
70.
G/TBT/1/Rev.8, p. 10. back to text
71.
G/TBT/14. back to text
72. G/TBT/CS/1/Add.8. back to text
73. G/TBT/CS/2/Rev.10. back to text
74. First Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade,
G/TBT/5. back to text
75. Second Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade,
G/TBT/9. back to text
76. Third Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade,
G/TBT/13. back to text
77. Appellate Body Report on
EC — Asbestos,
paras. 67–69.
back to text
78. Appellate
Body Report on EC — Asbestos,
para. 70.
back to text
79. Appellate
Body Report on EC — Sardines,
para. 176.
back to text
80. Appellate
Body Report on EC — Sardines,
para. 180.
back to text
81. Appellate
Body Report on EC — Sardines,
paras. 181–186.
back to text
82. Appellate
Body Report on EC — Sardines,
para. 189.
back to text
83. Appellate
Body Report on EC — Sardines,
paras. 190–191.
back to text
84. Appellate
Body Report on EC — Sardines,
para. 224.
back to text
85. Appellate
Body Report on EC — Sardines,
para. 225.
back to text
86. See G/TBT/1/Rev.8, p. 25. back to text
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