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WTO ANALYTICAL INDEX: TECHNICAL BARRIERS

Agreement on Technical Barriers to Trade

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The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

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> Article 11
> Article 12
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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

1. Related TBT Committee decisions and recommendations

132.     In 1997, with a view to operationalizing and implementing the provisions of Article 12, the TBT Committee agreed to the following:

(i)     the Committee will consider the following matters in its future programme of work, which could be taken up during the next three years and reviewed during the Second Triennial Review of the Agreement:

  • the use of measures to engender capacity building in developing country Members, including the consideration of measures relevant to transfer of technology to these countries, for the purpose of preparation and adoption of technical regulations, standards or conformity assessment procedures, taking into account their special development, financial and trade needs;
     
  • the preparation of a study by the Secretariat to establish the state of knowledge concerning the technical barriers to the market access of developing country suppliers, especially small and medium sized enterprises (SMEs), as a result of standards, technical regulations and conformity assessment procedures;
     
  • inviting representatives of relevant international standardizing bodies and international systems for conformity assessment procedures to make written and oral presentations to the Committee with a view to assessing whether and how account is taken of the special problems of developing countries in such bodies and systems. The Secretariat will circulate a compendium of the written contributions by the relevant organisations; and
     
  •  the encouragement of the organization of international meetings relevant to the provisions of the Agreement in the territories of developing country Members to give greater representative participation of such Members to the deliberations and recommendations of such international meetings, and to the electronic dissemination of information.(172)

133.     At the same meeting in 1997, the TBT Committee agreed to invite Members, on a voluntary basis, to exchange information on the implementation of Article 12. At its meeting of in 2006, in order to have a more focused exchange of information, the TBT Committee agreed:

(i)     to encourage Members to inform the Committee of special and differential treatment provided to developing country Members, including information on how they have taken into account special and differential treatment provisions in the preparation of technical regulations and conformity assessment procedures; and

 

(ii)     to encourage developing country Members to undertake their own assessments of the utility and benefits of such special and differential treatment.(173)

134.     In 2006, in order to have amore focused exchange of information, the Committee agreed:

(i)     to encourage Members to inform the Committee of special and differential treatment provided to developing country Members, including information on how they have taken into account special and differential treatment provisions in the preparation of technical regulations and conformity assessment procedures; and

 

(ii)     to encourage developing country Members to undertake their own assessments of the utility and benefits of such special and differential treatment.(174)

2. Jurisprudence

(a) General

135.     In EC — Approval and Marketing of Biotech Products, the Panel observed that “Article 12.3 requires that in preparing and applying technical regulations, standards and conformity assessment procedures, Members take account of the special needs of developing country Members.”(175) That Panel also noted that “Article 12.3 is a specific application of the obligation in Article 12.2 to take account of developing country needs in the implementation of the TBT Agreement at the national level.”(176)

(b) Relationship with other provisions

(i) Article 2.2

136.     In US — Clove Cigarettes, the Panel differentiated the obligation contained in Article 12.3 from that contained in Article 2.2:

“The Panel observes that certain elements of Indonesia’s Panel Request and subsequent submissions suggest that, in Indonesia’s view, the relevant question under Article 12.3 of the TBT Agreement is whether a challenged measure ‘created an unnecessary obstacle to exports from developing country Members’. To the extent that Indonesia is arguing that Article 12.3 embodies a prohibition against creating unnecessary obstacles to exports from developing countries, the Panel is unable to agree. We read Article 12.3 as establishing an obligation to ‘take account of’ the special development, financial and trade needs of developing country Members. We read the last part of the sentence in Article 12.3 as providing guidance on how and why the Member preparing or applying the technical regulation should ‘take account of’ these special needs — namely, ‘with a view to’ ensuring that technical regulations do not create unnecessary obstacles to exports from developing country Members.

 

In our view, this interpretation flows naturally from the plain language of the text of Article 12.3 of the TBT Agreement. We find it difficult to read a provision structured in terms of Article 12.3 — i.e., structured in terms of ‘Members shall take into account …, with a view to …’ — to mean that words following ‘with a view …’ would establish an additional obligation, or a separate element of a claim. The Spanish and French versions of Article 12.3 are drafted in the same way, thereby reinforcing the view that the first part of Article 12.3 establishes an obligation to ‘take account of’ the special development, financial and trade needs of developing country Members, whereas the last part of the sentence in Article 12.3 simply provides guidance on how and why the Member preparing or applying the technical regulation should ‘take account of’ these special needs.

 

We find further support for our interpretation of Article 12.3 of the TBT Agreement by reading this provision in the context of Article 2.2 of the TBT Agreement. The latter provision, which clearly prohibits Members from adopting technical regulations that create unnecessary obstacles to trade, is worded and structured differently from the obligation in Article 12.3. In addition, it is not clear what object or purpose would be served by duplicating the obligation, already found in Article 2.2, in Article 12.3. Any measure captured by an obligation under Article 12.3 to ensure that technical regulations ‘do not create unnecessary obstacles to exports from developing country Members’ would already be captured and subsumed within the obligation under Article 2.2 to ensure that technical regulations do not create ‘unnecessary obstacle to international trade’ (as defined in the second sentence of that provision). Accordingly, if such an obligation were to be read in to Article 12.3, it would appear to be redundant and inutile in the light of Article 2.2.

 

For these reasons, we do not read Article 12.3 of the TBT Agreement as establishing an obligation against creating ‘unnecessary obstacles to exports from developing country Members’. Contrary to certain arguments from Indonesia, this provision does not, in our view, ‘prescribe a specific result to be achieved’. Rather, we read Article 12.3 as an obligation to ‘take account of’ the special needs of developing countries. This means that the focus and scope of the enquiry under Article 12.3 of the TBT Agreement differs significantly from that of Article 2.2 of the TBT Agreement, and finding that a measure is consistent (or inconsistent) with Article 2.2 does not answer the question of whether that measure is inconsistent with Article 12.3. Thus, where a panel finds that a Member has adopted a technical regulation that is more trade-restrictive than necessary to fulfil a legitimate objective under Article 2.2, this finding does not prove that the Member did not take account of developing country needs in the preparation and application of that measure. Conversely, where a panel finds that a Member has adopted a technical regulation that is not more trade-restrictive than necessary to fulfil a legitimate objective, this does not prove that the Member took account of developing country needs in the preparation and application of that measure.”(177)

(ii) Article 10.1 of the SPS Agreement

137.     The Panel in EC — Approval and Marketing of Biotech Products described Article 12.3 as the “equivalent provision” to Article 10.1 of the SPS Agreement.(178)

(c) “developing country”

138.     In US — Clove Cigarettes, the Panel had little difficulty in finding that Indonesia was a developing country and that this element of a claim under Article 12.3 was therefore satisfied:

“In its first written submission, the United States asserts in general that Indonesia has not met its burden of proof on any of the elements under Article 12.3 of the TBT Agreement, but that the United States will assume arguendo that Indonesia is a developing country in responding to the claim under Article 12.3.

 

Indonesia states that it is a developing country and argues, inter alia, that the World Bank classifies it as a developing country and that its status as a developing country Member of the WTO was recognized in Indonesia — Autos.

 

The Panel is of the view that the foregoing is more than sufficient to conclude that Indonesia is a ‘developing country’. We therefore find that the first element of a claim under Article 12.3 of the TBT Agreement is satisfied.”(179)

(d) “special development, financial and trade needs”

139.     In US — Clove Cigarettes, the Panel concluded that Indonesia had “special development, financial and trade needs” that were affected by the measure at issue:

“We begin by observing that the meaning of the expression ‘special development, financial and trade needs’ is not entirely clear. Indeed, the expression appears to be deliberately vague. The Panel notes that similar expressions are found in other WTO Agreements and instruments. For example, in EC — Tariff Preferences, the Appellate Body elaborated upon the meaning of the phrase ‘development, financial, and trade needs’ in the context of paragraph 3(c) of the Enabling Clause.(180) In Brazil — Aircraft, the panel had to consider the phrase ‘development needs’ in the context of Article 27.4 of the SCM Agreement.(181) That panel made the interesting observation that ‘an examination of whether export subsidies are inconsistent with a developing country Member’s development needs is an inquiry of a peculiarly economic and political nature, and notably illsuited to review by a panel whose function is fundamentally legal’.(182)

 

Whatever the exact meaning of the terms ‘special development, financial and trade needs’, the Panel considers that Indonesia satisfies the requirement of being a developing country that has ‘special development, financial and trade needs’ affected by the ban on clove cigarettes. In this regard, the Panel notes that Indonesia explained ‘the importance of clove cigarettes to its economy and its people’. More specifically, clove cigarettes have been produced in Indonesia for over a century; it is estimated that as many as 6 million Indonesians are employed directly or indirectly in the manufacture of cigarettes and the growing of tobacco; the cigarette industry, including clove, accounts for approximately 1.66 per cent of Indonesia’s total gross domestic product (‘GDP’); and Indonesia has exported clove cigarettes to the United States for well over 40 years. It is also not in dispute that, as a result of the ban, U.S. imports of clove cigarettes produced in Indonesia have declined from approximately $15 million in 2008 to zero in 2010.

 

We consider that the above is sufficient to conclude that Indonesia has ‘special development, financial and trade needs’ that are affected by technical regulation at issue. We therefore find that the second element of a claim under Article 12.3 of the TBT Agreement is satisfied.”(183)

(e) “take account of”

140.     In US — Clove Cigarettes, the Panel rejected Indonesia’s claim under Article 12.3 on the grounds that Indonesia could not demonstrate that the United States did not “take account of” its special needs as a developing country. The Panel began by providing some general observations on the obligation, in Article 12.3, to “take account of” a developing country’s special needs:

“We note that there is no jurisprudence examining the nature of the obligation in Article 12.3 of the TBT Agreement to ‘take account of’ the special needs of developing countries. However, the panel in EC — Approval and Marketing of Biotech Products examined a claim brought by Argentina under Article 10.1 of the SPS Agreement, which the panel described as the ‘equivalent provision’ to Article 12.3 of the TBT Agreement.(184) Article 10.1 reads as follows:

 

‘In the preparation and application of sanitary or phytosanitary measures, Members shall take account of the special needs of developing country Members, and in particular of the least-developed country Members.’ (emphasis added)

 

The panel in EC — Approval and Marketing of Biotech Products, which rejected Argentina’s claim under Article 10.1 of the SPS Agreement, observed with respect to the meaning of the terms ‘take account of’ that:

 

‘… The dictionary defines the expression “take account of” as “consider along with other factors before reaching a decision”.(185) Consistent with this, Article 10.1 does not prescribe a specific result to be achieved. Notably, Article 10.1 does not provide that the importing Member must invariably accord special and differential treatment in a case where a measure has led, or may lead, to a decrease, or a slower increase, in developing country exports’.(186)

 

That panel also found that it is the complaining party that carries the burden of proving that the Member adopting the technical regulation did not ‘take account of’ developing country Members’ needs.(187)

 

We agree with that panel’s interpretation of the obligation to ‘take account of’ developing country Members’ needs, and we agree with the panel that it is the complaining party, in this case Indonesia, that carries the burden of proof.”(188)

141.     The Panel in US — Clove Cigarettes added that:

“[T]o ‘take account of’ the special financial, development and trade needs of a developing country does not necessarily mean that the Member preparing or applying a technical regulation must agree with or accept the developing country’s position and desired outcome. In our opinion, the fact that the United States ultimately decided not to exclude clove cigarettes from the scope of the ban in Section 907(a)(1)(A) does not mean that the United States did not take account of Indonesia’s special financial, development and trade needs.”(189)

 

Institutions, Consultation And Dispute Settlement

XIV. Article 13     back to top

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. Related TBT Committee decisions and recommendations

(a) Rules of procedure

142.     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.(190)

(b) Observer status

143.     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 International Intergovernmental Organizations in the WTO (Annex 2).(191)

(c) Consideration of specific trade concerns

144.     Pursuant to Article 13 of the TBT Agreement, the TBT Committee was established with 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”. Since its first meeting, Members have used the TBT Committee as a forum to discuss issues related to specific measures (technical regulations, standards or conformity assessment procedures) maintained by other Members. These are referred to as “specific trade concerns” (STCs) and relate normally to proposed draft measures notified to the TBT Committee or to the implementation of existing measures.(192)

145.     In 2009, noting the accelerated growth in the number of specific trade concerns raised at Committee meetings, as well as in the number of WTO Members raising concerns or substantively supporting those of other Members, the Committee emphasized the importance of making the discussion more efficient in order to secure a more prompt response to concerns raised. In order to streamline the consideration of STCs, the TBT Committee agreed to apply the following procedures, to the extent practicable:

(i)     Members wishing to propose the inclusion of a specific trade concern in the annotated draft agenda should directly inform both the Secretariat and the Member(s) involved of their intention to do so no less than fourteen calendar days prior to the convening of the TBT Committee meeting;

 

(ii)     the annotated draft agenda issued by the Secretariat in advance of each Committee meeting will include all specific trade concerns communicated by Members to the Secretariat; it will indicate which concerns are being raised for the first time and which have been previously raised. It should be circulated as early as possible but no less than ten calendar days before the meeting;

 

(iii)     requests to include specific trade concerns on the agenda should be accompanied by a reference to the symbol of the notification. In cases where the measure has not been notified, the request should provide a brief description of the measure, including relevant references; and

 

(iv)     there may be instances where a Member wishes to bring a concern to the Committee’s attention after the deadline has passed. In this case, additional specific trade concerns can still be included in the agenda of the TBT Committee meeting under “Specific Trade Concerns”, provided that Members wishing to raise the relevant concerns have previously informed the Member(s) involved of their intention to do so. However such concerns will only be addressed after all specific trade concerns contained in the annotated draft agenda have been discussed.(193)

146.     In 2009, the Committee encouraged the Secretariat to continue to compile information about the status of specific trade concerns and to make this available to Members regularly with a view to providing a useful database for Members to track concerns of importance to them. The G/TBT/GEN/74/-series of documents contain an overview of specific trade concerns raised in the TBT Committee. It provides statistical information on the concerns raised since the first meeting of the TBT Committee in 1995 and lists the specific trade concerns sorted by date, frequency and the number of Members that have expressed concern.

 

XV. Article 14     back to top

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. Article 14.2

147.     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.(194) 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.”(195)

148.     In EC — Approval and Marketing of Biotech Products, the Panel decided to consult with individual scientific experts to obtain their advice on certain scientific and/or technical issues raised by the Parties’ submissions and for which the Panel might benefit from expert advice.(196)

 

Final Provisions

XVI. Article 15     back to top

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. Related TBT Committee decisions and recommendations

(a) Article 15.2

149.     In 1995, the TBT Committee agreed that, with respect to the contents of written statements to be made by members in response to Article 15.2 of the TBT Agreement:

(i)     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.

 

(ii)     in addition, the statement should specify:

  • 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;
     
  • 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;
     
  • 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;
     
  • 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
     
  • 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.(197)

(b) Article 15.3

150.     Pursuant to Article 15.3, the Committee has reviewed annually the implementation and operation of the TBT Agreement. The related Notes by the Secretariat are found in the following documents: G/TBT/3 for 1996; G/TBT/4 for 1997; G/TBT/6 for 1998; G/TBT/7 for 1999; G/TBT/8 for 2000; G/TBT/10 for 2001; G/TBT/11 for 2002; G/TBT/12 for 2003; G/TBT/14 for 2004; G/TBT/15 for 2005; G/TBT/18 for 2006; G/TBT/21 for 2007; G/TBT/23 for 2008; G/TBT/25 for 2009; G/TBT/28 for 2010; and G/TBT/29 for 2011.

(c) Article 15.4

151.     Pursuant to Article 15.4, the Committee has reviewed triennially the operation and implementation of the TBT 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. The Committee concluded the First(198), Second(199), Third(200), Fourth(201) and Fifth(202) Triennial Reviews of the Operation and Implementation of the Agreement on Technical Barriers to Trade on 13 November 1997, 10 November 2000, 7 November 2003, 9 November 2006 and 6 November 2009 respectively.

 

XVII. Annex 1     back to top

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. Terms defined in ISO/IEC Guide 2

152.     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.”(203)

153.     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. (emphasis original)

 

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.”(204)

154.     The Panel in US — Tuna II (Mexico) considered that the term “international standard” should be understood to have the same meaning as in the ISO/IEC Guide 2:

“The term ‘international standard’ is not defined in Annex 1 of the TBT Agreement, but is defined in the ISO/IEC Guide 2. In accordance with the terms of Annex 1, in the absence of a specific definition of this term in Annex 1, the term ‘international standard’ should be understood to have the same meaning in the TBT Agreement as in the ISO/IEC Guide 2, which defines it as a ‘standard that is adopted by an international standardizing/ standards organization and made available to the public’.”(205)

2. Annex 1.1: “technical regulation”

(a) Three-tier test

155.     The Appellate Body has interpreted the definition of a “technical regulation” in EC — Asbestos and EC — Sardines. In those cases, the Appellate Body established a three-tier test for determining whether a measure is a “technical regulation” under 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.”(206)

(b) “identifiable product or group of products”

156.     In EC — Asbestos, the Appellate Body elaborated on the first element of the definition of a “technical regulation”:

“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.”(207)

(c) “one or more product characteristics”

(i) General

157.     In EC — Asbestos, the Appellate Body stated that “[t]he heart of the definition of a ‘technical regulation’ is that a ‘document’ must ‘lay down’ — that is, set forth, stipulate or provide — ‘product characteristics’”.(208) The Appellate Body explained that the term “product characteristics” in Annex 1.1 of the TBT Agreement should be interpreted in accordance with its ordinary meaning:

“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.”(209)

158.     In EC — Sardines, the Appellate Body recalled the above-quoted passage, and emphasized 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.(210)

(ii) In a negative form

159.     The measures at issue in EC — Asbestos and EC — Sardines both laid down product characteristics in negative form, and both were found to be “technical regulations” within the meaning of Annex 1.1 of the TBT Agreement. In EC — Asbestos, the Appellate Body found that the measure at issue was “formulated negatively — products containing asbestos are prohibited”, and that “in effect, the measure provides that all products must not contain asbestos fibres”.(211) The Appellate Body explained that:

“‘Product characteristics’ may, in our view, 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’.”(212)

160.     The Panel in EC — Sardines found that by requiring the use of only the species Sardina pilchardus as preserved sardines, the measure at issue “in effect lays down product characteristics in a negative form”.(213) The Panel in EC — Sardines considered that a technical regulation within the meaning of Annex 1.1 of the TBT Agreement “may prescribe or impose product characteristics in either a positive or negative form”.

(d) “mandatory”

161.     In EC — Asbestos, the Appellate Body made the following observations about the requirement that a document lay down product characteristics with which compliance is “mandatory”:

“The definition of a ‘technical regulation’ in Annex 1.1 of the TBT Agreement 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 …”(214)

162.     In EC — Sardines, both the Panel and the Appellate Body concluded that the measure at issue set forth product characteristics that were “mandatory”. The conclusion was based on the fact that the measure at issue stated that the requirements contained therein were “binding in its entirety and directly applicable in all Member States”.(215)

163.     The Panel in EC — Trademarks and Geographical Indications (Australia) noted that the word “mandatory” means “obligatory in consequence of a command, compulsory”.(216)

164.     In US — Tuna II (Mexico), a majority of the Panel concluded that the measure at issue in that dispute was “mandatory” within the meaning of Annex 1.1. One panellist issued a separate opinion on this issue, concluding that the US dolphin-safe labelling provisions at issue were not mandatory and therefore were not technical regulations within the meaning of the TBT Agreement.(217)

(e) Need to consider measure as a whole

165.     In EC — Asbestos, the complainant (Canada) contended that the TBT Agreement applied to the measure at issue, because it was a “technical regulation” within the meaning of Annex 1, paragraph 1. The measure contained a general prohibition on the importation, marketing and use of asbestos, but provided for a few limited exceptions to this ban. The Panel rejected Canada’s argument and held that “the part of the Decree relating to the ban on imports of asbestos and asbestos-containing products” did not constitute a “technical regulation”.(218) The Appellate Body reversed the Panel’s finding and held that it was necessary to consider the measure at issue in its entirety, i.e. both “the prohibitive and the permissive elements that are part of it”:

“[T]he proper legal character of the measure at issue cannot be determined unless the measure is examined as a whole… . the scope and generality of those prohibitions can only be understood in light of the exceptions to it which, albeit for a limited period, permit, inter alia, the use of certain products containing asbestos and, principally, products containing chrysotile asbestos fibres. The measure is, therefore, not a total prohibition on asbestos fibres, because it also includes provisions that permit, for a limited duration, the use of asbestos in certain situations. Thus, to characterize the measure simply as a general prohibition, and to examine it as such, overlooks the complexities of the measure, which include both prohibitive and permissive elements. In addition, we observe that the exceptions in the measure would have no autonomous legal significance in the absence of the prohibitions. We, therefore, conclude that the measure at issue is to be examined as an integrated whole, taking into account, as appropriate, the prohibitive and the permissive elements that are part of it.”(219)

(f) Relationship with other Agreements

166.     In EC — Trademarks and Geographical Indications (Australia), the Panel considered a claim that Article 2.1 of the TBT Agreement could not apply to a labelling requirement due to the terms of Article IX of GATT 1994 on marks of origin. Without reaching a definitive view on the issue the Panel noted that the text of the TBT Agreement did not exclude marks of origin:

“The Panel considers it unnecessary to reach a definitive view on this issue, in view of its findings below on ‘less favourable treatment’. It suffices for the purposes of this dispute to note that the definition of a ‘technical regulation’ in Annex 1.1 and the preamble to the TBT Agreement specifically include ‘marking and labelling requirements’ without any indication that marks of origin are excluded. Articles 1.4 and 1.5 specifically exclude certain purchasing specifications addressed in the Agreement on Government Procurement and sanitary and phytosanitary measures as defined in the SPS Agreement, but there is no express exclusion for marks of origin. In any event, it has not been shown that Article 12(2) of the Regulation is, in fact, a requirement to display a mark of origin.”(220)

3. Annex 1.2: “standard”

167.     The Panel in US — Tuna II (Mexico) distinguished between the definition of “standard” in Annex 1.2 and the composite term “international standard”:

“We see a difference between the notion of ‘standard’, as defined in Annex 1.2 of the TBT Agreement for the purposes of defining the scope of application of the provisions of the TBT Agreement on standards (such as Articles 4), and the use of the term ‘standard’ in the definition of the composite term ‘international standard’ in the ISO/IEC Guide 2.

 

We acknowledge that, as noted by the Appellate Body, the terms defined in Annex 1 apply for the purposes of the TBT Agreement if these definitions depart from those in the ISO/IEC Guide.(221) Nonetheless, in our view, the term ‘standard’ as used in the definition of an ‘international standard’ in the ISO/IEC Guide 2 must be read in its proper context, i.e. as it is defined in the ISO/IEC Guide itself, in order to assign it the meaning intended in that definition. This is consistent with the terms of Article 1.1 and with Annex 1 of the TBT Agreement, which, as described above, provides that ‘[t]he terms presented in the sixth edition of the ISO/IEC Guide 2: 1991 (…) shall, when used in this Agreement, have the same meaning as given in the definitions in the said Guide’.”(222)

4. Conformity assessment procedures

168.     In EC — Trademarks and Geographical Indications (Australia), the Panel considered a claim that a requirement to maintain product inspection structures was a “technical regulation” inconsistent with Article 2.1. The Panel considered that the definitions of “conformity assessment procedures” and “technical regulation” were mutually exclusive and rejected the claim:

“This definition shows that ‘conformity assessment procedures’ assess conformity with ‘technical regulations’ and ‘standards’. This suggests that they are not only distinct from one other, but mutually exclusive. Whilst a single measure can combine both a technical regulation and a procedure to assess conformity with that technical regulation, it would be an odd result if a conformity assessment procedure could fall within the definition of a technical regulation as well.

 

The object and purpose of the TBT Agreement is, in large part, disclosed by the two main groups of substantive provisions that it contains: one that relates to technical regulations and standards in Articles 2 to 4, and another that relates to conformity assessment procedures in Articles 5 to 9. It is also reflected in the preamble, of which the fifth recital, and also the third and fourth recitals, draw this distinction. If the Panel were to embed measures subject to Articles 5 to 9 in the definition of a technical regulation and thereby subject them to the technical regulations provisions in Articles 2 to 4 as well, it would lead to an unreasonable result. In this respect, we note that the explanatory note refers to ‘procedures for … inspection’ as an example of conformity assessment procedures. This suggests that a procedure for inspection is not a technical regulation.”(223)

 

XVIII. Annex 2     back to top

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

169.     On the issue of whether the establishment of a technical expert group is required under Article 14, see paragraph 147 above.

 

XIX. Annex 3     back to top

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. Related TBT Committee decisions and recommendations

(a) General

170.     Notifications under the Code are circulated by the WTO Secretariat in the document series G/TBT/CS/N/ [Number].

171.     Pursuant to the Ministerial Decision taken in Marrakesh on 15 April 1994 on “Proposed Understanding on WTO–ISO Standards Information System”, a “Memorandum of Understanding (MoU) on WTO Standards Information Service Operated by ISO” was reached between the Secretary-General of the ISO Central Secretariat and the Director-General of the WTO. This MoU established a WTO–ISO Information System regarding standardizing bodies under Paragraphs C and J of the Code of Good Practice. Pursuant to paragraph 2 of the MoU and in order to ensure a uniform and efficient operation of the procedures for notifications, the ISO and the WTO Secretariats developed notification formats and related guidelines, which were to be used by standardizing bodies accepting the Code of Good Practice (contained in G/TBT/W/4).

(b) Paragraph C

172.     In 1997, in order to improve the transparency, acceptance of, and compliance with the Code, the TBT Committee agreed:

(i)     to invite Members to share their experience with respect to the steps taken to fulfil their obligations under Article 4 and to exchange information on the reasons why certain standardizing bodies as identified in Article 4.1 have not yet accepted the Code;

 

(ii)     that Members should take appropriate action to inform standardizing bodies of the provisions of the Code and the benefits they would gain from accepting it;

 

(iii)     that the Secretariat will draw up a list of standardizing bodies on the basis of information provided by Members of this purpose.(224)

173.     With a view to facilitating the implementation of transparency procedures under the Agreement, in 2006 the TBT Committee agreed to encourage regional standardizing bodies to accept the Code of Good Practice and to notify their acceptance of the Code to the ISO/IEC Information Centre.(225)

(c) Paragraph J

174.     In 1999, 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 Good Practice.”(226)

175.     The Committee made related recommendations in 1997 and 2006.(227)

(d) Paragraph L

176.     In 1997, the TBT Committee agreed, in order to improve the transparency, acceptance of, and compliance with the Code that:

“(i)     without prejudice to the views of Members concerning the coverage and application of the Agreement, the obligation to publish notices of draft standards containing voluntary labelling requirements under paragraph L of the Code is not dependent upon the kind of information provided on the label.”(228)

177.     At its meeting of November 2003, with regard to the electronic transmission of information on proposed standards, technical regulations and conformity assessment procedures, the Committee took note of paragraph L and agreed:

“(i)     that the electronic publication of notices announcing the periods for comments can constitute another possibility for the fulfilment of this transparency obligation.”(229)

 

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.

 

Footnotes:

172. G/TBT/1/Rev.10, pp. 41–42. back to text
173. G/TBT/1/Rev.10, p. 42. back to text
174. G/TBT/1/Rev.10, p. 42. back to text
175. Panel Report, EC — Approval and Marketing of Biotech Products, para. 7.47, subpara. 75. back to text
176. Panel Report, EC — Approval and Marketing of Biotech Products, para. 7.47, subpara. 77. back to text
177. Panel Report, US — Clove Cigarettes, paras. 7.614–7.617. back to text
178. Panel Report, EC — Approval and Marketing of Biotech Products, footnote 1330. back to text
179. Panel Report, US — Clove Cigarettes, paras. 7.622–7.624. back to text
180. (footnote original) Appellate Body Report, EC — Tariff Preferences, para. 159. back to text
181. (footnote original) Panel Report, Brazil — Aircraft, para. 7.89. back to text
182. (footnote original) Panel Report, Brazil — Aircraft, para. 7.89. back to text
183. Panel Report, US — Clove Cigarettes, paras. 7.627–7.629. back to text
184. (footnote original) Panel Report, EC — Approval and Marketing of Biotech Products, fn 1330. back to text
185. (footnote original) The Concise Oxford Dictionary, 10th edn., J. Pearsall (ed.) (Clarendon Press, 1999), p. 8. back to text
186. (footnote original) Panel Report, EC — Approval and Marketing of Biotech Products, para. 7.1620. back to text
187. (footnote original) Panel Report, EC — Approval and Marketing of Biotech Products, paras. 7.1622 and 7.1625. back to text
188. Panel Report, US — Clove Cigarettes, paras. 7.631–7.634. back to text
189. Panel Report, US — Clove Cigarettes, para. 7.646. back to text
190. 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.10, pp. 59–64. back to text
191. The text of the guidelines is contained in G/TBT/1/Rev.10, pp. 64–65. back to text
192. G/TBT/1/Rev.10, p. 42. back to text
193. G/TBT/1/Rev.10, p. 42. back to text
194. (footnote original) Appellate Body Report on Guatemala — Cement, paras. 65–66. back to text
195. Panel Report, EC — Asbestos, paras. 5.18–5.19. back to text
196. Panel Report, EC — Approval and Marketing of Biotech Products, para. 7.18. back to text
197. G/TBT/1/Rev.10, p. 17. Additional actions taken by the TBT Committee to improve the implementation of Article 15.2 are discussed at G/TBT/1/Rev.10, pp. 17–18. back to text
198. First Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, G/TBT/5. back to text
199. Second Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, G/TBT/9. back to text
200. Third Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, G/TBT/13. back to text
201. Fourth Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, G/TBT/19. back to text
202. Fifth Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, G/TBT/26. back to text
203. Appellate Body Report, EC — Sardines, para. 224. back to text
204. Appellate Body Report, EC — Sardines, para. 225. back to text
205. Panel Report, US — Tuna II (Mexico), para. 7.663. back to text
206. Appellate Body Report, EC — Sardines, para. 176, citing Appellate Body Report, EC — Asbestos, paras. 66–70. back to text
207. Appellate Body Report, EC — Asbestos, para. 70. In EC — Asbestos, the Appellate Body concluded that the measure at issue in that case was applicable to an identifiable product or group of products. Appellate Body Report, EC — Asbestos, para. 74. back to text
208. Appellate Body Report, EC — Asbestos, para. 67. back to text
209. Appellate Body Report, EC — Asbestos, para. 67. In EC — Asbestos, the Appellate Body concluded that the measure at issue laid down one or more “product characteristics”. Appellate Body Report, EC — Asbestos, para. 74. back to text
210. Appellate Body Report, EC — Sardines, para. 189, quoting Appellate Body Report, EC — Asbestos, para. 67. In EC — Sardines, the Appellate Body agreed with the panel’s conclusion that the measure at issue laid down one or more “product characteristics”. Appellate Body Report, EC — Sardines, para. 193. back to text
211. Appellate Body Report, EC — Asbestos, para. 72. back to text
212. Appellate Body Report, EC — Asbestos, para. 69. Panel Report, EC — Sardines, para. 7.44. back to text
213. Panel Report, EC — Sardines, para. 7.45, quoted at paragraph 179 of the Appellate Body Report in EC — Sardines. back to text
214. Appellate Body Report, EC — Asbestos, para. 68 (emphasis original). In EC — Asbestos, the Appellate Body found that the measure at issue in that case laid down product characteristics with which compliance was “mandatory”. Appellate Body Report, EC — Asbestos, para. 74. back to text
215. Panel Report, EC — Sardines, para. 7.30; Appellate Body Report, EC — Sardines, para. 194. back to text
216. Panel Report, EC — Trademarks and Geographical Indications (Australia), para. 7.453. back to text
217. Panel Report, US — Tuna II (Mexico), paras. 7.100–7.188. back to text
218. Panel Report, EC — Asbestos, para. 8.72(a). back to text
219. Appellate Body Report, EC — Asbestos, para. 64. back to text
220. Panel Report, EC — Trademarks and Geographical Indications (Australia), para. 7.461. back to text
221. (footnote original) Appellate Body Report, EC — Sardines, para. 224. back to text
222. Panel Report, US — Tuna II (Mexico), paras. 7.670–7.671. back to text
223. Panel Report, EC — Trademarks and Geographical Indications (Australia), paras. 7.512–7.513. back to text
224. G/TBT/1/Rev.10, p. 27. back to text
225. G/TBT/1/Rev.10, p. 27. back to text
226. G/TBT/1/Rev.10, p. 28. back to text
227. G/TBT/1/Rev.10, p. 28. back to text
228. G/TBT/1/Rev.10, p. 29. back to text
229. G/TBT/1/Rev.10, p. 29. back to text

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