|
I. Preamble back to top
A. Text of the Preamble
Members,
Having regard to the Uruguay Round of Multilateral Trade
Negotiations;
Desiring to further the objectives of GATT 1994;
Recognizing the important contribution that international
standards and conformity assessment systems can make in this regard by
improving efficiency of production and facilitating the conduct of
international trade;
Desiring therefore to encourage the development of such
international standards and conformity assessment systems;
Desiring however to ensure that technical regulations and
standards, including packaging, marking and labelling requirements, and
procedures for assessment of conformity with technical regulations and
standards do not create unnecessary obstacles to international trade;
Recognizing that no country should be prevented from taking
measures necessary to ensure the quality of its exports, or for the
protection of human, animal or plant life or health, or the environment,
or for the prevention of deceptive practices, at the levels it considers
appropriate, subject to the requirement that they are not applied in a
manner which would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail or a
disguised restriction on international trade, and are otherwise in
accordance with the provisions of this Agreement;
Recognizing that no country should be prevented from taking
measures necessary for the protection of its essential security
interest;
Recognizing the contribution which international standardization
can make to the transfer of technology from developed to developing
countries;
Recognizing that developing countries may encounter special
difficulties in the formulation and application of technical regulations
and standards and procedures for assessment of conformity with technical
regulations and standards, and desiring to assist them in their
endeavours in this regard;
Hereby agree as follows:
B. Interpretation and Application of the Preamble
1. In EC — Asbestos, the Panel observed that:
“We also note that the criteria on the preparation, adoption or
application of technical regulations in Article 2.2 of the TBT Agreement
are very similar to those in Article XX of the GATT
1994. The preamble
to the TBT Agreement in fact repeats some of the wording of Article XX
of the GATT. In the Panel’s view the TBT Agreement is a development of
the GATT.”(1)
2. The Panel in EC — Asbestos noted, in this connection,
that:
“[T]he preparatory work on the Agreement on Technical Barriers to
Trade in the Tokyo Round shows that the TBT Agreement that should have
emerged from the Tokyo Round was already seen as being a development of
the existing rules of the GATT, notably Article XX. See for example the
extract from document MTN/3E/W/26, October 1974, quoted in paragraph 7
of document TRE/W/21, 17 January 1994.”(2)
3. In EC — Asbestos, the Appellate Body stated that:
“[A]lthough the TBT Agreement is intended to ‘further the
objectives of GATT 1994’, it does so through a specialized legal
regime that applies solely to a limited class of measures. For these
measures, the TBT Agreement imposes obligations on Members that
seem to be different from, and additional to, the
obligations imposed on Members under the GATT 1994.”(3)
4. The Panel in EC — Sardines referred to several recitals
in the Preamble in the context of discussing the degree of Members’
regulatory autonomy under the TBT Agreement:
“We also note in this respect that the WTO Members expressed in the
preamble to the TBT Agreement their desire that:
[…] technical regulations and standards […] do not create unnecessary
obstacles to trade […]; (emphasis added)
and recognized that:
no country should be prevented from taking measures to ensure the
quality of its exports, or for the protection of human, animal or plant
life or health, or the environment, or for the prevention of deceptive
practices, at the levels it considers appropriate, subject to the
requirement that they are not applied in a manner which would constitute
a means of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail or a disguised
restriction on international trade […]. (emphasis added)
Article 2.2 and this preambular text affirm that it is up to the
Members to decide which policy objectives they wish to pursue and the
levels at which they wish to pursue them. At the same time, these
provisions impose some limits on the regulatory autonomy of Members that
decide to adopt technical regulations: Members cannot create obstacles
to trade which are unnecessary or which, in their application, amount to
arbitrary or unjustifiable discrimination or a disguised restriction on
international trade. Thus, the TBT Agreement, like the GATT 1994, whose
objective it is to further, accords a degree of deference with respect
to the domestic policy objectives which Members wish to pursue. At the
same time, however, the TBT Agreement, like the GATT 1994, shows less
deference to the means which Members choose to employ to achieve their
domestic policy goals. We consider that it is incumbent upon the
respondent to advance the objectives of its technical regulation which
it considers legitimate.”(4)
5. In EC — Sardines, the Appellate Body found that the
obligation in Article 2.4 of the TBT Agreement applies to measures that
were adopted before the TBT Agreement entered into force but which have
not ceased to exist. In the course of its analysis, the Appellate Body
referred to several recitals in the Preamble:
“The significant role of international standards is also
underscored in the Preamble to the TBT Agreement. The third
recital of the Preamble recognizes the important contribution that
international standards can make by improving the efficiency of
production and facilitating the conduct of international trade. The
eighth recital recognizes the role that international standardization
can have in the transfer of technology to developing countries. In our
view, excluding existing technical regulations from the obligations set
out in Article 2.4 would undermine the important role of international
standards in furthering these objectives of the TBT Agreement.
Indeed, it would go precisely in the opposite direction.”(5)
6. The Panel in EC — Trademarks and Geographical Indications
(Australia) referred to several recitals in the Preamble in the
context of discussing the distinction between technical regulations and
standards:
“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.”(6)
7. The Panel in US — Clove Cigarettes referred to the
Preamble in the context of addressing various interpretative issues
under Articles 2.1 and 2.2 of the TBT
Agreement(7), as did the Panel in US
— Tuna II (Mexico).(8)
II. Article 1
back to top
A. Text of Article 1
Article 1: General Provisions
1.1
General terms for standardization and procedures for assessment
of conformity shall normally have the meaning given to them by
definitions adopted within the United Nations system and by
international standardizing bodies taking into account their context and
in the light of the object and purpose of this Agreement.
1.2
However, for the purposes of this Agreement the meaning of the
terms given in Annex 1(9) applies.
1.3
All products, including industrial and agricultural products,
shall be subject to the provisions of this Agreement.
1.4
Purchasing specifications prepared by governmental bodies for
production or consumption requirements of governmental bodies are not
subject to the provisions of this Agreement but are addressed in the
Agreement on Government Procurement, according to its coverage.
1.5
The provisions of this Agreement do not apply to sanitary and
phytosanitary measures as defined in Annex A of the Agreement on the
Application of Sanitary and Phytosanitary Measures.
1.6
All references in this Agreement to technical regulations,
standards and conformity assessment procedures shall be construed to
include any amendments thereto and any additions to the rules or the
product coverage thereof, except amendments and additions of an
insignificant nature.
B. Interpretation and Application of Article 1
1. Article 1.1
8. In EC — Approval and Marketing of Biotech Products, the
Panel referred to Article 1.1 of the TBT Agreement in the context of
interpreting the term “additives” in Annex A(1)(b) of the SPS
Agreement. The Panel stated that “[h]ad the drafters of the SPS
Agreement intended for terms like ‘additives’ to have the
meaning given to them by definitions contained in relevant international
standards, etc., we think Annex A(1) would have made this clear”, and
noted that “[w]e find instructive in this regard the provisions of
Article 1.1 of the TBT Agreement”.(10)
9. In US — Tuna II (Mexico), the Panel provided an overview
of Article 1.1 and the definitions contained in
Annex 1:
“Article 1.1 of the TBT Agreement provides that ‘[g]eneral terms
for standardization and procedures for assessment of conformity shall
normally have the meaning given to them by definitions adopted within
the United Nations system and by international standardizing bodies
taking into account their context and in the light of the object and
purpose of this Agreement. In addition, Annex 1 of the TBT
Agreement,
entitled “Terms and their definitions for the purpose of this
Agreement”, provides that:
“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.”
Annex 1 also provides specific definitions for the terms: “technical
regulation”, “standard”, “conformity assessment procedures”,
“international body or system”, “regional body or system”, “central
government body”, “local government body” and “non-governmental
body”. As expressed by the Appellate Body in EC — Sardines:
“[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”’.(11)”(12)
2. Article 1.2
10. On the definition of “technical regulation”, see
Annex 1.1.
On the definition of “standard”, see Annex
1.2.
3. Article 1.4
11. In EC — Trademarks and Geographical Indications (Australia),
the European Communities argued that a particular measure relating to
marks of origin could not be subject to Article 2.1 of the TBT Agreement
due to the terms of Article IX of GATT 1994 on marks of origin. The
Panel considered it unnecessary to reach a “definitive” view on this
argument, but noted that “Article 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”.(13)
4. Article 1.5
12. The Panel in EC — Hormones referred to
Article 1.5 of
the TBT Agreement and stated: “[s]ince the measures in dispute are
sanitary measures, we find that the TBT Agreement is not applicable to
this dispute.”(14)
13. In EC — Approval and Marketing of Biotech Products,
Canada and Argentina made alternative claims under the TBT Agreement,
including Article 2.2, in the event that the measures were found to be
covered by the TBT Agreement in addition to, or instead of, the SPS
Agreement. The Panel found that the measures at issue were SPS measures,
and consequently did not address the claims under the TBT Agreement.(15)
14. In US — Clove Cigarettes, Indonesia made claims under
the TBT Agreement, and made conditional claims under the SPS Agreement
in the event that the United States took the position that the measure
at issue in that dispute was an SPS measure. The United States did not
take the position that the measure was an SPS measure, and Indonesia
refrained from pursuing its SPS claims. The Panel stated that it would
therefore not examine the SPS claims, and that it therefore did “not
need to decide between Indonesia’s SPS and TBT claims as the starting
point of our analysis”. The Panel noted that:
“If Indonesia’s SPS claims were to be examined by this Panel, the
first threshold issue would have been whether the Panel should start its
analysis by Indonesia’s conditional SPS claims or rather by Indonesia’s
TBT claims. Indeed, whether the measure at issue is an SPS measure would
have been of particular relevance in deciding the order of analysis in
this dispute because Article 1.5 of the TBT Agreement specifically
provides that SPS measures, as defined in Annex A of the SPS
Agreement, are excluded from the scope of the TBT
Agreement.”(16)
Technical
Regulations And Standards
III. Article 2
back to top
A. Text of Article 2
Article 2: Preparation, Adoption and Application of Technical Regulations by Central Government Bodies
With respect to their central government bodies:
2.1
Members shall ensure that in respect of technical regulations,
products imported from the territory of any Member shall be accorded
treatment no less favourable than that accorded to like products of
national origin and to like products originating in any other country.
2.2
Members shall ensure that technical regulations are not prepared,
adopted or applied with a view to or with the effect of creating
unnecessary obstacles to international trade. For this purpose,
technical regulations shall not be more trade-restrictive than necessary
to fulfil a legitimate objective, taking account of the risks non-fulfilment
would create. Such legitimate objectives are, inter alia:
national security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or health, or
the environment. In assessing such risks, relevant elements of
consideration are, inter alia: available scientific and technical
information, related processing technology or intended end-uses of
products.
2.3
Technical regulations shall not be maintained if the
circumstances or objectives giving rise to their adoption no longer
exist or if the changed circumstances or objectives can be addressed in
a less trade-restrictive manner.
2.4
Where technical regulations are required and relevant
international standards exist or their completion is imminent, Members
shall use them, or the relevant parts of them, as a basis for their
technical regulations except when such international standards or
relevant parts would be an ineffective or inappropriate means for the
fulfilment of the legitimate objectives pursued, for instance because of
fundamental climatic or geographical factors or fundamental
technological problems.
2.5
A Member preparing, adopting or applying a technical regulation
which may have a significant effect on trade of other Members shall,
upon the request of another Member, explain the justification for that
technical regulation in terms of the provisions of paragraphs 2 to
4.
Whenever a technical regulation is prepared, adopted or applied for one
of the legitimate objectives explicitly mentioned in paragraph
2, and is
in accordance with relevant international standards, it shall be
rebuttably presumed not to create an unnecessary obstacle to
international trade.
2.6
With a view to harmonizing technical regulations on as wide a
basis as possible, Members shall play a full part, within the limits of
their resources, in the preparation by appropriate international
standardizing bodies of international standards for products for which
they either have adopted, or expect to adopt, technical regulations.
2.7
Members shall give positive consideration to accepting as
equivalent technical regulations of other Members, even if these
regulations differ from their own, provided they are satisfied that
these regulations adequately fulfil the objectives of their own
regulations.
2.8
Wherever appropriate, Members shall specify technical regulations
based on product requirements in terms of performance rather than design
or descriptive characteristics.
2.9
Whenever a relevant international standard does not exist or the
technical content of a proposed technical regulation is not in
accordance with the technical content of relevant international
standards, and if the technical regulation may have a significant effect
on trade of other Members, Members shall:
2.9.1
publish a notice in a publication at an early appropriate
stage, in such a manner as to enable interested parties in other Members
to become acquainted with it, that they propose to introduce a
particular technical regulation;
2.9.2
notify other Members through the Secretariat of the products to
be covered by the proposed technical regulation, together with a brief
indication of its objective and rationale. Such notifications shall take
place at an early appropriate stage, when amendments can still be
introduced and comments taken into account;
2.9.3
upon request, provide to other Members particulars or copies of
the proposed technical regulation and, whenever possible, identify the
parts which in substance deviate from relevant international standards;
2.9.4
without discrimination, allow reasonable time for other Members
to make comments in writing, discuss these comments upon request, and
take these written comments and the results of these discussions into
account.
2.10
Subject to the provisions in the lead-in to paragraph
9, where
urgent problems of safety, health, environmental protection or national
security arise or threaten to arise for a Member, that Member may omit
such of the steps enumerated in paragraph 9 as it finds necessary,
provided that the Member, upon adoption of a technical regulation,
shall:
2.10.1
notify immediately other Members through the Secretariat of
the particular technical regulation and the products covered, with a
brief indication of the objective and the rationale of the technical
regulation, including the nature of the urgent problems;
2.10.2
upon request, provide other Members with copies of the
technical regulation;
2.10.3
without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and take these
written comments and the results of these discussions into account.
2.11
Members shall ensure that all technical regulations which have
been adopted are published promptly or otherwise made available in such
a manner as to enable interested parties in other Members to become
acquainted with them.
2.12
Except in those urgent circumstances referred to in paragraph
10, Members shall allow a reasonable interval between the publication of
technical regulations and their entry into force in order to allow time
for producers in exporting Members, and particularly in developing
country Members, to adapt their products or methods of production to the
requirements of the importing Member.
B. Interpretation and Application of Article 2
1. Article 2.1
(a) General
15. The Panel in EC — Trademarks and Geographical Indications
(Australia) rejected a claim under Article 2.1 on the basis that
Australia had not demonstrated that the labelling requirement at issue
accorded “less favourable treatment”.(17)
16. In US — Clove Cigarettes, Indonesia argued that a US ban
on certain flavoured cigarettes was inconsistent with Article 2.1
because it excluded menthol cigarettes. The Panel upheld Indonesia’s
claim, finding that clove cigarettes and menthol cigarettes are “like
products” for the purpose of Article 2.1 of the TBT
Agreement, and
that by banning clove cigarettes while exempting menthol cigarettes from
the ban, the measure accorded imported clove cigarettes less favourable
treatment than that it accords to domestic menthol cigarettes.(18)
17. The Panel in US — Tuna II (Mexico) rejected a claim
under Article 2.1 on the basis that the impact of the US dolphin-safe
provisions on different operators on the market and on tuna products of
various origins depends on a number of factors that were not related to
the nationality of the product.(19)
(b) Relationship to other WTO Agreements
(i) Article III:4 of the GATT 1994
18. The Panel in EC — Trademarks and Geographical Indications
(Australia) noted the similarity in the terms used in Article 2.1 of
the TBT Agreement and Article III:4 of GATT 1994 but found it
unnecessary to consider the potential differences in their
interpretation:
“Article 2.1 of the TBT Agreement refers to ‘treatment no less
favourable’. An essential element of a claim under Article 2.1
is
that, in respect of technical regulations, the treatment accorded to
imported products is ‘less favourable’ than that accorded to like
products of national origin. The Panel notes the similarity in the terms
used in Article 2.1 of the TBT Agreement and Article III:4 of GATT
1994,
which also refers to ‘treatment no less favourable’. The preamble to
the TBT Agreement expressly sets out the desire ‘to further the
objectives of GATT 1994’.
It is unnecessary for the Panel to consider whether an assessment of
conformity with Article 2.1 of the TBT Agreement requires reference to
be had to the regulatory objective pursued by a measure as referred to
in Article 2.2 of the TBT Agreement, or the absence in the text of the
TBT Agreement of a general exception provision such as Article XX of
GATT 1994.”(20)
19. The Panel in US — Clove Cigarettes concluded that while
the wording of Article 2.1 is similar to Article III:4 of the GATT
1994,
several differences in context warranted a different kind of “like
product” analysis under Article 2.1 of the TBT
Agreement. After
recalling the existing jurisprudence under Article
III:4, which
establishes that the existence of a “competitive relationship”
between two products is fundamental to the “like product”
determination, the Panel concluded that:
“[W]e do not believe that the interpretation of Article 2.1 of the TBT
Agreement, in the circumstances of this case where we are dealing
with a technical regulation which has a legitimate public health
objective, should be approached primarily from a competition
perspective. We rather think that the weighing of the evidence relating
to the likeness criteria should be influenced by the fact that Section
907(a)(1)(A) is a technical regulation having the immediate purpose of
regulating cigarettes with a characterizing flavour for public health
reasons. As explained above, we must pay special notice to the
significance of the public health objective of a technical regulation
and how certain features of the relevant products, their end-uses as
well as the perception consumers have about them, must be evaluated in
light of that objective. In the present case, the declared legitimate
public health objective of Section 907(a)(1)(A), i.e., the reduction of
youth smoking, must permeate and inform our likeness analysis. As we
will explain in more detail below, this is particularly relevant in the
consideration of the physical characteristics that are important for the
immediate purpose of Section 907(a)(1)(A) of regulating cigarettes with
characterizing flavours, as well as the consumer tastes and habits
criterion where the perception of consumers, or rather potential
consumers, can only be assessed with reference to the health protection
objective of the technical regulation at issue.”(21)
20. In contrast, the Panel in US — Tuna II (Mexico) interpreted
the term “like products” in Article 2.1 in accordance with
Article
III:4 and its related jurisprudence. While acknowledging that the
meaning of the term “like products” could be interpreted more
narrowly or broadly depending on the context, it considered that the
term “like products” under Article 2.1 of the TBT Agreement may be
similarly understood as relating to “the nature and extent of a
competitive relationship” between and among products:
“[T]he terms of this provision very closely mirror those of
Article III:4, the national treatment obligation in the GATT 1994, so that it
may be possible to seek guidance from the interpretation of that
provision. At the same time, we are mindful that Article 2 of the TBT
Agreement does not contain an introductory paragraph comparable to
Article III:1 of the GATT 1994, setting out a “general principle”
that would inform our understanding of the exact degree or extent to
which products must share qualities or characteristics so as to be
considered like in the context of Article 2, and the perspective from
which this is to be examined. In the context of Article
III:4, the
Appellate Body determined that:
‘As products that are in a competitive relationship in the
marketplace could be affected through treatment of imports “less
favourable” than the treatment accorded to domestic products,
it follows that the word “like” in Article
III:4 is to be
interpreted to apply to products that are in such a competitive
relationship. Thus, a determination of “likeness” under Article
III:4 is, fundamentally, a determination about the nature and extent of
a competitive relationship between and among products.’(22)
Although this statement was made in the context of
Article III:4 of
the GATT 1994, we find it pertinent also to an interpretation of the
term ‘like products’ in Article 2.1 of the TBT
Agreement.
The TBT Agreement applies to a limited set of measures, and our
understanding of its terms, including the terms ‘like products’ must
be informed by this context. As expressed in the preamble of the TBT
Agreement, this Agreement reflects the intention of the negotiators to:
‘[E]nsure that technical regulations and standards, including
packaging, marking and labelling requirements, and procedures for
assessment of conformity with technical regulations and standards do not
create unnecessary obstacles to trade.’
To the extent that Article 2.1
contributes to avoiding ‘unnecessary
obstacles to trade’ arising from undue discrimination with respect to
technical regulations, it seeks to preserve the competitive
opportunities of products originating in any Member, in relation to
technical regulations. Thus, the term ‘like products’ under Article
2.1 of the TBT Agreement may be similarly understood as relating to ‘the
nature and extent of a competitive relationship’ between and among
products.”(23)
(ii) Article XX of the GATT 1994
21. In US — Clove Cigarettes, the Panel found that the
measure at issue was inconsistent with Article 2.1, and explained why it
would make no finding on the availability of Article XX as a defence to
justify a violation of Article 2.1:
“As regards the violation of Article 2.1 of the TBT Agreement,
the United States has made clear that it ‘is not invoking Article XX
of the GATT 1994 as a defence for the claims raised by Indonesia under
the TBT Agreement’. Under the circumstances, we understand the
United States to be of the view that the Panel does not need to make a
finding on the availability of Article XX to justify a violation of a
provision of the TBT Agreement.
Our task is to make an objective assessment of the matter before us.
It is not for us to broaden the matter beyond that submitted to us by
the parties. Therefore, we will not embark on an enquiry into Article
XX(b) of the GATT 1994.”(24)
2. Article 2.2
(a) General
(i) Disputes involving claims under Article 2.2
22. In EC — Asbestos, Canada claimed that the measure at
issue was inconsistent with several provisions of the TBT Agreement,
including Article 2.2. The Panel found that the measure at issue was not
a “technical regulation”, and therefore did not address Canada’s
claim under Article 2.2.(25)
23. In EC — Sardines, Peru requested that the panel examine
its claim under Article 2.4 of the TBT Agreement first and then examine
its claims under Articles 2.2 and 2.1 of the TBT Agreement only if it
were to determine that the EC regulation was not inconsistent with Article 2.4. The Panel found that the EC regulation at issue was
inconsistent with Article 2.4 of the TBT
Agreement, and did not address
the claim under Article 2.2 of the TBT Agreement.(26) However, the Panel
observed that:
“Article 2.2 and this preambular text affirm that it is up to the
Members to decide which policy objectives they wish to pursue and the
levels at which they wish to pursue them. At the same time, these
provisions impose some limits on the regulatory autonomy of Members that
decide to adopt technical regulations: Members cannot create obstacles
to trade which are unnecessary or which, in their application, amount to
arbitrary or unjustifiable discrimination or a disguised restriction on
international trade. Thus, the TBT Agreement, like the GATT 1994, whose
objective it is to further, accords a degree of deference with respect
to the domestic policy objectives which Members wish to pursue. At the
same time, however, the TBT Agreement, like the GATT 1994, shows less
deference to the means which Members choose to employ to achieve their
domestic policy goals.”(27)
24. In EC — Trademarks and Geographical Indications (Australia),
Australia made a claim under Article 2.2, but the Panel found that the
measure at issue was not a “technical regulation” within the meaning
of Annex 1.1 of the TBT Agreement.(28)
25. In EC — Approval and Marketing of Biotech Products,
Canada and Argentina made alternative claims under the TBT Agreement,
including Article 2.2, in the event that the measures were found to be
covered by the TBT Agreement in addition to, or instead of, the SPS
Agreement. The Panel found that the measures at issue were SPS measures,
and consequently did not address the claims under the TBT Agreement.(29)
26. In US — Clove Cigarettes, Indonesia argued that a US ban
on clove cigarettes was more trade-restrictive than necessary to fulfil
a legitimate objective and was therefore inconsistent with Article 2.2.
The Panel rejected Indonesia’s claim. Among other things, the Panel
found that the ban on clove cigarettes pursued a legitimate objective
(reducing youth smoking), made a material contribution to that
objective, and that Indonesia had failed to demonstrate that there are
less trade-restrictive alternative measures that would make an
equivalent contribution to the achievement of the objective at the level
of protection sought by the United States.(30)
27. In US — Tuna II (Mexico), the Panel upheld Mexico’s
claim under Article 2.2. The Panel found that the measures had
legitimate objectives (consumer information and dolphin protection), and
that the measures at issue partially fulfilled those legitimate
objectives. However, the Panel found that Mexico had identified less
trade-restrictive alternatives that would achieve a level of protection
equal to that achieved by the existing measures, and the US measures
were therefore more trade-restrictive than necessary under Article 2.2.(31)
(ii) Burden of proof
28. In US — Clove Cigarettes, the Panel set out the burden
of proof under Article 2.2:
“The parties also agree that Indonesia carries the burden of proof
in respect of its claim under Article 2.2 of the TBT Agreement.
On this point, the parties agree that there is a significant difference
between Article 2.2 and Article XX(b) of the GATT
1994. Again, we see no
reason to disagree. Thus, we proceed with our analysis on the
understanding that Indonesia must demonstrate that the ban on clove
cigarettes is more trade-restrictive than necessary to fulfil a
legitimate objective (taking account of the risks non-fulfilment would
create). At the same time, the parties agree that there is no “relevant
international standard” within the meaning of Article 2.5 of the TBT
Agreement. Accordingly, while Indonesia carries the burden of proof
to establish a violation of Article 2.2, we do not begin from any
rebuttable presumption that the ban on clove cigarettes is not an
unnecessary obstacle to trade.(32)”(33)
29. In US — Tuna II (Mexico), the Panel noted that “the
burden rests on Mexico, as the complainant, to demonstrate that the
conditions are met, to conclude that a violation of Article 2.2 of the
TBT Agreement exists”.(34)
(iii) Two-step analysis
30. In US — Clove Cigarettes, the Panel stated that:
“The terms of Article 2.2 of the TBT Agreement provide that
to be consistent with that provision, a technical regulation must: (i)
pursue a ‘legitimate objective’; and (ii) not be more
trade-restrictive than ‘necessary’ to fulfil that legitimate
objective (taking into account the risks non-fulfilment would create).
Thus, Article 2.2 appears to call for a two-step analysis. It is under
the general framework of this two-step analysis that we will address the
disputed issues identified above.”
31. Along the same lines, the Panel in US — Tuna II (Mexico) stated
that:
“[T]he analysis of its claims under Article 2.2 of the TBT
Agreement may be conducted in two steps. First, to determine whether the
US dolphin safe provisions fulfil a legitimate objective; and, second,
if that is the case, to determine whether those provisions are more
trade-restrictive than necessary to fulfil such objective, taking
account of the risks non-fulfilment would create.”(35)
(iv) Relationship between Article 2.1 and Article 2.2
32. In US — Clove Cigarettes, the Panel distinguished the
nature of the analysis to be conducted under Article 2.2
from that to be
conducted under Article 2.1, and noted that its finding of inconsistency
under Article 2.1 did not prejudge the outcome of the analysis under
Article 2.2:
“The parties also seem to agree that the nature of the analysis to
be conducted under Article 2.2 of the TBT Agreement is different
from that to be conducted under Article 2.1 of the TBT Agreement.
Again, we see no reason to disagree. The main issues under Article 2.1
in this case are whether clove cigarettes and menthol cigarettes are ‘like’
products, and if so, whether clove cigarettes are accorded ‘less
favourable treatment’ than that accorded to menthol cigarettes. The
main issue under Article 2.2 in this case is whether the ban on clove
cigarettes is ‘more trade-restrictive than necessary’ to fulfil the
legitimate objective of reducing youth smoking. Thus, our finding that
the measure is inconsistent with Article 2.1 does not prejudge the
answer to the question of whether the measure is consistent with Article 2.2.”(36)
(b) “For this purpose …”
(i) Relationship between first and second sentences of Article
2.2
33. In US — Clove Cigarettes, the Panel discussed the
relationship between the first and second sentences of Article 2.2:
“In this case, the parties agree that the first sentence of
Article 2.2 of the TBT Agreement sets out a general principle, the
meaning of which is explained and defined in the second sentence of Article 2.2. In other words, the parties agree that the first sentence
of Article 2.2 does not create a separate and distinct obligation from
that found in the second sentence. We see no reason to disagree, and
will proceed with our analysis on this understanding.”(37)
34. The Panel noted that:
“Given that the parties in this case agree on this point, there is
no need for this Panel to address the point in any detail. It suffices
to note that the second sentence is introduced by the words ‘for this
purpose’, thereby establishing a direct link between the two sentences
and implying that the second explains the meaning of the first, and the
remainder of the second sentence appears by its terms to be an
elaboration of the concept of an ‘unnecessary’ obstacle to
international trade.”(38)
35. Along the same lines, the Panel in US — Tuna II (Mexico) considered
that the second sentence of Article 2.2 defines the meaning of the first
sentence of that provision:
“In order to address Mexico’s claim, we must first clarify how a
violation of this provision may be established. We note that Mexico’s
claim is based on an absence of compliance with the terms of the second
sentence of Article 2.2. We note that the parties appear to agree that
the second sentence of Article 2.2 gives meaning to the first sentence
…
…
The Panel first notes that this provision embodies one of the core
objectives of the TBT Agreement, namely ‘that technical regulations
… do not create unnecessary obstacles to international trade’. The
first sentence of Article 2.2 translates this general objective into a
positive obligation by requiring Members to ensure that their technical
regulations are not prepared, adopted or applied with a view to, or with
the effect of, creating unnecessary obstacles to international trade.
The second sentence of Article 2.2
contains a more detailed
obligation, i.e. that technical regulations must not be more
trade-restrictive than necessary to fulfil a legitimate objective,
taking account of the risks non-fulfilment would create. The Panel also
notes that the first and the second sentences of this provision are
connected by the expression ‘[f]or this purpose’. In the Panel’s
view, this expression indicates that complying with the requirements
contained in the second sentence of Article 2.2
serves the purpose of
ensuring that technical regulations do not create unnecessary obstacles
to international trade.
Thus, the Panel agrees with the United States that ‘the second
sentence of Article 2.2 of the TBT Agreement explains what the first
sentence of this provision means’.(39) In other words, the second
sentence of Article 2.2 of the TBT Agreement establishes two
requirements that technical regulations must comply with in order not to
constitute unnecessary obstacles to international trade.”(40)
(c) “more trade-restrictive than necessary”
(i) “trade-restrictive”
36. The Panel in US — Tuna II (Mexico) considered the
question of what constitutes “trade-restrictiveness” within the
meaning of Article 2.2:
“Turning first to the question of what constitutes ‘trade-restrictiveness’
in this context, we note that Mexico argues that measures that are ‘trade-restrictive’
include those that impose any form of limitation of imports,
discriminate against imports or deny competitive opportunities to
imports and that the United States agrees with Mexico that a measure
that imposes limits on imports or discriminates against them would meet
the definition of a measure that is ‘trade-restrictive’. We also
agree.”(41)
(ii) “necessary”
Relevance of jurisprudence under Article XX of the GATT 1994
37. The Panel in US — Clove Cigarettes concluded that
jurisprudence relating to Article XX(b) of the GATT 1994 is relevant to
the interpretation of the “more trade-restrictive than necessary”
standard in Article 2.2 of the TBT Agreement.(42) The Panel clarified,
however, that:
“We do not agree with the United States that ‘no aspect’ of
Article XX(b) jurisprudence is applicable to an Article 2.2
analysis. At
the same time, we are not saying that Article XX(b) jurisprudence can be
transposed in its entirety onto Article 2.2 of the TBT Agreement.
It may well be that there are certain aspects of Article XX(b)
jurisprudence that are not applicable in the context of Article 2.2 of
the TBT Agreement. Rather, we are of the view that there are some
aspects of Article XX(b) jurisprudence that may be taken into account in
the context of interpreting Article 2.2 of the TBT Agreement.”(43)
38. The Panel in US — Tuna II (Mexico) identified certain
similarities and differences between Article 2.2
and Article XX of the
GATT 1994.(44)
Relevance of footnote 3 to Article 5.6 of the SPS Agreement
39. In US — Clove Cigarettes, the United States argued that
Article 2.2 should be interpreted in accordance with
Article 5.6 of the
SPS Agreement and footnote 3 to that provision, rather than in
accordance with jurisprudence developed under Article XX(b) of the GATT
1994. The Panel saw no conflict between these provisions of the SPS
Agreement and the jurisprudence developed under Article XX(b) of the
GATT 1994:
“[T]he United States relies on footnote 3 to
Article 5.6 of the SPS
Agreement to argue that the appropriate standard to be applied is
whether an alternative measure exists that is ‘significantly’ less
restrictive to trade. Article 5.6 of the SPS Agreement and its
accompanying footnote provide that: [quotation omitted]
However, the United States does not explain the basis for the
underlying premise that a different standard applies under Article XX(b).
Indeed, we are unaware of any GATT or WTO panel or Appellate Body report
which suggests that a different standard applies under Article XX(b). In
addition, the United States acknowledges in response to a question from
the Panel that the issue of whether Article 2.2
embodies a ‘significantly
less trade-restrictive’ standard would ‘not appear to arise in this
dispute’, where the challenged measure is an import ban, if Indonesia
adduced sufficient evidence that an alternative measure exists that does
not ban its product.”(45)
40. The Panel in US — Tuna II (Mexico) considered the
clarification provided in footnote 3 to
Article 5.6 of the SPS Agreement
pertinent to the interpretation of Article 2.2:
“We are duly mindful of the fact that each provision must be
interpreted in its proper context and that a similarly worded provision
in a distinct covered agreement should not be assumed to have the same
meaning as in another context. Nonetheless, we find that footnote 3 of
the SPS Agreement, and the clarification that it provides concerning the
meaning of the terms ‘not more trade-restrictive than required’ is
pertinent for the purposes of confirming our understanding of the
corresponding terms of Article 2.2 of the TBT
Agreement, which play, in
the context of this agreement, a comparable role. We note, however, that
Article 2.2 of the TBT Agreement makes no reference to a technical
regulation being ‘significantly’ more trade-restrictive than
necessary. Without prejudice to what this term may imply in the context
of Article 5.6 of the SPS Agreement, we note that
Article 2.2 contains
no such qualification.”(46)
(d) “a legitimate objective”
(i) As reference point for the analysis under Article 2.2
41. The Panel in US — Clove Cigarettes considered that the
identification of the objective pursued “is the logical starting point
in the analysis under Article 2.2 of the TBT Agreement, because
it serves as the reference point for the purpose of analysing whether a
measure is ‘more trade-restrictive than necessary’ to achieve its
objective”.(47)
(ii) Technical regulation with multiple objectives
42. The Panel in US — Clove Cigarettes considered that “it
would be entirely possible, both as a factual and a legal matter, for a
single technical regulation to pursue more than one objective”.(48)
43. The Panel in US — Tuna II (Mexico) concluded that the
measures at issue in that dispute had two different objectives, namely
consumer information and dolphin protection.(49)
(iii) “legitimate” objective
44. The Panel in US — Clove Cigarettes considered it to be
self-evident that the objective of reducing youth smoking is a “legitimate”
one:
“We have already concluded that the objective of the ban on clove
cigarettes is to reduce youth smoking. It is self-evident that measures
to reduce youth smoking are aimed at the protection of human health, and
Article 2.2 of the TBT Agreement explicitly mentions the ‘protection
of human health’ as one of the ‘legitimate objectives’ covered by
that provision. In EC — Asbestos, the Appellate Body stated
that ‘the objective pursued by the measure is the preservation of
human life and health through the elimination, or reduction, of the
well-known, and life-threatening, health risks posed by asbestos fibres.
The value pursued is both vital and important in the highest degree.’(50)
In addition, we recall that in Brazil — Retreaded Tyres, the
Appellate Body agreed with the panel that ‘few interests are more “vital”
and “important” than protecting human beings from health risks’.(51)”(52)
45. The Panel in US — Tuna II (Mexico) also concluded that
the objectives of the measure at issue in that dispute (consumer
information and dolphin protection) were “legitimate” ones:
“Having clarified the objectives pursued by the US dolphin safe
provisions, we must now ascertain whether these objectives are ‘legitimate’
within the meaning of Article 2.2 of the TBT
Agreement. As observed by
the panel in EC — Sardines, although the elaboration of the
objectives of a measure is a prerogative of the Member establishing that
measure, ‘[p]anels are required to determine the legitimacy of those
objectives’.(53) The Appellate Body supported this conclusion by stating
that it shared the view of the Panel this part of the analysis ‘implies
that there must be an examination and a determination on the legitimacy
of the objectives of the measure’.(54)
Article 2.2 of the TBT Agreement provides a non-exhaustive list of
legitimate objectives under this provision.(55) This list includes, as
the United States has pointed out, the ‘prevention of deceptive
practices’ and the ‘protection of … animal or plant life or
health, or the environment’. We are satisfied that the objectives of
the US dolphin safe provisions, as described in the previous section,
fall within the scope of these two categories of legitimate objectives.
The objective of preventing consumers of tuna products from being
deceived by false dolphin safe allegations falls within the broader goal
of preventing deceptive practices. Similarly, the protection of dolphins
may be understood as intended to protect animal life or health or the
environment. In this respect, a measure that aims at the protection of
animal life or health need not, in our view, be directed exclusively to
endangered or depleted species or populations, to be legitimate. Article 2.2
refers to ‘animal life or health’ in general terms, and does not
require that such protection be tied to a broader conservation
objective. We therefore read these terms as allowing Members to pursue
policies that aim at also protecting individual animals or species whose
sustainability as a group is not threatened.”(56)
(e) “taking account of the risks non-fulfilment would create”
46. The Panel in US — Tuna II (Mexico) considered that the
“risks of non-fulfilment” language in Article 2.2
required
consideration of the “likelihood and the gravity of potential risks”:
“We also note that, in making this determination, we are required
to take into account ‘the risks that non-fulfilment would create’.
The final sentence of Article 2.2 further clarifies that ‘[i]n
assessing such risks, relevant elements of consideration are, inter
alia: available scientific and technical information, related
processing technology or intended end-uses of products’.
As we understand it, this part of the text enjoins us to consider, as
part of our analysis, both the likelihood and the gravity of potential
risks (and any associated adverse consequences) that might arise in the
event that the legitimate objective being pursued would not be
fulfilled. We further understand this to imply that an alternative means
of achieving the objective that would entail greater ‘risks of non-fulfilment’
would not be a valid alternative, even if it were less
trade-restrictive. This is consistent, in our view, with the fact that
each Member is entitled, as expressed in the preamble of the TBT
Agreement and as discussed above, to define its own level of protection.”(57)
3. Article 2.3
47. The Panel in EC — Sardines noted that
Article 2.3
supports the view that the obligation under Article 2.4
is not a static
obligation and that there is an ongoing obligation to reassess technical
regulations in light of international standards that are adopted or
revised(58):
“The language of Article 2.3
suggests that Members are to eliminate
technical regulations that no longer serve their purpose or amend them
if the changed circumstances or objectives can be addressed in a less
trade-restrictive manner. This requirement also applies to technical
regulations that were enacted before the TBT Agreement came into force.
Thus, Members would be under an obligation to periodically evaluate
their technical regulations and either discontinue them if they no
longer serve their objectives or change them if there is a less
trade-restrictive manner in which to achieve the underlying objectives
of the regulations …”(59)
4. Article 2.4
(a) Three-step analysis under Article 2.4
48. The Panel in US — Tuna II (Mexico) explained that:
“The elements of a violation of Article 2.4 of the TBT Agreement
were addressed by the Appellate Body in EC — Sardines. In that
case, although the Panel and the Appellate Body followed the same
approach in their assessment of Peru’s claim under Article 2.4. They
first considered whether the alleged international standard was indeed a
‘relevant international standard’ within the meaning of Article 2.4,
then they analysed whether the relevant international standard had been
used ‘as a basis for’ the EC regulation challenged by Peru; finally
the third element considered was the ‘ineffectiveness or
inappropriateness’ of the relevant international standard for the
fulfilment of the legitimate objectives pursued.(60) We find this approach
to be consistent with the terms and structure of Article 2.4.
Accordingly, we find it appropriate to examine Mexico’s claim under
Article 2.4 of the TBT Agreement on the basis of the following three
elements:
-
the existence or imminent completion of a relevant international
standard;
-
whether the international standard has been used as a basis for
the technical regulation; and
-
whether the international standard is an ineffective or
inappropriate means for the fulfilment of the legitimate objectives
pursued, taking into account fundamental climatic or geographical
factors or fundamental technological problems.”(61)
(b) Temporal application of Article 2.4
49. In EC — Sardines, the Appellate Body upheld the Panel’s
finding that Article 2.4 applies not only to the “preparation and
adoption” of technical regulations, but also to the “application”
of existing measures adopted prior to 1 January 1995, such
as the EC regulations that were adopted in June 1989 and had continued
to exist. The Panel had observed, inter alia, that:
“Article 2.4 of the TBT Agreement starts with the language ‘where
technical regulations are required’. We construe this expression to
cover technical regulations that are already in existence as it is
entirely possible that a technical regulation that is already in
existence can continue to be required. … Moreover, we note that the
first part of the sentence of Article 2.4 is in the present tense (‘exist’)
and not in the past tense — ‘[w]here technical regulations are
required and relevant international standards exist or their
completion is imminent ’,Members are obliged to use such
international standards as a basis. This supports the view that Members
have to use relevant international standards that currently exist or
whose completion is imminent with respect to the technical regulations
that are already in existence. We do not consider that the word ‘imminent’,
the ordinary meaning of which is ‘likely to happen without delay’,
is intended to limit the scope of the coverage of technical regulations
to those that have yet to be adopted. Rather, the use of the word ‘imminent’
means that Members cannot disregard a relevant international standard
whose completion is imminent with respect to their existing technical
regulations.”(62)
50. In EC — Sardines, the Appellate Body concurred with the
Panel’s view on the applicability of Article 2.4
to existing technical
regulations (see paragraph 49 above), and further noted:
“[We] fail to see how the terms ‘where technical regulations are
required’, ‘exist’, ‘imminent’, ‘use’, and ‘as a basis
for’ give any indication that Article 2.4 applies only to the two
stages of preparation and adoption of technical
regulations. To the contrary, as the Panel noted, the use of the present
tense suggests a continuing obligation for existing measures, and not
one limited to regulations prepared and adopted after the TBT
Agreement entered into force… . The obligation refers to technical
regulations generally and without limitations.
Like the sanitary measure in EC — Hormones, the EC
Regulation concerned is currently in force. The European Communities has
conceded that the EC regulation is an act or fact that has not ‘ceased
to exist’. Accordingly, following our reasoning in EC — Hormones,
Article 2.4 of the TBT Agreement applies to existing measures
unless that provision ‘reveals a contrary intention’.
Furthermore, like Articles 5.1 and
5.5 of the SPS Agreement, Article 2.4
is a ‘central provision’ of the TBT Agreement,
and it cannot just be assumed that such a central provision does not
apply to existing measures. Again, following our reasoning in EC —
Hormones, we must conclude that, if the negotiators had wanted to
exempt the very large group of existing technical regulations from the
disciplines of a provision as important as Article 2.4 of the TBT
Agreement, they would have said so explicitly.”(63)
51. In EC — Sardines, the Appellate Body also agreed with
the Panel’s analysis of Articles 2.5 and 2.6 as relevant context for
Article 2.4, providing support for the argument that
Article 2.4 regulates measures adopted before the TBT Agreement entered into
force.(64) Finally, in the same case, the Appellate Body found further
support for this conclusion in Article XVI:4 of the WTO Agreement and in
the object and purpose of the TBT Agreement.(65)
(c) Burden of proof
52. In EC — Sardines, the Appellate Body reversed the Panel’s
ruling on the issue of the burden of proof under Article 2.4. The
Appellate Body ruled that the burden of proof should be borne by the
complaining Member seeking a ruling of inconsistency with Article 2.4.(66)
Specifically, the Appellate Body stated that, as with Articles 3.1 and
3.3 of the SPS Agreement, there is no “general rule–exception”
relationship between the first and the second parts of Article 2.4:(67)
“There are strong conceptual similarities between, on the one hand,
Article 2.4 of the TBT Agreement and, on the other hand,
Articles 3.1 and
3.3 of the SPS Agreement, and our reasoning in EC —
Hormones is equally apposite for this case. The heart of Article 3.1
of the SPS Agreement is a requirement that Members base their
sanitary or phytosanitary measures on international standards,
guidelines, or recommendations. Likewise, the heart of Article 2.4 of
the TBT Agreement is a requirement that Members use international
standards as a basis for their technical regulations. Neither of these
requirements in these two agreements is absolute. Articles 3.1 and
3.3 of the SPS Agreement permit a Member to depart from an
international standard if the Member seeks a level of protection higher
than would be achieved by the international standard, the level of
protection pursued is based on a proper risk assessment, and the
international standard is not sufficient to achieve the level of
protection pursued. Thus, under the SPS Agreement, departing from
an international standard is permitted in circumstances where the
international standard is ineffective to achieve the objective of the
measure at issue. Likewise, under Article 2.4 of the TBT Agreement,
a Member may depart from a relevant international standard when it would
be an ‘ineffective or inappropriate means for the fulfilment of the
legitimate objectives pursued’ by that Member through the technical
regulation.
… Similarly, the circumstances envisaged in the second part of
Article 2.4 are excluded from the scope of application of the first part
of Article 2.4. Accordingly, as with Articles 3.1 and
3.3 of the SPS Agreement, there is no ‘general rule–exception’ relationship
between the first and the second parts of Article 2.4. Hence, in this
case, it is for Peru — as the complaining Member seeking a ruling on
the inconsistency with Article 2.4 of the TBT Agreement of the
measure applied by the European Communities — to bear the burden of
proving its claim. This burden includes establishing that Codex Stan 94
has not been used ‘as a basis for the EC Regulation, as well as
establishing that Codex Stan 94 is effective and appropriate to fulfil
the ‘legitimate objectives’ pursued by the European Communities
through the EC Regulation.”(68)
53. The Panel in US — Tuna II (Mexico) recalled that “the
Appellate Body held that the complaining party had to prove that the
alleged international standard had not been used as a basis for the
challenged regulation and that it also had to show that the alleged
international standard was effective and appropriate to fulfil the
legitimate objectives pursued by the regulation”, and proceeded on
that basis.(69)
(d) Relevant international standard
(i) “international standard”
General
54. 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’.
An ‘international standard’ is thus composed of three elements: (i)
a standard; (ii) adopted by an international standardizing/standards
organization; and (iii) made available to the public. We must therefore
consider whether the provisions of the AIDCP tuna tracking and
verification resolution (which contain a definition of dolphin safe) and
of the AIDCP dolphin-safe certification resolution (which provides for
the AIDCP dolphin safe label) meet each of these components and thus
constitute an ‘international standard’.
Finally, we note that both parties have referred to the TBT Committee
Decision on Principles for the Development of International
Standards, Guides and Recommendations that sets out principles and
procedures that standardizing bodies should observe when developing
international standards. We consider it appropriate to take into account
the principles contained in this decision where they may inform our
understanding of certain aspects of the ISO/IEC Guide definitions such
as the terms ‘international standardizing/standards organization’
and ‘made available to the public’ in the definition of ‘international
standard’. However we note that the Panel in EC — Sardines,
in a statement not addressed by the Appellate Body, observed that the
TBT decision ‘is a policy statement of preference and not the
controlling provision in interpreting the expression ‘relevant
international standard’ as set out in Article 2.4 of the TBT Agreement’.(70)”(71)
55. The Panel in US — Tuna II (Mexico) also 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 Article 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.(72) 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’.”(73)
No consensus requirement
56. The Appellate Body in EC — Sardines upheld the Panel’s
conclusion that even if not adopted by consensus, an international
standard can constitute a “relevant international standard”.(74) The
Appellate Body agreed with the following interpretation by the Panel of
the last two sentences of the Explanatory note to the definition of the
term “standard”, as contained in Annex 1 paragraph
2:
“The first sentence reiterates the norm of the international
standardization community that standards are prepared on the basis of
consensus. The following sentence, however, acknowledges that consensus
may not always be achieved and that international standards that were
not adopted by consensus are within the scope of the TBT Agreement.(75)
This provision therefore confirms that even if not adopted by consensus,
an international standard can constitute a relevant international
standard.”(76)
57. In EC — Sardines, the Appellate Body made the following
observation on the issue of consensus in international standards:
“[T]he text of the Explanatory note supports the conclusion that
consensus is not required for standards adopted by the international
standardizing community. The last sentence of the Explanatory note
refers to ‘documents’. The term ‘document’ is also used in the
singular in the first sentence of the definition of a ‘standard’. We
believe that ‘document(s)’ must be interpreted as having the same
meaning in both the definition and the Explanatory note… . Interpreted
in this way, the term ‘documents’ in the last sentence of the
Explanatory note must refer to standards in general, and not only
to those adopted by entities other than international bodies …
Moreover, the text of the last sentence of the Explanatory note,
referring to documents not based on consensus, gives no indication
whatsoever that it is departing from the subject of the immediately
preceding sentence, which deals with standards adopted by international
bodies. Indeed, the use of the word ‘also’ in the last sentence
suggests that the same subject is being addressed — namely standards
prepared by the international standardization community. Hence, the
logical assumption is that the last phrase is simply continuing in the
same vein, and refers to standards adopted by international bodies,
including those not adopted by consensus.”(77)
58. In EC — Sardines, the Appellate Body also noted that the
definition of “standard” in the ISO/IEC Guide includes a consensus
requirement and 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”.(78) In light of this,
the Appellate Body upheld the Panel’s conclusion that:
“[T]he definition of a ‘standard’ in Annex 1.2 to the TBT
Agreement does not require approval by consensus for standards
adopted by a ‘recognized body’ of the international standardization
community. We emphasize, however, that this conclusion is relevant only
for purposes of the TBT Agreement. It is not intended to affect,
in any way, the internal requirements that international
standard-setting bodies may establish for themselves for the adoption of
standards within their respective operations. In other words, the fact
that we find that the TBT Agreement does not require approval by
consensus for standards adopted by the international standardization
community should not be interpreted to mean that we believe an
international standardization body should not require consensus for the
adoption of its standards. That is not for us to decide.”(79)
(ii) “relevant”
59. In EC — Sardines, the Appellate Body agreed with the
Panel‘s statement that the ordinary meaning of the term “relevant”
is “bearing upon or relating to the matter in hand; pertinent”.(80)
The Panel reasoned that, to be a “relevant international standard”,
the standard at issue in the dispute — Codex Stan 94 — would have to
“bear upon, relate to, or be pertinent to the EC Regulation”.(81) The
Panel then noted the following about that standard:
“The title of Codex Stan 94 is ‘Codex Standard for Canned
Sardines and Sardine-type Products’ and the EC Regulation lays down
common marketing standards for preserved sardines. The European
Communities indicated in its response that the term ‘canned sardines’
and ‘preserved sardines’ are essentially identical. Therefore, it is
apparent that both the EC Regulation and Codex Stan 94 deal with the
same product, namely preserved sardines. The scope of Codex Stan 94
covers various species of fish, including Sardina pilchardus which
the EC Regulation covers, and includes, inter alia, provisions on
presentation (Article 2.3), packing medium (Article
3.2), labelling,
including a requirement that the packing medium is to form part of the
name of the food (Article 6), determination of net weight
(Article 7.3),
foreign matter (Article 8.1) and odour and flavour
(Article 8.2). The EC
Regulation contains these corresponding provisions set out in Codex Stan
94, including the section on labelling requirement.”(82)
60. The Panel in US — Tuna II (Mexico) concluded that the
AIDCP (Agreement on International Dolphin Conservation Program) dolphin
safe definition and certification constitute a “relevant international
standard” within the meaning of Article 2.4, for the purpose of the US
dolphin safe labelling provisions.(83)
(e) “shall use them”
61. The Panel in EC — Sardines noted that
Article 2.4 states
that Members “shall use” international standards “as a basis”
for their technical regulation. The Panel held that the use of the word
“shall” denotes a requirement that is obligatory in nature and that
goes beyond mere encouragement.(84)
(f) “as a basis for”
62. In EC — Sardines, the Appellate Body agreed with the
Panel that an international standard is used “as a basis for” a
technical regulation “when it is used as the principal constituent or
fundamental principle for the purpose of enacting the technical
regulation”.(85) The Appellate Body cited certain definitions of the
term “basis”, and concluded that:
“From these various definitions, we would highlight the similar
terms ‘principal constituent’, ‘fundamental principle’, ‘main
constituent’, and ‘determining principle’ — all of which lend
credence to the conclusion that there must be a very strong and very
close relationship between two things in order to be able to say that
one is ‘the basis for’ the other.(86)
63. In EC — Sardines, in its analysis of the terms “as a
basis for”, the Appellate Body considered its approach to the
interpretation of the term “based on” in the context of Article 3.1
of the SPS Agreement as being relevant for the interpretation of Article 2.4.(87) However, it did not consider it necessary to decide in that case
whether the term “as a basis”, in the context of Article 2.4 of the
TBT Agreement, has the same meaning as the term “based on”, in the
context of Article 3.1 of the SPS
Agreement.(88)
64. In EC — Sardines, the Appellate Body rejected the
European Communities’ argument that a “rational relationship”
between an international standard and a technical regulation is
sufficient to conclude that the former is used “as a basis for” the
latter:
“[W]e see nothing in the text of Article 2.4
to support the
European Communities’ view, nor has the European Communities pointed
to any such support. Moreover, the European Communities does not offer
any arguments relating to the context or the object and purpose of that
provision that would support its argument that the existence of a ‘rational
relationship’ is the appropriate criterion for determining whether
something has been used ‘as a basis for’ something else.
We see no need here to define in general the nature of the
relationship that must exist for an international standard to serve ‘as
a basis for’ a technical regulation. Here we need only examine this
measure to determine if it fulfils this obligation. In our view, it can
certainly be said — at a minimum — that something cannot be
considered a ‘basis’ for something else if the two are contradictory.
Therefore, under Article 2.4, if the technical regulation and the
international standard contradict each other, it cannot properly
be concluded that the international standard has been used ‘as a basis
for’ the technical regulation.”(89)
65. With regard to the requirement in
Article 2.4 that Members use
relevant international standards “or the relevant parts of them” as
a basis for their technical regulations, the Appellate Body observed in EC
— Sardines:
“In our view, the phrase ‘relevant parts of them’
defines the appropriate focus of an analysis to determine whether a
relevant international standard has been used ‘as a basis for’ a
technical regulation. In other words, the examination must be limited to
those parts of the relevant international standards that relate to the
subject-matter of the challenged prescriptions or requirements. In
addition, the examination must be broad enough to address all of those
relevant parts; the regulating Member is not permitted to select only some
of the ‘relevant parts’ of an international standard. If a part
is relevant, then it must be one of the elements which is a basis for
the technical regulation.”(90)
66. The Panel in US — Tuna II (Mexico) concluded that the
United States failed to base its dolphin safe labelling provisions at
issue on the relevant international standard of the AIDCP (Agreement on
International Dolphin Conservation Program). In the course of its
analysis, the Panel stated that:
“[W]e consider that there the US dolphin safe labelling provisions
and the AIDCP resolutions are closely connected. In our view, the US
legislator has constructed the US dolphin safe labelling scheme building
on the AIDCP foundations. However, the strong relationship between the
two bodies of rules appears to be insufficient to infer that the AIDCP
standard was used as a basis for the technical regulation.”(91)
(g) “ineffective or inappropriate means” of fulfilment of “legitimate
objectives”
(i) “ineffective or inappropriate means”
67. The Appellate Body in EC — Sardines upheld the Panel’s
interpretation of the terms “ineffective or inappropriate means”.
The Panel pointed out that the term “ineffective” “refers to
something that does not ‘hav[e] the function of accomplishing’, ‘having
a result’, or ‘brought to bear’, whereas [the term] ‘inappropriate’
refers to something which is not ‘specially suitable’, ‘proper’,
or ‘fitting’”:
“Thus, in the context of Article 2.4, an ineffective means is a
means which does not have the function of accomplishing the legitimate
objective pursued, whereas an inappropriate means is a means which is
not specially suitable for the fulfilment of the legitimate objective
pursued. An inappropriate means will not necessarily be an ineffective
means and vice versa. That is, whereas it may not be specially
suitable for the fulfilment of the legitimate objective, an
inappropriate means may nevertheless be effective in fulfilling
that objective, despite its ‘unsuitability’. Conversely, when a
relevant international standard is found to be an effective means, it
does not automatically follow that it is also an appropriate means. The
question of effectiveness bears upon the results of the means
employed, whereas the question of appropriateness relates more to the nature
of the means employed.(92)
68. In addition, the Appellate Body, in EC — Sardines,
shared the Panel’s view that the terms “ineffective” and “inappropriate”
have different meanings, and “that it is conceptually possible that a
measure could be effective but inappropriate, or appropriate but
ineffective.”(93)
69. The Panel in US — Tuna II (Mexico) recalled the
Appellate Body’s guidance in EC — Sardines, and stated that:
“In accordance with the clarifications provided by the Appellate
Body as described above, we consider that the AIDCP standard would be
effective if it had the capacity to accomplish the two legitimate
objectives defined by the United States, and it would be appropriate if
it were suitable for the fulfilment of both of these objectives. In
addition, as noted by the Panel and the Appellate Body, insofar as the
terms ‘ineffective’ and ‘inappropriate’ have different meaning
and that it is conceptually possible that a measure could be effective
but inappropriate, Mexico bears the burden of showing that the AIDCP
standard is both effective and appropriate. Mexico therefore has the
duty to adduce sufficient evidence that the AIDCP standard meets the
legal requirements of effectiveness and appropriateness set out in
Article 2.4 of the TBT Agreement.”(94)
(ii) “legitimate objectives pursued”
70. In EC — Sardines, the Appellate Body agreed with the
Panel’s interpretation of the meaning of the phrase “legitimate
objectives pursued”. The Panel stated that the “‘legitimate
objectives’ referred to in Article 2.4 must be interpreted in the
context of Article 2.2”, which provides an illustrative, open list of
objectives considered “legitimate”.(95) Also, the Panel indicated that
Article 2.4 of the TBT Agreement requires an examination and a
determination whether the objectives of the measure at issue are “legitimate”.(96)
The Appellate Body further concurred with the Panel in concluding that
“the ‘legitimate objectives’ referred to in Article 2.4
must be
interpreted in the context of Article 2.2”(97), which refers also to “legitimate
objectives”, and includes a description of what the nature of some
such objectives can be:
“Two implications flow from the Panel’s interpretation. First,
the term ‘legitimate objectives’ in Article 2.4, as the Panel
concluded, must cover the objectives explicitly mentioned in Article 2.2, namely: ‘national security requirements; the prevention of
deceptive practices; protection of human health or safety, animal or
plant life or health, or the environment.’ Second, given the use of
the term ‘inter alia’ in Article 2.2, the objectives covered
by the term ‘legitimate objectives’ in Article 2.4
extend beyond the
list of the objectives specifically mentioned in Article 2.2.
Furthermore, we share the view of the Panel that the second part of Article 2.4
implies that there must be an examination and a
determination on the legitimacy of the objectives of the measure.”(98)
5. Article 2.5
(a) First sentence
(i) “upon the request of another Member”
71. In US — Clove Cigarettes, the Panel rejected a claim
under Article 2.5. In that dispute, Indonesia had put a number of
questions to the United States following the enactment of the measure at
issue. However, based on its analysis of the content of the document in
question, the Panel concluded that the United States would not have
understood that Indonesia’s questions in document G/TBT/W/323
constituted a request pursuant to the first sentence of Article 2.5 of
the TBT Agreement, and concluded that “Indonesia did not make a
request pursuant to the first sentence of Article 2.5 of the TBT
Agreement through its questions in document G/TBT/W/323”.(99) The
Panel further noted that the United States did in fact provide an
explanation with respect to the enactment of the measure at issue at the
TBT Committee Meeting in November 2009 in response to Indonesia’s
request in document G/TBT/W/323.(100)
(ii) “applying”
72. In EC — Sardines, the Panel referred to the term “applying”
in Article 2.5 as contextual support for its conclusion that
Article 2.4 applies to existing technical regulations:
“There is contextual support for the interpretation that
Article 2.4 applies to technical regulations that are already in existence. The
context provided by Article 2.5, which explicitly refers to
Article 2.4,
speaks of ‘preparing, adopting or applying’ a technical
regulation and is not limited to, as the European Communities claims,
preparing and adopting. A technical regulation can only be applied if it
is already in existence. The first sentence imposes an obligation on a
Member ‘preparing, adopting or applying’ a technical regulation that
may have a significant effect on trade of other Members to provide the
justification for that technical regulation. The second sentence of Article 2.5
states that whenever a technical regulation is ‘prepared,
adopted or applied’ for one of the legitimate objectives
explicitly set out in Article 2.2 and is in accordance with relevant
international standards, it is to be rebuttably presumed not to create
an unnecessary obstacle to trade. The use of the term ‘apply’, in
our view, confirms that the requirement contained in Article 2.4
is
applicable to existing technical regulations.”(101)
73. The Appellate Body in EC — Sardines observed that the
TBT Agreement, through Article 2.5, affords a complainant adequate
opportunities to obtain information about the objectives of technical
regulations or the specific considerations that may be relevant to the
assessment of their appropriateness under Article 2.4. The Appellate
Body found that Article 2.5 establishes a compulsory mechanism
requiring the supplying of information by the regulating Member.(102)
6. Article 2.6
(a) Requirement to participate in preparing international standards
in respect of adopted technical regulations
74. In EC — Sardines, the Panel referred to
Article 2.6 as
providing contextual support for its conclusion that Article 2.4
applied
to existing technical regulations:
“Article 2.6 provides another contextual support. It states that
Members are to participate in preparing international standards by the
international standardizing bodies for products which they have either
‘adopted, or expect to adopt technical regulations.’ Those
Members that have in place a technical regulation for a certain product
are expected to participate in the development of a relevant
international standard. Article 2.6 would be redundant and it would be
contrary to the principle of effectiveness, which is a corollary of the
general rule of interpretation in the Vienna Convention, if a Member is
to participate in the development of a relevant international standard
and then claim that such standard need not be used as a basis for its
technical regulation on the ground that it was already in existence
before the standard was adopted. Such reasoning would allow Members to
avoid using international standards as a basis for their technical
regulations simply by enacting preemptive measures and thereby undermine
the object and purpose of developing international standards.”(103)
(b) Related TBT Committee decisions and recommendations
75. See the Decision of the TBT Committee on principles for the
development of international standards, guides and recommendations with
relation to Articles 2, 5 and
Annex 3 of the Agreement.(104)
7. Article 2.8
(a) Object and purpose
76. The Panel in US — Clove Cigarettes considered that the
object and purpose of Article 2.8 is to avoid the creation of
unnecessary obstacles to trade by requiring that product requirements be
laid down in “functional” terms wherever appropriate:
“[T]he object and purpose of Article 2.8
is to avoid the creation
of unnecessary obstacles to trade by requiring that product requirements
be laid down in functional terms wherever appropriate. For example, an
ISO/IEC Directive explains that:
“Whenever possible, requirements shall be expressed in terms of
performance rather than design or descriptive characteristics. This
approach leaves maximum freedom to technical development. Primarily
those characteristics shall be included that are suitable for worldwide
(universal) acceptance.”(105)
Along the same lines, a Decision taken by the TBT Committee in 2000
reflects the understanding of WTO Members that:
“In order to serve the interests of the WTO membership in
facilitating international trade and preventing unnecessary trade
barriers, international standards need to be relevant and to effectively
respond to regulatory and market needs, as well as scientific and
technological developments in various countries. They should not distort
the global market, have adverse effects on fair competition, or stifle
innovation and technological development. In addition, they should not
give preference to the characteristics or requirements of specific
countries or regions when different needs or interests exist in other
countries or regions. Whenever possible, international standards should
be performance based rather than based on design or descriptive
characteristics.”(106)”(107)
(b) “Wherever appropriate”
77. In US — Clove Cigarettes, the Panel rejected a claim
under Article 2.8. In that case, the United States did not dispute that
the measure at issue was specified in terms of “design or descriptive
characteristics”, and not in terms of “performance”. However, the
Panel agreed with the United States that Indonesia had failed to
demonstrate that an alternative approach was “appropriate”. With
respect to the meaning of the term “appropriate”, the Panel recalled
prior interpretations of this term in other contexts:
“While there is no jurisprudence relating to the terms ‘[w]herever
appropriate’ in the context of Article 2.8 of the TBT Agreement,
the Panel is mindful that the term ‘appropriate’ appears in numerous
other provisions found in the WTO Agreements and that there is
substantial and broadly consistent jurisprudence relating to the
ordinary meaning of this term.(108) Panels and the Appellate Body have
relied upon ordinary dictionary definitions, and given the term ‘appropriate’
its ordinary meaning. For example, the Panel in Mexico — Telecoms observed
that:
‘The word “appropriate”, in its general dictionary sense, means
“specially suitable, proper”. This suggests that “appropriate
measures” are those that are suitable for achieving their purpose.’(109)
Along the same lines, the Panel in EC — Tube or Pipe Fittings considered
that:
‘The ordinary meaning of the term “appropriate” refers to
something which is ”especially suitable or fitting”. “Suitable”,
in turn, is defined as “fitted for or appropriate to a purpose,
occasion …” or “adapted to a use or purpose”. “Fitting” is
defined as “of a kind appropriate to the situation”… . The termis
consistent with an intent not to prejudge what the circumstances might
be in the context of a given case. It is necessary for such
appropriateness to be judged on a case by case basis … There is an
element of flexibility, in that there are no predetermined rigid
factors, indices, levels or requirements.’(110)
More recently, in US — Anti-Dumping and Countervailing Duties
(China), the Appellate Body relied on the same dictionary
definitions in the context of interpreting the term ‘appropriate
amounts’ in Article 19.3 of the SCM Agreement:
‘Beginning with the term “appropriate amounts”, we note that
relevant dictionary definitions of the term “appropriate” include
“proper”, “fitting” and “specially suitable (for, to)”.(111)
These definitions suggest that what is “appropriate” is not an
autonomous or absolute standard, but rather something that must be
assessed by reference or in relation to something else.’(112)
We would also observe that in EC — Sardines, the Appellate
Body agreed with the panel that the term ‘inappropriate’ in the
context of Article 2.4 of the TBT Agreement ‘refers to
something which is not “specially suitable”, “proper”, or “fitting”’,
and that the question of appropriateness relates more to the nature of
the means employed.(113)”(114)
78. With regard to the burden of proof, the Panel in US — Clove
Cigarettes considered that:
“[W]here a claim under Article 2.8 of the TBT Agreement is
made, it is the complaining party that carries the burden of
demonstrating that it would be ‘appropriate’ (i.e., ‘proper’,
‘fitting’, and ‘suitable’) to specify a particular technical
regulation in terms of ‘performance’, rather than in terms of design
or descriptive characteristics. This approach is consistent with the
general principles governing the burden of proof in WTO dispute
settlement proceedings. It is also consistent with the Appellate Body’s
analysis of the terms ‘except when … inappropriate’, in the
context of the obligation in Article 2.4 of the TBT Agreement, in
EC — Sardines.(115) We do not understand Indonesia to suggest
otherwise.”(116)
79. The Panel in US — Clove Cigarettes found that Indonesia
had failed to demonstrate that it would have been “appropriate” to
write the technical regulation at issue (a ban on certain flavoured
cigarettes) in terms of performance:
“The Panel agrees with the United States that the standard referred
to by Indonesia does not demonstrate that the technical regulation set
forth in Section 907(a)(1)(A) could be written in terms of “performance”,
let alone that it would be ‘appropriate’ to do so. Leaving aside the
question of whether the standard referred to could be applied to
cigarettes, it merely purports to provide a particular means of testing
for flavour levels. We agree with the United States that an example of a
performance requirement would be a technical regulation for chairs, for
example, that set a requirement that the chair must support a person of
at least 130 kilograms, rather than in terms of the components of the
chair (i.e., if made of wood then the wood must be of a certain
thickness and the nails must be of a certain length). We also agree with
the United States that, rather than transforming the standard in Section
907(a)(1)(A) from one based on ‘design or descriptive’
characteristics to one based on ‘performance’, reliance on this
standard referred to would simply provide a particular means of testing
whether that standard is met. We further agree with the United States
that providing a test of when the standard of the measure written in
descriptive terms is met does not mean that it is possible to put the
requirement in the fundamentally different terms of performance, nor why
it would be ‘appropriate’ to do so. The standard Indonesia refers to
would not be a ‘performance’ standard within the meaning of Article
2.8 of the TBT Agreement — simply put, it is not a standard as
to how a cigarette is to perform (i.e., function(117)).”(118)
(c) “shall specify”
80. In US — Clove Cigarettes, the Panel rejected a claim
under Article 2.8. Indonesia’s principal argument in support of its
claim was that Article 2.8 requires Members to provide “a certain
level of specificity” in their technical regulations. The Panel
considered this to be a misreading of the terms of Article
2.8. After
considering the terms, context and object and purpose of Article
2.8,
the Panel concluded that:
“Article 2.8 of the TBT Agreement does not oblige Members to
provide ‘a certain level of specificity’ in their technical
regulations. It thus follows that the ‘level of specificity’
reflected in Section 907(a)(1)(A) is not relevant to the question of
whether this measure is consistent with Article
2.8. Accordingly, we do
not need to consider whether the FSPTCA provides a definition of ‘characterizing
flavour’ for purposes of the ban, and/or whether the FDA has provided
further specification on what constitutes a ‘characterizing flavour’.
Insofar as Indonesia’s claim under Article 2.8
rests on the argument
that Section 907(a)(1)(A) ‘lacks the specificity required’, then the
Panel concludes that Indonesia’s claim and argument are misplaced.”(119)
8. Article 2.9
(a) Related TBT Committee decisions and recommendations
(i) General
81. The TBT Committee has adopted a number of recommendations and
decisions concerning notification procedures for draft technical
regulations and conformity assessment procedures, as described
hereafter.(120)
82. In 2009, the Committee reiterated the importance of Members fully
complying with their transparency obligations under the TBT Agreement
and in particular those related to the notification of technical
regulations and conformity assessment procedures, as required under
Articles 2.9, 2.10, 5.6,
5.7 and 10.7. The Committee stressed that
transparency is a fundamental pillar in the implementation of the TBT
Agreement and a key element of Good Regulatory Practice.(121) The
Committee noted the significant stock of decisions and recommendations
that it has developed since 1995, and agreed to stress the importance of
full implementation of this existing body of decisions and
recommendations by Members.(122)
(ii) “Significant effect on trade of other Members”
83. In 1995, and with a view to ensuring a consistent approach to the
selection of proposed technical regulations and procedures for
assessment of conformity to be notified, the TBT Committee established
the following criteria in order to define the term “significant effect
on trade of other Members”:
(i) for the purposes of Articles 2.9 and
5.6, the concept of “significant
effect on trade of other Members” may refer to the effect on trade:
-
of one technical regulation or procedure for assessment of
conformity only, or of various technical regulations or procedures for
assessment of conformity in combination;
-
in a specific product, group of products or products in general;
and
-
between two or more Members.
(ii) when assessing the significance of the effect on trade of
technical regulations, the Member concerned should take into
consideration such elements as the value or other importance of imports
in respect of the importing and/or exporting Members concerned, whether
from other Members individually or collectively, the potential growth of
such imports, and difficulties for producers in other Members to comply
with the proposed technical regulations.
(iii) the concept of a significant effect on trade of other Members
should include both import-enhancing and import-reducing effects on the
trade of other Members, as long as such effects are significant.(123)
(iii) Publication requirement
84. In 2006 and 2009, with regard to the publication of a notice of
proposed technical regulations and conformity assessment procedures
(pursuant to Articles 2.9.1 and 5.6.1), the Committee agreed to examine
ways in which the publications for such notices — and their content
— are made available, so as to enable all interested parties to become
acquainted with them.(124)
85. Information on official publications related to technical
regulations, standards and conformity assessment in the form of a list,
including website references, is contained in the document G/TBT/GEN/39/
series.
(iv) Notification format and guidelines
86. The procedures for notification under the Agreement have been
kept under constant review by the Committee. In order to ensure a
uniform and efficient operation of these procedures the Committee has
agreed on a format and guidelines for notifications.(125)
87. In order to facilitate access to information by Members, as well
as to strengthen the notification process, including the time needed for
the publication and circulation of notification by the Secretariat, the
TBT Committee has agreed that electronic transmission of information was
the preferred method of filing notifications.(126)
(v) Decision relating to notifications — labelling
requirements
88. In 1995, with the purpose of clarifying the coverage of the
Agreement with respect to labelling requirements, the TBT Committee took
the following decision:
“In conformity with Article 2.9 of the
Agreement, Members are
obliged to notify all mandatory labelling requirements that are not
based substantially on a relevant international standard and that may
have a significant effect on the trade of other Members. That obligation
is not dependent upon the kind of information which is provided on the
label, whether it is in the nature of a technical specification or not.”(127)
(vi) Timing of notifications
89. In 1995, the TBT Committee issued the following recommendation
with respect to the timing of notifications:
“When implementing the provisions of Articles
2.9.2, 3.2 (in
relation to Article 2.9.2), 5.6.2 and
7.2 (in relation to Article
5.6.2), a notification should be made when a draft with the complete
text of a proposed technical regulation or procedures for assessment of
conformity is available and when amendments can still be introduced and
taken into account.”(128)
(vii) Translation of documents relating to notifications and
address of body supplying the documents
90. The TBT Committee also agreed on certain procedures designed to
address the difficulties that can arise due to the fact that the
documentation relevant to technical regulations, standards and
procedures for assessment of conformity is not available in one of the
WTO working languages and that a body other than the enquiry point may
be responsible for such documentation.(129)
(viii) Processing of requests for documentation
91. In 1995, when addressing problems of supplying and obtaining
requested documentation on notified technical regulations and procedures
for assessment of conformity, the Committee agreed that:
(i) requests for documentation should contain all the elements
permitting the identification of the documents and in particular, the
WTO TBT notification number symbol to which the requests refer. The same
information should appear on the documents supplied in response to such
requests;
(ii) any request for documentation should be processed if possible
within five working days. If a delay in supplying the documentation
requested is foreseen, this should be acknowledged to the requester,
along with an estimate of when the documents can be provided;
(iii) E-mail requests for documentation should include name,
organization, address, telephone and fax numbers, and e-mail address in
the request;
(iv) electronic delivery of documentation is encouraged and requests
should indicate whether an electronic version or hard copy is desired.(130)
(ix) Length of time allowed for comments
92. In 2000 and 2003, with respect to time limits for presentation of
comments on notified technical regulations and procedures for assessment
of conformity, the Committee agreed:
(i) the normal time limit for comments on notifications should be 60
days. Any Member which is able to provide a time limit beyond 60 days,
such as 90 days, is encouraged to do so and should indicate this in the
notification.
(ii) in order to improve the ability of developing country Members to
comment on notifications, and consistent with the principle of special
and differential treatment, developed country Members are encouraged to
provide more than a 60-day comment period.
93. The Committee made a follow-up recommendation in
2009.(131)
(x) Handling of comments on notifications
94. In 1995, in order to improve the handling of comments on proposed
technical regulations and procedures for assessment of conformity
submitted under Articles 2.9.4, 2.10.3,
3.1 (in relation to 2.9.4
and 2.10.3), 5.6.4,
5.7.3 and 7.1 (in relation to
5.6.4 and 5.7.3) of the
Agreement, the Committee agreed on the following procedures:
(i) each Member should notify the WTO secretariat of the authority or
agency (e.g. its enquiry point) which it has designated to be in charge
for handling of comments received; and
(ii) a Member receiving comments through the designated body should
without further request
-
acknowledge the receipt of such comments,
-
explain within a reasonable time to any Member from which it has
received comments, how it will proceed in order to take these comments
into account and, where appropriate, provide additional relevant
information on the proposed technical regulations or procedures for
assessment of conformity concerned, and
-
provide to any Member from which it has received comments, a copy
of the corresponding technical regulations or procedures for assessment
of conformity as adopted or information that no corresponding technical
regulations or procedures for assessment of conformity will be adopted
for the time being.
95. The Committee made follow-up recommendations in 2003, 2006 and
2009.(132)
(xi) Copies of proposed technical regulations
96. In 2007, with the purpose of facilitating access to notified
draft texts, the Committee decided to establish a facility whereby
Members may, on a voluntary basis, provide the WTO Secretariat with an
electronic version of the notified draft text (attachment) together with
the notification format. In 2009, with a view to improving access to
texts of notified measures, the Committee agreed to encourage Members to
use the facility provided by the WTO Secretariat and to send electronic
versions of notified texts together with the notification format to be
hyperlinked in the notification itself.(133)
(xii) Monthly listing of notifications issued
97. With a view to providing a brief indication of the notifications
issued, the TBT Committee agreed that the Secretariat be requested to
prepare a monthly table of notifications issued, indicating the
notification numbers, notifying Members, Articles notified under,
products covered, objectives and final dates for comments.(134) Monthly
lists of notifications are contained in the document G/TBT/GEN/N/-
series.
(xiii) Follow-up notifications, amendments, addenda, etc.
98. In 2003, in order to facilitate the follow-up on Members’
technical regulations and conformity assessment procedures brought to
the attention of the Committee, the Committee agreed:
(i) to have amendments to notifications carry the same document
symbol as that of the original notification to allow them to be
adequately traced;
(ii) to encourage Members to share, on a voluntary basis, with the
Committee any follow-up information on issues that have been previously
brought to its attention.(135)
99. In 2009, the Committee agreed:
(i) to recall its earlier recommendation encouraging Members to
notify the availability of the adopted final text as an addendum to the
original notification and to provide information on where the final text
can be obtained, including website address;
(ii) to stress the importance of making such addenda when a proposed
regulation is either adopted, published or enters into force and
especially in cases where the relevant dates have not been provided in
the original notification or have been changed; and
(iii) to recommend that the Committee establish common procedures on
how and under which format (addendum, corrigendum, revision) to notify
modifications or any other information relevant to previously notified
measures.(136)
(b) Jurisprudence
(i) General
“may have a significant effect on trade of other Members”
100. In US — Clove Cigarettes, the Panel examined claims
under Article 2.9.2 and 2.9.3. The Panel began by establishing that the
measure at issue may have a significant effect on trade of other
Members:
“We observe that the wording of this second condition for the
applicability of Article 2.9 is that the technical regulation ‘may have
a significant effect on trade of other Members’ as opposed to ‘will
have a significant effect’ or ‘has a significant effect’. ‘May’
is used to express a possibility as opposed to a certainty. We therefore
interpret these terms to mean that Article 2.9 of the TBT Agreement does
not require proving actual trade effects. Rather, this condition
encompasses situations in which a technical regulation may have a
significant effect on trade of other Members.
We further observe that Article 2.9 of the TBT Agreement refers
to a ‘significant’ effect. Significant means ‘sufficiently great
or important to be worthy of attention; noteworthy’. We thus agree
with the United States that a ‘significant effect’ encompasses all
non de minimis effects on trade. In this respect, we observe that
Indonesia presented evidence before this Panel that shows that the
effect of Section 907(a)(1)(A) is substantial and noteworthy on its
clove cigarettes trade with the United States. In particular, the data
provided by Indonesia shows that the vast majority of clove cigarettes
imported into the United States come from Indonesia. Indonesia has also
shown that the value of such imports amounted to approximately USD 15
million in 2008. We also observe that Indonesia has argued that it has
exported clove cigarettes to the United States for more than 40 years.
Since Section 907(a)(1)(A) prohibits the importation of clove
cigarettes into the United States, we can only conclude that the impact
of Section 907(a)(1)(A) on Indonesia’s trade is significant within the
terms of Article 2.9 of the TBT Agreement. Accordingly, we find
that the second condition for the application of the obligations in
Articles 2.9.2 and 2.9.3 of the TBT Agreement is also fulfilled.”(137)
(ii) Article 2.9.2
101. In US — Clove Cigarettes, the Panel found that the
United States acted inconsistently with Article 2.9.2 by failing to
notify the technical regulation at issue.(138) The Panel made the
following observations on the scope of the obligation in Article 2.9.2:
“We note that Article 2.9.2, unlike
Article 2.9.3, does not link
the obligation to notify to the request of a Member.
We also note that Article 2.9.2 of the TBT Agreement applies
to ‘proposed’ technical regulations. Along the same lines, the
French version of Article 2.9.2 of the TBT Agreement uses the
terms ‘le règlement technique projetè’, and the Spanish
version of Article 2.9.2 of the TBT Agreement uses the terms ‘el
reglamento tè cnico en proyecto’. ‘To propose’ can be
defined as ‘to put forward [a technical regulation] for consideration
by others’. Article 2.9.2 of the TBT Agreement therefore
applies to what we would refer to as legal instruments falling within
the definition of a technical regulation that would still be in ‘draft’
form, i.e., not yet adopted or in force. The language of the second
sentence of Article 2.9.2 of the TBT Agreement reinforces this
conclusion as it indicates that the notification must take place ‘at
an early appropriate stage, when amendments can still be introduced and
comments taken into account’. Therefore, since the provision foresees
the possibility of amendments and comments, the technical regulation at
issue cannot have been enacted or adopted before the notification takes
place. In our view, Article 2.9.2 (as it is also the case with
Article
5.6.2 for conformity assessment procedures) is at the core of the TBT
Agreement’s transparency provisions: the very purpose of the
notification is to provide opportunity for comment before the proposed
measure enters into force, when there is time for changes to be made
before ‘it is too late’.”
We find further guidance and support for our interpretation in a
recommendation from the TBT Committee regarding the timing of
notifications:
“When implementing the provisions of Articles
2.9.2, 3.2 (in
relation to Article 2.9.2), 5.6.2 and
7.2 (in relation to Article
5.6.2), a notification should be made when a draft with the complete
text of a proposed technical regulation or procedures for assessment of
conformity is available and when amendments can still be introduced and
taken into account.(139)
We shall therefore examine whether the United States notified the
product coverage, as well as the objective and rationale of Section
907(a)(1)(A) at an early appropriate stage, i.e., when it was in draft
form, before its adoption, when amendments could still be introduced and
comments taken into account.(140)
(c) “the proposed technical regulation”
102. In US — Clove Cigarettes, the Panel rejected a claim
under Article 2.9.3 on the grounds that while there was a request, it
was not made until after the measure had been enacted. Accordingly, the
Panel reasoned, the situation fell outside of the scope of Article 2.9.3, which applies only to “proposed” technical regulations:
“We note that, unlike the case of Article 2.9.2 of the TBT
Agreement, the obligation to provide particulars or copies of a
proposed technical regulation imposed by Article 2.9.3 of the TBT
Agreement is only triggered by the request of a Member. However, as
is the case with Article 2.9.2 of the TBT Agreement, such an
obligation is limited to ‘proposed technical regulations’, i.e.,
technical regulations which are still in draft form and thus, as
explained above, amendments can still be introduced and comments taken
into account.
Therefore, in order for the United States to have been obliged under
Article 2.9.3 of the TBT Agreement to provide particulars or
copies of Section 907(a)(1)(A) to Indonesia, Indonesia must have
requested the United States to do so when Section 907(a)(1)(A) was still
in draft form.
As explained, Indonesia claims that its request pursuant to
Article
2.9.3 of the TBT Agreement was embodied in its questions posed to
the United States through the TBT Committee and recorded in document G/TBT/W/323.
We note that Indonesia’s communication was dated 17 August 2009, i.e.,
almost two months after the enactment of Section 907(a)(1)(A), on 20
June 2009. The questions posed by Indonesia to the United States in
document G/TBT/W/323
could thus not relate to a ‘proposed’
technical regulation, but rather to a technical regulation which was
already enacted. Therefore, even if Indonesia’s questions in document G/TBT/W/323
were to be considered as a request for particulars within
the terms of Article 2.9.3 of the TBT Agreement, those questions
did not regard a proposed technical regulation.
We note that Indonesia has not provided this Panel with any further
evidence that could prove that it had requested the United States to
provide particulars or copies of Section 907(a)(1)(A) when it was still
in draft form.
Accordingly, we find that, by failing to demonstrate that it had
requested the United States to provide particulars or copies of Section
907(a)(1)(A) while it was still in draft form, Indonesia has failed to
demonstrate that the United States acted inconsistently with Article
2.9.3 of the TBT Agreement.”(141)
9. Article 2.10
(a) Relationship to Article 2.9
103. In US — Clove Cigarettes, Indonesia claimed a violation
of Article 2.9, and made a conditional claim under
Article 2.10 in the
event that the United States invoked this provision as a defence to the
alleged violation of Article 2.9. The United States did not invoke
Article 2.10, and the Panel ultimately found a violation of
Article 2.9.
As regards Article 2.10, the Panel stated that:
“We note that the obligations under Article 2.10 of the TBT
Agreement are only applicable when a Member omitted the steps
enumerated in Article 2.9 of the TBT Agreement because ‘urgent
problems of safety, health, environmental protection or national
security arise or threaten to arise’. In our view, the fact that
Article 2.10 of the TBT Agreement only applies when a Member is
departing from the general obligations established in Article 2.9 of the
TBT Agreement
entails that these two provisions have two distinct
and separate scopes. Indeed, we see no situation in which a WTO Member’s
actions would fall within the scope of both obligations at the same
time. Either the Member in question follows the general requirements
under Article 2.9 of the TBT Agreement, or it decides to omit
those requirements owing to any of the listed ‘urgent problems’
described in Article 2.10 of the TBT Agreement.”(142)
10. Article 2.12
(a) Ministerial Decision and related TBT Committee decisions and
recommendations
104. In the 2001 Ministerial Decision on Implementation-related
Issues and Concerns, Ministers stated that “Subject to the conditions
specified in paragraph 12 of Article 2 of the Agreement on Technical
Barriers to Trade, the phrase ‘reasonable interval’ shall be
understood to mean normally a period of not less than 6 months, except
when this would be ineffective in fulfilling the legitimate objectives
pursued.”(143)
105. At its meeting of 15 March 2002, the Committee took note of the
Ministerial Decision regarding the implementation of Article
2.12.(144)
106. At its meeting in November 2006, with a view to facilitating the
implementation of transparency procedures under the Agreement, the
Committee agreed to encourage Members to provide an interval of more
than 6 months, when possible, between the publication of technical
regulations and their entry into force.(145)
(b) Finding of inconsistency with Article 2.12
107. In US — Clove Cigarettes, the Panel found that the
United States acted inconsistently with Article
2.12 by not allowing an
interval of at least six months between the publication and the entry
into force of the technical regulation at issue.(146) In the course of its
analysis, the Panel considered the legal status of paragraph 5.2 of the
2001 Ministerial Decision on Implementation-related Issues and Concerns.(147)
IV. Article 3
back to top
A. Text of Article 3
Article 3: Preparation, Adoption and Application of Technical Regulations by Local Government Bodies and Non-Governmental Bodies
With respect to their local government and nongovernmental bodies
within their territories:
3.1
Members shall take such reasonable measures as may be available
to them to ensure compliance by such bodies with the provisions of
Article 2, with the exception of the obligation to notify as referred to
in paragraphs 9.2 and 10.1 of Article
2.
3.2
Members shall ensure that the technical regulations of local
governments on the level directly below that of the central government
in Members are notified in accordance with the provisions of paragraphs
9.2 and 10.1 of Article 2, noting that notification shall not be
required for technical regulations the technical content of which is
substantially the same as that of previously notified technical
regulations of central government bodies of the Member concerned.
3.3
Members may require contact with other Members, including the
notifications, provision of information, comments and discussions
referred to in paragraphs 9 and 10 of Article
2, to take place through
the central government.
3.4 Members shall not take measures which require or encourage local
government bodies or non-governmental bodies within their territories to
act in a manner inconsistent with the provisions of Article
2.
3.5 Members are fully responsible under this Agreement for the
observance of all provisions of Article 2. Members shall formulate and
implement positive measures and mechanisms in support of the observance
of the provisions of Article 2 by other than central government bodies.
B. Interpretation and Application of Article 3
No jurisprudence or decision of a competent WTO body.
V. Article 4
back to top
A. Text of Article 4
Article 4: Preparation, Adoption and Application of Standards
4.1 Members shall ensure that their central government standardizing
bodies accept and comply with the Code of Good Practice for the
Preparation, Adoption and Application of Standards in Annex
3(148) to this
Agreement (referred to in this Agreement as the “Code of Good Practice”).
They shall take such reasonable measures as may be available to them to
ensure that local government and non-governmental standardizing bodies
within their territories, as well as regional standardizing bodies of
which they or one or more bodies within their territories are members,
accept and comply with this Code of Good Practice. In addition, Members
shall not take measures which have the effect of, directly or
indirectly, requiring or encouraging such standardizing bodies to act in
a manner inconsistent with the Code of Good Practice. The obligations of
Members with respect to compliance of standardizing bodies with the
provisions of the Code of Good Practice shall apply irrespective of
whether or not a standardizing body has accepted the Code of Good
Practice.
4.2 Standardizing bodies that have accepted and are complying with
the Code of Good Practice shall be acknowledged by the Members as
complying with the principles of this Agreement.
B. Interpretation and Application of Article 4
1. Related TBT Committee decisions and recommendations
(a) General
108. For TBT Committee decisions and recommendations related to the
“Code of Good Practice for the Preparation, Adoption and Application
of Standards”, see Annex 3 below.
109. In 2000, the TBT Committee adopted a decision in respect of the
principles to be observed, when international standards, guidelines and
recommendations (as mentioned under Articles 2,
5 and Annex 3 of the TBT
Agreement) are developed, so as to take account of, inter alia,
transparency, openness, impartiality and consensus, and to ensure that
the concerns of developing countries are considered.(149)
(b) Regional standards-related activities
110. In 1995, the TBT Committee decided that, in order to keep
abreast of the activities of regional standardizing bodies and systems
for conformity assessment, that representatives of such bodies and
systems may be invited to address the Committee on their procedures and
how they relate to those embodied in the Agreement, on the basis of
agreed lists of questions.(150) In 2006, with regard to the acceptance of
the Code of Good Practice by regional standardizing bodies, the
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.(151)
Conformity With Technical Regulations And Standards
VI. Article 5
back to top
A. Text of Article 5
Article 5: Procedures for Assessment of Conformity by Central Government Bodies
5.1
Members shall ensure that, in cases where a positive assurance of
conformity with technical regulations or standards is required, their
central government bodies apply the following provisions to products
originating in the territories of other Members:
5.1.1 conformity assessment procedures are prepared, adopted and
applied so as to grant access for suppliers of like products originating
in the territories of other Members under conditions no less favourable
than those accorded to suppliers of like products of national origin or
originating in any other country, in a comparable situation; access
entails suppliers’ right to an assessment of conformity under the
rules of the procedure, including, when foreseen by this procedure, the
possibility to have conformity assessment activities undertaken at the
site of facilities and to receive the mark of the system;
5.1.2 conformity assessment procedures are not prepared, adopted or
applied with a view to or with the effect of creating unnecessary
obstacles to international trade. This means, inter alia, that
conformity assessment procedures shall not be more strict or be applied
more strictly than is necessary to give the importing Member adequate
confidence that products conform with the applicable technical
regulations or standards, taking account of the risks nonconformity
would create.
5.2
When implementing the provisions of paragraph 1, Members shall
ensure that:
5.2.1 conformity assessment procedures are undertaken and completed
as expeditiously as possible and in a no less favourable order for
products originating in the territories of other Members than for like
domestic products;
5.2.2 the standard processing period of each conformity assessment
procedure is published or that the anticipated processing period is
communicated to the applicant upon request; when receiving an
application, the competent body promptly examines the completeness of
the documentation and informs the applicant in a precise and complete
manner of all deficiencies; the competent body transmits as soon as
possible the results of the assessment in a precise and complete manner
to the applicant so that corrective action may be taken if necessary;
even when the application has deficiencies, the competent body proceeds
as far as practicable with the conformity assessment if the applicant so
requests; and that, upon request, the applicant is informed of the stage
of the procedure, with any delay being explained;
5.2.3 information requirements are limited to what is necessary to
assess conformity and determine fees;
5.2.4 the confidentiality of information about products originating
in the territories of other Members arising from or supplied in
connection with such conformity assessment procedures is respected in
the same way as for domestic products and in such a manner that
legitimate commercial interests are protected;
5.2.5 any fees imposed for assessing the conformity of products
originating in the territories of other Members are equitable in
relation to any fees chargeable for assessing the conformity of like
products of national origin or originating in any other country, taking
into account communication, transportation and other costs arising from
differences between location of facilities of the applicant and the
conformity assessment body;
5.2.6 the siting of facilities used in conformity assessment
procedures and the selection of samples are not such as to cause
unnecessary inconvenience to applicants or their agents;
5.2.7 whenever specifications of a product are changed subsequent to
the determination of its conformity to the applicable technical
regulations or standards, the conformity assessment procedure for the
modified product is limited to what is necessary to determine whether
adequate confidence exists that the product still meets the technical
regulations or standards concerned;
5.2.8 a procedure exists to review complaints concerning the
operation of a conformity assessment procedure and to take corrective
action when a complaint is justified.
5.3
Nothing in paragraphs 1 and 2 shall prevent Members from carrying
out reasonable spot checks within their territories.
5.4
In cases where a positive assurance is required that products
conform with technical regulations or standards, and relevant guides or
recommendations issued by international standardizing bodies exist or
their completion is imminent, Members shall ensure that central
government bodies use them, or the relevant parts of them, as a basis
for their conformity assessment procedures, except where, as duly
explained upon request, such guides or recommendations or relevant parts
are inappropriate for the Members concerned, for, inter alia,
such reasons as: national security requirements; the prevention of
deceptive practices; protection of human health or safety, animal or
plant life or health, or the environment; fundamental climatic or other
geographical factors; fundamental technological or infrastructural
problems.
5.5
With a view to harmonizing conformity assessment procedures on as
wide a basis as possible, Members shall play a full part, within the
limits of their resources, in the preparation by appropriate
international standardizing bodies of guides and recommendations for
conformity assessment procedures.
5.6
Whenever a relevant guide or recommendation issued by an
international standardizing body does not exist or the technical content
of a proposed conformity assessment procedure is not in accordance with
relevant guides and recommendations issued by international
standardizing bodies, and if the conformity assessment procedure may
have a significant effect on trade of other Members, Members shall:
5.6.1
publish a notice in a publication at an early appropriate
stage, in such a manner as to enable interested parties in other Members
to become acquainted with it, that they propose to introduce a
particular conformity assessment procedure;
5.6.2
notify other Members through the Secretariat of the products to
be covered by the proposed conformity assessment procedure, together
with a brief indication of its objective and rationale. Such
notifications shall take place at an early appropriate stage, when
amendments can still be introduced and comments taken into account;
5.6.3 upon request, provide to other Members particulars or copies of
the proposed procedure and, whenever possible, identify the parts which
in substance deviate from relevant guides or recommendations issued by
international standardizing bodies;
5.6.4
without discrimination, allow reasonable time for other Members
to make comments in writing, discuss these comments upon request, and
take these written comments and the results of these discussions into
account.
5.7
Subject to the provisions in the lead-in to paragraph
6, where
urgent problems of safety, health, environmental protection or national
security arise or threaten to arise for a Member, that Member may omit
such of the steps enumerated in paragraph 6 as it finds necessary,
provided that the Member, upon adoption of the procedure, shall:
5.7.1
notify immediately other Members through the Secretariat of the
particular procedure and the products covered, with a brief indication
of the objective and the rationale of the procedure, including the
nature of the urgent problems;
5.7.2
upon request, provide other Members with copies of the rules of
the procedure;
5.7.3
without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and take these
written comments and the results of these discussions into account.
5.8
Members shall ensure that all conformity assessment procedures
which have been adopted are published promptly or otherwise made
available in such a manner as to enable interested parties in other
Members to become acquainted with them.
5.9 Except in those urgent circumstances referred to in
paragraph 7,
Members shall allow a reasonable interval between the publication of
requirements concerning conformity assessment procedures and their entry
into force in order to allow time for producers in exporting Members,
and particularly in developing country Members, to adapt their products
or methods of production to the requirements of the importing Member.
B. Interpretation and Application of Article 5
1. Related TBT Committee decisions and recommendations
(a) General
111. In 1996, the TBT Committee agreed to establish a Technical
Working Group to study certain ISO/IEC Guides on conformity assessment
procedures and how they might contribute to furthering the objectives of
Articles 5 and 6 of the TBT Agreement. The Working Group met three times
and the Reports are contained in G/TBT/M/7–8 and 10
(1997).(152)
112. In 1997, in order to further the objectives of
Articles 5 and 6,
including in particular the need to avoid the creation of unnecessary
obstacles to international trade due to conformity assessment
procedures, and with a view to making recommendations to remove any
unnecessary duplication of conformity assessment, the TBT Committee
agreed to, inter alia, the following:
(i) the Committee will pursue further discussions on ISO/IEC Guides.
Members are invited, on a voluntary basis, to continue providing
information on their experience in using relevant international
guidelines and recommendations on conformity assessment, and the extent
to which these guides and recommendations have served as a basis for the
recognition of conformity assessment procedures and adopted by bodies in
their territories and in regional and international conformity
assessment systems, or as a harmonized approach to conformity
assessment. In the light of this exercise, the Committee will consider
ways and means for better implementation of Articles 5 and
6;
(ii) for transparency purposes and to support the work of the
Committee, a list of relevant international guides and recommendations
related to conformity assessment procedures will be consolidated,
circulated and updated regularly by the Secretariat for the information
of Members.(153)
113. At its meeting in November 2000, the TBT Committee developed an
indicative list describing different approaches to facilitate acceptance
of results of conformity assessment.(154) The Committee noted the
following in respect of the indicative list:
(i) the list was not intended to prescribe particular approaches that
Members might choose to adopt as it was recognized that the application
of different approaches would depend on the situation of Members and the
specific sectors involved;
(ii) governments and non-government bodies might choose to apply
different approaches across different sectors, or apply more than one
procedure within individual sectors, taking into account variations in
procedures in different Members and perceived levels of risks in the
acceptance of results in different sectors.(155)
(b) Articles 5.5 and 5.6
114. The TBT Committee adopted a decision in respect of the
principles to be observed, when international standards, guidelines and
recommendations (as mentioned under Articles 2,
5 and Annex 3 of the TBT
Agreement) are developed, so as to ensure transparency, openness,
impartiality and consensus, effectiveness and relevance, coherence, and
to take account of the concerns of developing countries.(156)
(c) Article 5.6
115. With reference to the notification of draft conformity
assessment procedures, see the recommendations and decisions adopted by
the TBT Committee, as described in paragraphs 81–87
above.(157) See in
particular the recommendation concerning the application of Articles 2.9
and 5.6 (preambular part).(158)
VII. Article 6
back to top
A. Text of Article 6
Article 6: Recognition of Conformity Assessment by Central Government Bodies
With respect to their central government bodies:
6.1
Without prejudice to the provisions of paragraphs 3 and
4,
Members shall ensure, whenever possible, that results of conformity
assessment procedures in other Members are accepted, even when those
procedures differ from their own, provided they are satisfied that those
procedures offer an assurance of conformity with applicable technical
regulations or standards equivalent to their own procedures. It is
recognized that prior consultations may be necessary in order to arrive
at a mutually satisfactory understanding regarding, in particular:
6.1.1 adequate and enduring technical competence of the relevant
conformity assessment bodies in the exporting Member, so that confidence
in the continued reliability of their conformity assessment results can
exist; in this regard, verified compliance, for instance through
accreditation, with relevant guides or recommendations issued by
international standardizing bodies, shall be taken into account as an
indication of adequate technical competence;
6.1.2 limitation of the acceptance of conformity assessment results
to those produced by designated bodies in the exporting Member.
6.2
Members shall ensure that their conformity assessment procedures
permit, as far as practicable, the implementation of the provisions in
paragraph 1.
6.3
Members are encouraged, at the request of other Members, to be
willing to enter into negotiations for the conclusion of agreements for
the mutual recognition of results of each other’s conformity
assessment procedures. Members may require that such agreements fulfil
the criteria of paragraph 1 and give mutual satisfaction regarding their
potential for facilitating trade in the products concerned.
6.4
Members are encouraged to permit participation of conformity
assessment bodies located in the territories of other Members in their
conformity assessment procedures under conditions no less favourable
than those accorded to bodies located within their territory or the
territory of any other country.
B. Interpretation and Application of Article 6
1. Related TBT Committee decisions and recommendations
(a) General
(i) Information Exchange
116. At its meeting in November 1997, in order to further the
objectives of Articles 5 and 6, including in particular the need to
avoid the creation of unnecessary obstacles to international trade due
to conformity assessment procedures, and with a view to making
recommendations to remove any unnecessary duplication of conformity
assessment, the TBT Committee agreed to the following:
(i) Members are invited, on a voluntary basis, to exchange
information on their experience in the various types of conformity
assessment procedures and their conditions of application. In light of
this exercise, the Committee will consider making recommendations aimed
at ensuring that procedures for the assessment of conformity avoid the
creation of unnecessary obstacles to international trade;
(ii) in regard to the review of the operation of
Articles 6, 10.7 and
other relevant provisions which contain disciplines with respect to
recognition of the results of conformity assessment procedures, Members
were invited, on a voluntary basis, to exchange information.
117. The Committee made follow-up recommendations on information
exchange in 2000, 2003, 2006, and 2009.(159)
VIII. Article 7
back to top
A. Text of Article 7
Article 7: Procedures for Assessment of Conformity by Local Government Bodies
With respect to their local government bodies within their
territories:
7.1
Members shall take such reasonable measures as may be available
to them to ensure compliance by such bodies with the provisions of
Articles 5 and 6, with the exception of the obligation to notify as
referred to in paragraphs 6.2 and 7.1 of Article
5.
7.2
Members shall ensure that the conformity assessment procedures of
local governments on the level directly below that of the central
government in Members are notified in accordance with the provisions of
paragraphs 6.2 and 7.1 of Article 5, noting that notifications shall not
be required for conformity assessment procedures the technical content
of which is substantially the same as that of previously notified
conformity assessment procedures of central government bodies of the
Members concerned.
7.3
Members may require contact with other Members, including the
notifications, provision of information, comments and discussions
referred to in paragraphs 6 and 7 of Article
5, to take place through
the central government.
7.4
Members shall not take measures which require or encourage local
government bodies within their territories to act in a manner
inconsistent with the provisions of Articles 5 and
6.
7.5
Members are fully responsible under this Agreement for the
observance of all provisions of Articles 5 and 6. Members shall
formulate and implement positive measures and mechanisms in support of
the observance of the provisions of Articles 5 and
6 by other than
central government bodies.
B. Interpretation and Application of Article 7
1. Related TBT Committee decisions and recommendations
(a) Notification of proposed conformity assessment procedures of
local governments
118. At its meeting in November 2006, with regard to the notification
of proposed technical regulations and conformity assessment procedures
of local governments at the level directly below that of the central
government, the TBT Committee agreed to invite Members to indicate the
local government bodies in their jurisdiction that are subject to the
notification obligations contained in Articles 3.2 and
7.2. The
Committee made a follow-up recommendation in 2009.(160)
(b) Handling of comments
119. In 1995, the TBT Committee agreed to a number of procedures in
order to improve the handling of comments on proposed technical
regulations and procedures for assessment submitted under various
Articles of the TBT Agreement, including Article
7.1. See above,
paragraph 94.
IX. Article 8
back to top
A. Text of Article 8
Article 8: Procedures for Assessment of Conformity by Non-Governmental Bodies
8.1
Members shall take such reasonable measures as may be available
to them to ensure that nongovernmental bodies within their territories
which operate conformity assessment procedures comply with the
provisions of Articles 5 and 6, with the exception of the obligation to
notify proposed conformity assessment procedures. In addition, Members
shall not take measures which have the effect of, directly or
indirectly, requiring or encouraging such bodies to act in a manner
inconsistent with the provisions of Articles 5 and
6.
8.2
Members shall ensure that their central government bodies rely on
conformity assessment procedures operated by non-governmental bodies
only if these latter bodies comply with the provisions of Articles 5 and
6, with the exception of the obligation to notify proposed conformity
assessment procedures.
B. Interpretation and Application of Article 8
No jurisprudence or decision of a competent WTO body.
X. Article 9
back to top
A. Text of Article 9
Article 9: International and Regional Systems
9.1
Where a positive assurance of conformity with a technical
regulation or standard is required, Members shall, wherever practicable,
formulate and adopt international systems for conformity assessment and
become members thereof or participate therein.
9.2
Members shall take such reasonable measures as may be available
to them to ensure that international and regional systems for conformity
assessment in which relevant bodies within their territories are members
or participants comply with the provisions of Articles 5 and
6. In
addition, Members shall not take any measures which have the effect of,
directly or indirectly, requiring or encouraging such systems to act in
a manner inconsistent with any of the provisions of Articles 5 and
6.
9.3
Members shall ensure that their central government bodies rely on
international or regional conformity assessment systems only to the
extent that these systems comply with the provisions of Articles 5 and
6, as applicable.
B. Interpretation and Application of Article 9
No jurisprudence or decision of a competent WTO body.
Information And Assistance
XI. Article 10
back to top
A. Text of Article 10
Article 10: Information About Technical Regulations, Standards and Conformity Assessment Procedures
10.1
Each Member shall ensure that an enquiry point exists which is
able to answer all reasonable enquiries from other Members and
interested parties in other Members as well as to provide the relevant
documents regarding:
10.1.1
any technical regulations adopted or proposed within its
territory by central or local government bodies, by nongovernmental
bodies which have legal power to enforce a technical regulation, or by
regional standardizing bodies of which such bodies are members or
participants;
10.1.2
any standards adopted or proposed within its territory by
central or local government bodies, or by regional standardizing bodies
of which such bodies are members or participants;
10.1.3
any conformity assessment procedures, or proposed conformity
assessment procedures, which are operated within its territory by
central or local government bodies, or by non-governmental bodies which
have legal power to enforce a technical regulation, or by regional
bodies of which such bodies are members or participants;
10.1.4
the membership and participation of the Member, or of relevant
central or local government bodies within its territory, in
international and regional standardizing bodies and conformity
assessment systems, as well as in bilateral and multilateral
arrangements within the scope of this Agreement; it shall also be able
to provide reasonable information on the provisions of such systems and
arrangements;
10.1.5
the location of notices published pursuant to this Agreement,
or the provision of information as to where such information can be
obtained; and
10.1.6
the location of the enquiry points mentioned in paragraph
3.
10.2
If, however, for legal or administrative reasons more than one
enquiry point is established by a Member, that Member shall provide to
the other Members complete and unambiguous information on the scope of
responsibility of each of these enquiry points. In addition, that Member
shall ensure that any enquiries addressed to an incorrect enquiry point
shall promptly be conveyed to the correct enquiry point.
10.3
Each Member shall take such reasonable measures as may be
available to it to ensure that one or more enquiry points exist which
are able to answer all reasonable enquiries from other Members and
interested parties in other Members as well as to provide the relevant
documents or information as to where they can be obtained regarding:
10.3.1
any standards adopted or proposed within its territory by
non-governmental standardizing bodies, or by regional standardizing
bodies of which such bodies are members or participants; and
10.3.2
any conformity assessment procedures, or proposed conformity
assessment procedures, which are operated within its territory by
non-governmental bodies, or by regional bodies of which such bodies are
members or participants;
10.3.3
the membership and participation of relevant non-governmental
bodies within its territory in international and regional standardizing
bodies and conformity assessment systems, as well as in bilateral and
multilateral arrangements within the scope of this Agreement; they shall
also be able to provide reasonable information on the provisions of such
systems and arrangements.
10.4
Members shall take such reasonable measures as may be available
to them to ensure that where copies of documents are requested by other
Members or by interested parties in other Members, in accordance with
the provisions of this Agreement, they are supplied at an equitable
price (if any) which shall, apart from the real cost of delivery, be the
same for the nationals(1) of the Member concerned or of any other
Member.
(footnote original)
1 “Nationals” here shall be
deemed, in the case of a separate customs territory Member of the WTO,
to mean persons, natural or legal, who are domiciled or who have a real
and effective industrial or commercial establishment in that customs
territory.
10.5
Developed country Members shall, if requested by other Members,
provide, in English, French or Spanish, translations of the documents
covered by a specific notification or, in case of voluminous documents,
of summaries of such documents.
10.6
The Secretariat shall, when it receives notifications in
accordance with the provisions of this Agreement, circulate copies of
the notifications to all Members and interested international
standardizing and conformity assessment bodies, and draw the attention
of developing country Members to any notifications relating to products
of particular interest to them.
10.7
Whenever a Member has reached an agreement with any other
country or countries on issues related to technical regulations,
standards or conformity assessment procedures which may have a
significant effect on trade, at least one Member party to the agreement
shall notify other Members through the Secretariat of the products to be
covered by the agreement and include a brief description of the
agreement. Members concerned are encouraged to enter, upon request, into
consultations with other Members for the purposes of concluding similar
agreements or of arranging for their participation in such agreements.
10.8
Nothing in this Agreement shall be construed as requiring:
10.8.1
the publication of texts other than in the language of the
Member;
10.8.2
the provision of particulars or copies of drafts other than in
the language of the Member except as stated in paragraph
5; or
10.8.3
Members to furnish any information, the disclosure of which
they consider contrary to their essential security interests.
10.9
Notifications to the Secretariat shall be in English, French or
Spanish.
10.10
Members shall designate a single central government authority
that is responsible for the implementation on the national level of the
provisions concerning notification procedures under this Agreement
except those included in Annex 3.
10.11
If, however, for legal or administrative reasons the
responsibility for notification procedures is divided among two or more
central government authorities, the Member concerned shall provide to
the other Members complete and unambiguous information on the scope of
responsibility of each of these authorities.
B. Interpretation and Application of Article 10
1. Related TBT Committee decisions and recommendations
(a) General
120. At its meeting of 21 April 1995, the TBT Committee decided on
the modalities for regular meetings of persons responsible for
information exchange.(161)
(b) Articles 10.1 and 10.3
121. At its meeting of 14 July 1995, with respect to the handling of
requests received under Articles 10.1 and 10.3, the TBT Committee
adopted the recommendation that an enquiry point should, without further
request, acknowledge the receipt of the enquiry.(162)
122. At its meeting of 14 July 1995, and with a view to encouraging
the uniform application of Articles 10.1 and
10.3, the TBT Committee
also adopted the following recommendations:
(i) an enquiry should be considered “reasonable” when it is
limited to a specific product, or group of products, but not when it
goes beyond that and refers to an entire business branch or field of
regulations, or procedures for assessment of conformity;
(ii) when an enquiry refers to a composite product, it is desirable
that the parts or components, for which information is sought, are
defined to the extent possible. When a request is made concerning the
use of a product it is desirable that the use is related to a specific
field;
(iii) the Enquiry Point(s) of a Member should be prepared to answer
enquiries regarding the membership and participation of that Member, or
of relevant bodies within its territory, in international and regional
standardizing bodies and conformity assessment systems as well as in
bilateral arrangements, with respect to a specific product or group of
products. They should likewise be prepared to provide reasonable
information on the provisions of such systems and arrangement.(163)
123. See also the recommendations of the TBT Committee concerning
booklets on enquiry points and the List of Enquiry Points prepared by
the Secretariat.(164)
(c) Article 10.5
124. See the recommendation and decisions of the TBT Committee
concerning translation of documents relating to notifications,
referenced in paragraph 90 above.
(d) Article 10.7
125. In 1996, the TBT Committee agreed on a notification format
concerning agreements reached by a member with another country or
countries on issues related to technical regulations, standards or
conformity assessment procedures.(165)
126. Notifications under
Article 10.7 are circulated under document
symbol G/TBT/10.7/N.
XII. Article 11
back to top
A. Text of Article 11
Article 11: Technical Assistance to Other Members
11.1
Members shall, if requested, advise other Members, especially
the developing country Members, on the preparation of technical
regulations.
11.2 Members shall, if requested, advise other Members, especially
the developing country Members, and shall grant them technical
assistance on mutually agreed terms and conditions regarding the
establishment of national standardizing bodies, and participation in the
international standardizing bodies, and shall encourage their national
standardizing bodies to do likewise.
11.3 Members shall, if requested, take such reasonable measures as
may be available to them to arrange for the regulatory bodies within
their territories to advise other Members, especially the developing
country Members, and shall grant them technical assistance on mutually
agreed terms and conditions regarding:
11.3.1 the establishment of regulatory bodies, or bodies for the
assessment of conformity with technical regulations; and
11.3.2 the methods by which their technical regulations can best be
met.
11.4 Members shall, if requested, take such reasonable measures as
may be available to them to arrange for advice to be given to other
Members, especially the developing country Members, and shall grant them
technical assistance on mutually agreed terms and conditions regarding
the establishment of bodies for the assessment of conformity with
standards adopted within the territory of the requesting Member.
11.5 Members shall, if requested, advise other Members, especially
the developing country Members, and shall grant them technical
assistance on mutually agreed terms and conditions regarding the steps
that should be taken by their producers if they wish to have access to
systems for conformity assessment operated by governmental or
non-governmental bodies within the territory of the Member receiving the
request.
11.6 Members which are members or participants of international or
regional systems for conformity assessment shall, if requested, advise
other Members, especially the developing country Members, and shall
grant them technical assistance on mutually agreed terms and conditions
regarding the establishment of the institutions and legal framework
which would enable them to fulfil the obligations of membership or
participation in such systems.
11.7
Members shall, if so requested, encourage bodies within their
territories which are members or participants of international or
regional systems for conformity assessment to advise other Members,
especially the developing country Members, and should consider requests
for technical assistance from them regarding the establishment of the
institutions which would enable the relevant bodies within their
territories to fulfil the obligations of membership or participation.
11.8 In providing advice and technical assistance to other Members in
terms of paragraphs 1 to 7, Members shall give priority to the needs of
the least-developed country Members.
B. Interpretation and Application of Article 11
1. Related TBT Committee decisions and recommendations
(a) General
127. In considering the ways in which the provisions of
Article 11
could be given operational significance, the TBT Committee agreed in
1995 that technical assistance would remain as an item of the agenda of
the Committee on a permanent basis and would be included on the agenda
of a regular meeting of the Committee when so requested by a Member in
accordance with the agreed procedures.(166)
128. At its meeting in November 2000, in considering technical
assistance, the TBT Committee agreed to develop a demand driven
technical cooperation programme related to the TBT Agreement, taking
into account existing and proposed technical assistance activities, as
well as seeking ways to achieve more effective cooperation and
coordination among donors to better target the needs identified by
developing country Members.(167)
129. Following-up on recommendations in the Committee’s Third
Triennial Review, at its meeting of 2 November 2005, the TBT Committee
adopted, on a trial basis for a period of two years, a format for the
voluntary notification of specific technical assistance needs and
responses (G/TBT/16).(168) The Committee made follow-up recommendations in
2006 and 2009.(169) Notifications of Specific Technical Assistance Needs
and Responses are contained in the following document series: G/TBT/TA-[number]/[Member].
(b) Information exchange
130. In 1995, in considering the ways in which the provisions of
Article 11 could be given operational significance, the Committee agreed
to exchange information on technical assistance as follows: specific
needs for technical assistance, as well as information that may be
provided by potential donor Members on their technical assistance
programmes, may be communicated to Members through the Secretariat.
Members will take into account the provisions of Article 11.8 of the TBT
Agreement when considering requests for technical assistance from the
least-developed country Members. In agreement with requesting Members or
potential donor Members, as the case may be, the information concerning
specific needs and technical assistance programmes would be circulated
by the Secretariat to all Members on an informal basis. Whilst
information would be multilateralized in this manner, technical
assistance would continue to be provided on a bilateral basis. The
Secretariat would reflect the information circulated under this
procedure in the documentation prepared for annual reviews of the
implementation and operation of the Agreement if the Members concerned
so agree.(170)
131. The Committee made follow-up recommendations in 1997, 2000,
2006, and 2009.(171)
Footnotes:
1. Panel Report, EC — Asbestos, para. 8.55.
back to text
2. Panel Report, EC — Asbestos, footnote 41.
back to text
3. Appellate Body Report, EC — Asbestos, para. 80.
back to text
4. Panel Report, EC — Sardines, paras. 7.119–7.120.
back to text
5. Appellate Body Report, EC — Sardines, para. 215.
back to text
6. Panel Report, EC — Trademarks and Geographical Indications
(Australia), para. 7.513. back to text
7. Panel Report, US — Clove Cigarettes, paras. 7.111–7.114,
7.329, 7.359–7.360, 7.370. back to text
8. Panel Report, US — Tuna II (Mexico), paras. 7.41, 7.110,
7.225, 7.276, 7.460, 7.467. back to text
9. See Annex 1 below. back to text
10. Panel Report, EC — Approval and Marketing of Biotech Products,
para. 7.300 and footnote 449. back to text
11. (footnote original) Appellate Body Report, EC — Sardines,
para. 224. back to text
12. Panel Report, US — Tuna II (Mexico),
paras. 7.661–7.662.
back to text
13. Panel Report, EC — Trademarks and Geographical Indications
(Australia), para. 7.461. back to text
14. Panel Reports, EC — Hormones (Canada), para. 8.32; and EC
— Hormones (US), para. 8.29. back to text
15. Panel Report, EC — Approval and Marketing of Biotech Products,
paras. 7.2524, 7.2528, 7.3412–7.3413, 8.38, 8.42–8.46, 8.53, 8.57–8.62.
back to text
16. Panel Report, US — Clove Cigarettes, para. 7.14 and footnote
89. back to text
17. Panel Report, EC — Trademarks and Geographical Indications
(Australia), paras. 7.446–7.475. back to text
18. Panel Report, US — Clove Cigarettes, paras. 7.70–7.293.
back to text
19. Panel Report, US — Tuna II (Mexico),
paras. 7.189–7.378.
back to text
20. Panel Report, EC — Trademarks and Geographical Indications
(Australia), paras. 7.464 and 7.476. back to text
21. Panel Report, US — Clove Cigarettes, para. 7.119.
back to text
22. (footnote original) Appellate Body Report, EC — Asbestos,
para. 99. back to text
23. Panel Report, US — Tuna II (Mexico), paras. 7.223–7.225.
back to text
24. Panel Report, US — Clove Cigarettes, paras. 7.308–7.309.
back to text
25. Panel Report, EC — Asbestos,
paras. 3.1, 9.1. The Appellate
Body found that the measure was “technical regulation”, but found that it
did not have an adequate basis to properly examine Canada’s claims under the
TBT Agreement, and refrained from doing so. Appellate Body Report, EC — Asbestos, para. 83. back to text
26. Panel Report, EC — Sardines, paras. 7.14, 7.16–7.19,
7.147, 7.151–152. The Appellate Body refrained from making a finding under Article 2.2
for the same reason as the Panel. Appellate Body Report, EC — Sardines, paras. 312–313. back to text
27. Panel Report, EC — Sardines, para. 7.120.
back to text
28. Panel Report, EC — Trademarks and Geographical Indications
(Australia), para. 7.515. back to text
29. Panel Report, EC — Approval and Marketing of Biotech Products,
paras. 7.2524, 7.2528, 7.3412–7.3413, 8.38, 8.42–8.46, 8.53, 8.57 8.62.
back to text
30. Panel Report, US — Clove Cigarettes, paras. 7.325–7.432.
back to text
31. Panel Report, US — Tuna II (Mexico),
paras. 7.379–7.623.
back to text
32. (footnote original) The second sentence of
Article 2.5 of the TBT
Agreement states that “[w]henever a technical regulation is prepared,
adopted or applied for one of the legitimate objectives explicitly mentioned in
paragraph 2 and is in accordance with relevant international standards, it shall
be rebuttably presumed not to create an unnecessary obstacle to international
trade.” back to text
33. Panel Report, US — Clove Cigarettes, para. 7.331.
back to text
34. Panel Report, US — Tuna II (Mexico),
para. 7.388.
back to text
35. Panel Report, US — Tuna II (Mexico),
para. 7.388.
back to text
36. Panel Report, US — Clove Cigarettes,
para. 7.332.
back to text
37. Panel Report, US — Clove Cigarettes,
para. 7.330.
back to text
38. Panel Report, US — Clove Cigarettes, footnote 618.
back to text
39. United States’ first written submission, para. 143.
back to text
40. Panel Report, US — Tuna II (Mexico),
paras. 7.382–7.387.
back to text
41. Panel Report, US — Tuna II (Mexico),
para. 7.455.
back to text
42. Panel Report, US — Clove Cigarettes,
paras. 7.353–7.368.
back to text
43. Panel Report, US — Clove Cigarettes,
para. 7.369.
back to text
44. Panel Report, US — Tuna II (Mexico),
paras. 7.457–7.460.
back to text
45. Panel Report, US — Clove Cigarettes,
para. 7.365.
back to text
46. Panel Report, US — Tuna II (Mexico),
para. 7.464.
back to text
47. Panel Report, US — Clove Cigarettes,
para. 7.335.
back to text
48. Panel Report, US — Clove Cigarettes,
para. 7.342.
back to text
49. Panel Report, US — Tuna II (Mexico),
para. 7.407.
back to text
50. (footnote original) Appellate Body Report, EC — Asbestos,
para. 172. back to text
51. (footnote original) Appellate Body Report, Brazil —
Retreaded Tyres, para. 144 (footnotes omitted). back to text
52. Panel Report, US — Clove Cigarettes,
para. 7.347.
back to text
53. (footnote original) Panel Report, EC — Sardines, para.
7.121. back to text
54. (footnote original) Appellate Body Report, EC — Sardines,
para. 286. back to text
55. (footnote original) Appellate Body Report, EC — Sardines,
para. 286. back to text
56. Panel Report, US — Tuna II (Mexico),
paras. 7.436–7.437.
back to text
57. Panel Report, US — Tuna II (Mexico),
paras. 7.466–7.467.
back to text
58. Panel Report, EC — Sardines, para. 7.80.
back to text
59. Panel Report, EC — Sardines, para. 7.81.
back to text
60. (footnote original) See Panel Report, EC — Sardines,
paras. 7.61 and 7.139 and Appellate Body Report, paras. 217–291.
back to text
61. Panel Report, US — Tuna II (Mexico),
para. 7.627.
back to text
62. Panel Report, EC — Sardines, para. 7.74.
back to text
63. Appellate Body Report, EC — Sardines, paras. 205 and 207–208.
back to text
64. Appellate Body Report, EC — Sardines, paras. 210–212.
back to text
65. Appellate Body Report, EC — Sardines, paras. 214–215.
back to text
66. Appellate Body Report, EC — Sardines,
paras. 274–275.
back to text
67. In EC — Hormones, the Panel had assigned the burden of
showing that the measure there was justified under Article 3.3 to the
respondent, reasoning that Article 3.3 provides an exception to the general
obligation contained in Article 3.1. The Panel was of the view that it was the defending
party that was asserting the affirmative of that particular
defence. The Appellate Body reversed the Panel’s finding (see the Appellate
Body Report, EC — Hormones, para. 104). back to text
68. Appellate Body Report, EC — Sardines,
paras. 274–275.
back to text
69. Panel Report, US — Tuna II (Mexico),
paras. 7.628–7.629.
back to text
70. (footnote original) Panel Report, EC — Sardines, para.
7.91. back to text
71. Panel Report, US — Tuna II (Mexico),
paras. 7.663–7.665.
back to text
72. (footnote original) Appellate Body Report, EC — Sardines,
para. 224. back to text
73. Panel Report, US — Tuna II (Mexico),
paras. 7.670–7.671.
back to text
74. Appellate Body Report, EC — Sardines,
para. 227.
back to text
75. (footnote original) The record does not demonstrate that Codex
Stan 94 was not adopted by consensus. In any event, we consider that this issue
would have no bearing on our determination in light of the explanatory note of
paragraph 2 of Annex 1 of the TBT Agreement which states that the TBT Agreement
covers “documents that are not based on consensus”. back to text
76. Panel Report, EC — Sardines,
para. 7.90 and footnote 86
thereto. back to text
77. Appellate Body Report, EC — Sardines,
paras. 222–223.
back to text
78. Appellate Body Report, EC — Sardines,
paras. 222–223. In
this respect, see also paras. 152–153 of this
Chapter. back to text
79. Appellate Body Report, EC — Sardines,
para. 227.
back to text
80. Panel Report, EC — Sardines,
para. 7.68, quoting Webster’s
New World Dictionary (William Collins & World Publishing Co., Inc.
1976), p. 1199. back to text
81. Panel Report, EC — Sardines,
para. 7.68.
back to text
82. Panel Report, EC — Sardines,
para. 7.69.
back to text
83. Panel Report, US — Tuna II (Mexico),
paras. 7.698–7.707.
back to text
84. Panel Report, EC — Sardines,
para. 7.110.
back to text
85. Appellate Body Report, EC — Sardines,
paras. 240–245.
back to text
86. Appellate Body Report, EC — Sardines,
para. 245.
back to text
87. Appellate Body Report, EC — Sardines,
para. 242.
back to text
88. Appellate Body Report, EC — Sardines, footnote 169.
back to text
89. Appellate Body Report, EC — Sardines,
paras. 247–248.
back to text
90. Appellate Body Report, EC — Sardines,
para. 250.
back to text
91. Panel Report, US — Tuna II (Mexico),
para. 7.712.
back to text
92. Panel Report, EC — Sardines,
para. 7.116.
back to text
93. Panel Report, EC — Sardines,
para. 7.116, and Appellate Body Report, EC — Sardines,
para. 289. back to text
94. Panel Report, US — Tuna II (Mexico),
para. 7.725.
back to text
95. Panel Report, EC — Sardines,
para. 7.118.
back to text
96. Panel Report, EC — Sardines,
para. 7.122.
back to text
97. Panel Report, EC — Sardines,
para. 7.118.
back to text
98. Appellate Body Report, EC — Sardines,
para. 286.
back to text
99. Panel Report, US — Clove Cigarettes,
paras. 7.444–7.463.
back to text
100. Panel Report, US — Clove Cigarettes,
para. 7.462.
back to text
101. Panel Report, EC — Sardines,
para. 7.75.
back to text
102. Appellate Body Report, EC — Sardines,
para. 177.
back to text
103. Panel Report, EC — Sardines,
para. 7.76. See also paras. 49–51
of this Chapter. back to text
104. The text of the decision is contained in G/TBT/1/Rev.10, pp. 13, 46–48.
back to text
105. (footnote original) ISO/IEC Directives, Part 2: Rules for the
structure and drafting of International Standards, Fifth edition, 2004,
available online at: http://www.iso.org/iso/standards_development/processes_and_procedures/drafting_standards.htm back to text
106. (footnote original) G/TBT/9, Committee on Technical Barriers
to Trade, Second Triennial Review of the Operation and Implementation of the
Agreement on Technical Barriers to Trade, 13 November 2000, Annex 4, para. 10.
back to text
107. Panel Report, US — Clove Cigarettes,
paras. 7.481–7.482.
back to text
108. (footnote original) The word “appropriate” has been
interpreted in a number of prior panel reports, including but not limited to the
following: Panel Report, Mexico — Telecoms, paras. 7.265, 7.367–7.368;
Panel Report, EC — Tube or Pipe Fittings, paras. 7.240–7.241; Panel
Report, Argentina — Poultry Anti-Dumping Duties, paras. 7.191 and
7.365; Panel Report, EC — Sardines,
para. 7.116; Panel Report, US
— Steel Plate, para. 7.72; Panel Report, Australia — Salmon,
paras. 8.57 and 8.71. back to text
109. (footnote original) Panel Report, Mexico — Telecoms,
para. 7.265 (citing The Shorter Oxford English Dictionary, 3rd. edition,
(Clarendon Press, 1990), p. 94). back to text
110. (footnote original)
Panel Report, EC — Tube or Pipe Fittings, para. 7.240 (citing Webster’s New Encyclopaedic
Dictionary (1994) and The New Shorter Oxford English Dictionary (1993)).
back to text
111. (footnote original) Shorter Oxford English Dictionary,
6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 106.
back to text
112. (footnote original) Appellate Body Report, US —
Anti-Dumping and Countervailing Duties (China), para. 552.
back to text
113. (footnote original) Appellate Body Report, EC — Sardines,
para. 285. back to text
114. Panel Report, US — Clove Cigarettes,
paras. 7.486–7.489.
back to text
115. (footnote original) In EC — Sardines, the Appellate
Body found that the complaining party carries the burden of demonstrating that
the “international standard” in question was an “appropriate” means to
fulfil the legitimate objectives pursued by the responding Member. Appellate Body Report, EC — Sardines,
paras. 269–282.
While the obligations in
Articles 2.8 and 2.4 of the TBT Agreement are obviously different from
one another, an element that is common to both provisions is that the two
obligations are qualified in essentially the same way: the obligation in Article
2.8 is qualified by the terms “[w]herever appropriate”, and the obligation
in Article 2.4 is qualified by the terms “except when … inappropriate”.
These terms are interchangeable with one another, with the only difference being
that the first is formulated in positive terms, while the second is formulated
in negative terms. Thus, the introductory words to Article 2.8 could be changed
to read “[e]xcept when inappropriate, …” without altering the meaning of
the obligation set out therein. back to text
116. Panel Report, US — Clove Cigarettes,
para. 7.490.
back to text
117. (footnote original) The Panel notes that the Spanish and
French versions of Article 2.8 use the terms “en función de las
propiedades de uso y empleo de los productos” and “en fonction des
propriétés d’emploi du produit”. back to text
118. Panel Report, US — Clove Cigarettes,
para. 7.493.
back to text
119. Panel Report, US — Clove Cigarettes,
para. 7.484.
back to text
120. The text of these recommendations and decisions is contained in G/TBT/1/Rev.10,
pp. 18–27. back to text
121. G/TBT/26, 12 November 2009, para. 29. back to text
122. G/TBT/1/Rev.10, p. 16. back to text
123. G/TBT/1/Rev.10, pp. 19–20. back to text
124. G/TBT/1/Rev.10, p. 30. back to text
125. The text of the relevant recommendations and decisions is contained
in G/TBT/1/Rev.10, pp. 20–21, and Annex C. back to text
126. G/TBT/1/Rev.10, p. 20. back to text
127. G/TBT/1/Rev.10, p. 22. back to text
128. G/TBT/1/Rev.10, p. 20. back to text
129. G/TBT/1/Rev.10, pp. 31–33. back to text
130. G/TBT/1/Rev.10, p. 27. back to text
131. G/TBT/1/Rev.10, p. 23. back to text
132. G/TBT/1/Rev.10, pp. 24–25. back to text
133. G/TBT/1/Rev.10, pp. 30–31. back to text
134. G/TBT/1/Rev.10, p. 23. back to text
135. G/TBT/1/Rev.10, p. 26. back to text
136. G/TBT/1/Rev.10, p. 26. back to text
137. Panel Report, US — Clove Cigarettes,
paras. 7.529–7.531.
back to text
138. Panel Report, US — Clove Cigarettes,
para. 7.542.
back to text
139. (footnote original) G/TBT/1/Rev.9, p. 16.
back to text
140. Panel Report, US — Clove Cigarettes,
paras. 7.535–7.538.
back to text
141. Panel Report, US — Clove Cigarettes,
paras. 7.545–7.549.
back to text
142. Panel Report, US — Clove Cigarettes,
para. 7.502.
back to text
143. WT/MIN(01)/17, 20 November 2001, para. 5.2. back to text
144. G/TBT/1/Rev.10, p. 26. back to text
145. G/TBT/1/Rev.10, p. 26. back to text
146. Panel Report, US — Clove Cigarettes,
paras. 7.563–7.595.
back to text
147. Panel Report, US — Clove Cigarettes,
paras. 7.568–7.580.
back to text
148. In connection with the Code of Good Practice for the Preparation,
Adoption and Application of Standards, the Marrakesh Ministerial Conference
adopted two decisions on 15 December 1994. See Sections XX and
XXI below.
back to text
149. G/TBT/1/Rev.10, pp. 13, 46–48. back to text
150. G/TBT/1/Rev.10, p. 15. back to text
151. G/TBT/1/Rev.10, p. 16. back to text
152. G/TBT/1/Rev.10, footnote 13. back to text
153. G/TBT/1/Rev.10, p. 8. back to text
154. G/TBT/1/Rev.10, p. 44. back to text
155. G/TBT/1/Rev.10, p. 9. back to text
156. G/TBT/1/Rev.10, pp. 46–48. back to text
157. The text of these recommendations and decisions is contained in G/TBT/1/Rev.10,
pp. 18–27. back to text
158. G/TBT/1/Rev.10, p. 18. back to text
159. G/TBT/1/Rev.10, pp. 9–11. back to text
160. G/TBT/1/Rev.10, p. 22. back to text
161. G/TBT/1/Rev.10, p. 35. back to text
162. G/TBT/1/Rev.10, p. 34. back to text
163. G/TBT/1/Rev.10, pp. 34–35. back to text
164. G/TBT/1/Rev.10, p. 35. The layout of the booklet and the elements to
be contained therein are to be found at G/TBT/1/Rev.10, Annex F, pp. 55–56.
back to text
165. G/TBT/1/Rev.10, Annex D, p. 53. back to text
166. G/TBT/1/Rev.10, p. 36. back to text
167. The elements that formed the basis of the programme are discussed in G/TBT/1/Rev.10, pp. 36–37. Further recommendations were made in 2003 and 2009,
see G/TBT/1/Rev.10, pp. 37–38. back to text
168. G/TBT/1/Rev.10, p. 36. The format may be found at G/TBT/1/Rev.10,
Annex G, p. 55. back to text
169. G/TBT/1/Rev.10, pp. 38–39. back to text
170. G/TBT/1/Rev.10, p. 39. back to text
171. G/TBT/1/Rev.10, p. 40. back to text
|
