 |
|
|
 |
home > resources > publications > wto analytical index > table of contents > technical barriers |
|
WTO ANALYTICAL INDEX: TECHNICAL BARRIERS Agreement on Technical Barriers to Trade |
|
> 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, of 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:
No jurisprudence or decision of a competent WTO body.
II. Article 1 back to top 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(1) 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.
(a) Termination of Tokyo Round TBT Agreement 1. At its meeting on 20 October 1995, the Tokyo Round TBT Committee adopted a decision on the Termination of the Tokyo Round TBT Agreement with effect from 1 January 1996.(2) (b) Scope of the TBT Agreement 2. In EC - Asbestos, the complainant (Canada) contended that the TBT Agreement applied to the French Decree at issue, because it was a "technical regulation" within the meaning of Annex 1, paragraph 1. The measure at issue contained a general prohibition on the importation, marketing and use of asbestos, but provided for a few limited exceptions to this ban. The Panel rejected the Canadian argument and held that "the part of the Decree relating to the ban on imports of asbestos and asbestos-containing products" did not constitute a "technical regulation".(3) The Appellate Body reversed the Panel finding and held that it was necessary to consider the measure at issue in its entirety, i.e. both "the prohibitive and the permissive elements that are part of it": "[T]he proper legal character of the measure at issue cannot be determined unless the measure is examined as a whole.... the scope and generality of those prohibitions can only be understood in light of the exceptions to it which, albeit for a limited period, permit, inter alia, the use of certain product products containing asbestos and, principally, products containing chrysotile asbestos fibres. The measure is, therefore, not a total prohibition on asbestos fibres, because it also includes provisions that permit, for a limited duration, the use of asbestos in certain situations. Thus, to characterize the measure simply as a general prohibition, and to examine it as such, overlooks the complexities of the measure, which include both prohibitive and permissive elements. In addition, we observe that the exceptions in the measure would have no autonomous legal significance in the absence of the prohibitions. We, therefore, conclude that the measure at issue is to be examined as an integrated whole, taking into account, as appropriate, the prohibitive and the permissive elements that are part of it."(4) 3. On the definition of "technical regulation", see paragraphs 57-61 below. On the definition of "standard", see paragraphs 10-12 and 62-64 below. 4. In EC - Hormones, the complainants (United States and Canada) claimed that measures taken by the European Communities were inconsistent with: (i) GATT Articles III or XI; (ii) Articles 2, 3 and 5 of the SPS Agreement; (iii) Article 2 of the TBT Agreement; and (iv) Article 4 of the Agreement on Agriculture. The Panel, referring to Article 1.5 of the TBT Agreement, found that, since the measures at issue were sanitary measures, the TBT Agreement was not applicable to the dispute.(5) Technical Regulations And Standards
III. Article 2 back to top 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.
5. In EC - Sardines, the Panel decided to exercise judicial economy with regard to claims based on Article 2.2, but nonetheless included in its analysis under Article 2.4 some developments relating to the trade-restrictiveness of the measure at issue. The Appellate Body found that "the question whether the EC Regulation is trade-restrictive in nature could have been relevant to a legal analysis under Article 2.2 of the TBT Agreement." However, as the Panel had not made legal findings under Article 2.2, the Appellate Body declared that the relevant analysis on trade-restrictiveness did not have legal effect.(6) (a) Temporal application of Article 2.4 6. 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 have 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."(7) 7. 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 6 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."(8) 8. 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.(9) 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.(10) 9. 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.(11) 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:(12) "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 - Hormonesis 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."(13) (c) Relevant international standard 10. 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".(14) 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.(15) This provision therefore confirms that even if not adopted by consensus, an international standard can constitute a relevant international standard."(16) 11. 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."(17) 12. 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".(18) 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."(19) 13. Also, on the notion of "standard", see below, the section on the definition of the term "standard" in Annex 1 (see paragraphs 62-63 below). 14. 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".(20) 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".(21) 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."(22) 15. In EC - Sardines, the Appellate Body upheld the Panel's finding that Codex Stan 94 is a "relevant international standard" under Article 2.4.(23) The Appellate Body disagreed with the European Communities' argument that the EC Regulation dealt only with preserved sardines - understood to mean exclusively preserved Sardina pilchardus - while Codex Stan 94 also covered other species of fish that are "sardine-type": "We are not persuaded by this argument. First, even if we accepted that the EC Regulation relates only to preserved Sardina pilchardus, which we do not, the fact remains that section 6.1.1(i) of Codex Stan 94 also relates to preserved Sardina pilchardus. Therefore, Codex Stan 94 can be said to bear upon, relate to, or be pertinent to the EC Regulation because both refer to preserved Sardina pilchardus.
Second, we have already concluded that, although the EC Regulation expressly mentions only Sardina pilchardus, it has legal consequences for other fish species that could be sold as preserved sardines, including preserved Sardinops sagax. Codex Stan 94 covers 20 fish species in addition to Sardina pilchardus. These other species also are legally affected by the exclusion in the EC Regulation. Therefore, we conclude that Codex Stan 94 bears upon, relates to, or is pertinent to the EC Regulation."(24) 16. 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".(25) 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.(26) 17. 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.(27) 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.(28) 18. 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."(29) 19. 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."(30) (e) "ineffective or inappropriate means" of fulfilment of "legitimate objectives" (i) "ineffective or inappropriate means" 20. The Appellate Body in EC - Sardines upheld the Panel's statement regarding "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.(31) 21. 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."(32) (ii) "legitimate objectives pursued" 22. 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".(33) 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".(34) 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",(35) 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."(36) 23. In EC - Sardines, the Panel, in a reasoning supported by the Appellate Body, referred to 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, to 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."(37) 24. In EC - Sardines, the Panel, in a reasoning confirmed by the Appellate Body, 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."(38) 25. See also 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.(39) 26. 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.(40) (a) Notification format and guidelines 27. 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 agreed on a format and guidelines for notifications.(41) (b) Decision relating to notifications - labelling requirements 28. 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."(42) 29. 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."(43) (d) Application of Articles 2.9 and 5.6 (Preambular part) 30. 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": "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:
(a) Of one technical regulation or procedure for assessment of conformity only, or of various technical regulations or procedures for assessment of conformity in combination;
(b) in a specific product, group of products or products in general; and
(c) between two or more Members.
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. 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."(44) (e) Translation of documents relating to notifications and address of body supplying the documents 31. 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.(45) (f) Processing of requests for documentation 32. The TBT Committee addressed the problems of supplying and obtaining requested documentation on notified technical regulations and procedures for assessment of conformity and endorsed the electronic processing of such requests.(46) (g) Length of time allowed for comments 33. The TBT Committee set the following time-limits for presentation of comments on notified technical regulations and procedures for assessment of conformity: "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."(47) (h) Handling of comments on notifications 34. 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 TBT Agreement, the TBT Committee agreed on the following procedures. "(a) 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
(b) a Member receiving comments through the designated body should without further request
(i) acknowledge the receipt of such comments,
(ii) 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
(iii) 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."(48) (i) Monthly listing of notifications issued 35. 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.(49) (j) Enhancement of electronic transmission of information 36. 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 agreed that electronic transmission of information was the preferred method of filing notifications.(50) 37. At its meeting of 15 March 2002, the Committee took note of the Ministerial Decision (made at the Ministerial Conference of 14 November 2001) regarding the implementation of Article 2.12 of the Agreement: "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."(51)
IV. Article 3 back to top Article 3: Preparation, Adoption and Application of Technical Regulations by Local Government Bodies and Non-Governmental Bodies With respect to their local government and non-governmental 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.
No jurisprudence or decision of a competent WTO body.
V. Article 4 back to top 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(52) 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.
38. 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.(53) 39. The TBT Committee also decided, 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.(54) 40. See also the Section on Annex 3 (paragraph 66 below).
Conformity With Technical Regulations And Standards
VI. Article 5 back to top 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 non-conformity 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.
41. At its meeting of 16 and 22 October 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.(55) 42. 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.(56) 43. With reference to the notification of draft conformity assessment procedures, see the recommendations and decisions adopted by the TBT Committee, as described in paragraphs 26-36 above.(57) See in particular the recommendation concerning the application of Articles 2.9 and 5.6 (preambular part).(58)
VII. Article 6 back to top 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.
No jurisprudence or decision of a competent WTO body.
VIII. Article 7 back to top 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.
No jurisprudence or decision of a competent WTO body.
IX. Article 8 back to top 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 non-governmental 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.
No jurisprudence or decision of a competent WTO body.
X. Article 9 back to top 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.
No jurisprudence or decision of a competent WTO body.
Information And Assistance
XI. Article 10 back to top 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 non-governmental 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.
44. At its meeting of 21 April 1995, the TBT Committee decided on the modalities for regular meetings of persons responsible for information exchange.(59) 45. 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 adopted the following recommendations: "(a) (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; and
(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.
(b) 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."(60) 46. At its meeting of 14 July 1995, with respect to the handling of requests received under Article 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.(61) 47. See also the recommendations of the TBT Committee concerning booklets on enquiry points and the List of Enquiry Points prepared by the Secretariat.(62) 48. See the recommendation and decisions of the TBT Committee concerning translation of documents relating to notifications, referenced in paragraph 31 above.(63) 49. 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.(64)
XII. Article 11 back to top 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.
50. In considering the ways in which the provisions of Article 11 could be put into practice, the TBT Committee laid down parameters for exchanging information on technical assistance.(65)
Footnotes: 1. See Section XVII.
back to text |
