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ON THIS PAGE:
> Annex 1.1 — “technical regulation”
definition
> Annex 1.2 — Standards
> Article 2.4 — “international standards …
as a basis for technical regulation”. See also Burden of
Proof, General (B.3.1); Temporal
Application of Rights and Obligations, TBT Agreement (T.5.3)
> Article 2.4 — “except when such international
standards or relevant parts would be an ineffective or inappropriate means”
> Article 2.4 — Preparation, adoption and continued
application of existing regulations
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T.4.1 Annex 1.1 — “technical regulation” definition
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T.4.1.1 EC — Asbestos, para. 67
(WT/DS135/AB/R)
The heart of the definition of a “technical regulation” is that a
“document” must “lay down” — that is, set forth, stipulate or
provide — “product characteristics”. The word “characteristic”
has a number of synonyms that are helpful in understanding the ordinary
meaning of that word, in this context. Thus, the “characteristics”
of a product include, in our view, any objectively definable “features”,
“qualities”, “attributes”, or other “distinguishing mark” of
a product. Such “characteristics” might relate, inter alia,
to a product’s composition, size, shape, colour, texture, hardness,
tensile strength, flammability, conductivity, density, or viscosity. In
the definition of a “technical regulation” in Annex 1.1, the TBT Agreement itself gives certain examples of “product
characteristics” — “terminology, symbols, packaging, marking or
labelling requirements”. These examples indicate that “product
characteristics” include, not only features and qualities intrinsic to
the product itself, but also related “characteristics”, such as the
means of identification, the presentation and the appearance of a
product. In addition, according to the definition in Annex 1.1 of the TBT Agreement, a “technical regulation” may set forth the “applicable
administrative provisions” for products which have certain “characteristics”.
Further, we note that the definition of a “technical regulation”
provides that such a regulation “may also include or deal exclusively
with terminology, symbols, packaging, marking or labelling
requirements”. (emphasis added) The use here of the word “exclusively”
and the disjunctive word “or” indicates that a “technical
regulation” may be confined to laying down only one or a few “product
characteristics”.
T.4.1.2 EC — Asbestos, para. 68
(WT/DS135/AB/R)
The definition of a “technical regulation” in Annex 1.1 of the TBT Agreement also states that “compliance” with the “product
characteristics” laid down in the “document” must be “mandatory”.
A “technical regulation” must, in other words, regulate the “characteristics”
of products in a binding or compulsory fashion. It follows that, with
respect to products, a “technical regulation” has the effect of prescribing
or imposing one or more “characteristics” — “features”,
“qualities”, “attributes”, or other “distinguishing mark”.
T.4.1.3 EC — Asbestos, para. 69
(WT/DS135/AB/R)
“Product characteristics” may, in our view, be prescribed or
imposed with respect to products in either a positive or a negative
form. That is, the document may provide, positively, that products must
possess certain “characteristics”, or the document may require,
negatively, that products must not possess certain “characteristics”.
In both cases, the legal result is the same: the document “lays down”
certain binding “characteristics” for products, in one case
affirmatively, and in the other by negative implication.
T.4.1.4 EC — Asbestos, para. 70
(WT/DS135/AB/R)
A “technical regulation” must, of course, be applicable to an identifiable
product, or group of products. Otherwise, enforcement of the regulation
will, in practical terms, be impossible. This consideration also
underlies the formal obligation, in Article 2.9.2 of the TBT Agreement,
for Members to notify other Members, through the WTO Secretariat, “of
the products to be covered” by a proposed “technical
regulation”. (emphasis added) Clearly, compliance with this obligation
requires identification of the product coverage of a technical
regulation. However, in contrast to what the Panel suggested, this does
not mean that a “technical regulation” must apply to “given”
products which are actually named, identified or specified
in the regulation. (emphasis added) Although the TBT Agreement
clearly applies to “products” generally, nothing in the text of that
Agreement suggests that those products need be named or otherwise expressly
identified in a “technical regulation”. Moreover, there may be
perfectly sound administrative reasons for formulating a “technical
regulation” in a way that does not expressly identify products
by name, but simply makes them identifiable — for instance, through the
“characteristic” that is the subject of regulation.
T.4.1.5 EC — Asbestos, para. 72
(WT/DS135/AB/R)
… It is important to note here that, although formulated negatively
— products containing asbestos are prohibited — the measure, in this
respect, effectively prescribes or imposes certain objective features,
qualities or “characteristics” on all products. That is, in
effect, the measure provides that all products must not
contain asbestos fibres. Although this prohibition against products
containing asbestos applies to a large number of products, and although
it is, indeed, true that the products to which this prohibition applies
cannot be determined from the terms of the measure itself, it seems to
us that the products covered by the measure are identifiable: all
products must be asbestos free; any products containing asbestos are
prohibited. …
T.4.1.6 EC — Sardines, paras. 175-176
(WT/DS231/AB/R)
As we explained in EC — Asbestos [paragraph 59],
whether a measure is a “technical regulation” is a threshold issue
because the outcome of this issue determines whether the TBT Agreement
is applicable. If the measure before us is not a “technical regulation”,
then it does not fall within the scope of the TBT Agreement.
…
We interpreted this definition in EC —
Asbestos
[paragraphs 66-70]. In doing so, we set out three criteria that a
document must meet to fall within the definition of “technical
regulation” in the TBT Agreement. First, the
document must apply to an identifiable product or group of products. The
identifiable product or group of products need not, however, be
expressly identified in the document. Second, the document
must lay down one or more characteristics of the product. These product
characteristics may be intrinsic, or they may be related to the product.
They may be prescribed or imposed in either a positive or a negative
form. Third, compliance with the product characteristics must be
mandatory. …
T.4.1.7 EC — Sardines, para. 180
(WT/DS231/AB/R)
… Thus, a product does not necessarily have to be mentioned explicitly
in a document for that product to be an identifiable product. Identifiable
does not mean expressly identified.
T.4.1.8 EC — Sardines, para. 183
(WT/DS231/AB/R)
… We observe that the EC Regulation does not expressly identify Sardinops
sagax. However, this does not necessarily mean that Sardinops
sagax is not an identifiable product. As we stated in EC — Asbestos [paragraph 70], a product need not be expressly
identified in the document for it to be identifiable.
T.4.1.9 EC — Sardines, paras. 190-191
(WT/DS231/AB/R)
We do not find it necessary, in this case, to decide whether the
definition of “technical regulation” in the TBT Agreement
makes a distinction between “naming” and labelling. … We are of
the view that this requirement — to be prepared exclusively from fish of
the species Sardina pilchardus — is a product characteristic “intrinsic
to” preserved sardines that is laid down by the EC Regulation. …
In any event, as we said in EC — Asbestos [paragraph
67], a “means of identification” is a product characteristic.
A name clearly identifies a product; indeed, the European Communities
concedes that a name is a “means of identification” …
T.4.2 Annex 1.2 — Standards back to top
T.4.2.1 EC — Sardines, paras. 222-223
(WT/DS231/AB/R)
… In our view, the 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.
The European Communities agrees. 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, as the European Communities claims.
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. …
Article 2.2
— “not be more trade-restrictive than necessary to
fulfil a legitimate objective”. See TBT Agreement, Article 2.4 — “international standards … as a basis for technical regulation”
(T.4.3)
T.4.3 Article 2.4
— “international standards … as a basis for
technical regulation”. See also Burden of Proof,
General (B.3.1); Temporal Application of Rights and Obligations, TBT
Agreement (T.5.3) back to top
T.4.3.1 EC — Sardines, para. 248
(WT/DS231/AB/R)
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.
T.4.3.2 EC — Sardines, para. 250
(WT/DS231/AB/R)
In making this determination, we note at the outset that Article 2.4
of the TBT Agreement provides that “Members shall use
[relevant international standards], or the relevant parts of them,
as a basis for their technical regulations”. (emphasis added) 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.
T.4.4 Article 2.4 — “except when such international standards or
relevant parts would be an ineffective or inappropriate means”
back to top
T.4.4.1 EC — Sardines, para. 285
(WT/DS231/AB/R)
… we noted earlier the Panel’s view that the term “ineffective
or inappropriate means” refers to two questions — the question of the effectiveness
of the measure and the question of the appropriateness of the
measure — and that these two questions, although closely related, are
different in nature. The Panel pointed out that the term “ineffective”
“refers to something which is not ‘having 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’ “. The Panel
also stated that:
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. … 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. (original emphasis)
We agree with the Panel’s interpretation.
T.4.4.2 EC — Sardines, para. 286
(WT/DS231/AB/R)
As to the second question, we are of the view that the Panel was also
correct in concluding that “the ‘legitimate objectives’ referred
to in Article 2.4 must be interpreted in the context of Article 2.2”,
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.
T.4.5 Article 2.4 — Preparation, adoption and continued application
of existing regulations back to top
T.4.5.1 EC — Sardines, para. 205
(WT/DS231/AB/R)
… 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. …
T.4.5.2 EC — Sardines, para. 208
(WT/DS231/AB/R)
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. No such explicit
exemption is found in the terms “where technical regulations are
required”, “exist”, “imminent”, “use”, or “as a basis
for”.
T.4.5.3 EC — Sardines, para. 215
(WT/DS231/AB/R)
… 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.
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The texts reproduced here do not have the legal standing of the original
documents which are entrusted and kept at the WTO Secretariat in Geneva.
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