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REPERTORY OF APPELLATE BODY REPORTS

TBT Agreement


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


T.4.1 Annex 1.1 — “technical regulation” definition     back to top

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 [at 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 [at 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 [at 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 [at 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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