I.Introduction

While the main objective of the TBTAgreement is to ensure that technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to international trade, no Member shall be prevented from taking measures necessary to ensure, interalia, the following:

  • The quality of its exports.
  • The protection of human, animal or plant life or health.
  • The protection of the environment.
  • The prevention of deceptive practices, at levels it considers appropriate.
  • The protection of its essential security interest.

The TBTAgreement does not apply to sanitary and phytosanitary measures, purchasing specifications prepared by governments (government procurement) and to regulations related to services.

You are aware that the TBTAgreement applies to measures in legal force, regardless of the date they were enacted by the Member.

Finally, the three types of measures which fall within the scope of application of this Agreement are: technical regulations, standards, and conformity assessment procedures.

It is time for us to explain these in more detail. We hope that with some practical examples you may fully understand the definition and characteristics of each type of measure.

Let's get started!

II.Technical Regulations

In detail

A technical regulation is defined in TBT Annex1, paragraph1 as a:

Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

Figure 1:TBT Annex1.1

Pursuant to Annex1 paragraph1, the following requirements may be included in a technical regulation:

  • Terminology requirements.
  • Symbol requirements.
  • Packaging requirements.
  • Marking requirements.
  • Labelling requirements.

According to Article2.8 of the TBT Agreement, technical regulations should preferably specify performance requirements, rather than design or descriptive characteristics, whenever possible. Obligations regarding technical regulations in the TBT Agreement are found in two provisions on "Preparation, Adoption and Application of Technical Regulations":

  • one related to central governmental bodies (Article2); and
  • another on local government bodies and non-governmental bodies (Article3).

In order to verify if a measure or document is a technical regulation, the Appellate Body laid down three criteria while deciding on two TBT related cases, the ECAsbestos (WT/DS135) and the ECSardines (WT/DS231) cases:

1.The document must apply to an identifiable product or group of products.

2.The document must lay down one or more characteristics of the product.

3.Compliance with the product characteristics must be mandatory.

Let's learn more about the Asbestos cases.

Case study 1

European Communities — Asbestos (WT/DS135)

Overview

  • European Communities – Measures Affecting Asbestos and Products Containing Asbestos
  • Complaint by Canada
  • Third Parties: Brazil, Zimbabwe and the United States

To control the health risks associated with asbestos, the French Government, which had previously been an importer of large quantities of chrysotile asbestos, imposed a ban on the substance as well as on products that contained asbestos and asbestos fibres.

The European Union justified its prohibition on the grounds of human health protection, arguing that asbestos was hazardous not only to the health of construction workers subject to prolonged exposure, but also to population subject to occasional exposure. Being the second largest producer of asbestos world-wide, Canada contested the prohibition in the WTO. While it did not challenge the hazards associated with asbestos, it argued that a distinction should be made between chrysotile fibres and chrysotile encapsulated in a cement matrix. The latter, it argued, prevented release of fibres and did not endanger human health. It also argued that the substances which France was using as substitutes for asbestos had not been sufficiently studied and could themselves be harmful to human health.

What were their arguments?

Arguments from the Parties:

  • Canada claimed that the Decree violated GATTArticlesIII:4 and XI, and Articles2.1, 2.2, 2.4 and 2.8 of the TBTAgreement, and also nullified or impaired benefits under GATT ArticleXXIII:1(b).
  • The EU argued that the Decree was not covered by the TBTAgreement. With regard to GATT 1994, it requested the panel to confirm that the Decree was either compatible with ArticleIII:4 or necessary to protect human health within the meaning of ArticleXX(b).

What did the Panel and the Appellate Body say?

The WTO Appellate Body upheld the panel's ruling in favour of the EU, while modifying its reasoning on a number of issues. For instance, it reversed the Panel's finding that it was not appropriate to take into consideration the health risks associated with chrysotile asbestos fibres while examining the "likeness" of products under GATT ArticleIII:4. The Appellate Body also argued that the EU measures was a technical regulation and that the case should have been looked at under the TBTAgreement rather than under GATT rules, but did not itself pursue the analysis under TBT since the Appellate Body only has a mandate to examine issues of "law" while reviewing a case and cannot itself embark on new analyses. The right of France to ban the import of asbestos and asbestos products was confirmed.

One of the most important issues analysed by the Appellate Body were the criteria for determining if the EU measure was a technical regulation. The Panel had determined that the part of the EU Decree that banned the import of asbestos and asbestos-containing products was not a technical regulation, and did not analyse the case under the TBTAgreement. The Appellate Body, on the other hand, claimed that the EU Decree should have been examined as a whole, and with this in view, proposed the following criteria to identify if the measure in question was a technical regulation:

  • The document must apply to an identifiable product or group of products: It is important to note that 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.
  • The document must lay down one or more characteristics of the product: Annex1, paragraph1 gives certain examples of "product characteristics" which may be prescribed or imposed in either a positive or a negative form, and which 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.
  • Compliance with the product characteristics must be mandatory: A technical regulation must 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".

Since the EU Decree applied to an identifiable product – asbestos, laid down asbestos characteristics and was mandatory, the Appellate Body determined it to be a technical regulation.

Illustration

"Technical regulations"... The concept may seem quite abstract or even vague when we first hear about it, right?

With some of the examples we have collected below, we hope that it will all become clearer.

First example: Energy saving electronic appliances

We all know that some of the natural resources we have on Earth, such as Petrol, will end someday. That is, they are exhaustible. Therefore, much has been invested in renewable sources of energy, such as solar energy, and hydroelectric power. Governments, industries and consumers have been worried about finding electric appliances which are more efficient, in terms of energy consumption. The same has been done regarding automotive vehicles. Such demands have presented themselves at different levels. For instance, governments may impose a standard for electrical appliances' maximum electricity consumption, e.g. a washing machine. A WTO Member may issue a regulation with which compliance is mandatory for the industry (either domestic producers and or imports destined to that Member), which states that no washing machine commercialised within the territory shall have a consumption over XXX Kilowatts a year.

This is a typical technical regulation on a product's character-ristics, based on performance.

In order to make sure that a certain product complies with the regulation, the government may require a label to be placed on the product. Below is the label used by the European Union Member States.

Although many countries may have similar requirements, i.e., that electric appliances be energetically efficient, they may have imposed different limits on energy consumption, if compared to their trading partners. They may even have different methodologies for measuring how efficient an appliance is, hence the importance of applying the principle of equivalence to technical regulations. Members recognize a technical regulation equivalent to their own, provided they are satisfied that the regulation adequately fulfils the objective of their own regulation, even if they differ from each other. The acceptance of conformity assessment results is also an invaluable tool to facilitate trade and to assure conformance with technical regulations and standards. Both topics – Equivalence and Acceptance of Conformity Assessment Results - are regulated under the TBTAgreement.

Figure 2:EU Energy Efficiency Label

Second example: Nutrition Facts of food

Nutrition is an important matter in modern society. Nowadays, the food produced in one place is consumed in another. Hence, there are many requirements to be fulfilled concerning food safety, consumer information, human health, etc. Often, these requirements take form of packaging and labelling obligations, such as the case for Nutrition Facts.

Although some WTO Members do not oblige domestic producers (or importers) to have nutrition facts on their products, many of them do. However, just as in the example on Energy Labels, information on Nutrition Facts may vary around the world, while several countries may adopt similar formats.

The harmonisation of the information to be provided to the consumer is firstly useful for the producer, who would then not require different packages for different markets. It is useful for the customs authority, who can assess foreign merchandise more easily. It is also useful for the consumer, as to easily identify the nutrition content of a product everywhere he or she goes, or no matter where it comes from.

Furthermore, we could say that, although in most cases the requirement to explicitly state the nutrition facts (or energy consumption) is a technical regulation, the labelling format is non-rarely a standard. That is, even if a Member requires the producer to place a label that fulfils certain criteria, it may be the case that the format of the label is not specified. Hence the producer is allowed to use any the format he chooses, or one of the privately or internationally designed formats.

Figure 3:Nutrition Facts on the package

Exercises:

1.What is the definition of a technical regulation?

2.What are the three criteria for identifying a technical regulation?

III.Standards

In detail

A standard is defined in Annex1, paragraph2 as a:

Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

Figure 4:TBT Annex1.2

The term "recognized body" is defined neither by the TBTAgreement nor by ISO/IEC Guide2. However, Annex1 (paragraphs4 to 8) refers to the different types of bodies whose documents are either covered by, or referred to, in the TBTAgreement: International body or system; regional body or system; central government body; local government body; and non-governmental body.

Remember that Annex1 definition on standards refers to the definition contained in ISO/IEC Guide2:1991, in its Explanatory note. The definition and coverage of standards as provided in the TBTAgreement prevail over those presented in the ISO/IEC Guide 2:1991, to the extent of their differences.

Note
The ISO/IEC Guide 2:1991 applies to services and incorporates mandatory and voluntary standards. Furthermore, it defines standards as documents adopted by consensus.
The TBTAgreement excludes services from its application and defines standards exclusively as voluntary requirements. The TBTAgreement covers also documents which are not based on consensus.

Pursuant to Annex1, paragraph2, the following requirements may be included in a standard:

  • Terminology requirements
  • Symbol requirements
  • Packaging requirements
  • Marking requirements
  • Labelling requirements

Obligations on standards in the TBTAgreement are found in two provisions:

  • Preparation, adoption and application of Standards (Article4)
  • Code of Good Practice for the Preparation, Adoption and Application of Standards (Annex3)

Article4 of the TBTAgreement establishes the "Code of Good Practice for the Preparation, Adoption and Application of Standards". Its text is contained in Annex3 (Code of Good Practice). Annex3.B establishes that the Code is open to acceptance by any standardizing body within the territory of a Member of the WTO, whether a central government body, a local government body, a non-governmental body, any governmental or non-governmental regional standardizing body to which a Member (or body within its territory) is a party to.

RECALL

The obligations of Members with regard to standards vary according to the level of body concerned:

  • Central government standardizing bodies: Members shall ensure that they accept and comply with the Code of Good Practice.
  • Local government, non-governmental, and regional standardizing bodies: Members shall take such reasonable measures as may be available to them to ensure that they accept and comply with the Code.
  • Regarding all standardizing bodies: Members shall not take measures which have the effect of, directly or indirectly, requiring or encouraging them to act in a manner inconsistent with the Code.

Standards, as we said, are not mandatory. However, they are the vast majority of requirements to which a producers and exporters are subject to. That is why the acceptance of the Code of Good Practice by standardizing bodies is so important to international trade. By adopting common practices, such bodies may ensure that standards are non-discriminatory and not more trade restrictive than necessary vis-à-vis to fulfil a legitimate interest.

Moreover, industries are not obliged to accept the Code of Good Practice, and in general are not seen as nongovernmental standardizing bodies, since their main activity is not to set standards, but actually to produce a product that follows certain standards, even if created by them.

Despite the fact that the relationship between private standards and the TBTAgreement is not as yet clear, the influence that industry standards have in international trade among nations cannot be neglected. That is why we would like to give you an illustration of an industry standard, so that you may understand what it is. This will be our fourth example, below.

Several examples will demonstrate how standards are part of our every day life.

Illustration

First example: Plug sockets for Electrical Appliances

Have you noticed that different countries have different standards for plug sockets? This means that if you move with your Fridge around the five continents, you will probably end up having to buy an adaptor in every different place, unless you find an universal adaptor!

Here are some examples on plug sockets that we can find around the globe:

Figures 5:Plugs of the world

In fact, there is a "universal" plug and socket system designed by the International Electrotechnical Commission, which is used in few countries, because developed countries, including European countries, Australia and the USA, have a well-entrenched system of their own. This universal plug system may grown on popularity with time, as a way of promoting harmonisation and facilitating trade flows.

Second example: Mobile phone communication standards

GSM, CDMA, TDMA... Have you heard these abbreviations before? These are all abbreviations for mobile phone communications systems.

These mobile communication standards have been developed in different parts of the globe, with the same aim, that of providing mobile voice and data communication services. They use different systems for interface communication and different frequency ranges.

While GSM systems were firstly used in Europe, the United States started off with the CDMA technology, while most countries in Latin America had their first systems under TDMA. Nowadays, most countries have GSM systems in addition to the systems they had previously adopted, so as to facilitate international roaming for services users. GSM technology is currently used by 200 million people.

These technologies have been developed in most part by private parties, but have been actually harmonized under the auspices of international and regional standardizing bodies, such as the International Telecommunications Union and the European Telecommunications Standards Institute. Without the efforts of these standardizing bodies it is quite likely that domestic technologies would have remained incompatible with each other, to the detriment of global communications and the international movement of people.

Figure 6:Map with Mobile Phone Communications use in the World (population ownership percentage)

Source:

Third example: International Paper Sizes

Standard paper sizes like A4 are widely used everywhere, nowadays. They allow people all over the world to use the same printer, the same fax machines, the same photocopiers, because they make use of the same size of paper sheet.

The A4 standard for paper sheets is a case of a highly successful use of international standards.It was proposed by the International Organization for Standardization (ISO) in 1975, on its standard ISO 216:1975 "Writing paper and certain classes of printed matter — Trimmed sizes — A and B series".