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I. Preamble 

A. Text of the Preamble

   Members,

 

   Having regard to the Uruguay Round of Multilateral Trade Negotiations;

 

   Desiring to further the objectives of GATT 1994;

 

   Recognizing the important contribution that international standards and conformity assessment systems can make in this regard by improving efficiency of production and facilitating the conduct of international trade;

 

   Desiring therefore to encourage the development of such international standards and conformity assessment systems;

 

   Desiring however to ensure that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not create unnecessary obstacles to international trade;

 

   Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, or the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement;

 

   Recognizing that no country should be prevented from taking measures necessary for the protection of its essential security interest;

 

   Recognizing the contribution which international standardization can make to the transfer of technology from developed to developing countries;

 

   Recognizing that developing countries may encounter special difficulties in the formulation and application of technical regulations and standards and procedures for assessment of conformity with technical regulations and standards, and desiring to assist them in their endeavours in this regard;

 

   Hereby agree as follows:

B. Interpretation and Application of the Preamble

1.   In EC ?Asbestos, the Panel observed that:

“We also note that the criteria on the preparation, adoption or application of technical regulations in Article 2.2 of the TBT Agreement are very similar to those in Article XX of the GATT 1994. The preamble to the TBT Agreement in fact repeats some of the wording of Article XX of the GATT. In the Panel’s view the TBT Agreement is a development of the GATT.?sup id="fntext-1">(1)

2.   The Panel in EC ?Asbestos noted, in this connection, that:

“[T]he preparatory work on the Agreement on Technical Barriers to Trade in the Tokyo Round shows that the TBT Agreement that should have emerged from the Tokyo Round was already seen as being a development of the existing rules of the GATT, notably Article XX. See for example the extract from document MTN/3E/W/26, October 1974, quoted in paragraph 7 of document TRE/W/21, 17 January 1994.?sup id="fntext-2">(2)

3.   In EC ?Asbestos, the Appellate Body stated that:

“[A]lthough the TBT Agreement is intended to ‘further the objectives of GATT 1994? it does so through a specialized legal regime that applies solely to a limited class of measures. For these measures, the TBT Agreement imposes obligations on Members that seem to be different from, and additional to, the obligations imposed on Members under the GATT 1994.?sup id="fntext-3">(3)

4.   The Panel in EC ?Sardines referred to several recitals in the Preamble in the context of discussing the degree of Members? regulatory autonomy under the TBT Agreement:

“We also note in this respect that the WTO Members expressed in the preamble to the TBT Agreement their desire that:

 

[…] technical regulations and standards […] do not create unnecessary obstacles to trade […]; (emphasis added)

 

and recognized that:

 

no country should be prevented from taking measures to ensure the quality of its exports, or for the protection of human, animal or plant life or health, or the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade […]. (emphasis added)

 

Article 2.2 and this preambular text affirm that it is up to the Members to decide which policy objectives they wish to pursue and the levels at which they wish to pursue them. At the same time, these provisions impose some limits on the regulatory autonomy of Members that decide to adopt technical regulations: Members cannot create obstacles to trade which are unnecessary or which, in their application, amount to arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Thus, the TBT Agreement, like the GATT 1994, whose objective it is to further, accords a degree of deference with respect to the domestic policy objectives which Members wish to pursue. At the same time, however, the TBT Agreement, like the GATT 1994, shows less deference to the means which Members choose to employ to achieve their domestic policy goals. We consider that it is incumbent upon the respondent to advance the objectives of its technical regulation which it considers legitimate.?sup id="fntext-4">(4)

5.   In EC ?Sardines, the Appellate Body found that the obligation in Article 2.4 of the TBT Agreement applies to measures that were adopted before the TBT Agreement entered into force but which have not ceased to exist. In the course of its analysis, the Appellate Body referred to several recitals in the Preamble:

“The significant role of international standards is also underscored in the Preamble to the TBT Agreement. The third recital of the Preamble recognizes the important contribution that international standards can make by improving the efficiency of production and facilitating the conduct of international trade. The eighth recital recognizes the role that international standardization can have in the transfer of technology to developing countries. In our view, excluding existing technical regulations from the obligations set out in Article 2.4 would undermine the important role of international standards in furthering these objectives of the TBT Agreement. Indeed, it would go precisely in the opposite direction.?sup id="fntext-5">(5)

6.   The Panel in EC ?Trademarks and Geographical Indications (Australia) referred to several recitals in the Preamble in the context of discussing the distinction between technical regulations and standards:

“The object and purpose of the TBT Agreement is, in large part, disclosed by the two main groups of substantive provisions that it contains: one that relates to technical regulations and standards in Articles 2 to 4, and another that relates to conformity assessment procedures in Articles 5 to 9. It is also reflected in the preamble, of which the fifth recital, and also the third and fourth recitals, draw this distinction. If the Panel were to embed measures subject to Articles 5 to 9 in the definition of a technical regulation and thereby subject them to the technical regulations provisions in Articles 2 to 4 as well, it would lead to an unreasonable result.?sup id="fntext-6">(6)

7.   The Panel in US ?Clove Cigarettes referred to the Preamble in the context of addressing various interpretative issues under Articles 2.1 and 2.2 of the TBT Agreement⁽⁷⁾, as did the Panel in US ?Tuna II (Mexico).⁽⁸⁾

 

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II. Article 1  

A. Text of Article 1

Article 1: General Provisions

1.1   General terms for standardization and procedures for assessment of conformity shall normally have the meaning given to them by definitions adopted within the United Nations system and by international standardizing bodies taking into account their context and in the light of the object and purpose of this Agreement.

 

1.2   However, for the purposes of this Agreement the meaning of the terms given in Annex 1⁽⁹⁾ applies.

 

1.3   All products, including industrial and agricultural products, shall be subject to the provisions of this Agreement.

 

1.4   Purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies are not subject to the provisions of this Agreement but are addressed in the Agreement on Government Procurement, according to its coverage.

 

1.5   The provisions of this Agreement do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures.

 

1.6   All references in this Agreement to technical regulations, standards and conformity assessment procedures shall be construed to include any amendments thereto and any additions to the rules or the product coverage thereof, except amendments and additions of an insignificant nature.

B. Interpretation and Application of Article 1

1. Article 1.1

8.   In EC ?Approval and Marketing of Biotech Products, the Panel referred to Article 1.1 of the TBT Agreement in the context of interpreting the term “additives?in Annex A(1)(b) of the SPS Agreement. The Panel stated that “[h]ad the drafters of the SPS Agreement intended for terms like ‘additives?to have the meaning given to them by definitions contained in relevant international standards, etc., we think Annex A(1) would have made this clear? and noted that “[w]e find instructive in this regard the provisions of Article 1.1 of the TBT Agreement?⁽¹⁰⁾

9.   In US ?Tuna II (Mexico), the Panel provided an overview of Article 1.1 and the definitions contained in Annex 1:

?a href="#article1A1">Article 1.1 of the TBT Agreement provides that ‘[g]eneral terms for standardization and procedures for assessment of conformity shall normally have the meaning given to them by definitions adopted within the United Nations system and by international standardizing bodies taking into account their context and in the light of the object and purpose of this Agreement. In addition, Annex 1 of the TBT Agreement, entitled “Terms and their definitions for the purpose of this Agreement? provides that:

 

“The terms presented in the sixth edition of the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning Standardization and Related Activities, shall, when used in this Agreement, have the same meaning as given in the definitions in the said Guide taking into account that services are excluded from the coverage of this Agreement.?/p>

 

Annex 1 also provides specific definitions for the terms: “technical regulation? “standard? “conformity assessment procedures? “international body or system? “regional body or system? “central government body? “local government body?and “non-governmental body? As expressed by the Appellate Body in EC ?Sardines: “[A]ccording to the Chapeau [of Annex 1], the terms defined in Annex 1 apply for the purposes of the TBT Agreement only if their definitions depart from those in the ISO/IEC Guide 2: 1991 (the ‘ISO/IEC Guide?. This is underscored by the word “however”’.⁽¹¹⁾?sup id="fntext-12">(12)

2. Article 1.2

10.   On the definition of “technical regulation? see Annex 1.1. On the definition of “standard? see Annex 1.2.

3. Article 1.4

11.   In EC ?Trademarks and Geographical Indications (Australia), the European Communities argued that a particular measure relating to marks of origin could not be subject to Article 2.1 of the TBT Agreement due to the terms of Article IX of GATT 1994 on marks of origin. The Panel considered it unnecessary to reach a “definitive?view on this argument, but noted that ?a href="#article1A4">Article 1.4 and 1.5 specifically exclude certain purchasing specifications addressed in the Agreement on Government Procurement and sanitary and phytosanitary measures as defined in the SPS Agreement, but there is no express exclusion for marks of origin?⁽¹³⁾

4. Article 1.5

12.   The Panel in EC ?Hormones referred to Article 1.5 of the TBT Agreement and stated: “[s]ince the measures in dispute are sanitary measures, we find that the TBT Agreement is not applicable to this dispute.?sup id="fntext-14">(14)

13.   In EC ?Approval and Marketing of Biotech Products, Canada and Argentina made alternative claims under the TBT Agreement, including Article 2.2, in the event that the measures were found to be covered by the TBT Agreement in addition to, or instead of, the SPS Agreement. The Panel found that the measures at issue were SPS measures, and consequently did not address the claims under the TBT Agreement.⁽¹⁵⁾

14.   In US ?Clove Cigarettes, Indonesia made claims under the TBT Agreement, and made conditional claims under the SPS Agreement in the event that the United States took the position that the measure at issue in that dispute was an SPS measure. The United States did not take the position that the measure was an SPS measure, and Indonesia refrained from pursuing its SPS claims. The Panel stated that it would therefore not examine the SPS claims, and that it therefore did “not need to decide between Indonesia’s SPS and TBT claims as the starting point of our analysis? The Panel noted that:

“If Indonesia’s SPS claims were to be examined by this Panel, the first threshold issue would have been whether the Panel should start its analysis by Indonesia’s conditional SPS claims or rather by Indonesia’s TBT claims. Indeed, whether the measure at issue is an SPS measure would have been of particular relevance in deciding the order of analysis in this dispute because Article 1.5 of the TBT Agreement specifically provides that SPS measures, as defined in Annex A of the SPS Agreement, are excluded from the scope of the TBT Agreement.?sup id="fntext-16">(16)

 

Technical Regulations And Standards

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III. Article 2 

A. Text of Article 2

Article 2: Preparation, Adoption and Application of Technical Regulations by Central Government Bodies

   With respect to their central government bodies:

 

2.1   Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

 

2.2   Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.

 

2.3   Technical regulations shall not be maintained if the circumstances or objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade-restrictive manner.

 

2.4   Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems.

 

2.5   A Member preparing, adopting or applying a technical regulation which may have a significant effect on trade of other Members shall, upon the request of another Member, explain the justification for that technical regulation in terms of the provisions of paragraphs 2 to 4. Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade.

 

2.6   With a view to harmonizing technical regulations on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of international standards for products for which they either have adopted, or expect to adopt, technical regulations.

 

2.7   Members shall give positive consideration to accepting as equivalent technical regulations of other Members, even if these regulations differ from their own, provided they are satisfied that these regulations adequately fulfil the objectives of their own regulations.

 

2.8   Wherever appropriate, Members shall specify technical regulations based on product requirements in terms of performance rather than design or descriptive characteristics.

 

2.9   Whenever a relevant international standard does not exist or the technical content of a proposed technical regulation is not in accordance with the technical content of relevant international standards, and if the technical regulation may have a significant effect on trade of other Members, Members shall:

 

2.9.1   publish a notice in a publication at an early appropriate stage, in such a manner as to enable interested parties in other Members to become acquainted with it, that they propose to introduce a particular technical regulation;

 

2.9.2   notify other Members through the Secretariat of the products to be covered by the proposed technical regulation, together with a brief indication of its objective and rationale. Such notifications shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account;

 

2.9.3   upon request, provide to other Members particulars or copies of the proposed technical regulation and, whenever possible, identify the parts which in substance deviate from relevant international standards;

 

2.9.4   without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

 

2.10   Subject to the provisions in the lead-in to paragraph 9, where urgent problems of safety, health, environmental protection or national security arise or threaten to arise for a Member, that Member may omit such of the steps enumerated in paragraph 9 as it finds necessary, provided that the Member, upon adoption of a technical regulation, shall:

 

2.10.1   notify immediately other Members through the Secretariat of the particular technical regulation and the products covered, with a brief indication of the objective and the rationale of the technical regulation, including the nature of the urgent problems;

 

2.10.2   upon request, provide other Members with copies of the technical regulation;

 

2.10.3   without discrimination, allow other Members to present their comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

 

2.11   Members shall ensure that all technical regulations which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them.

 

2.12   Except in those urgent circumstances referred to in paragraph 10, Members shall allow a reasonable interval between the publication of technical regulations and their entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member.

B. Interpretation and Application of Article 2

1. Article 2.1

(a) General

15.   The Panel in EC ?Trademarks and Geographical Indications (Australia) rejected a claim under Article 2.1 on the basis that Australia had not demonstrated that the labelling requirement at issue accorded “less favourable treatment?⁽¹⁷⁾

16.   In US ?Clove Cigarettes, Indonesia argued that a US ban on certain flavoured cigarettes was inconsistent with Article 2.1 because it excluded menthol cigarettes. The Panel upheld Indonesia’s claim, finding that clove cigarettes and menthol cigarettes are “like products?for the purpose of Article 2.1 of the TBT Agreement, and that by banning clove cigarettes while exempting menthol cigarettes from the ban, the measure accorded imported clove cigarettes less favourable treatment than that it accords to domestic menthol cigarettes.⁽¹⁸⁾

17.   The Panel in US ?Tuna II (Mexico) rejected a claim under Article 2.1 on the basis that the impact of the US dolphin-safe provisions on different operators on the market and on tuna products of various origins depends on a number of factors that were not related to the nationality of the product.⁽¹⁹⁾

(b) Relationship to other WTO Agreements

(i) Article III:4 of the GATT 1994

18.   The Panel in EC ?Trademarks and Geographical Indications (Australia) noted the similarity in the terms used in Article 2.1 of the TBT Agreement and Article III:4 of GATT 1994 but found it unnecessary to consider the potential differences in their interpretation:

?a href="#article2A1">Article 2.1 of the TBT Agreement refers to ‘treatment no less favourable? An essential element of a claim under Article 2.1 is that, in respect of technical regulations, the treatment accorded to imported products is ‘less favourable?than that accorded to like products of national origin. The Panel notes the similarity in the terms used in Article 2.1 of the TBT Agreement and Article III:4 of GATT 1994, which also refers to ‘treatment no less favourable? The preamble to the TBT Agreement expressly sets out the desire ‘to further the objectives of GATT 1994?

 

It is unnecessary for the Panel to consider whether an assessment of conformity with Article 2.1 of the TBT Agreement requires reference to be had to the regulatory objective pursued by a measure as referred to in Article 2.2 of the TBT Agreement, or the absence in the text of the TBT Agreement of a general exception provision such as Article XX of GATT 1994.?sup id="fntext-20">(20)

19.   The Panel in US ?Clove Cigarettes concluded that while the wording of Article 2.1 is similar to Article III:4 of the GATT 1994, several differences in context warranted a different kind of “like product?analysis under Article 2.1 of the TBT Agreement. After recalling the existing jurisprudence under Article III:4, which establishes that the existence of a “competitive relationship? between two products is fundamental to the “like product? determination, the Panel concluded that:

“[W]e do not believe that the interpretation of Article 2.1 of the TBT Agreement, in the circumstances of this case where we are dealing with a technical regulation which has a legitimate public health objective, should be approached primarily from a competition perspective. We rather think that the weighing of the evidence relating to the likeness criteria should be influenced by the fact that Section 907(a)(1)(A) is a technical regulation having the immediate purpose of regulating cigarettes with a characterizing flavour for public health reasons. As explained above, we must pay special notice to the significance of the public health objective of a technical regulation and how certain features of the relevant products, their end-uses as well as the perception consumers have about them, must be evaluated in light of that objective. In the present case, the declared legitimate public health objective of Section 907(a)(1)(A), i.e., the reduction of youth smoking, must permeate and inform our likeness analysis. As we will explain in more detail below, this is particularly relevant in the consideration of the physical characteristics that are important for the immediate purpose of Section 907(a)(1)(A) of regulating cigarettes with characterizing flavours, as well as the consumer tastes and habits criterion where the perception of consumers, or rather potential consumers, can only be assessed with reference to the health protection objective of the technical regulation at issue.?sup id="fntext-21">(21)

20.   In contrast, the Panel in US ?Tuna II (Mexico) interpreted the term “like products?in Article 2.1 in accordance with Article III:4 and its related jurisprudence. While acknowledging that the meaning of the term “like products?could be interpreted more narrowly or broadly depending on the context, it considered that the term “like products?under Article 2.1 of the TBT Agreement may be similarly understood as relating to “the nature and extent of a competitive relationship?between and among products:

“[T]he terms of this provision very closely mirror those of Article III:4, the national treatment obligation in the GATT 1994, so that it may be possible to seek guidance from the interpretation of that provision. At the same time, we are mindful that Article 2 of the TBT Agreement does not contain an introductory paragraph comparable to Article III:1 of the GATT 1994, setting out a “general principle? that would inform our understanding of the exact degree or extent to which products must share qualities or characteristics so as to be considered like in the context of Article 2, and the perspective from which this is to be examined. In the context of Article III:4, the Appellate Body determined that:

 

‘As products that are in a competitive relationship in the marketplace could be affected through treatment of imports “less favourable?than the treatment accorded to domestic products, it follows that the word “like?in Article III:4 is to be interpreted to apply to products that are in such a competitive relationship. Thus, a determination of “likeness?under Article III:4 is, fundamentally, a determination about the nature and extent of a competitive relationship between and among products.?sup id="fntext-22">(22)

 

Although this statement was made in the context of Article III:4 of the GATT 1994, we find it pertinent also to an interpretation of the term ‘like products?in Article 2.1 of the TBT Agreement.

 

The TBT Agreement applies to a limited set of measures, and our understanding of its terms, including the terms ‘like products?must be informed by this context. As expressed in the preamble of the TBT Agreement, this Agreement reflects the intention of the negotiators to:

 

‘[E]nsure that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not create unnecessary obstacles to trade.?/p>

 

To the extent that Article 2.1 contributes to avoiding ‘unnecessary obstacles to trade?arising from undue discrimination with respect to technical regulations, it seeks to preserve the competitive opportunities of products originating in any Member, in relation to technical regulations. Thus, the term ‘like products?under Article 2.1 of the TBT Agreement may be similarly understood as relating to ‘the nature and extent of a competitive relationship?between and among products.?sup id="fntext-23">(23)

(ii) Article XX of the GATT 1994

21.   In US ?Clove Cigarettes, the Panel found that the measure at issue was inconsistent with Article 2.1, and explained why it would make no finding on the availability of Article XX as a defence to justify a violation of Article 2.1:

“As regards the violation of Article 2.1 of the TBT Agreement, the United States has made clear that it ‘is not invoking Article XX of the GATT 1994 as a defence for the claims raised by Indonesia under the TBT Agreement? Under the circumstances, we understand the United States to be of the view that the Panel does not need to make a finding on the availability of Article XX to justify a violation of a provision of the TBT Agreement.

 

Our task is to make an objective assessment of the matter before us. It is not for us to broaden the matter beyond that submitted to us by the parties. Therefore, we will not embark on an enquiry into Article XX(b) of the GATT 1994.?sup id="fntext-24">(24)

2. Article 2.2

(a) General

(i) Disputes involving claims under Article 2.2

22.   In EC ?Asbestos, Canada claimed that the measure at issue was inconsistent with several provisions of the TBT Agreement, including Article 2.2. The Panel found that the measure at issue was not a “technical regulation? and therefore did not address Canada’s claim under Article 2.2.⁽²⁵⁾

23.   In EC ?Sardines, Peru requested that the panel examine its claim under Article 2.4 of the TBT Agreement first and then examine its claims under Articles 2.2 and 2.1 of the TBT Agreement only if it were to determine that the EC regulation was not inconsistent with Article 2.4. The Panel found that the EC regulation at issue was inconsistent with Article 2.4 of the TBT Agreement, and did not address the claim under Article 2.2 of the TBT Agreement.⁽²⁶⁾ However, the Panel observed that:

?a href="#article2A2">Article 2.2 and this preambular text affirm that it is up to the Members to decide which policy objectives they wish to pursue and the levels at which they wish to pursue them. At the same time, these provisions impose some limits on the regulatory autonomy of Members that decide to adopt technical regulations: Members cannot create obstacles to trade which are unnecessary or which, in their application, amount to arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Thus, the TBT Agreement, like the GATT 1994, whose objective it is to further, accords a degree of deference with respect to the domestic policy objectives which Members wish to pursue. At the same time, however, the TBT Agreement, like the GATT 1994, shows less deference to the means which Members choose to employ to achieve their domestic policy goals.?sup id="fntext-27">(27)

24.   In EC ?Trademarks and Geographical Indications (Australia), Australia made a claim under Article 2.2, but the Panel found that the measure at issue was not a “technical regulation?within the meaning of Annex 1.1 of the TBT Agreement.⁽²⁸⁾

25.   In EC ?Approval and Marketing of Biotech Products, Canada and Argentina made alternative claims under the TBT Agreement, including Article 2.2, in the event that the measures were found to be covered by the TBT Agreement in addition to, or instead of, the SPS Agreement. The Panel found that the measures at issue were SPS measures, and consequently did not address the claims under the TBT Agreement.⁽²⁹⁾

26.   In US ?Clove Cigarettes, Indonesia argued that a US ban on clove cigarettes was more trade-restrictive than necessary to fulfil a legitimate objective and was therefore inconsistent with Article 2.2. The Panel rejected Indonesia’s claim. Among other things, the Panel found that the ban on clove cigarettes pursued a legitimate objective (reducing youth smoking), made a material contribution to that objective, and that Indonesia had failed to demonstrate that there are less trade-restrictive alternative measures that would make an equivalent contribution to the achievement of the objective at the level of protection sought by the United States.⁽³⁰⁾

27.   In US ?Tuna II (Mexico), the Panel upheld Mexico’s claim under Article 2.2. The Panel found that the measures had legitimate objectives (consumer information and dolphin protection), and that the measures at issue partially fulfilled those legitimate objectives. However, the Panel found that Mexico had identified less trade-restrictive alternatives that would achieve a level of protection equal to that achieved by the existing measures, and the US measures were therefore more trade-restrictive than necessary under Article 2.2.⁽³¹⁾

(ii) Burden of proof

28.   In US ?Clove Cigarettes, the Panel set out the burden of proof under Article 2.2:

“The parties also agree that Indonesia carries the burden of proof in respect of its claim under Article 2.2 of the TBT Agreement. On this point, the parties agree that there is a significant difference between Article 2.2 and Article XX(b) of the GATT 1994. Again, we see no reason to disagree. Thus, we proceed with our analysis on the understanding that Indonesia must demonstrate that the ban on clove cigarettes is more trade-restrictive than necessary to fulfil a legitimate objective (taking account of the risks non-fulfilment would create). At the same time, the parties agree that there is no “relevant international standard?within the meaning of Article 2.5 of the TBT Agreement. Accordingly, while Indonesia carries the burden of proof to establish a violation of Article 2.2, we do not begin from any rebuttable presumption that the ban on clove cigarettes is not an unnecessary obstacle to trade.⁽³²⁾?sup id="fntext-33">(33)

29.   In US ?Tuna II (Mexico), the Panel noted that “the burden rests on Mexico, as the complainant, to demonstrate that the conditions are met, to conclude that a violation of Article 2.2 of the TBT Agreement exists?⁽³⁴⁾

(iii) Two-step analysis

30.   In US ?Clove Cigarettes, the Panel stated that:

“The terms of Article 2.2 of the TBT Agreement provide that to be consistent with that provision, a technical regulation must: (i) pursue a ‘legitimate objective? and (ii) not be more trade-restrictive than ‘necessary?to fulfil that legitimate objective (taking into account the risks non-fulfilment would create). Thus, Article 2.2 appears to call for a two-step analysis. It is under the general framework of this two-step analysis that we will address the disputed issues identified above.?/p>

31.   Along the same lines, the Panel in US ?Tuna II (Mexico) stated that:

“[T]he analysis of its claims under Article 2.2 of the TBT Agreement may be conducted in two steps. First, to determine whether the US dolphin safe provisions fulfil a legitimate objective; and, second, if that is the case, to determine whether those provisions are more trade-restrictive than necessary to fulfil such objective, taking account of the risks non-fulfilment would create.?sup id="fntext-35">(35)

(iv) Relationship between Article 2.1 and Article 2.2

32.   In US ?Clove Cigarettes, the Panel distinguished the nature of the analysis to be conducted under Article 2.2 from that to be conducted under Article 2.1, and noted that its finding of inconsistency under Article 2.1 did not prejudge the outcome of the analysis under Article 2.2:

“The parties also seem to agree that the nature of the analysis to be conducted under Article 2.2 of the TBT Agreement is different from that to be conducted under Article 2.1 of the TBT Agreement. Again, we see no reason to disagree. The main issues under Article 2.1 in this case are whether clove cigarettes and menthol cigarettes are ‘like? products, and if so, whether clove cigarettes are accorded ‘less favourable treatment?than that accorded to menthol cigarettes. The main issue under Article 2.2 in this case is whether the ban on clove cigarettes is ‘more trade-restrictive than necessary?to fulfil the legitimate objective of reducing youth smoking. Thus, our finding that the measure is inconsistent with Article 2.1 does not prejudge the answer to the question of whether the measure is consistent with Article 2.2.?sup id="fntext-36">(36)

(b) “For this purpose …”

(i) Relationship between first and second sentences of Article 2.2

33.   In US ?Clove Cigarettes, the Panel discussed the relationship between the first and second sentences of Article 2.2:

“In this case, the parties agree that the first sentence of Article 2.2 of the TBT Agreement sets out a general principle, the meaning of which is explained and defined in the second sentence of Article 2.2. In other words, the parties agree that the first sentence of Article 2.2 does not create a separate and distinct obligation from that found in the second sentence. We see no reason to disagree, and will proceed with our analysis on this understanding.?sup id="fntext-37">(37)

34.   The Panel noted that:

“Given that the parties in this case agree on this point, there is no need for this Panel to address the point in any detail. It suffices to note that the second sentence is introduced by the words ‘for this purpose? thereby establishing a direct link between the two sentences and implying that the second explains the meaning of the first, and the remainder of the second sentence appears by its terms to be an elaboration of the concept of an ‘unnecessary?obstacle to international trade.?sup id="fntext-38">(38)

35.   Along the same lines, the Panel in US ?Tuna II (Mexico) considered that the second sentence of Article 2.2 defines the meaning of the first sentence of that provision:

“In order to address Mexico’s claim, we must first clarify how a violation of this provision may be established. We note that Mexico’s claim is based on an absence of compliance with the terms of the second sentence of Article 2.2. We note that the parties appear to agree that the second sentence of Article 2.2 gives meaning to the first sentence ?/p>

?/p>

The Panel first notes that this provision embodies one of the core objectives of the TBT Agreement, namely ‘that technical regulations ?do not create unnecessary obstacles to international trade? The first sentence of Article 2.2 translates this general objective into a positive obligation by requiring Members to ensure that their technical regulations are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.

 

The second sentence of Article 2.2 contains a more detailed obligation, i.e. that technical regulations must not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. The Panel also notes that the first and the second sentences of this provision are connected by the expression ‘[f]or this purpose? In the Panel’s view, this expression indicates that complying with the requirements contained in the second sentence of Article 2.2 serves the purpose of ensuring that technical regulations do not create unnecessary obstacles to international trade.

 

Thus, the Panel agrees with the United States that ‘the second sentence of Article 2.2 of the TBT Agreement explains what the first sentence of this provision means?⁽³⁹⁾ In other words, the second sentence of Article 2.2 of the TBT Agreement establishes two requirements that technical regulations must comply with in order not to constitute unnecessary obstacles to international trade.?sup id="fntext-40">(40)

(c) “more trade-restrictive than necessary?/p>

(i) ?i>trade-restrictive?/p>

36.   The Panel in US ?Tuna II (Mexico) considered the question of what constitutes “trade-restrictiveness?within the meaning of Article 2.2:

“Turning first to the question of what constitutes ‘trade-restrictiveness? in this context, we note that Mexico argues that measures that are ‘trade-restrictive? include those that impose any form of limitation of imports, discriminate against imports or deny competitive opportunities to imports and that the United States agrees with Mexico that a measure that imposes limits on imports or discriminates against them would meet the definition of a measure that is ‘trade-restrictive? We also agree.?sup id="fntext-41">(41)

(ii) ?i>necessary?/p>

Relevance of jurisprudence under Article XX of the GATT 1994

37.   The Panel in US ?Clove Cigarettes concluded that jurisprudence relating to Article XX(b) of the GATT 1994 is relevant to the interpretation of the “more trade-restrictive than necessary? standard in Article 2.2 of the TBT Agreement.⁽⁴²⁾ The Panel clarified, however, that:

“We do not agree with the United States that ‘no aspect?of Article XX(b) jurisprudence is applicable to an Article 2.2 analysis. At the same time, we are not saying that Article XX(b) jurisprudence can be transposed in its entirety onto Article 2.2 of the TBT Agreement. It may well be that there are certain aspects of Article XX(b) jurisprudence that are not applicable in the context of Article 2.2 of the TBT Agreement. Rather, we are of the view that there are some aspects of Article XX(b) jurisprudence that may be taken into account in the context of interpreting Article 2.2 of the TBT Agreement.?sup id="fntext-43">(43)

38.   The Panel in US ?Tuna II (Mexico) identified certain similarities and differences between Article 2.2 and Article XX of the GATT 1994.⁽⁴⁴⁾

Relevance of footnote 3 to Article 5.6 of the SPS Agreement

39.   In US ?Clove Cigarettes, the United States argued that Article 2.2 should be interpreted in accordance with Article 5.6 of the SPS Agreement and footnote 3 to that provision, rather than in accordance with jurisprudence developed under Article XX(b) of the GATT 1994. The Panel saw no conflict between these provisions of the SPS Agreement and the jurisprudence developed under Article XX(b) of the GATT 1994:

“[T]he United States relies on footnote 3 to Article 5.6 of the SPS Agreement to argue that the appropriate standard to be applied is whether an alternative measure exists that is ‘significantly?less restrictive to trade. Article 5.6 of the SPS Agreement and its accompanying footnote provide that: [quotation omitted]

 

However, the United States does not explain the basis for the underlying premise that a different standard applies under Article XX(b). Indeed, we are unaware of any GATT or WTO panel or Appellate Body report which suggests that a different standard applies under Article XX(b). In addition, the United States acknowledges in response to a question from the Panel that the issue of whether Article 2.2 embodies a ‘significantly less trade-restrictive?standard would ‘not appear to arise in this dispute? where the challenged measure is an import ban, if Indonesia adduced sufficient evidence that an alternative measure exists that does not ban its product.?sup id="fntext-45">(45)

40.   The Panel in US ?Tuna II (Mexico) considered the clarification provided in footnote 3 to Article 5.6 of the SPS Agreement pertinent to the interpretation of Article 2.2:

“We are duly mindful of the fact that each provision must be interpreted in its proper context and that a similarly worded provision in a distinct covered agreement should not be assumed to have the same meaning as in another context. Nonetheless, we find that footnote 3 of the SPS Agreement, and the clarification that it provides concerning the meaning of the terms ‘not more trade-restrictive than required?is pertinent for the purposes of confirming our understanding of the corresponding terms of Article 2.2 of the TBT Agreement, which play, in the context of this agreement, a comparable role. We note, however, that Article 2.2 of the TBT Agreement makes no reference to a technical regulation being ‘significantly?more trade-restrictive than necessary. Without prejudice to what this term may imply in the context of Article 5.6 of the SPS Agreement, we note that Article 2.2 contains no such qualification.?sup id="fntext-46">(46)

(d) “a legitimate objective?/p>

(i) As reference point for the analysis under Article 2.2

41.   The Panel in US ?Clove Cigarettes considered that the identification of the objective pursued “is the logical starting point in the analysis under Article 2.2 of the TBT Agreement, because it serves as the reference point for the purpose of analysing whether a measure is ‘more trade-restrictive than necessary?to achieve its objective?⁽⁴⁷⁾

(ii) Technical regulation with multiple objectives

42.   The Panel in US ?Clove Cigarettes considered that “it would be entirely possible, both as a factual and a legal matter, for a single technical regulation to pursue more than one objective?⁽⁴⁸⁾

43.   The Panel in US ?Tuna II (Mexico) concluded that the measures at issue in that dispute had two different objectives, namely consumer information and dolphin protection.⁽⁴⁹⁾

(iii) ?i>legitimate?objective

44.   The Panel in US ?Clove Cigarettes considered it to be self-evident that the objective of reducing youth smoking is a “legitimate? one:

“We have already concluded that the objective of the ban on clove cigarettes is to reduce youth smoking. It is self-evident that measures to reduce youth smoking are aimed at the protection of human health, and Article 2.2 of the TBT Agreement explicitly mentions the ‘protection of human health?as one of the ‘legitimate objectives?covered by that provision. In EC ?Asbestos, the Appellate Body stated that ‘the objective pursued by the measure is the preservation of human life and health through the elimination, or reduction, of the well-known, and life-threatening, health risks posed by asbestos fibres. The value pursued is both vital and important in the highest degree.?sup id="fntext-50">(50) In addition, we recall that in Brazil ?Retreaded Tyres, the Appellate Body agreed with the panel that ‘few interests are more “vital? and “important?than protecting human beings from health risks?⁽⁵¹⁾?sup id="fntext-52">(52)

45.   The Panel in US ?Tuna II (Mexico) also concluded that the objectives of the measure at issue in that dispute (consumer information and dolphin protection) were “legitimate?ones:

“Having clarified the objectives pursued by the US dolphin safe provisions, we must now ascertain whether these objectives are ‘legitimate? within the meaning of Article 2.2 of the TBT Agreement. As observed by the panel in EC ?Sardines, although the elaboration of the objectives of a measure is a prerogative of the Member establishing that measure, ‘[p]anels are required to determine the legitimacy of those objectives?⁽⁵³⁾ The Appellate Body supported this conclusion by stating that it shared the view of the Panel this part of the analysis ‘implies that there must be an examination and a determination on the legitimacy of the objectives of the measure?⁽⁵⁴⁾

 

Article 2.2 of the TBT Agreement provides a non-exhaustive list of legitimate objectives under this provision.⁽⁵⁵⁾ This list includes, as the United States has pointed out, the ‘prevention of deceptive practices?and the ‘protection of ?animal or plant life or health, or the environment? We are satisfied that the objectives of the US dolphin safe provisions, as described in the previous section, fall within the scope of these two categories of legitimate objectives. The objective of preventing consumers of tuna products from being deceived by false dolphin safe allegations falls within the broader goal of preventing deceptive practices. Similarly, the protection of dolphins may be understood as intended to protect animal life or health or the environment. In this respect, a measure that aims at the protection of animal life or health need not, in our view, be directed exclusively to endangered or depleted species or populations, to be legitimate. Article 2.2 refers to ‘animal life or health?in general terms, and does not require that such protection be tied to a broader conservation objective. We therefore read these terms as allowing Members to pursue policies that aim at also protecting individual animals or species whose sustainability as a group is not threatened.?sup id="fntext-56">(56)

(e) “taking account of the risks non-fulfilment would create?/p>

46.   The Panel in US ?Tuna II (Mexico) considered that the “risks of non-fulfilment?language in Article 2.2 required consideration of the “likelihood and the gravity of potential risks?

“We also note that, in making this determination, we are required to take into account ‘the risks that non-fulfilment would create? The final sentence of Article 2.2 further clarifies that ‘[i]n assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products?

 

As we understand it, this part of the text enjoins us to consider, as part of our analysis, both the likelihood and the gravity of potential risks (and any associated adverse consequences) that might arise in the event that the legitimate objective being pursued would not be fulfilled. We further understand this to imply that an alternative means of achieving the objective that would entail greater ‘risks of non-fulfilment? would not be a valid alternative, even if it were less trade-restrictive. This is consistent, in our view, with the fact that each Member is entitled, as expressed in the preamble of the TBT Agreement and as discussed above, to define its own level of protection.?sup id="fntext-57">(57)

3. Article 2.3

47.   The Panel in EC ?Sardines noted that Article 2.3 supports the view that the obligation under Article 2.4 is not a static obligation and that there is an ongoing obligation to reassess technical regulations in light of international standards that are adopted or revised⁽⁵⁸⁾:

“The language of Article 2.3 suggests that Members are to eliminate technical regulations that no longer serve their purpose or amend them if the changed circumstances or objectives can be addressed in a less trade-restrictive manner. This requirement also applies to technical regulations that were enacted before the TBT Agreement came into force. Thus, Members would be under an obligation to periodically evaluate their technical regulations and either discontinue them if they no longer serve their objectives or change them if there is a less trade-restrictive manner in which to achieve the underlying objectives of the regulations …”⁽⁵⁹⁾

4. Article 2.4

(a) Three-step analysis under Article 2.4

48.   The Panel in US ?Tuna II (Mexico) explained that:

“The elements of a violation of Article 2.4 of the TBT Agreement were addressed by the Appellate Body in EC ?Sardines. In that case, although the Panel and the Appellate Body followed the same approach in their assessment of Peru’s claim under Article 2.4. They first considered whether the alleged international standard was indeed a ‘relevant international standard?within the meaning of Article 2.4, then they analysed whether the relevant international standard had been used ‘as a basis for?the EC regulation challenged by Peru; finally the third element considered was the ‘ineffectiveness or inappropriateness?of the relevant international standard for the fulfilment of the legitimate objectives pursued.⁽⁶⁰⁾ We find this approach to be consistent with the terms and structure of Article 2.4. Accordingly, we find it appropriate to examine Mexico’s claim under Article 2.4 of the TBT Agreement on the basis of the following three elements:

• the existence or imminent completion of a relevant international standard;
   
• whether the international standard has been used as a basis for the technical regulation; and
   
• whether the international standard is an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, taking into account fundamental climatic or geographical factors or fundamental technological problems.?sup id="fntext-61">(61)

(b) Temporal application of Article 2.4

49.   In EC ?Sardines, the Appellate Body upheld the Panel’s finding that Article 2.4 applies not only to the “preparation and adoption?of technical regulations, but also to the “application? of existing measures adopted prior to 1 January 1995, such as the EC regulations that were adopted in June 1989 and had continued to exist. The Panel had observed, inter alia, that:

?a href="#article2A4">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.?sup id="fntext-62">(62)

50.   In EC ?Sardines, the Appellate Body concurred with the Panel’s view on the applicability of Article 2.4 to existing technical regulations (see paragraph 49 above), and further noted:

“[We] fail to see how the terms ‘where technical regulations are required? ‘exist? ‘imminent? ‘use? and ‘as a basis for?give any indication that Article 2.4 applies only to the two stages of preparation and adoption of technical regulations. To the contrary, as the Panel noted, the use of the present tense suggests a continuing obligation for existing measures, and not one limited to regulations prepared and adopted after the TBT Agreement entered into force?. The obligation refers to technical regulations generally and without limitations.

 

Like the sanitary measure in EC ?Hormones, the EC Regulation concerned is currently in force. The European Communities has conceded that the EC regulation is an act or fact that has not ‘ceased to exist? Accordingly, following our reasoning in EC ?Hormones, Article 2.4 of the TBT Agreement applies to existing measures unless that provision ‘reveals a contrary intention?

 

Furthermore, like Articles 5.1 and 5.5 of the SPS Agreement, Article 2.4 is a ‘central provision?of the TBT Agreement, and it cannot just be assumed that such a central provision does not apply to existing measures. Again, following our reasoning in EC ? Hormones, we must conclude that, if the negotiators had wanted to exempt the very large group of existing technical regulations from the disciplines of a provision as important as Article 2.4 of the TBT Agreement, they would have said so explicitly.?sup id="fntext-63">(63)

51.   In EC ?Sardines, the Appellate Body also agreed with the Panel’s analysis of Articles 2.5 and 2.6 as relevant context for Article 2.4, providing support for the argument that Article 2.4 regulates measures adopted before the TBT Agreement entered into force.⁽⁶⁴⁾ Finally, in the same case, the Appellate Body found further support for this conclusion in Article XVI:4 of the WTO Agreement and in the object and purpose of the TBT Agreement.⁽⁶⁵⁾

(c) Burden of proof

52.   In EC ?Sardines, the Appellate Body reversed the Panel’s ruling on the issue of the burden of proof under Article 2.4. The Appellate Body ruled that the burden of proof should be borne by the complaining Member seeking a ruling of inconsistency with Article 2.4.⁽⁶⁶⁾ Specifically, the Appellate Body stated that, as with Articles 3.1 and 3.3 of the SPS Agreement, there is no “general rule–exception? relationship between the first and the second parts of Article 2.4:⁽⁶⁷⁾

“There are strong conceptual similarities between, on the one hand, Article 2.4 of the TBT Agreement and, on the other hand, Articles 3.1 and 3.3 of the SPS Agreement, and our reasoning in EC ? Hormones is equally apposite for this case. The heart of Article 3.1 of the SPS Agreement is a requirement that Members base their sanitary or phytosanitary measures on international standards, guidelines, or recommendations. Likewise, the heart of Article 2.4 of the TBT Agreement is a requirement that Members use international standards as a basis for their technical regulations. Neither of these requirements in these two agreements is absolute. Articles 3.1 and 3.3 of the SPS Agreement permit a Member to depart from an international standard if the Member seeks a level of protection higher than would be achieved by the international standard, the level of protection pursued is based on a proper risk assessment, and the international standard is not sufficient to achieve the level of protection pursued. Thus, under the SPS Agreement, departing from an international standard is permitted in circumstances where the international standard is ineffective to achieve the objective of the measure at issue. Likewise, under Article 2.4 of the TBT Agreement, a Member may depart from a relevant international standard when it would be an ‘ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued?by that Member through the technical regulation.

 

?Similarly, the circumstances envisaged in the second part of Article 2.4 are excluded from the scope of application of the first part of Article 2.4. Accordingly, as with Articles 3.1 and 3.3 of the SPS Agreement, there is no ‘general rule–exception?relationship between the first and the second parts of Article 2.4. Hence, in this case, it is for Peru ?as the complaining Member seeking a ruling on the inconsistency with Article 2.4 of the TBT Agreement of the measure applied by the European Communities ?to bear the burden of proving its claim. This burden includes establishing that Codex Stan 94 has not been used ‘as a basis for the EC Regulation, as well as establishing that Codex Stan 94 is effective and appropriate to fulfil the ‘legitimate objectives?pursued by the European Communities through the EC Regulation.?sup id="fntext-68">(68)

53.   The Panel in US ?Tuna II (Mexico) recalled that “the Appellate Body held that the complaining party had to prove that the alleged international standard had not been used as a basis for the challenged regulation and that it also had to show that the alleged international standard was effective and appropriate to fulfil the legitimate objectives pursued by the regulation? and proceeded on that basis.⁽⁶⁹⁾

(d) Relevant international standard

(i) ?i>international standard?/p>

General

54.   The Panel in US ?Tuna II (Mexico) considered that the term “international standard?should be understood to have the same meaning as in the ISO/IEC Guide 2:

“The term ‘international standard?is not defined in Annex 1 of the TBT Agreement, but is defined in the ISO/IEC Guide 2. In accordance with the terms of Annex 1, in the absence of a specific definition of this term in Annex 1, the term ‘international standard?should be understood to have the same meaning in the TBT Agreement as in the ISO/IEC Guide 2, which defines it as a ‘standard that is adopted by an international standardizing/standards organization and made available to the public?

 

An ‘international standard?is thus composed of three elements: (i) a standard; (ii) adopted by an international standardizing/standards organization; and (iii) made available to the public. We must therefore consider whether the provisions of the AIDCP tuna tracking and verification resolution (which contain a definition of dolphin safe) and of the AIDCP dolphin-safe certification resolution (which provides for the AIDCP dolphin safe label) meet each of these components and thus constitute an ‘international standard?

 

Finally, we note that both parties have referred to the TBT Committee Decision on Principles for the Development of International Standards, Guides and Recommendations that sets out principles and procedures that standardizing bodies should observe when developing international standards. We consider it appropriate to take into account the principles contained in this decision where they may inform our understanding of certain aspects of the ISO/IEC Guide definitions such as the terms ‘international standardizing/standards organization? and ‘made available to the public?in the definition of ‘international standard? However we note that the Panel in EC ?Sardines, in a statement not addressed by the Appellate Body, observed that the TBT decision ‘is a policy statement of preference and not the controlling provision in interpreting the expression ‘relevant international standard?as set out in Article 2.4 of the TBT Agreement?⁽⁷⁰⁾?sup id="fntext-71">(71)

55.   The Panel in US ?Tuna II (Mexico) also distinguished between the definition of “standard?in Annex 1.2 and the composite term “international standard?

“We see a difference between the notion of ‘standard? as defined in Annex 1.2 of the TBT Agreement for the purposes of defining the scope of application of the provisions of the TBT Agreement on standards (such as Article 4), and the use of the term ‘standard?in the definition of the composite term ‘international standard?in the ISO/IEC Guide 2.

 

We acknowledge that, as noted by the Appellate Body, the terms defined in Annex 1 apply for the purposes of the TBT Agreement if these definitions depart from those in the ISO/IEC Guide.⁽⁷²⁾ Nonetheless, in our view, the term ‘standard?as used in the definition of an ‘international standard?in the ISO/IEC Guide 2 must be read in its proper context, i.e. as it is defined in the ISO/IEC Guide itself, in order to assign it the meaning intended in that definition. This is consistent with the terms of Article 1.1 and with Annex 1 of the TBT Agreement, which, as described above, provides that ‘[t]he terms presented in the sixth edition of the ISO/IEC Guide 2: 1991 (? shall, when used in this Agreement, have the same meaning as given in the definitions in the said Guide??sup id="fntext-73">(73)

No consensus requirement

56.   The Appellate Body in EC ?Sardines upheld the Panel’s conclusion that even if not adopted by consensus, an international standard can constitute a “relevant international standard?⁽⁷⁴⁾ The Appellate Body agreed with the following interpretation by the Panel of the last two sentences of the Explanatory note to the definition of the term “standard? as contained in Annex 1 paragraph 2:

“The first sentence reiterates the norm of the international standardization community that standards are prepared on the basis of consensus. The following sentence, however, acknowledges that consensus may not always be achieved and that international standards that were not adopted by consensus are within the scope of the TBT Agreement.⁽⁷⁵⁾ This provision therefore confirms that even if not adopted by consensus, an international standard can constitute a relevant international standard.?sup id="fntext-76">(76)

57.   In EC ?Sardines, the Appellate Body made the following observation on the issue of consensus in international standards:

“[T]he text of the Explanatory note supports the conclusion that consensus is not required for standards adopted by the international standardizing community. The last sentence of the Explanatory note refers to ‘documents? The term ‘document?is also used in the singular in the first sentence of the definition of a ‘standard? We believe that ‘document(s)?must be interpreted as having the same meaning in both the definition and the Explanatory note?. Interpreted in this way, the term ‘documents?in the last sentence of the Explanatory note must refer to standards in general, and not only to those adopted by entities other than international bodies ?/p>

 

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.?sup id="fntext-77">(77)

58.   In EC ?Sardines, the Appellate Body also noted that the definition of “standard?in the ISO/IEC Guide includes a consensus requirement and that “the omission of a consensus requirement in the definition of a “standard?in Annex 1.2 of the TBT Agreement was a deliberate choice on the part of the drafters of the TBT Agreement, and that the last two phrases of the Explanatory note were included to give effect to this choice?⁽⁷⁸⁾ In light of this, the Appellate Body upheld the Panel’s conclusion that:

“[T]he definition of a ‘standard?in Annex 1.2 to the TBT Agreement does not require approval by consensus for standards adopted by a ‘recognized body?of the international standardization community. We emphasize, however, that this conclusion is relevant only for purposes of the TBT Agreement. It is not intended to affect, in any way, the internal requirements that international standard-setting bodies may establish for themselves for the adoption of standards within their respective operations. In other words, the fact that we find that the TBT Agreement does not require approval by consensus for standards adopted by the international standardization community should not be interpreted to mean that we believe an international standardization body should not require consensus for the adoption of its standards. That is not for us to decide.?sup id="fntext-79">(79)

(ii) ?i>relevant?/p>

59.   In EC ?Sardines, the Appellate Body agreed with the Panel‘s statement that the ordinary meaning of the term “relevant? is “bearing upon or relating to the matter in hand; pertinent?⁽⁸⁰⁾ The Panel reasoned that, to be a “relevant international standard? the standard at issue in the dispute ?Codex Stan 94 ?would have to “bear upon, relate to, or be pertinent to the EC Regulation?⁽⁸¹⁾ The Panel then noted the following about that standard:

“The title of Codex Stan 94 is ‘Codex Standard for Canned Sardines and Sardine-type Products?and the EC Regulation lays down common marketing standards for preserved sardines. The European Communities indicated in its response that the term ‘canned sardines? and ‘preserved sardines?are essentially identical. Therefore, it is apparent that both the EC Regulation and Codex Stan 94 deal with the same product, namely preserved sardines. The scope of Codex Stan 94 covers various species of fish, including Sardina pilchardus which the EC Regulation covers, and includes, inter alia, provisions on presentation (Article 2.3), packing medium (Article 3.2), labelling, including a requirement that the packing medium is to form part of the name of the food (Article 6), determination of net weight (Article 7.3), foreign matter (Article 8.1) and odour and flavour (Article 8.2). The EC Regulation contains these corresponding provisions set out in Codex Stan 94, including the section on labelling requirement.?sup id="fntext-82">(82)

60.   The Panel in US ?Tuna II (Mexico) concluded that the AIDCP (Agreement on International Dolphin Conservation Program) dolphin safe definition and certification constitute a “relevant international standard?within the meaning of Article 2.4, for the purpose of the US dolphin safe labelling provisions.⁽⁸³⁾

(e) “shall use them?/p>

61.   The Panel in EC ?Sardines noted that Article 2.4 states that Members “shall use?international standards “as a basis? for their technical regulation. The Panel held that the use of the word “shall?denotes a requirement that is obligatory in nature and that goes beyond mere encouragement.⁽⁸⁴⁾

(f) “as a basis for?/p>

62.   In EC ?Sardines, the Appellate Body agreed with the Panel that an international standard is used “as a basis for?a technical regulation “when it is used as the principal constituent or fundamental principle for the purpose of enacting the technical regulation?⁽⁸⁵⁾ The Appellate Body cited certain definitions of the term “basis? and concluded that:

“From these various definitions, we would highlight the similar terms ‘principal constituent? ‘fundamental principle? ‘main constituent? and ‘determining principle??all of which lend credence to the conclusion that there must be a very strong and very close relationship between two things in order to be able to say that one is ‘the basis for?the other.⁽⁸⁶⁾

63.   In EC ?Sardines, in its analysis of the terms “as a basis for? the Appellate Body considered its approach to the interpretation of the term “based on?in the context of Article 3.1 of the SPS Agreement as being relevant for the interpretation of Article 2.4.⁽⁸⁷⁾ However, it did not consider it necessary to decide in that case whether the term “as a basis? in the context of Article 2.4 of the TBT Agreement, has the same meaning as the term “based on? in the context of Article 3.1 of the SPS Agreement.⁽⁸⁸⁾

64.   In EC ?Sardines, the Appellate Body rejected the European Communities?argument that a “rational relationship? between an international standard and a technical regulation is sufficient to conclude that the former is used “as a basis for?the latter:

“[W]e see nothing in the text of Article 2.4 to support the European Communities?view, nor has the European Communities pointed to any such support. Moreover, the European Communities does not offer any arguments relating to the context or the object and purpose of that provision that would support its argument that the existence of a ‘rational relationship?is the appropriate criterion for determining whether something has been used ‘as a basis for?something else.

 

We see no need here to define in general the nature of the relationship that must exist for an international standard to serve ‘as a basis for?a technical regulation. Here we need only examine this measure to determine if it fulfils this obligation. In our view, it can certainly be said ?at a minimum ?that something cannot be considered a ‘basis?for something else if the two are contradictory. Therefore, under Article 2.4, if the technical regulation and the international standard contradict each other, it cannot properly be concluded that the international standard has been used ‘as a basis for?the technical regulation.?sup id="fntext-89">(89)

65.   With regard to the requirement in Article 2.4 that Members use relevant international standards “or the relevant parts of them?as a basis for their technical regulations, the Appellate Body observed in EC ?Sardines:

“In our view, the phrase ?i>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.?sup id="fntext-90">(90)

66.   The Panel in US ?Tuna II (Mexico) concluded that the United States failed to base its dolphin safe labelling provisions at issue on the relevant international standard of the AIDCP (Agreement on International Dolphin Conservation Program). In the course of its analysis, the Panel stated that:

“[W]e consider that there the US dolphin safe labelling provisions and the AIDCP resolutions are closely connected. In our view, the US legislator has constructed the US dolphin safe labelling scheme building on the AIDCP foundations. However, the strong relationship between the two bodies of rules appears to be insufficient to infer that the AIDCP standard was used as a basis for the technical regulation.?sup id="fntext-91">(91)

(g) “ineffective or inappropriate means?of fulfilment of “legitimate objectives?/p>

(i) ?i>ineffective or inappropriate means?/p>

67.   The Appellate Body in EC ?Sardines upheld the Panel’s interpretation of the terms “ineffective or inappropriate means? The Panel pointed out that the term “ineffective?“refers to something that does not ‘hav[e] the function of accomplishing? ‘having a result? or ‘brought to bear? whereas [the term] ‘inappropriate? refers to something which is not ‘specially suitable? ‘proper? or ‘fitting’”:

“Thus, in the context of Article 2.4, an ineffective means is a means which does not have the function of accomplishing the legitimate objective pursued, whereas an inappropriate means is a means which is not specially suitable for the fulfilment of the legitimate objective pursued. An inappropriate means will not necessarily be an ineffective means and vice versa. That is, whereas it may not be specially suitable for the fulfilment of the legitimate objective, an inappropriate means may nevertheless be effective in fulfilling that objective, despite its ‘unsuitability? Conversely, when a relevant international standard is found to be an effective means, it does not automatically follow that it is also an appropriate means. The question of effectiveness bears upon the results of the means employed, whereas the question of appropriateness relates more to the nature of the means employed.⁽⁹²⁾

68.   In addition, the Appellate Body, in EC ?Sardines, shared the Panel’s view that the terms “ineffective?and “inappropriate? have different meanings, and “that it is conceptually possible that a measure could be effective but inappropriate, or appropriate but ineffective.?sup id="fntext-93">(93)

69.   The Panel in US ?Tuna II (Mexico) recalled the Appellate Body’s guidance in EC ?Sardines, and stated that:

“In accordance with the clarifications provided by the Appellate Body as described above, we consider that the AIDCP standard would be effective if it had the capacity to accomplish the two legitimate objectives defined by the United States, and it would be appropriate if it were suitable for the fulfilment of both of these objectives. In addition, as noted by the Panel and the Appellate Body, insofar as the terms ‘ineffective?and ‘inappropriate?have different meaning and that it is conceptually possible that a measure could be effective but inappropriate, Mexico bears the burden of showing that the AIDCP standard is both effective and appropriate. Mexico therefore has the duty to adduce sufficient evidence that the AIDCP standard meets the legal requirements of effectiveness and appropriateness set out in Article 2.4 of the TBT Agreement.?sup id="fntext-94">(94)

(ii) ?i>legitimate objectives pursued?/p>

70.   In EC ?Sardines, the Appellate Body agreed with the Panel’s interpretation of the meaning of the phrase “legitimate objectives pursued? The Panel stated that the “‘legitimate objectives?referred to in Article 2.4 must be interpreted in the context of Article 2.2? which provides an illustrative, open list of objectives considered “legitimate?⁽⁹⁵⁾ Also, the Panel indicated that Article 2.4 of the TBT Agreement requires an examination and a determination whether the objectives of the measure at issue are “legitimate?⁽⁹⁶⁾ The Appellate Body further concurred with the Panel in concluding that “the ‘legitimate objectives?referred to in Article 2.4 must be interpreted in the context of Article 2.2?sup id="fntext-97">(97), which refers also to “legitimate objectives? and includes a description of what the nature of some such objectives can be:

“Two implications flow from the Panel’s interpretation. First, the term ‘legitimate objectives?in Article 2.4, as the Panel concluded, must cover the objectives explicitly mentioned in Article 2.2, namely: ‘national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment.?Second, given the use of the term ?i>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.?sup id="fntext-98">(98)

5. Article 2.5

(a) First sentence

(i) ?i>upon the request of another Member?/p>

71.   In US ?Clove Cigarettes, the Panel rejected a claim under Article 2.5. In that dispute, Indonesia had put a number of questions to the United States following the enactment of the measure at issue. However, based on its analysis of the content of the document in question, the Panel concluded that the United States would not have understood that Indonesia’s questions in document G/TBT/W/323 constituted a request pursuant to the first sentence of Article 2.5 of the TBT Agreement, and concluded that “Indonesia did not make a request pursuant to the first sentence of Article 2.5 of the TBT Agreement through its questions in document G/TBT/W/323?⁽⁹⁹⁾ The Panel further noted that the United States did in fact provide an explanation with respect to the enactment of the measure at issue at the TBT Committee Meeting in November 2009 in response to Indonesia’s request in document G/TBT/W/323.⁽¹⁰⁰⁾

(ii) ?i>applying?/p>

72.   In EC ?Sardines, the Panel referred to the term “applying? in Article 2.5 as contextual support for its conclusion that Article 2.4 applies to existing technical regulations:

“There is contextual support for the interpretation that Article 2.4 applies to technical regulations that are already in existence. The context provided by Article 2.5, which explicitly refers to Article 2.4, speaks of ‘preparing, adopting or applying?a technical regulation and is not limited to, as the European Communities claims, preparing and adopting. A technical regulation can only be applied if it is already in existence. The first sentence imposes an obligation on a Member ‘preparing, adopting or applying?a technical regulation that may have a significant effect on trade of other Members to provide the justification for that technical regulation. The second sentence of Article 2.5 states that whenever a technical regulation is ‘prepared, adopted or applied?for one of the legitimate objectives explicitly set out in Article 2.2 and is in accordance with relevant international standards, it is to be rebuttably presumed not to create an unnecessary obstacle to trade. The use of the term ‘apply? in our view, confirms that the requirement contained in Article 2.4 is applicable to existing technical regulations.?sup id="fntext-101">(101)

73.   The Appellate Body in EC ?Sardines observed that the TBT Agreement, through Article 2.5, affords a complainant adequate opportunities to obtain information about the objectives of technical regulations or the specific considerations that may be relevant to the assessment of their appropriateness under Article 2.4. The Appellate Body found that Article 2.5 establishes a compulsory mechanism requiring the supplying of information by the regulating Member.⁽¹⁰²⁾

6. Article 2.6

(a) Requirement to participate in preparing international standards in respect of adopted technical regulations

74.   In EC ?Sardines, the Panel referred to Article 2.6 as providing contextual support for its conclusion that Article 2.4 applied to existing technical regulations:

?a href="#article2A6">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 ?i>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.?sup id="fntext-103">(103)

(b) Related TBT Committee decisions and recommendations

75.   See the Decision of the TBT Committee on principles for the development of international standards, guides and recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement.⁽¹⁰⁴⁾

7. Article 2.8

(a) Object and purpose

76.   The Panel in US ?Clove Cigarettes considered that the object and purpose of Article 2.8 is to avoid the creation of unnecessary obstacles to trade by requiring that product requirements be laid down in “functional?terms wherever appropriate:

“[T]he object and purpose of Article 2.8 is to avoid the creation of unnecessary obstacles to trade by requiring that product requirements be laid down in functional terms wherever appropriate. For example, an ISO/IEC Directive explains that:

 

“Whenever possible, requirements shall be expressed in terms of performance rather than design or descriptive characteristics. This approach leaves maximum freedom to technical development. Primarily those characteristics shall be included that are suitable for worldwide (universal) acceptance.?sup id="fntext-105">(105)

 

Along the same lines, a Decision taken by the TBT Committee in 2000 reflects the understanding of WTO Members that:

 

“In order to serve the interests of the WTO membership in facilitating international trade and preventing unnecessary trade barriers, international standards need to be relevant and to effectively respond to regulatory and market needs, as well as scientific and technological developments in various countries. They should not distort the global market, have adverse effects on fair competition, or stifle innovation and technological development. In addition, they should not give preference to the characteristics or requirements of specific countries or regions when different needs or interests exist in other countries or regions. Whenever possible, international standards should be performance based rather than based on design or descriptive characteristics.?sup id="fntext-106">(106)?sup id="fntext-107">(107)

(b) “Wherever appropriate?/p>

77.   In US ?Clove Cigarettes, the Panel rejected a claim under Article 2.8. In that case, the United States did not dispute that the measure at issue was specified in terms of “design or descriptive characteristics? and not in terms of “performance? However, the Panel agreed with the United States that Indonesia had failed to demonstrate that an alternative approach was “appropriate? With respect to the meaning of the term “appropriate? the Panel recalled prior interpretations of this term in other contexts:

“While there is no jurisprudence relating to the terms ‘[w]herever appropriate?in the context of Article 2.8 of the TBT Agreement, the Panel is mindful that the term ‘appropriate?appears in numerous other provisions found in the WTO Agreements and that there is substantial and broadly consistent jurisprudence relating to the ordinary meaning of this term.⁽¹⁰⁸⁾ Panels and the Appellate Body have relied upon ordinary dictionary definitions, and given the term ‘appropriate? its ordinary meaning. For example, the Panel in Mexico ?Telecoms observed that:

 

‘The word “appropriate? in its general dictionary sense, means “specially suitable, proper? This suggests that “appropriate measures?are those that are suitable for achieving their purpose.?sup id="fntext-109">(109)

 

Along the same lines, the Panel in EC ?Tube or Pipe Fittings considered that:

 

‘The ordinary meaning of the term “appropriate?refers to something which is ”especially suitable or fitting? “Suitable? in turn, is defined as “fitted for or appropriate to a purpose, occasion …” or “adapted to a use or purpose? “Fitting?is defined as “of a kind appropriate to the situation”… . The termis consistent with an intent not to prejudge what the circumstances might be in the context of a given case. It is necessary for such appropriateness to be judged on a case by case basis ?There is an element of flexibility, in that there are no predetermined rigid factors, indices, levels or requirements.?sup id="fntext-110">(110)

 

More recently, in US ?Anti-Dumping and Countervailing Duties (China), the Appellate Body relied on the same dictionary definitions in the context of interpreting the term ‘appropriate amounts?in Article 19.3 of the SCM Agreement:

 

‘Beginning with the term “appropriate amounts? we note that relevant dictionary definitions of the term “appropriate?include “proper? “fitting?and “specially suitable (for, to)?⁽¹¹¹⁾ These definitions suggest that what is “appropriate?is not an autonomous or absolute standard, but rather something that must be assessed by reference or in relation to something else.?sup id="fntext-112">(112)

 

We would also observe that in EC ?Sardines, the Appellate Body agreed with the panel that the term ‘inappropriate?in the context of Article 2.4 of the TBT Agreement ‘refers to something which is not “specially suitable? “proper? or “fitting”’, and that the question of appropriateness relates more to the nature of the means employed.⁽¹¹³⁾?sup id="fntext-114">(114)

78.   With regard to the burden of proof, the Panel in US ?Clove Cigarettes considered that:

“[W]here a claim under Article 2.8 of the TBT Agreement is made, it is the complaining party that carries the burden of demonstrating that it would be ‘appropriate?(i.e., ‘proper? ‘fitting? and ‘suitable? to specify a particular technical regulation in terms of ‘performance? rather than in terms of design or descriptive characteristics. This approach is consistent with the general principles governing the burden of proof in WTO dispute settlement proceedings. It is also consistent with the Appellate Body’s analysis of the terms ‘except when ?inappropriate? in the context of the obligation in Article 2.4 of the TBT Agreement, in EC ?Sardines.⁽¹¹⁵⁾ We do not understand Indonesia to suggest otherwise.?sup id="fntext-116">(116)

79.   The Panel in US ?Clove Cigarettes found that Indonesia had failed to demonstrate that it would have been “appropriate?to write the technical regulation at issue (a ban on certain flavoured cigarettes) in terms of performance:

“The Panel agrees with the United States that the standard referred to by Indonesia does not demonstrate that the technical regulation set forth in Section 907(a)(1)(A) could be written in terms of “performance? let alone that it would be ‘appropriate?to do so. Leaving aside the question of whether the standard referred to could be applied to cigarettes, it merely purports to provide a particular means of testing for flavour levels. We agree with the United States that an example of a performance requirement would be a technical regulation for chairs, for example, that set a requirement that the chair must support a person of at least 130 kilograms, rather than in terms of the components of the chair (i.e., if made of wood then the wood must be of a certain thickness and the nails must be of a certain length). We also agree with the United States that, rather than transforming the standard in Section 907(a)(1)(A) from one based on ‘design or descriptive? characteristics to one based on ‘performance? reliance on this standard referred to would simply provide a particular means of testing whether that standard is met. We further agree with the United States that providing a test of when the standard of the measure written in descriptive terms is met does not mean that it is possible to put the requirement in the fundamentally different terms of performance, nor why it would be ‘appropriate?to do so. The standard Indonesia refers to would not be a ‘performance?standard within the meaning of Article 2.8 of the TBT Agreement ?simply put, it is not a standard as to how a cigarette is to perform (i.e., function⁽¹¹⁷⁾).?sup id="fntext-118">(118)

(c) “shall specify?/p>

80.   In US ?Clove Cigarettes, the Panel rejected a claim under Article 2.8. Indonesia’s principal argument in support of its claim was that Article 2.8 requires Members to provide “a certain level of specificity?in their technical regulations. The Panel considered this to be a misreading of the terms of Article 2.8. After considering the terms, context and object and purpose of Article 2.8, the Panel concluded that:

?a href="#article2A8">Article 2.8 of the TBT Agreement does not oblige Members to provide ‘a certain level of specificity?in their technical regulations. It thus follows that the ‘level of specificity? reflected in Section 907(a)(1)(A) is not relevant to the question of whether this measure is consistent with Article 2.8. Accordingly, we do not need to consider whether the FSPTCA provides a definition of ‘characterizing flavour?for purposes of the ban, and/or whether the FDA has provided further specification on what constitutes a ‘characterizing flavour? Insofar as Indonesia’s claim under Article 2.8 rests on the argument that Section 907(a)(1)(A) ‘lacks the specificity required? then the Panel concludes that Indonesia’s claim and argument are misplaced.?sup id="fntext-119">(119)

8. Article 2.9

(a) Related TBT Committee decisions and recommendations

(i) General

81.   The TBT Committee has adopted a number of recommendations and decisions concerning notification procedures for draft technical regulations and conformity assessment procedures, as described hereafter.⁽¹²⁰⁾

82.   In 2009, the Committee reiterated the importance of Members fully complying with their transparency obligations under the TBT Agreement and in particular those related to the notification of technical regulations and conformity assessment procedures, as required under Articles 2.9, 2.10, 5.6, 5.7 and 10.7. The Committee stressed that transparency is a fundamental pillar in the implementation of the TBT Agreement and a key element of Good Regulatory Practice.⁽¹²¹⁾ The Committee noted the significant stock of decisions and recommendations that it has developed since 1995, and agreed to stress the importance of full implementation of this existing body of decisions and recommendations by Members.⁽¹²²⁾

(ii) ?i>Significant effect on trade of other Members?/p>

83.   In 1995, and with a view to ensuring a consistent approach to the selection of proposed technical regulations and procedures for assessment of conformity to be notified, the TBT Committee established the following criteria in order to define the term “significant effect on trade of other Members?

(i)   for the purposes of Articles 2.9 and 5.6, the concept of “significant effect on trade of other Members?may refer to the effect on trade:

• of one technical regulation or procedure for assessment of conformity only, or of various technical regulations or procedures for assessment of conformity in combination;
   
• in a specific product, group of products or products in general; and
   
• between two or more Members.

(ii)   when assessing the significance of the effect on trade of technical regulations, the Member concerned should take into consideration such elements as the value or other importance of imports in respect of the importing and/or exporting Members concerned, whether from other Members individually or collectively, the potential growth of such imports, and difficulties for producers in other Members to comply with the proposed technical regulations.

 

(iii)   the concept of a significant effect on trade of other Members should include both import-enhancing and import-reducing effects on the trade of other Members, as long as such effects are significant.⁽¹²³⁾

(iii) Publication requirement

84.   In 2006 and 2009, with regard to the publication of a notice of proposed technical regulations and conformity assessment procedures (pursuant to Articles 2.9.1 and 5.6.1), the Committee agreed to examine ways in which the publications for such notices ?and their content ?are made available, so as to enable all interested parties to become acquainted with them.⁽¹²⁴⁾

85.   Information on official publications related to technical regulations, standards and conformity assessment in the form of a list, including website references, is contained in the document G/TBT/GEN/39/ series.

(iv) Notification format and guidelines

86.   The procedures for notification under the Agreement have been kept under constant review by the Committee. In order to ensure a uniform and efficient operation of these procedures the Committee has agreed on a format and guidelines for notifications.⁽¹²⁵⁾

87.   In order to facilitate access to information by Members, as well as to strengthen the notification process, including the time needed for the publication and circulation of notification by the Secretariat, the TBT Committee has agreed that electronic transmission of information was the preferred method of filing notifications.⁽¹²⁶⁾

(v) Decision relating to notifications ?labelling requirements

88.   In 1995, with the purpose of clarifying the coverage of the Agreement with respect to labelling requirements, the TBT Committee took the following decision:

“In conformity with Article 2.9 of the Agreement, Members are obliged to notify all mandatory labelling requirements that are not based substantially on a relevant international standard and that may have a significant effect on the trade of other Members. That obligation is not dependent upon the kind of information which is provided on the label, whether it is in the nature of a technical specification or not.?sup id="fntext-127">(127)

(vi) Timing of notifications

89.   In 1995, the TBT Committee issued the following recommendation with respect to the timing of notifications:

“When implementing the provisions of Articles 2.9.2, 3.2 (in relation to Article 2.9.2), 5.6.2 and 7.2 (in relation to Article 5.6.2), a notification should be made when a draft with the complete text of a proposed technical regulation or procedures for assessment of conformity is available and when amendments can still be introduced and taken into account.?sup id="fntext-128">(128)

(vii) Translation of documents relating to notifications and address of body supplying the documents

90.   The TBT Committee also agreed on certain procedures designed to address the difficulties that can arise due to the fact that the documentation relevant to technical regulations, standards and procedures for assessment of conformity is not available in one of the WTO working languages and that a body other than the enquiry point may be responsible for such documentation.⁽¹²⁹⁾

(viii) Processing of requests for documentation

91.   In 1995, when addressing problems of supplying and obtaining requested documentation on notified technical regulations and procedures for assessment of conformity, the Committee agreed that:

(i)   requests for documentation should contain all the elements permitting the identification of the documents and in particular, the WTO TBT notification number symbol to which the requests refer. The same information should appear on the documents supplied in response to such requests;

 

(ii)   any request for documentation should be processed if possible within five working days. If a delay in supplying the documentation requested is foreseen, this should be acknowledged to the requester, along with an estimate of when the documents can be provided;

 

(iii)   E-mail requests for documentation should include name, organization, address, telephone and fax numbers, and e-mail address in the request;

 

(iv)   electronic delivery of documentation is encouraged and requests should indicate whether an electronic version or hard copy is desired.⁽¹³⁰⁾

(ix) Length of time allowed for comments

92.   In 2000 and 2003, with respect to time limits for presentation of comments on notified technical regulations and procedures for assessment of conformity, the Committee agreed:

(i)   the normal time limit for comments on notifications should be 60 days. Any Member which is able to provide a time limit beyond 60 days, such as 90 days, is encouraged to do so and should indicate this in the notification.

 

(ii)   in order to improve the ability of developing country Members to comment on notifications, and consistent with the principle of special and differential treatment, developed country Members are encouraged to provide more than a 60-day comment period.

93.   The Committee made a follow-up recommendation in 2009.⁽¹³¹⁾

(x) Handling of comments on notifications

94.   In 1995, in order to improve the handling of comments on proposed technical regulations and procedures for assessment of conformity submitted under Articles 2.9.4, 2.10.3, 3.1 (in relation to 2.9.4 and 2.10.3), 5.6.4, 5.7.3 and 7.1 (in relation to 5.6.4 and 5.7.3) of the Agreement, the Committee agreed on the following procedures:

(i)   each Member should notify the WTO secretariat of the authority or agency (e.g. its enquiry point) which it has designated to be in charge for handling of comments received; and

 

(ii)   a Member receiving comments through the designated body should without further request

• acknowledge the receipt of such comments,
   
• explain within a reasonable time to any Member from which it has received comments, how it will proceed in order to take these comments into account and, where appropriate, provide additional relevant information on the proposed technical regulations or procedures for assessment of conformity concerned, and
   
• provide to any Member from which it has received comments, a copy of the corresponding technical regulations or procedures for assessment of conformity as adopted or information that no corresponding technical regulations or procedures for assessment of conformity will be adopted for the time being.

95.   The Committee made follow-up recommendations in 2003, 2006 and 2009.⁽¹³²⁾

(xi) Copies of proposed technical regulations

96.   In 2007, with the purpose of facilitating access to notified draft texts, the Committee decided to establish a facility whereby Members may, on a voluntary basis, provide the WTO Secretariat with an electronic version of the notified draft text (attachment) together with the notification format. In 2009, with a view to improving access to texts of notified measures, the Committee agreed to encourage Members to use the facility provided by the WTO Secretariat and to send electronic versions of notified texts together with the notification format to be hyperlinked in the notification itself.⁽¹³³⁾

(xii) Monthly listing of notifications issued

97.   With a view to providing a brief indication of the notifications issued, the TBT Committee agreed that the Secretariat be requested to prepare a monthly table of notifications issued, indicating the notification numbers, notifying Members, Articles notified under, products covered, objectives and final dates for comments.⁽¹³⁴⁾ Monthly lists of notifications are contained in the document G/TBT/GEN/N/- series.

(xiii) Follow-up notifications, amendments, addenda, etc.

98.   In 2003, in order to facilitate the follow-up on Members? technical regulations and conformity assessment procedures brought to the attention of the Committee, the Committee agreed:

(i)   to have amendments to notifications carry the same document symbol as that of the original notification to allow them to be adequately traced;

 

(ii)   to encourage Members to share, on a voluntary basis, with the Committee any follow-up information on issues that have been previously brought to its attention.⁽¹³⁵⁾

99.   In 2009, the Committee agreed:

(i)   to recall its earlier recommendation encouraging Members to notify the availability of the adopted final text as an addendum to the original notification and to provide information on where the final text can be obtained, including website address;

 

(ii)   to stress the importance of making such addenda when a proposed regulation is either adopted, published or enters into force and especially in cases where the relevant dates have not been provided in the original notification or have been changed; and

 

(iii)   to recommend that the Committee establish common procedures on how and under which format (addendum, corrigendum, revision) to notify modifications or any other information relevant to previously notified measures.⁽¹³⁶⁾

(b) Jurisprudence

(i) General

“may have a significant effect on trade of other Members?/u>

100.   In US ?Clove Cigarettes, the Panel examined claims under Article 2.9.2 and 2.9.3. The Panel began by establishing that the measure at issue may have a significant effect on trade of other Members:

“We observe that the wording of this second condition for the applicability of Article 2.9 is that the technical regulation ?i>may have a significant effect on trade of other Members?as opposed to ‘will have a significant effect?or ‘has a significant effect? ‘May? is used to express a possibility as opposed to a certainty. We therefore interpret these terms to mean that Article 2.9 of the TBT Agreement does not require proving actual trade effects. Rather, this condition encompasses situations in which a technical regulation may have a significant effect on trade of other Members.

 

We further observe that Article 2.9 of the TBT Agreement refers to a ‘significant?effect. Significant means ‘sufficiently great or important to be worthy of attention; noteworthy? We thus agree with the United States that a ‘significant effect?encompasses all non de minimis effects on trade. In this respect, we observe that Indonesia presented evidence before this Panel that shows that the effect of Section 907(a)(1)(A) is substantial and noteworthy on its clove cigarettes trade with the United States. In particular, the data provided by Indonesia shows that the vast majority of clove cigarettes imported into the United States come from Indonesia. Indonesia has also shown that the value of such imports amounted to approximately USD 15 million in 2008. We also observe that Indonesia has argued that it has exported clove cigarettes to the United States for more than 40 years.

 

Since Section 907(a)(1)(A) prohibits the importation of clove cigarettes into the United States, we can only conclude that the impact of Section 907(a)(1)(A) on Indonesia’s trade is significant within the terms of Article 2.9 of the TBT Agreement. Accordingly, we find that the second condition for the application of the obligations in Articles 2.9.2 and 2.9.3 of the TBT Agreement is also fulfilled.?sup id="fntext-137">(137)

(ii) Article 2.9.2

101.   In US ?Clove Cigarettes, the Panel found that the United States acted inconsistently with Article 2.9.2 by failing to notify the technical regulation at issue.⁽¹³⁸⁾ The Panel made the following observations on the scope of the obligation in Article 2.9.2:

“We note that Article 2.9.2, unlike Article 2.9.3, does not link the obligation to notify to the request of a Member.

 

We also note that Article 2.9.2 of the TBT Agreement applies to ‘proposed?technical regulations. Along the same lines, the French version of Article 2.9.2 of the TBT Agreement uses the terms ‘le règlement technique projet?/i>? and the Spanish version of Article 2.9.2 of the TBT Agreement uses the terms ‘el reglamento t?cnico en proyecto? ‘To propose?can be defined as ‘to put forward [a technical regulation] for consideration by others? Article 2.9.2 of the TBT Agreement therefore applies to what we would refer to as legal instruments falling within the definition of a technical regulation that would still be in ‘draft? form, i.e., not yet adopted or in force. The language of the second sentence of Article 2.9.2 of the TBT Agreement reinforces this conclusion as it indicates that the notification must take place ‘at an early appropriate stage, when amendments can still be introduced and comments taken into account? Therefore, since the provision foresees the possibility of amendments and comments, the technical regulation at issue cannot have been enacted or adopted before the notification takes place. In our view, Article 2.9.2 (as it is also the case with Article 5.6.2 for conformity assessment procedures) is at the core of the TBT Agreement’s transparency provisions: the very purpose of the notification is to provide opportunity for comment before the proposed measure enters into force, when there is time for changes to be made before ‘it is too late??/p>

 

We find further guidance and support for our interpretation in a recommendation from the TBT Committee regarding the timing of notifications:

 

“When implementing the provisions of Articles 2.9.2, 3.2 (in relation to Article 2.9.2), 5.6.2 and 7.2 (in relation to Article 5.6.2), a notification should be made when a draft with the complete text of a proposed technical regulation or procedures for assessment of conformity is available and when amendments can still be introduced and taken into account.⁽¹³⁹⁾

 

We shall therefore examine whether the United States notified the product coverage, as well as the objective and rationale of Section 907(a)(1)(A) at an early appropriate stage, i.e., when it was in draft form, before its adoption, when amendments could still be introduced and comments taken into account.⁽¹⁴⁰⁾

(c) “the proposed technical regulation?/p>

102.   In US ?Clove Cigarettes, the Panel rejected a claim under Article 2.9.3 on the grounds that while there was a request, it was not made until after the measure had been enacted. Accordingly, the Panel reasoned, the situation fell outside of the scope of Article 2.9.3, which applies only to “proposed?technical regulations:

“We note that, unlike the case of Article 2.9.2 of the TBT Agreement, the obligation to provide particulars or copies of a proposed technical regulation imposed by Article 2.9.3 of the TBT Agreement is only triggered by the request of a Member. However, as is the case with Article 2.9.2 of the TBT Agreement, such an obligation is limited to ‘proposed technical regulations? i.e., technical regulations which are still in draft form and thus, as explained above, amendments can still be introduced and comments taken into account.

 

Therefore, in order for the United States to have been obliged under Article 2.9.3 of the TBT Agreement to provide particulars or copies of Section 907(a)(1)(A) to Indonesia, Indonesia must have requested the United States to do so when Section 907(a)(1)(A) was still in draft form.

 

As explained, Indonesia claims that its request pursuant to Article 2.9.3 of the TBT Agreement was embodied in its questions posed to the United States through the TBT Committee and recorded in document G/TBT/W/323. We note that Indonesia’s communication was dated 17 August 2009, i.e., almost two months after the enactment of Section 907(a)(1)(A), on 20 June 2009. The questions posed by Indonesia to the United States in document G/TBT/W/323 could thus not relate to a ‘proposed? technical regulation, but rather to a technical regulation which was already enacted. Therefore, even if Indonesia’s questions in document G/TBT/W/323 were to be considered as a request for particulars within the terms of Article 2.9.3 of the TBT Agreement, those questions did not regard a proposed technical regulation.

 

 We note that Indonesia has not provided this Panel with any further evidence that could prove that it had requested the United States to provide particulars or copies of Section 907(a)(1)(A) when it was still in draft form.

 

Accordingly, we find that, by failing to demonstrate that it had requested the United States to provide particulars or copies of Section 907(a)(1)(A) while it was still in draft form, Indonesia has failed to demonstrate that the United States acted inconsistently with Article 2.9.3 of the TBT Agreement.?sup id="fntext-141">(141)

9. Article 2.10

(a) Relationship to Article 2.9

103.   In US ?Clove Cigarettes, Indonesia claimed a violation of Article 2.9, and made a conditional claim under Article 2.10 in the event that the United States invoked this provision as a defence to the alleged violation of Article 2.9. The United States did not invoke Article 2.10, and the Panel ultimately found a violation of Article 2.9. As regards Article 2.10, the Panel stated that:

“We note that the obligations under Article 2.10 of the TBT Agreement are only applicable when a Member omitted the steps enumerated in Article 2.9 of the TBT Agreement because ‘urgent problems of safety, health, environmental protection or national security arise or threaten to arise? In our view, the fact that Article 2.10 of the TBT Agreement only applies when a Member is departing from the general obligations established in Article 2.9 of the TBT Agreement entails that these two provisions have two distinct and separate scopes. Indeed, we see no situation in which a WTO Member’s actions would fall within the scope of both obligations at the same time. Either the Member in question follows the general requirements under Article 2.9 of the TBT Agreement, or it decides to omit those requirements owing to any of the listed ‘urgent problems? described in Article 2.10 of the TBT Agreement.?sup id="fntext-142">(142)

10. Article 2.12

(a) Ministerial Decision and related TBT Committee decisions and recommendations

104.   In the 2001 Ministerial Decision on Implementation-related Issues and Concerns, Ministers stated that “Subject to the conditions specified in paragraph 12 of Article 2 of the Agreement on Technical Barriers to Trade, the phrase ‘reasonable interval?shall be understood to mean normally a period of not less than 6 months, except when this would be ineffective in fulfilling the legitimate objectives pursued.?sup id="fntext-143">(143)

105.   At its meeting of 15 March 2002, the Committee took note of the Ministerial Decision regarding the implementation of Article 2.12.⁽¹⁴⁴⁾

106.   At its meeting in November 2006, with a view to facilitating the implementation of transparency procedures under the Agreement, the Committee agreed to encourage Members to provide an interval of more than 6 months, when possible, between the publication of technical regulations and their entry into force.⁽¹⁴⁵⁾

(b) Finding of inconsistency with Article 2.12

107.   In US ?Clove Cigarettes, the Panel found that the United States acted inconsistently with Article 2.12 by not allowing an interval of at least six months between the publication and the entry into force of the technical regulation at issue.⁽¹⁴⁶⁾ In the course of its analysis, the Panel considered the legal status of paragraph 5.2 of the 2001 Ministerial Decision on Implementation-related Issues and Concerns.⁽¹⁴⁷⁾

 

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IV. Article 3  

A. Text of Article 3

Article 3: Preparation, Adoption and Application of Technical Regulations by Local Government Bodies and Non-Governmental Bodies

   With respect to their local government and nongovernmental bodies within their territories:

 

3.1   Members shall take such reasonable measures as may be available to them to ensure compliance by such bodies with the provisions of Article 2, with the exception of the obligation to notify as referred to in paragraphs 9.2 and 10.1 of Article 2.

 

3.2   Members shall ensure that the technical regulations of local governments on the level directly below that of the central government in Members are notified in accordance with the provisions of paragraphs 9.2 and 10.1 of Article 2, noting that notification shall not be required for technical regulations the technical content of which is substantially the same as that of previously notified technical regulations of central government bodies of the Member concerned.

 

3.3   Members may require contact with other Members, including the notifications, provision of information, comments and discussions referred to in paragraphs 9 and 10 of Article 2, to take place through the central government.

 

3.4   Members shall not take measures which require or encourage local government bodies or non-governmental bodies within their territories to act in a manner inconsistent with the provisions of Article 2.

 

3.5   Members are fully responsible under this Agreement for the observance of all provisions of Article 2. Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of Article 2 by other than central government bodies.

B. Interpretation and Application of Article 3

No jurisprudence or decision of a competent WTO body.

 

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V. Article 4  

A. Text of Article 4

Article 4: Preparation, Adoption and Application of Standards

4.1   Members shall ensure that their central government standardizing bodies accept and comply with the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3⁽¹⁴⁸⁾ to this Agreement (referred to in this Agreement as the “Code of Good Practice?. They shall take such reasonable measures as may be available to them to ensure that local government and non-governmental standardizing bodies within their territories, as well as regional standardizing bodies of which they or one or more bodies within their territories are members, accept and comply with this Code of Good Practice. In addition, Members shall not take measures which have the effect of, directly or indirectly, requiring or encouraging such standardizing bodies to act in a manner inconsistent with the Code of Good Practice. The obligations of Members with respect to compliance of standardizing bodies with the provisions of the Code of Good Practice shall apply irrespective of whether or not a standardizing body has accepted the Code of Good Practice.

 

4.2   Standardizing bodies that have accepted and are complying with the Code of Good Practice shall be acknowledged by the Members as complying with the principles of this Agreement.

B. Interpretation and Application of Article 4

1. Related TBT Committee decisions and recommendations

(a) General

108.   For TBT Committee decisions and recommendations related to the “Code of Good Practice for the Preparation, Adoption and Application of Standards? see Annex 3 below.

109.   In 2000, the TBT Committee adopted a decision in respect of the principles to be observed, when international standards, guidelines and recommendations (as mentioned under Articles 2, 5 and Annex 3 of the TBT Agreement) are developed, so as to take account of, inter alia, transparency, openness, impartiality and consensus, and to ensure that the concerns of developing countries are considered.⁽¹⁴⁹⁾

(b) Regional standards-related activities

110.   In 1995, the TBT Committee decided that, in order to keep abreast of the activities of regional standardizing bodies and systems for conformity assessment, that representatives of such bodies and systems may be invited to address the Committee on their procedures and how they relate to those embodied in the Agreement, on the basis of agreed lists of questions.⁽¹⁵⁰⁾ In 2006, with regard to the acceptance of the Code of Good Practice by regional standardizing bodies, the Committee agreed to encourage regional standardizing bodies to accept the Code of Good Practice and to notify their acceptance of the Code to the ISO/IEC Information Centre.⁽¹⁵¹⁾

 

Conformity With Technical Regulations And Standards

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VI. Article 5  

A. Text of Article 5

Article 5: Procedures for Assessment of Conformity by Central Government Bodies

5.1   Members shall ensure that, in cases where a positive assurance of conformity with technical regulations or standards is required, their central government bodies apply the following provisions to products originating in the territories of other Members:

 

5.1.1   conformity assessment procedures are prepared, adopted and applied so as to grant access for suppliers of like products originating in the territories of other Members under conditions no less favourable than those accorded to suppliers of like products of national origin or originating in any other country, in a comparable situation; access entails suppliers?right to an assessment of conformity under the rules of the procedure, including, when foreseen by this procedure, the possibility to have conformity assessment activities undertaken at the site of facilities and to receive the mark of the system;

 

5.1.2   conformity assessment procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. This means, inter alia, that conformity assessment procedures shall not be more strict or be applied more strictly than is necessary to give the importing Member adequate confidence that products conform with the applicable technical regulations or standards, taking account of the risks nonconformity would create.

 

5.2   When implementing the provisions of paragraph 1, Members shall ensure that:

 

5.2.1   conformity assessment procedures are undertaken and completed as expeditiously as possible and in a no less favourable order for products originating in the territories of other Members than for like domestic products;

 

5.2.2   the standard processing period of each conformity assessment procedure is published or that the anticipated processing period is communicated to the applicant upon request; when receiving an application, the competent body promptly examines the completeness of the documentation and informs the applicant in a precise and complete manner of all deficiencies; the competent body transmits as soon as possible the results of the assessment in a precise and complete manner to the applicant so that corrective action may be taken if necessary; even when the application has deficiencies, the competent body proceeds as far as practicable with the conformity assessment if the applicant so requests; and that, upon request, the applicant is informed of the stage of the procedure, with any delay being explained;

 

5.2.3   information requirements are limited to what is necessary to assess conformity and determine fees;

 

5.2.4   the confidentiality of information about products originating in the territories of other Members arising from or supplied in connection with such conformity assessment procedures is respected in the same way as for domestic products and in such a manner that legitimate commercial interests are protected;

 

5.2.5   any fees imposed for assessing the conformity of products originating in the territories of other Members are equitable in relation to any fees chargeable for assessing the conformity of like products of national origin or originating in any other country, taking into account communication, transportation and other costs arising from differences between location of facilities of the applicant and the conformity assessment body;

 

5.2.6   the siting of facilities used in conformity assessment procedures and the selection of samples are not such as to cause unnecessary inconvenience to applicants or their agents;

 

5.2.7   whenever specifications of a product are changed subsequent to the determination of its conformity to the applicable technical regulations or standards, the conformity assessment procedure for the modified product is limited to what is necessary to determine whether adequate confidence exists that the product still meets the technical regulations or standards concerned;

 

5.2.8   a procedure exists to review complaints concerning the operation of a conformity assessment procedure and to take corrective action when a complaint is justified.

 

5.3   Nothing in paragraphs 1 and 2 shall prevent Members from carrying out reasonable spot checks within their territories.

 

5.4   In cases where a positive assurance is required that products conform with technical regulations or standards, and relevant guides or recommendations issued by international standardizing bodies exist or their completion is imminent, Members shall ensure that central government bodies use them, or the relevant parts of them, as a basis for their conformity assessment procedures, except where, as duly explained upon request, such guides or recommendations or relevant parts are inappropriate for the Members concerned, for, inter alia, such reasons as: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment; fundamental climatic or other geographical factors; fundamental technological or infrastructural problems.

 

5.5   With a view to harmonizing conformity assessment procedures on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of guides and recommendations for conformity assessment procedures.

 

5.6   Whenever a relevant guide or recommendation issued by an international standardizing body does not exist or the technical content of a proposed conformity assessment procedure is not in accordance with relevant guides and recommendations issued by international standardizing bodies, and if the conformity assessment procedure may have a significant effect on trade of other Members, Members shall:

 

5.6.1   publish a notice in a publication at an early appropriate stage, in such a manner as to enable interested parties in other Members to become acquainted with it, that they propose to introduce a particular conformity assessment procedure;

 

5.6.2   notify other Members through the Secretariat of the products to be covered by the proposed conformity assessment procedure, together with a brief indication of its objective and rationale. Such notifications shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account;

 

5.6.3   upon request, provide to other Members particulars or copies of the proposed procedure and, whenever possible, identify the parts which in substance deviate from relevant guides or recommendations issued by international standardizing bodies;

 

5.6.4   without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

 

5.7   Subject to the provisions in the lead-in to paragraph 6, where urgent problems of safety, health, environmental protection or national security arise or threaten to arise for a Member, that Member may omit such of the steps enumerated in paragraph 6 as it finds necessary, provided that the Member, upon adoption of the procedure, shall:

 

5.7.1   notify immediately other Members through the Secretariat of the particular procedure and the products covered, with a brief indication of the objective and the rationale of the procedure, including the nature of the urgent problems;

 

5.7.2   upon request, provide other Members with copies of the rules of the procedure;

 

5.7.3   without discrimination, allow other Members to present their comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

 

5.8   Members shall ensure that all conformity assessment procedures which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them.

 

5.9   Except in those urgent circumstances referred to in paragraph 7, Members shall allow a reasonable interval between the publication of requirements concerning conformity assessment procedures and their entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member.

B. Interpretation and Application of Article 5

1. Related TBT Committee decisions and recommendations

(a) General

111.   In 1996, the TBT Committee agreed to establish a Technical Working Group to study certain ISO/IEC Guides on conformity assessment procedures and how they might contribute to furthering the objectives of Articles 5 and 6 of the TBT Agreement. The Working Group met three times and the Reports are contained in G/TBT/M/7?a target="_blank" onMouseOver="writetxt('Wordperfect format (30 pages, 223KB), Opens in a new window')" data-content="Wordperfect format (30 pages, 223KB), Opens in a new window" data-toggle="tooltip" onMouseOut="writetxt(0)" >8 and 10 (1997).⁽¹⁵²⁾

112.   In 1997, in order to further the objectives of Articles 5 and 6, including in particular the need to avoid the creation of unnecessary obstacles to international trade due to conformity assessment procedures, and with a view to making recommendations to remove any unnecessary duplication of conformity assessment, the TBT Committee agreed to, inter alia, the following:

(i)   the Committee will pursue further discussions on ISO/IEC Guides. Members are invited, on a voluntary basis, to continue providing information on their experience in using relevant international guidelines and recommendations on conformity assessment, and the extent to which these guides and recommendations have served as a basis for the recognition of conformity assessment procedures and adopted by bodies in their territories and in regional and international conformity assessment systems, or as a harmonized approach to conformity assessment. In the light of this exercise, the Committee will consider ways and means for better implementation of Articles 5 and 6;

 

(ii)   for transparency purposes and to support the work of the Committee, a list of relevant international guides and recommendations related to conformity assessment procedures will be consolidated, circulated and updated regularly by the Secretariat for the information of Members.⁽¹⁵³⁾

113.   At its meeting in November 2000, the TBT Committee developed an indicative list describing different approaches to facilitate acceptance of results of conformity assessment.⁽¹⁵⁴⁾ The Committee noted the following in respect of the indicative list:

(i)   the list was not intended to prescribe particular approaches that Members might choose to adopt as it was recognized that the application of different approaches would depend on the situation of Members and the specific sectors involved;

 

(ii)   governments and non-government bodies might choose to apply different approaches across different sectors, or apply more than one procedure within individual sectors, taking into account variations in procedures in different Members and perceived levels of risks in the acceptance of results in different sectors.⁽¹⁵⁵⁾

(b) Articles 5.5 and 5.6

114.   The TBT Committee adopted a decision in respect of the principles to be observed, when international standards, guidelines and recommendations (as mentioned under Articles 2, 5 and Annex 3 of the TBT Agreement) are developed, so as to ensure transparency, openness, impartiality and consensus, effectiveness and relevance, coherence, and to take account of the concerns of developing countries.⁽¹⁵⁶⁾

(c) Article 5.6

115.   With reference to the notification of draft conformity assessment procedures, see the recommendations and decisions adopted by the TBT Committee, as described in paragraphs 81?a href="#87">87 above.⁽¹⁵⁷⁾ See in particular the recommendation concerning the application of Articles 2.9 and 5.6 (preambular part).⁽¹⁵⁸⁾

 

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VII. Article 6  

A. Text of Article 6

Article 6: Recognition of Conformity Assessment by Central Government Bodies

   With respect to their central government bodies:

 

6.1   Without prejudice to the provisions of paragraphs 3 and 4, Members shall ensure, whenever possible, that results of conformity assessment procedures in other Members are accepted, even when those procedures differ from their own, provided they are satisfied that those procedures offer an assurance of conformity with applicable technical regulations or standards equivalent to their own procedures. It is recognized that prior consultations may be necessary in order to arrive at a mutually satisfactory understanding regarding, in particular:

 

6.1.1   adequate and enduring technical competence of the relevant conformity assessment bodies in the exporting Member, so that confidence in the continued reliability of their conformity assessment results can exist; in this regard, verified compliance, for instance through accreditation, with relevant guides or recommendations issued by international standardizing bodies, shall be taken into account as an indication of adequate technical competence;

 

6.1.2   limitation of the acceptance of conformity assessment results to those produced by designated bodies in the exporting Member.

 

6.2   Members shall ensure that their conformity assessment procedures permit, as far as practicable, the implementation of the provisions in paragraph 1.

 

6.3   Members are encouraged, at the request of other Members, to be willing to enter into negotiations for the conclusion of agreements for the mutual recognition of results of each other’s conformity assessment procedures. Members may require that such agreements fulfil the criteria of paragraph 1 and give mutual satisfaction regarding their potential for facilitating trade in the products concerned.

 

6.4   Members are encouraged to permit participation of conformity assessment bodies located in the territories of other Members in their conformity assessment procedures under conditions no less favourable than those accorded to bodies located within their territory or the territory of any other country.

B. Interpretation and Application of Article 6

1. Related TBT Committee decisions and recommendations

(a) General

(i) Information Exchange

116.   At its meeting in November 1997, in order to further the objectives of Articles 5 and 6, including in particular the need to avoid the creation of unnecessary obstacles to international trade due to conformity assessment procedures, and with a view to making recommendations to remove any unnecessary duplication of conformity assessment, the TBT Committee agreed to the following:

(i)   Members are invited, on a voluntary basis, to exchange information on their experience in the various types of conformity assessment procedures and their conditions of application. In light of this exercise, the Committee will consider making recommendations aimed at ensuring that procedures for the assessment of conformity avoid the creation of unnecessary obstacles to international trade;

 

(ii)   in regard to the review of the operation of Articles 6, 10.7 and other relevant provisions which contain disciplines with respect to recognition of the results of conformity assessment procedures, Members were invited, on a voluntary basis, to exchange information.

117.   The Committee made follow-up recommendations on information exchange in 2000, 2003, 2006, and 2009.⁽¹⁵⁹⁾

 

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VIII. Article 7  

A. Text of Article 7

Article 7: Procedures for Assessment of Conformity by Local Government Bodies

   With respect to their local government bodies within their territories:

 

7.1   Members shall take such reasonable measures as may be available to them to ensure compliance by such bodies with the provisions of Articles 5 and 6, with the exception of the obligation to notify as referred to in paragraphs 6.2 and 7.1 of Article 5.

 

7.2   Members shall ensure that the conformity assessment procedures of local governments on the level directly below that of the central government in Members are notified in accordance with the provisions of paragraphs 6.2 and 7.1 of Article 5, noting that notifications shall not be required for conformity assessment procedures the technical content of which is substantially the same as that of previously notified conformity assessment procedures of central government bodies of the Members concerned.

 

7.3   Members may require contact with other Members, including the notifications, provision of information, comments and discussions referred to in paragraphs 6 and 7 of Article 5, to take place through the central government.

 

7.4   Members shall not take measures which require or encourage local government bodies within their territories to act in a manner inconsistent with the provisions of Articles 5 and 6.

 

7.5   Members are fully responsible under this Agreement for the observance of all provisions of Articles 5 and 6. Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of Articles 5 and 6 by other than central government bodies.

B. Interpretation and Application of Article 7

1. Related TBT Committee decisions and recommendations

(a) Notification of proposed conformity assessment procedures of local governments

118.   At its meeting in November 2006, with regard to the notification of proposed technical regulations and conformity assessment procedures of local governments at the level directly below that of the central government, the TBT Committee agreed to invite Members to indicate the local government bodies in their jurisdiction that are subject to the notification obligations contained in Articles 3.2 and 7.2. The Committee made a follow-up recommendation in 2009.⁽¹⁶⁰⁾

(b) Handling of comments

119.   In 1995, the TBT Committee agreed to a number of procedures in order to improve the handling of comments on proposed technical regulations and procedures for assessment submitted under various Articles of the TBT Agreement, including Article 7.1. See above, paragraph 94.

 

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IX. Article 8  

A. Text of Article 8

Article 8: Procedures for Assessment of Conformity by Non-Governmental Bodies

8.1   Members shall take such reasonable measures as may be available to them to ensure that nongovernmental bodies within their territories which operate conformity assessment procedures comply with the provisions of Articles 5 and 6, with the exception of the obligation to notify proposed conformity assessment procedures. In addition, Members shall not take measures which have the effect of, directly or indirectly, requiring or encouraging such bodies to act in a manner inconsistent with the provisions of Articles 5 and 6.

 

8.2   Members shall ensure that their central government bodies rely on conformity assessment procedures operated by non-governmental bodies only if these latter bodies comply with the provisions of Articles 5 and 6, with the exception of the obligation to notify proposed conformity assessment procedures.

B. Interpretation and Application of Article 8

No jurisprudence or decision of a competent WTO body.

 

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X. Article 9  

A. Text of Article 9

Article 9: International and Regional Systems

9.1   Where a positive assurance of conformity with a technical regulation or standard is required, Members shall, wherever practicable, formulate and adopt international systems for conformity assessment and become members thereof or participate therein.

 

9.2   Members shall take such reasonable measures as may be available to them to ensure that international and regional systems for conformity assessment in which relevant bodies within their territories are members or participants comply with the provisions of Articles 5 and 6. In addition, Members shall not take any measures which have the effect of, directly or indirectly, requiring or encouraging such systems to act in a manner inconsistent with any of the provisions of Articles 5 and 6.

 

9.3   Members shall ensure that their central government bodies rely on international or regional conformity assessment systems only to the extent that these systems comply with the provisions of Articles 5 and 6, as applicable.

B. Interpretation and Application of Article 9

No jurisprudence or decision of a competent WTO body.

 

Information And Assistance

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XI. Article 10  

A. Text of Article 10

Article 10: Information About Technical Regulations, Standards and Conformity Assessment Procedures

10.1   Each Member shall ensure that an enquiry point exists which is able to answer all reasonable enquiries from other Members and interested parties in other Members as well as to provide the relevant documents regarding:

 

10.1.1   any technical regulations adopted or proposed within its territory by central or local government bodies, by nongovernmental bodies which have legal power to enforce a technical regulation, or by regional standardizing bodies of which such bodies are members or participants;

 

10.1.2   any standards adopted or proposed within its territory by central or local government bodies, or by regional standardizing bodies of which such bodies are members or participants;

 

10.1.3   any conformity assessment procedures, or proposed conformity assessment procedures, which are operated within its territory by central or local government bodies, or by non-governmental bodies which have legal power to enforce a technical regulation, or by regional bodies of which such bodies are members or participants;

 

10.1.4   the membership and participation of the Member, or of relevant central or local government bodies within its territory, in international and regional standardizing bodies and conformity assessment systems, as well as in bilateral and multilateral arrangements within the scope of this Agreement; it shall also be able to provide reasonable information on the provisions of such systems and arrangements;

 

10.1.5   the location of notices published pursuant to this Agreement, or the provision of information as to where such information can be obtained; and

 

10.1.6   the location of the enquiry points mentioned in paragraph 3.

 

10.2   If, however, for legal or administrative reasons more than one enquiry point is established by a Member, that Member shall provide to the other Members complete and unambiguous information on the scope of responsibility of each of these enquiry points. In addition, that Member shall ensure that any enquiries addressed to an incorrect enquiry point shall promptly be conveyed to the correct enquiry point.

 

10.3   Each Member shall take such reasonable measures as may be available to it to ensure that one or more enquiry points exist which are able to answer all reasonable enquiries from other Members and interested parties in other Members as well as to provide the relevant documents or information as to where they can be obtained regarding:

 

10.3.1   any standards adopted or proposed within its territory by non-governmental standardizing bodies, or by regional standardizing bodies of which such bodies are members or participants; and

 

10.3.2   any conformity assessment procedures, or proposed conformity assessment procedures, which are operated within its territory by non-governmental bodies, or by regional bodies of which such bodies are members or participants;

 

10.3.3   the membership and participation of relevant non-governmental bodies within its territory in international and regional standardizing bodies and conformity assessment systems, as well as in bilateral and multilateral arrangements within the scope of this Agreement; they shall also be able to provide reasonable information on the provisions of such systems and arrangements.

 

10.4   Members shall take such reasonable measures as may be available to them to ensure that where copies of documents are requested by other Members or by interested parties in other Members, in accordance with the provisions of this Agreement, they are supplied at an equitable price (if any) which shall, apart from the real cost of delivery, be the same for the nationals(1) of the Member concerned or of any other Member.

 

(footnote original) 1 “Nationals?here shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory.

10.5   Developed country Members shall, if requested by other Members, provide, in English, French or Spanish, translations of the documents covered by a specific notification or, in case of voluminous documents, of summaries of such documents.

 

10.6   The Secretariat shall, when it receives notifications in accordance with the provisions of this Agreement, circulate copies of the notifications to all Members and interested international standardizing and conformity assessment bodies, and draw the attention of developing country Members to any notifications relating to products of particular interest to them.

 

10.7   Whenever a Member has reached an agreement with any other country or countries on issues related to technical regulations, standards or conformity assessment procedures which may have a significant effect on trade, at least one Member party to the agreement shall notify other Members through the Secretariat of the products to be covered by the agreement and include a brief description of the agreement. Members concerned are encouraged to enter, upon request, into consultations with other Members for the purposes of concluding similar agreements or of arranging for their participation in such agreements.

 

10.8   Nothing in this Agreement shall be construed as requiring:

 

10.8.1   the publication of texts other than in the language of the Member;

 

10.8.2   the provision of particulars or copies of drafts other than in the language of the Member except as stated in paragraph 5; or

 

10.8.3   Members to furnish any information, the disclosure of which they consider contrary to their essential security interests.

 

10.9   Notifications to the Secretariat shall be in English, French or Spanish.

 

10.10   Members shall designate a single central government authority that is responsible for the implementation on the national level of the provisions concerning notification procedures under this Agreement except those included in Annex 3.

 

10.11   If, however, for legal or administrative reasons the responsibility for notification procedures is divided among two or more central government authorities, the Member concerned shall provide to the other Members complete and unambiguous information on the scope of responsibility of each of these authorities.

B. Interpretation and Application of Article 10

1. Related TBT Committee decisions and recommendations

(a) General

120.   At its meeting of 21 April 1995, the TBT Committee decided on the modalities for regular meetings of persons responsible for information exchange.⁽¹⁶¹⁾

(b) Articles 10.1 and 10.3

121.   At its meeting of 14 July 1995, with respect to the handling of requests received under Articles 10.1 and 10.3, the TBT Committee adopted the recommendation that an enquiry point should, without further request, acknowledge the receipt of the enquiry.⁽¹⁶²⁾

122.   At its meeting of 14 July 1995, and with a view to encouraging the uniform application of Articles 10.1 and 10.3, the TBT Committee also adopted the following recommendations:

(i)   an enquiry should be considered “reasonable?when it is limited to a specific product, or group of products, but not when it goes beyond that and refers to an entire business branch or field of regulations, or procedures for assessment of conformity;

 

(ii)   when an enquiry refers to a composite product, it is desirable that the parts or components, for which information is sought, are defined to the extent possible. When a request is made concerning the use of a product it is desirable that the use is related to a specific field;

 

(iii)   the Enquiry Point(s) of a Member should be prepared to answer enquiries regarding the membership and participation of that Member, or of relevant bodies within its territory, in international and regional standardizing bodies and conformity assessment systems as well as in bilateral arrangements, with respect to a specific product or group of products. They should likewise be prepared to provide reasonable information on the provisions of such systems and arrangement.⁽¹⁶³⁾

123.   See also the recommendations of the TBT Committee concerning booklets on enquiry points and the List of Enquiry Points prepared by the Secretariat.⁽¹⁶⁴⁾

(c) Article 10.5

124.   See the recommendation and decisions of the TBT Committee concerning translation of documents relating to notifications, referenced in paragraph 90 above.

(d) Article 10.7

125.   In 1996, the TBT Committee agreed on a notification format concerning agreements reached by a member with another country or countries on issues related to technical regulations, standards or conformity assessment procedures.⁽¹⁶⁵⁾

126.   Notifications under Article 10.7 are circulated under document symbol G/TBT/10.7/N.

 

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XII. Article 11  

A. Text of Article 11

Article 11: Technical Assistance to Other Members

11.1   Members shall, if requested, advise other Members, especially the developing country Members, on the preparation of technical regulations.

 

11.2   Members shall, if requested, advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the establishment of national standardizing bodies, and participation in the international standardizing bodies, and shall encourage their national standardizing bodies to do likewise.

 

11.3   Members shall, if requested, take such reasonable measures as may be available to them to arrange for the regulatory bodies within their territories to advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding:

 

11.3.1   the establishment of regulatory bodies, or bodies for the assessment of conformity with technical regulations; and

 

11.3.2   the methods by which their technical regulations can best be met.

 

11.4   Members shall, if requested, take such reasonable measures as may be available to them to arrange for advice to be given to other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the establishment of bodies for the assessment of conformity with standards adopted within the territory of the requesting Member.

 

11.5   Members shall, if requested, advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the steps that should be taken by their producers if they wish to have access to systems for conformity assessment operated by governmental or non-governmental bodies within the territory of the Member receiving the request.

 

11.6   Members which are members or participants of international or regional systems for conformity assessment shall, if requested, advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the establishment of the institutions and legal framework which would enable them to fulfil the obligations of membership or participation in such systems.

 

11.7   Members shall, if so requested, encourage bodies within their territories which are members or participants of international or regional systems for conformity assessment to advise other Members, especially the developing country Members, and should consider requests for technical assistance from them regarding the establishment of the institutions which would enable the relevant bodies within their territories to fulfil the obligations of membership or participation.

 

11.8   In providing advice and technical assistance to other Members in terms of paragraphs 1 to 7, Members shall give priority to the needs of the least-developed country Members.

B. Interpretation and Application of Article 11

1. Related TBT Committee decisions and recommendations

(a) General

127.   In considering the ways in which the provisions of Article 11 could be given operational significance, the TBT Committee agreed in 1995 that technical assistance would remain as an item of the agenda of the Committee on a permanent basis and would be included on the agenda of a regular meeting of the Committee when so requested by a Member in accordance with the agreed procedures.⁽¹⁶⁶⁾

128.   At its meeting in November 2000, in considering technical assistance, the TBT Committee agreed to develop a demand driven technical cooperation programme related to the TBT Agreement, taking into account existing and proposed technical assistance activities, as well as seeking ways to achieve more effective cooperation and coordination among donors to better target the needs identified by developing country Members.⁽¹⁶⁷⁾

129.   Following-up on recommendations in the Committee’s Third Triennial Review, at its meeting of 2 November 2005, the TBT Committee adopted, on a trial basis for a period of two years, a format for the voluntary notification of specific technical assistance needs and responses (G/TBT/16).⁽¹⁶⁸⁾ The Committee made follow-up recommendations in 2006 and 2009.⁽¹⁶⁹⁾ Notifications of Specific Technical Assistance Needs and Responses are contained in the following document series: G/TBT/TA-[number]/[Member].

(b) Information exchange

130.   In 1995, in considering the ways in which the provisions of Article 11 could be given operational significance, the Committee agreed to exchange information on technical assistance as follows: specific needs for technical assistance, as well as information that may be provided by potential donor Members on their technical assistance programmes, may be communicated to Members through the Secretariat. Members will take into account the provisions of Article 11.8 of the TBT Agreement when considering requests for technical assistance from the least-developed country Members. In agreement with requesting Members or potential donor Members, as the case may be, the information concerning specific needs and technical assistance programmes would be circulated by the Secretariat to all Members on an informal basis. Whilst information would be multilateralized in this manner, technical assistance would continue to be provided on a bilateral basis. The Secretariat would reflect the information circulated under this procedure in the documentation prepared for annual reviews of the implementation and operation of the Agreement if the Members concerned so agree.⁽¹⁷⁰⁾

131.   The Committee made follow-up recommendations in 1997, 2000, 2006, and 2009.⁽¹⁷¹⁾