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Imposing and reviewing restrictions concerning sanitary and phytosanitary measures. Bilateral negotiations

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Vitalii Bashinskyi,
FAO

Materials of the workshop on Resolving agricultural trade issues through the WTO organized by FAO in collaboration with Ukraine’s Ministry of Agrarian Policy and Food of Ukraine in Kyiv on June 7, 2017.

http://www.fao.org/economic/est/est-events-new/wtokiev/en/
http://www.fao.org/europe/news/detail-news/en/c/892730/

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Imposing and reviewing restrictions concerning sanitary and phytosanitary measures. Bilateral negotiations

  1. 1. Imposing and reviewing restrictions concerning sanitary and phytosanitary measures. Bilateral negotiations VITALII BASHINSKYI KIEV 2017 1
  2. 2. Why do countries apply restrictive and protective measures? Import-related risk assessment Control can cover products of animal or plant origin, living organisms, less often – other objects directly or indirectly affecting health of live objects. For some microbiological and chemical hazards, it is reasonable to consider the country’s proximity, and its active official and unofficial relations (cross-border trade agreements). Coverage should include all possible channels for a hazard’s entry from a neighboring country. Hazards are microbiological pathogens or chemical contaminants that constitute a risk to human or animal health as a result of consuming them or contacting with them. 2
  3. 3. First step to identify a hazard is usually performed separately from risk assessment. Risk assessment steps include: estimating emission assessing exposure (spread among livestock or other animals) assessing consequences (impact), and calculating (determining) risk 3
  4. 4. Commodity groups and risk levels in transboundary movement 0 1 2 3 4 5 6 risk animal origin DSL plant origin DSL side, plant origin NDSL plant origin NDSL Criteria of transboundary risk assessment: 1. transboundary movement of human and animal pathogenic agents 2. transboundary movement of plant pathogenic agents 3. likely adverse impact on human and animal health 4. no single method of risk assessment exists, choice depends on circumstances 4
  5. 5. Therefore, as far as risk assessment is concerned: It is necessary to have a specially trained and reliable staff tested by practical assignments. 5
  6. 6. Risk analysis 6
  7. 7. Анализ рисков 7
  8. 8. EU requirements to admission of animal products to the market Initiating the process – studying methods and forms of compliance with external requirements. 1. A residue monitoring plan is designed by the competent authority and sent to the Food and Veterinary Office (FVO) for assessment 2. In case of a positive assessment, the country is included in a relevant list 3. A residue control plan is executed by the competent authority and regularly verified during an audit carried out jointly with the FVO 4. Mission inspectors confirm monitoring capability every 4 or 5 years 8
  9. 9. Procedure for admission of animal products to the EU market The country’s official application to the European Commission (EC) requesting documentation necessary for certain animal products to enter the EU market The EC’s response with a questionnaire on the opportunities of exporting such animal products to the EU (up to 6 months) The country’s response to the EU’s questionnaire (up to 2 months) Provision of additional materials as requested by the EC (up to 2 months) 9
  10. 10. Procedure for admission of animal products to the EU market EC and FVO experts visit the potential exporting country to certify companies as potential exporters of the products (a verification visit) (up to 6 months) In case of positive expert opinions, the EC decided to include the country in the list of the countries allowed to export certain animal products to the EU (up to 6 months) Approval of companies, filling-out of the application form and its submission to the EC (up to 1 month) The companies may start exporting respective animal products to the EU 10
  11. 11. Verification mission by the Food and Veterinary Office. Where to begin? The principle of verification missions or evaluation audits of control systems is used by an increasingly greater number of countries across the world. Coordinating the visit Visiting the Competent Authority (CA) Visiting a farm Visiting a CA territorial body and a CA- authorized laboratory Visiting a processing enterprise 11
  12. 12. What is assessed by FVO experts? National LEGISLATION and its compliance with European legislation, particularly on: animal health (foot-and-mouth disease, rinderpest, tuberculosis, brucellosis, and 50 more diseases mandatory for reporting among OIE members). Focus is on diseases subject to declaration during certification food safety HACCP, traceability markers and elements efficiency of official control, its compliance with international practice existing certification rules legislation and actual use of food and feed additives, labelling, etc. 12
  13. 13. How is the control system assessed by FVO experts? Verification concerns primarily the state authority that formulates and implements the state policy on veterinary medicine and compliance with sanitary legislation. If FVO audit results in the country are positive the country is included in the list of countries approved for exports but only if credible evidence is provided of compliance with certain conditions with respect to animal health, food safety and veterinary certification. In case of critical comments, another verification visit is arranged after the comments have been resolved in full. 13
  14. 14. Entering new companies in the list of importers Once the state is included in the list of countries allowed to import to the territory… The competent authority has the right to independently propose that the company be included in the list of companies entitled to export their products to a country/union of countries, Solely based on assurances of conformity determined through internal inspections for conformity with the importing country’s requirements. The importing country always reserves the right to inspect fulfilment of previously agreed-upon import rules and requirements. 14
  15. 15. Assurances of conformity presented by the state competent authority… tools Evidence is provided to prove that the designated personnel in the company and in the competent authority itself knows and observes national legislation and EU requirements To include a company in the list of exporters, all the importing country’s requirements and conditions mentioned above should be assessed by the competent authority, and their conformity established The competent authority’s competence and actions are verified during the regular audits by FVO 15
  16. 16. State guarantee instruments Regular laboratory tests of water, food products, raw materials, and, where appropriate, products in process, with due regard to a logical, risk-based approach to planning of inspections and interpretation of their findings A good outcome for a country and companies can only be achieved if there is efficient cooperation, understanding, trust and rapid information exchange between the competent authority, the company, and the farm supplying raw materials 16
  17. 17. System of urgent notifications, and reputation of a country, a company, and the competent authority17
  18. 18. Negotiations always take place between professionals The above-listed approaches to assessing the competence of the trading partner country’s competent authority result in generation of a proper confidence space in relations. All the parties use mechanisms to protect their interests whereas negotiations are nothing else than search for compromises suiting both parties. If a counterpart agrees to hold negotiations then a compromise is theoretically possible. 18
  19. 19. Mechanisms of confidence Confidence is a key principle of international negotiations. Participation of a country, a competent authority in international organizations is an additional condition for enhancing the vote of confidence. All suspicions or doubts must be substantiated in the most thorough way. Reference to facts of inconformity established earlier is used solely as retaliation. Using an arbiter is the last resort to reach a legal solution in negotiations. 19
  20. 20. Conducting negotiations 1. Initiating negotiations on the official level. To do so, one needs to justify a request or choose an already existing common problem, subject, etc. 2. Negotiations should be mutually necessary, otherwise they will be brought to a formal exchange of views by the party to which the negotiations are “not interesting”. 3. The initiating party can afford raising its representative’s level during negotiations, but not vice versa. 4. Representatives should be able to declare at the level of guarantees rather than possibilities. 5. Negotiations can only be initiated when the parties have several consolidated solutions and clearly defined boundaries of acceptable and unacceptable limits. 20
  21. 21. Basis for negotiations International negotiations are always progress. Justifications and evidence provided by the parties solely rely upon international standards. When referring to national legislation, the parties are guided by the indications that protect the consumer in the most transparent and democratic way. Actively use the official statuses granted by international organizations – it’s always effective. Negotiations should concern a subject understandable to both parties. Multilateral negotiations are usually exploratory in nature and rarely end with a unanimous decision or a joint compromise (except arbitrage). 21
  22. 22. Shaping a position in negotiations, consider the following: National legislation and requirements of internal procedures on information used solely for official purposes. Agreeing upon or preparing, jointly with specialists from related executive authorities, documents determining the basis of the state position. Agreeing upon or jointly preparing a strategy and principles on possible hesitation in decision- making, untouchable topics, ways to bypass untouchable topics. Training of negotiators. 22
  23. 23. Shaping a position in negotiations, consider the following: Agreeing upon expected outcomes with specialists from MFA, MIA, and other supervisory and law-enforcement agencies. Identifying subjects and topics used in negotiations for exchange. Defining negotiation boundaries. Planning negotiation outcomes, taking corrective actions when input data are changed. 23
  24. 24. Negotiations on sanitary and phytosanitary measures Negotiations on sanitary and phytosanitary measures can be the most productive: when formulating mutually beneficial trade measures or shaping mutually beneficial trade relations… Negotiations should rely upon the global rules of protecting areas against contaminants and fit into the most preferential treatment of free trade. 24
  25. 25. Negotiations on sanitary and phytosanitary measures Negotiations on sanitary and phytosanitary measures can be the most productive: when using the World Trade Organization rules (SPS section), the Terrestrial Animal Health Code, and the Codex Alimentarius that simplify any evidence base considerably. When conducting negotiations, you should always realize what your counterpart expects from you. The value of the matter is always lower than presented by the counterpart. It is agreed upon when formulating a negotiating position. 25
  26. 26. Outcomes. Assessment of negotiation outcomes Negotiations can be deemed successful if: the goal has been achieved with no compromise concessions to the counterpart; compromise concessions have been used within the pre-determined state negotiating position. Goals of the negotiations have been achieved; the parties took a time-out to determine or find out any additional data required to make a compromise decision. 26
  27. 27. Negotiations are deemed failed if: the parties have not achieved even interim results, and one of the parties, or both, have proposed to end the negotiation process; the negotiations have ended with considerable deviations from the initial position. Initial goals have not been achieved; the negotiations have been rejected by the counterpart in the phase of their physical implementation for formal reasons or with no reasons announced at all. Outcomes. Assessment of negotiation outcomes27
  28. 28. Thank you! 28

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