Presentation on the World Trade Organization's Agreement on Technical Barriers to Trade. Developed by the International Trade Team of Barral M Jorge & Associates

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TECHNICAL BARRIERS TO TRADE
STUDY GROUP ON INTERNATIONAL TRADE

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THE AGREEMENT ON
TECHNICAL BARRIERS TO
TRADE

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OBJECTIVES
 Within theWTO framework, theTBT Agreement is
intended to ensure that technical regulations,
standards and conformity assessment procedures do
not constitute unnecessary barriers to international
trade while recognizing the right of Members to take
regulatory measures to achieve their legitimate
objectives: national security requirements, quality
requirements, protection of human health or safety,
protection of animal or plant life or health, protection
of the environment, prevention of deceptive practices,
among others.
To ensure there are no
unnecessary barriers...
recognizing
... the right of
Members to achieve
legitimate objectives

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RELEVANT DEFINITIONS
Technical regulations: measures which lay down product
characteristics or their related processes and production
methods, with which compliance is mandatory.
Conformity assessment procedures: procedures used, directly
or indirectly, to determine the fulfilment of relevant
requirements contained in technical regulations or standards.
 e.g. requirements related to
terminology, symbol, packaging,
marking, and labelling.
 EC - Asbestos (WT/DS135) and EC -
Sardines (WT/DS231):
1.The document must apply to an
identifiable product or group of
products;
2.The document must lay down
one or more characteristics of the
product;
3. Compliance with the product
characteristics must be mandatory.

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Standards: measures approved by a Recognised Body that
provide, for common and repeated use, rules, guidelines or
characteristics for products or related processes and production
methods, with which compliance is voluntary.
 e.g. requirements related to
terminology, symbol, packaging,
requirements, and labelling.
 The relationship between private
standards and theTBT Agreement
is not as yet clear.
RELEVANT DEFINITIONS

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Conformity assessment procedures: procedures used, directly
or indirectly, to determine the fulfilment of relevant
requirements contained in technical regulations or standards.
 Procedures performed in relation to the
conformity assessment of products
(Testing; Inspection; and Certification);
 Procedures performed in relation to the
activity of conformity assessment
(Metrology and Calibration; and
Accreditation).
 First party assessment (suplier);
 Second party assessment (purchaser
or conformity assessment body in his
behalf);
 Third party assessment (independent
entity).
RELEVANT DEFINITIONS

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STRUCTURE
First set of provisions (Articles 2 – 3)
• Concerns the preparation, adoption and application of technical
regulations
Second set of provisions (Article 4 and Annex 3)
• Deals with the preparation, adoption and application of standards
Third set of provisions (Articles 5 - 9)
• Relates to conformity assessment procedures
Fourth set of provisions (Articles 10 – 14)
• Deals with transparency, technical assistance, special and
differential treatment, dispute settlement and institutional issues

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SCOPE
 TheTBT Agreement applies to technical regulations, standards and conformity
assessment procedures. EXCEPT when they are…
 technical measures relating to services (dealt with under ArticleVI.4 of the
GATS);
 government procurement specifications (addressed in the plurilateral
Agreement on Government Procurement);
 sanitary and phytosanitary measures (subject to the provisions of the SPS
agreement).

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RELATIONSHIP BETWEEN SPS AND TBT AGREMENT
 The scope of application of the SPS and the TBT Agreements are mutually exclusive. That is: the TBT
Agreement covers all technical regulations, standards and conformity assessment procedures, except when
these are sanitary or phytosanitary measures as defined by the SPS Agreement.
O B J E C T I V E S O F S P S M E A S U R E S
To protect From
animal or plant
life or health
the entry, establishment or spread of pests, disease-carrying or
disease-causing organisms
human or animal
life or health
risks arising from additives, contaminants, toxins or disease-
causing organisms in their food, beverages or feedstuffs
human life or
health
diseases carried by plants, animals or products thereof (zoonoses)
a country
damage caused by the entry, establishment or spread of pests
Source:WTO E-Learning, “Technical Barriers toTrade in theWTO”

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RELATIONSHIP BETWEEN SPS AND
TBT AGREMENT It is the type (technical
regulations, standards or
conformity assessment
procedures) of measure which
determines coverage by theTBT
Agreement, but it is the
objective of the measure which
is relevant in determining
whether it is subject to the SPS
Agreement.
E X A M P L E S O F T B T A N D S P S M E A S U R E S
To protect From
SPS
measures
typically deal
with:
Additives in food or drink; contaminants in food or drink;
poisonous substances in food or drink; residues of veterinary
drugs or pesticides in food or drink; certification of food
safety, animal or plant health; processing methods with
implications for food safety; labelling requirements directly
related to food safety; plant/animal quarantine; declarations
of areas free from specific pests or diseases; other sanitary
requirements for imports (on imported pallets used to
transport animals, for example); etc.
TBT
measures
typically deal
with:
Composition of certain processed foods; labelling of food,
drink and drugs; quality requirements for fresh food;
packaging requirements for fresh food; packaging and
labelling for dangerous chemicals and toxic substances;
regulations for electrical appliances; regulations for cordless
phones, radio equipment; textiles and garments
product/production description; testing of vehicles and
accessories; safety for toys; etc.
Source:WTO E-Learning, “Technical Barriers toTrade in theWTO”

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KEY CONCEPTS
 Non-discrimination
 Article 2.1 of theTBTAgreement (ncorporating elements of Article I of GATT 1994 and
Article III of GATT 1994)
 Likeness
 EC - Asbestos (DS135): four categories of "characteristics" might help determine the
likeness of products
 their physical properties;
 the extent to which they are capable of serving the same or similar
end-uses;
 the extent to which consumers perceive and treat them as
alternative means of performing particular functions in order to
satisfy a particular want or demand; and
 their international classification for tariff purposes.

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 Avoidance of Unnecessary Obstacles to International Trade
 Article 2.2 of theTBTAgreement
 Necessity
 the reach of the word "necessary" is not limited to what is "indispensable“
 Korea – Various Measures on Beef (DS161)
 "a 'necessary' measure is, in this continuum, located significantly closer to the pole of
'indispensable' than to the opposite pole of simply 'making a contribution to' ".
 EC – Asbestos (DS135)
 In the case of conformity assessment procedures (Article 5.1.2), there are some
differences (requirements on timing, requirements on transparency, information
requirements, and operation conditions)
KEY CONCEPTS

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INSTRUMENTS
 Use of Equivalence (Article 2.7 );
 Adoption ofTechnical Regulations based on performance (rather than design)
(Article 2.8);
 Review of regulations based on the change of circumstances (Article 2.3);
 Good regulatory practice
 Topic discussed among Members but not explicitly mentioned in theTBT
Agreement

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 Use of International Standards (Article 2.4);
 Unlike the SPS Agreement, theTBT Agreement makes no specific reference
to any particular standardizing body  case by case analysis
EC – Sardines (DS231). Order of analysis:
1) Is the regulation a technical regulation?
2) Is there a relevant standard?
3) Was the standard used as a basis for the regulation?
4) Would the standard be ineffective or inappropriate to achieve the
legitimate objective pursued?
INSTRUMENTS

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TRANSPARENCY – WHAT TO NOTIFY?
 Members are required to notify obter WTO Members of proposed new technical
regulations and conformity assessment procedures or modifications to existing
ones when the following two circumstances apply:
 first,
 a relevant international standard does not exist OR;
 the technical content of a proposed measure is not in accordance with
the technical content of the international standard; AND
 second,
 the proposed measure may have a significant effect on the trade of
other WTO Members.

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 Exception : urgent measures.
 may be notified either before or
immediately after they are adopted,
with a mention of the nature of the
urgent problem.
TRANSPARENCY – WHEN TO NOTIFY?
Source:WTO E-Learning, “Technical Barriers toTrade in theWTO”
9. Entry into Force of Measure
8. Publication of the Measure
7. Adoption of the Measure
6. End of Comment Period
5. Discussion of the Comments
4. Provision of Copies
3. Notification to other Members
2. Publication of a Notice
1. Drafting of the Measure
Minimum
6 months
Minimum
60 days

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THANK YOU!
Edgard Vieira
edgard.vieira@barralmjorge.com.br

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