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The ‘TBT Agreement’: A Perfect Tool to Monitor Regulatory Activities Worldwide
Published online by Cambridge University Press: 27 October 2017
Extract
The Technical Barriers to Trade (hereinafter TBT) Agreement was negotiated at the Tokyo Round (1973–1979). However, at that time the GATT rules comprised no legally binding mechanism to force Member States to respect their obligations. Indeed, Member States remained free to defer the dispute settlement system. Consequently, for a very long time the TBT Agreement remained a dead letter.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2001
References
2 Garcia Bercero, I. ‘Trade laws, GATT and the management of trade disputes between the US and the EEC’ (1985) 5 YEL 149-89Google Scholar and an unofficial description of how a GATT panel works and does not, see Plank, R. ‘An unofficial description of how a GATT panel works and does not’ (1987) 29 Swiss Review of International Competition Law, 81 Google Scholar.
3 Uruguay Round of Multilateral Trade Negotiations (1986–1994)—Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations—Marrakech, 15 April 1994 (WTO) WTO OJ 1994 L 336/253.
4 WTO dispute settlement. Davey, W. ‘Has the WTO dispute settlement system exceeded its authority?’ (2001) 4 JIEL 79 CrossRefGoogle Scholar.
5 Mavroidis, P. ‘Remedies in the WTO legal system: between a rock and a hard place’ (2000) 11 EJIL 763 CrossRefGoogle Scholar.
6 By the 11 April 2002: 144 members.
7 G/TBT/GEN/N/15: http://docsonline.wto.org/gen_search.asp
9 International Standard Organisation (ISO): http://www.iso.ch/
10 See III.A.
12 See above n 8 and II.B.
13 Art. 4(1) of the Agreement ‘The Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 to this Agreement (referred to in the Agreement as the “Code of Good Practice”)’.
14 Art. 6(1) of the Agreement.
15 G/TBT/CS/2/Rev.8: http://docsonline.wto.org/gen_search.asp
16 G/TBT/W/163: http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm
18 Art. 2(2) of the SPS Agreement: ‘Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.’
20 Annex 1 of the Agreement.
21 Mattli, W. et al ‘Governance and international standards setting’ (2001) 8 JEPP 327 Google Scholar.
22 Annex 1 of the Agreement.
23 Second triennial review of the operation and implementation of the agreement on technical barriers to trade, Annex 3, 18, G/TBT/9 of 13 November 2000.
24 French, English and Spanish.
25 Arts. 2.9.1. and 5.6.2. of the Agreement.
26 Arts. 2.10.1 and 5.7.1. of the Agreement.
27 Art. 2.9.4 of the Agreement.
28 Arts. 2(10) regarding the notification of technical regulations and 5(7) regarding conformity assessment procedure of the Agreement.
30 See above n 24.
31 There are no WTO definitions of ‘developed’ and ‘developing’ countries. Members announce for themselves whether they are ‘developed’ or ‘developing’ countries. However, other members can challenge the decision of a Member to make use of provisions available to developing countries. Regarding the least-developed countries, the WTO uses the official list of the United Nations (for the moments 30 out of the 49 are Member of the WTO).
32 During the last annual review, it was considered that ‘a reasonable interval’ equals three months.
33 ACP, ALADI, EFTA, FAO, IEC, IMF, ISO, ITC, OECD, OIE, OIML, UNCTAD, UN/ECE, UNIDO, WHO, WHO/FAO Codex Alimentarius Commission and the World Bank, observers do not have the same rights as members.
34 See VI. B.
35 G/TBT/1/rev.7, 28 November 2000 decisions and recommendations adopted by the committee since 1 January 1995.
36 Standing for Quadrilateral: United States, Japan, Canada and the European Community (represented by the Commission).
37 Art. 15 (4) of the Agreement.
38 G/TBT/5 and G/TBT/9: http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm
39 G/TBT/9, n 29.
40 The first meeting was held on 24 of June 2001.
41 The central authority in charge of the notification system is located in Enterprise Directorate-General, Unit F1.
42 The EC is characterised by an intense debate through its legislative process, therefore a position has to be made available to third countries in order to express the official position of the EC.
43 One of its ultimate powers would be to withdraw its proposition.
44 Council Reg. No 925/1999 on the registration and operation within the Community of certain types of civil subsonic jet aeroplanes which have been modified and re-certified as meeting the standards of volume I, Part II, Chapter 3 of Annex 16 to the Convention on International Civil Aviation, third edition (July 1993); OJ 1999 L 115/1.
45 Standards established by the ICAO (International Civil Aviation Organisation).
46 Notification G/TBT/Notif.99.75.
47 Convention on International Civil Aviation: http://www.icao.int/icao/en/takeoff.htm
48 Communication from the Commission on progress made in the consultations with the United States on the development of a new generation noise standard for civil subsonic jet aeroplanes and phase out measures for the noisiest categories of civil subsonic jet aeroplanes within chapter 3, COM(1999) 452 final, and Written Question E-1914/99 by Ria Oomen-Ruijten (PPE-DE) to the Commission. Implementation of Regulation on the registration and operation of certain types of subsonic jet aeroplanes. OJ 2000 C 219/45 E.
49 Joint Cases C–27/00 and C–122/00 Omega Air, Judgment of 12 March 2002, nyr.
50 Council Dir. No 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1983 L 109/8. This EC procedure is similar to certain aspects to the TBT procedure but it is far more stringent and complex ( Lecrenier, S., JTE, No 35, January 1997, 1 Google Scholar). Therefore Member States of the EC have to comply with two notification procedures—the EC one and the TBT one.
51 European Communities —Measures affecting asbestos and asbestos-containing products. (DS135/R) and (DS135/R/Add.1). For an overview of the WTO jurisprudence, see Jackson, J. The jurisprudence of GATT and the WTO: Insights on treaty law and economic relations (Cambridge, CUP, 2000)Google Scholar.
52 Council Dir. No 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1983 L 109/8.
53 Art. III:4: ‘the products of the territory of any contracting party imported on the territory of any other contracting party will not be subject to a less favourable treatment than the treatment granted to the similar products of national origin with regard to all laws, all regulations or all regulations affecting sale, the setting on sale, the purchase, transport, distribution and the use of these products on the internal market. The provisions of this paragraph will not prohibit the application of different tariffs for the inland based transports exclusively on the economic use of the means of transport and not on the origin of the product.’
54 Art. XX(b): ‘necessary for health and the people’s life and animal protection or to the safeguarding of the plants’.
55 Decision of the WT/DS panel 135/R item 0,193 ‘the special Group considers consequently that the elements of proof in front of it show more the existence of a health risk in the cases of intervention on products in cement-chrysotile than the reverse. It considers therefore that a decision-maker instructed to take measures on public health would conclude reasonably to the existence of a risk caused by the presence of products in cement-chrysotile because of the risks incurred in the event of intervention on these products.’
56 WT/DS135/3. In its request for the establishment of a panel, Canada stated: ‘(…) the Government of Canada requested consultations with the European Communities concerning certain measures taken by France prohibiting asbestos and products containing asbestos, and con cerning the general asbestos regulations in force in France. These measures and regulations include, but are not limited to, Decree No. 96–1133 (…)’.
57 See above n 20.
58 17. 6. An appeal shall be limited to issues of law covered in the panel report and legal inter pretations developed by the panel. http://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm
59 DG Enterprise Unit, F1.
60 This list contains the appellate body and panel reports adopted referring to the TBT agreement: WT/DS2 and WT/DS4—United States—Standards for Reformulated and Conventional Gasoline; WT/DS26—European Communities—Measures Affecting Meat and Meat Products (Hormones); WT/DS48—European Communities—Measures Affecting Livestock and Meat (Hormones); WT/DS56—Argentina—Certain Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items and WT/DS135—European Communities—Measures Affecting the Prohibition of Asbestos and Asbestos Products.
61 Lecrenier, above n 50.
62 See G/TBT/W/171, comments on notifications G/TBT/N/EEC/6 and G/TBT/N/EEC/7 from the European Communities made by Argentina.
63 Art. 9 of Council and Parliament Dir. 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1998 L 204/37.
64 Case C–194/94 CIA Security [1996] ECR I–2201.
66 Convention on information and legal co-operation concerning ‘information society services’, Council of Europe—European Treaty Series—No. 180 Moscow, 4. X. 2001. Muñoz, R. ‘L’application concrète du principe de transparence dans la sphère des services de la société de l’information’ Revue Europe (Chronique), Dec. 2001, 3 Google Scholar.