| Module 3 Agreement on TBT: An OverviewFood Quality and Standards Service Food and Nutrition Division |
To explain the provisions and principles of the Agreement on Technical Barriers to Trade, the basic rights established and the principles on which the Agreement is founded. A review of the most important articles of the Agreement is provided.
3.1 Introduction
3.2 - 3.16 Articles 1 to 15 of the TBT Agreement
3.17 Annexes 1 - 3
The Agreement on Technical Barriers to Trade (TBT) resulting from the Uruguay Round of Multilateral Negotiations is a revision of the Agreement of the same name that emerged from negotiations during the Tokyo Round of GATT negotiations held in the 1970s. The objective of the Agreement is to prevent the use of national or regional technical requirements as unjustified technical barriers to trade. The Agreement covers all types of consumer products and any existing standards including quality requirements for foods. It does not apply to requirements that are related to sanitary and phytosanitary measures covered by the SPS Agreement. The TBT Agreement covers measures designed to protect the consumer against deception and economic fraud. It states that all technical standards and regulations must have a legitimate purpose and that the impact or cost of implementing the standard must be proportional to the purpose of the standard. It also says that if there are two or more ways of achieving the same objective, the least trade-restrictive alternative should be followed.
The TBT Agreement emphasizes the use of international standards. WTO Members are obliged to use international standards or parts of them where they exist, except where the international standards would be ineffective or inappropriate in the national situation. Like the SPS Agreement, the TBT Agreement also calls for harmonization of standards and obliges Members to fully participate, within the limitations of available resources, in developing and adopting standards at the international and regional levels.
This article states that the definitions for terms listed in Annex 1 apply when used in this Agreement and that other terms have the meaning as defined by the United Nations system and international standardizing bodies. Further, the Agreement:
Article 2 contains important provisions that establish the basic requirements of the Agreement. The text and requirements in this Article also serve as a pattern for the requirements for local government bodies and non-government bodies in matters related to establishing product standards and in establishing conformity assessment procedures discussed further on in the Agreement.
First, Members are to treat foreign goods as they would their own goods. Second, Members are to ensure that technical regulations are not prepared, adopted or applied in a manner which would create unnecessary barriers to international trade and that they are not any more trade restrictive than necessary to fulfil a legitimate purpose. Some examples of legitimate purposes for technical regulations are given in the text of this Article. These include national security requirements, prevention of deceptive trade practices, protection of human health or safety and animal or plant life or health, or the environment. Scientific and technical information is to be used in the assessment of the risks associated with the intended purpose of the technical regulation, along with processing technology and intended end-uses of the product.
Technical regulations are to be removed when no longer needed or are no longer appropriate. International standards are to be used if they exist, unless they are ineffective or inappropriate for the objective of the regulation. Justification for the regulation shall be provided upon request from other Members whose trade may be significantly effected by the regulation. Members are to play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of product standards they have adopted or expect to adopt.
Members are also to give consideration to accepting other Members' technical regulations as equivalent and technical regulations are required to be based on performance rather than design or descriptive characteristics.
Paragraph 2.9 states that if international standards do not exist, or the technical regulation is not in compliance with an international standard that does exist, and the technical regulation has a significant effect on trade of other Members, then the Member SHALL:
In all of the above circumstances, the notifications must be done promptly.
Paragraph 2.10 provides special provisions that apply in urgent or emergency situations related to safety, health, environmental protection or national security. In these situations, some steps listed above in paragraph 2.9 may be omitted, particularly the first step of publishing a notice in a publication for interested parties.
This articles confirms the responsibility of the Members to take all reasonable measures necessary to ensure that local government and non-government bodies comply with the provisions of Article 2. Central government of the Member is responsible for notification of the technical regulations of local government under 2.9 and 2.10. Contact between Members on matters related to 2.9 and 2.10 should be made at the central government level.
Standardizing bodies must accept and comply with the Code of Good Practice for the Preparation, Adoption and Application of Standards, as written in Annex 3 of the Agreement. It is the responsibility of the Member to ensure that the central and local governments and non-government standardizing bodies within their territories are "members, accept and comply" with this Code. If they are not a Member of the Code, or do not accept the Code, then the Member must still ensure that they will comply with the Code irrespective of their willingness to accept the Code.
This article concerns the provisions to be applied to foreign goods by central governments when conformity with technical regulations and standards are required. First, the procedures to be followed are prepared, adopted and applied to grant foreign suppliers no less favourable conditions than domestic suppliers, and Conformity Assessment Procedures (CAPs) are not of themselves to be unnecessary obstacles to international trade. The assessments are to be undertaken and completed as expeditiously as possible. The standard time anticipated for the assessments is to be published so that the supplier knows what to expect in advance in terms of the assessment time and other administrative procedures, such as application review etc. These procedures are not to cause any undue delay in processing.
Only information that is considered necessary to have is to be requested and confidentiality of the information is to be respected. Any fees imposed are to be equitable when compared to the fees charged for identical or similar services for domestic procedures. The location of the facilities where assessments are to be made should not be unnecessarily inconvenient to the supplier. For those products where changes have been made, only the changes will be assessed during subsequent conformance assessments, unless the changes do not permit the complete evaluation of the product's compliance with the technical regulation or standard. Finally, the CAPs should have a procedure to investigate complaints related to the operation of a conformity assessment procedure and to take corrective action when justified.
In all cases where products are to comply with technical regulations or standards, Members are to ensure that central governments use international standards, recommendations or guidelines where they exist or where their completion is imminent, or any applicable parts of the international standards, as a basis for the conformity standards, if appropriate. Harmonization is to take place by the Member's full participation, within the limits of available resources, in the international standardizing body's preparation of recommendations and guidelines for conformity assessment procedures.
As with the issuance of technical regulations discussed in Article 2, the Agreement also provides, under paragraph 5.6, the procedures to apply the implementation of CAPs under specific circumstances. If international guidelines and recommendations do not exist, or if the technical content of a CAP is not in accordance with an international guideline or recommendations, and if the CAP may have a significant effect on trade of other Members, then the Member SHALL, as for technical regulations (Article 2), publish a notice, notify other Members, provide Members with copies of the CAP and allow time for the Members to make comments.
In all of the above circumstances, the notifications must be done promptly.
Again, as in Article 2, paragraph 5.7 of this Article provides special considerations that apply in urgent or emergency situations related to safety, health, environmental protection, or national security. In these situations, some of the steps listed in paragraph 5.6 may be omitted, particularly the first step regarding publishing a notice in a publication for interested parties.
Under this Article Members are to recognize the results of conformity assessments of other Members where there is confidence that the procedures are equivalent, even if different. This may be established through prior consultations taking into account the technical competence of the assessment bodies, verification procedures, accreditation and other relevant information. Mutual Recognition Agreements related to recognition of CAPs and the results of assessments are encouraged between Members.
Members are responsible for ensuring the local government bodies comply with Articles 5 and 6 of the Agreement. They must provide the required notifications as indicated under paragraphs 5.6.2 and 5.7.1 of the Agreement. This and all other communications and contacts made related to conformity assessment should to be made at the central government level.
Members are also responsible for ensuring that non-government bodies, which also operate conformity assessment procedures, comply with Articles 5 and 6 of the Agreement. Also, central governments shall ensure that they only rely on the results of assessments carried out by those non-government bodies that are in compliance with Articles 5 and 6 of the Agreement.
Members are required to, wherever practicable, formulate and adopt international systems for conformity assessment and become members or participate in them. They are also to ensure that international and regional systems of conformity assessments for which they participate, or for which conformity assessment bodies within the country participate, comply with the provisions of Articles 5 and 6, and central governments rely on these assessment systems only if they comply with these same articles.
The provisions in this Article pertain to the establishment of an Enquiry Point. Each Member is to establish an enquiry point for the purpose of providing other Members with requested information. Such information includes:
The Enquiry Point would also be the source of information related to the international standards setting bodies for which the Member is a member or participant, including those bodies for which the central and local governments and non government organizations are members or participants.
Members are to provide advice to other Members, especially developing country Members. Technical advice and assistance can be provided on the preparation of technical regulations and establishing standardizing bodies. Additional assistance can be provided to enable developing country Members to participate in the activities of international standardizing bodies in the development of CAPs and the operation of conformity assessments. Finally, assistance can be provided in establishing institutions and legal frameworks to enable them to fulfil their obligations under the Agreement.
Members are to provide differential and more favourable treatment to developing country Members by recognizing that these countries have special development, financial and trade needs and these needs should be taken into account in the operation of the Agreement. For instance, the Agreement states that Members shall take into account these needs in the preparation and implementation of technical regulations, standards, and conformity assessment procedures. There should be recognition that developing countries have an interest in the protection of their indigenous technology and production methods and through their technical regulations, standards and CAPs aim at preserving these indigenous technologies and production methods and processes compatible with their development needs. Therefore, developing countries should not be expected to use international standards as a basis for their technical regulations or standards which are not appropriate to their development, financial or trade needs. International standardizing bodies are encouraged also to take into account the needs of developing countries in developing standards which are within the interest of developing country Members.
Developing countries, with infrastructure and institutional problems, are to be given consideration by the TBT Committee, upon their request, for specified and time limited exceptions in whole or in part from obligations under this Agreement.
The provisions of this Article establish the operating committee for the Agreement, the Committee on Technical Barriers to Trade, and lists the authorities and procedures.
The provisions of this Article establish the Consultation and Dispute Settlement procedures under this Agreement as those established in Article XXII and XXIII of GATT, 1994. The dispute panel may establish technical expert groups to assist in issues in a technical nature. The procedures that govern such groups are provided in Annex 2 to the Agreement.
This is the final provision and indicates that reservation to any provision of the Agreement is allowed only with the consent of the other Members. In addition, Members were to notify the TBT Committee of existing measures in order to ensure prompt implementation of the Agreement following the date of entry into force. This Article also calls for a review of the operation and implementation of the agreement in three years. The TBT Agreement came into force on 1 January 1995.
This annex provides 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.
This Annex describes the procedures which shall apply to technical expert groups established in accordance with the provisions of Article 14, related to Consultations and Dispute Settlement Procedures. The annex explains the role of the technical expert group and the rights of those parties to the dispute in relation to the activities of the technical expert group.
The Code is open to acceptance by any standardization body within the territory of any Member of the WTO and acceptance (or withdrawal) requires notification to the International Standards Organization/International Electrotechnical Commission (ISO/IEC). The procedures are a summary of those requirements which express the intent and spirit of the Agreement to prevent and ensure that technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to international trade, do not discriminate, and, are harmonized, transparent, and based on performance rather than design or descriptive characteristics.
WTO. 1994. The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Text. Cambridge University Press.
WTO Committee on Sanitary and Phytosanitary Measures. 1999. The Difference between SPS and TBT Measures. G/SPS/GEN/151. Geneva.
