Review of the Status and Objectives of Codex Texts (Agenda Item 7)[9]

50. The Committee noted that the current status of Codex texts in relation to the SPS Agreement had been clarified by the reply given by the SPS Committee to the Commission's request on this matter. The Executive Committee at its 45th Session had noted the following features in the reply:

• the SPS Committee cannot formally interpret the provisions of the SPS Agreement;

• the Agreement does not differentiate between the terms "standards", "guidelines" or "recommendations";

• there is no legal obligation on WTO Members to apply any of these Codex texts;

• how a text would be applied depended on its substantive content rather than on the category of the text;

• Regional standards are not included in the definition of "international standards" used in the Agreement, but may be applied within a given Region.

51. The Executive Committee had agreed that:

• the reply of the SPS Committee should be brought to the attention of all Codex Committees; · the reply by the SPS Committee seemed to conclude the correspondence on this matter;

• the work of Codex should move forward without concern arising from misunderstandings or misinterpretations as to how Codex standards and related texts might be used;

• the guidance given by the 22 ^nd Session of the Commission in relation to the status of Codex advisory texts should continue to be adhered to; and

• the Committee on General Principles should examine the possibility of developing a set of appropriate preambular statements explaining the intent of different types of Codex texts.

52. The Committee focussed its attention on the Conclusions and Recommendations contained in paragraphs 56 to 59 of the working paper. It agreed that there was no need for action to be taken in relation to Codex Standards and related texts that:

• meet either or both of the objectives of the Joint FAO/WHO Food Standards Programme and are intended for application by governments; or

• meet either or both of the objectives and are recommendations to Member governments, but where it is for governments to decide how to apply the recommendations within their national legislative framework; or

• provide additional information for the uniform application and interpretation of other standards and texts.

53. Nevertheless, the Committee recommended that the process of review and revision of standards and related texts by specialist Codex Committees should also attempt to clarify the status of several texts identified in the Secretariat report, in particular those listed in paragraphs 32-36 of the working paper.

54. In view of the reply of the SPS Committee, the Committee was of the opinion that the development of a set of preambular statements explaining the intent of the different types of Codex texts was unnecessary.

55. There was considerable debate on the question raised in paragraph 58 of the document, whether the intergovernmental Codex Alimentarius Commission was an appropriate forum for the establishment of standards for voluntary application by commercial partners and whether the so-called "advisory" material should be removed from the Annexes to existing standards. The Delegation of Malaysia drew attention to the Commission's decision reported in paragraph 171 of the report of its 22nd Session (ALINORM 97/37) and stated that until and unless the decision of the Commission was transmitted to all relevant committees, the matter was not appropriate for discussion. Many Delegations expressed their full support for the retention of the advisory material on the basis that it facilitated fair practices in the food trade and was of specific use to developing countries.

56. Other Delegations expressed concern at how such advisory material might be interpreted by the WTO Committee on Technical Barriers to Trade and questioned how such material was to be applied, since it was noted that the TBT Agreement applied to texts whose provisions were not mandatory. It was suggested that a further category of Codex documents might be established which would not be subject to the provisions of the TBT Agreement. Some Delegations were of the opinion that the advisory material in the Annexes to Codex standards should be transferred to such documents, while other delegations proposed that it should be eliminated or phased out progressively.

57. The Committee requested the Secretariat to prepare, together with the Secretariat of the Committee on Technical Barriers to Trade, an analysis of the status of Codex standards with respect to that agreement, for consideration at its next Session. It also accepted the offer of the Delegation of Australia to prepare a paper on its experiences in applying such advisory material through voluntary industry/government/consumer codes of practice.

58. The Committee therefore decided to take no further action at this time on the recommendation in paragraph 58 of the working document.