Status of Codex Texts Within the Framework of the TBT Agreemen
Discussion Paper on the Application of Codex Advisory Texts
58. The Committee recalled that at its last meeting it had discussed the matter of so-called “advisory” Codex texts, especially the question of whether it was appropriate for the Commission to establish provisions intended for voluntary application by commercial partners and, as a consequence, whether the Annexes of certain standards containing such provisions should be withdrawn. Noting that such provisions could fall within the scope of the WTO TBT Agreement, 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.[16] The paper presented to the Committee had been prepared in consultation with the Secretariat of the TBT Committee and with the Legal Counsels of FAO and WHO.
59. Many Delegations expressed the opinion that the material contained in the “advisory” annexes of Codex standards was of use in international trade as technical guidance for trading partners and should therefore be retained. Moreover, it was noted that technical Codex Committees had devoted considerable time and effort in developing this guidance and that it would be difficult and time-consuming to review, again, all of the standards that contained such annexes. The Committee therefore could not arrive at a conclusion in relation to the proposals contained in the document concerning the “voluntary Annexes”.
60. Several Delegations pointed out that Codex texts should continue to be developed in a manner that met the needs of Codex Members and that the elaboration of standards should not be impeded by way in which WTO Members might refer to them. The Delegation of Malaysia stated that it was important that WTO Members should be aware of the intention of the Commission in relation to the elaboration and adoption of standards and “advisory” texts in view of the possibility, in the opinion of Malaysia, that non-compliance with Codex “advisory” texts could be challenged under the WTO dispute settlement procedures. However, it was noted that the Committee at its last Session had agreed that the development of a set of preambular statements explaining the intent of the different types of Codex texts was unnecessary.[17]
61. As regards the status of Codex texts under the TBT Agreement, the Committee agreed that all Codex texts, including standards and their annexes, were covered by the TBT definition of “standard”, and that distinctions based on Acceptance (under the Codex Procedures) were not relevant in the framework of WTO.
62. The Delegation of Australia presented a paper describing the use of advisory texts within the Australia’s domestic food regulatory framework. This paper had been prepared to illustrate how such texts could be used, and arose from the debate on this matter at the Committee’s 13th Session.[19] The Delegation noted that advisory texts were developed within a clear and consistent policy framework and included:
Guidelines that indicated how objectives might be achieved but which could be applied flexibly to suit individual situations; and
Ancillary documents that provided general background and information on standards and their intent.
63. The Committee expressed its appreciation for the Australian paper and the information provided in it.
