Q5 TBT SBS and GATT Flashcards
What is the interaction between TBT agreement, SPS agreement and the GATT?
- The WTO agreement (Marrakesh Agreement establishing WTO) is one treaty (one single undertaking). The Annex 1 A contains the multilateral agreements on trade in goods, including: The GATT 1994, Agreement on Technical Barriers to Trade (TBT Agreement), Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).
- They are applied simultaneously and cumulatively. In case of conflict between GATT and other specific agreement, the specific agreement prevails. If two specific agreement conflicts members has to make efforts to conform to both.
- According to article 2.4 and 3.2 of SPS Agreement, a sanitary or phytosanitary measure conformed to SPS agreement, would be in consistent with article 20.b of GATT, but in TBT Agreement, there is no such provision (presumption clause)
- In relation to Process and production methods (PPMs), that relate with products that looks alike and are substitutable for market purposes but are produced with diff methods (e.g. child labor, environmental violations…) under GATT, government can make distinctions based on Art. 20 and under SPS and TBT under the definitions of technical regulations in the annexes.
- With regards to the MFN and NT, in SPS there is no mention to “like products”. In art. 2.1 TBT, is included NT and MFN. Likeliness test is the same than art. 3.4 of GATT.
- Articles 2.2 and 5.6 of SPS and 2.2 TBT are seen as expression of necessity test of Art. 20 b, while articles 2.3 SPS and 2.4 TBT are likened to the chapeau of art. 20.
What is GATT 1994?
It consists in:
- The provisions of the GATT 1947, as amended or modified up to 1 January 1995 (date of entry into force of the Agreement Establishing the WTO).
- protocols and certifications relating to tariff concessions.
- the protocols of accession (to the GATT up to 31 December 1994);
- the Decisions on Waivers still in force on 1 January 1995;
- understandings on the interpretation of various GATT provisions; and,
- other decisions of the Contracting Parties to GATT 1947.
What is SPS?
The Agreement on Sanitary and Phytosanitary Measures (SPS) is a separate agreement covering the basic rules on food safety, as well as animal and plant health. The SPS Agreement explicitly recognizes the right of governments to take measures to protect human, animal and plant life or health, as long as these are based on science, are necessary for the protection of health, and do not unjustifiably discriminate among foreign sources of supply.
What is TBT?
The TBT Agreement applies to technical regulations, standards and conformity assessment procedures:
- Technical Regulations: measures which lay down product characteristics or their related processes and production methods, with which compliance is mandatory.
- 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 (i.e. not mandatory).
- conformity Assessment Procedures: procedures used, directly or indirectly, to determine the fulfilment of relevant requirements contained in technical regulations or standards.
What happens in case of conflict between a provision of the GATT 1994 and SPS or TBT?
A General interpretative note to Annex 1A clarifies that in the event of conflict between a provision of the GATT 1994 and a provision of another Agreement in Annex 1A, the provision of that other Agreement (i.e. not the GATT 1994) shall prevail to the extent of the conflict.
As an example, in EC-Asbestos, the Panel held that technical regulations which simultaneously fall under the TBT Agreement and the GATT should be first reviewed under the TBT Agreement (EC-Asbestos, Panel report, para. 8.16)
Which are the conditions to adopt SPS measures ?
- they are applied only to the extent necessary to protect human, animal or plant life or health (Article 2.2). An SPS measure is required to be applied only to the extent necessary to protect human, animal or plant life or health. Not more trade restrictive than required.
- they are based on scientific principles and not maintained without sufficient scientific evidence, except emergency or provisional measures (Article 2.2 – further elaborated in Article 3.3)- where a measure conforms to an internationally developed standard is presumed to be based on sufficient scientific evidence. If the measure is not based on international standards, member need to provide not only evidence but also risk assessment.
- Do not unjustifiably or arbitrarily discriminate between Members where identical or similar conditions prevail, including their own territory and that of other Members; and are not applied in a manner which would constitute a disguised restriction on international trade (Article 2.3).
Leading cases in SPS
Australia – Salmon – Necessity test SPS
Article 5.6 SPS contains a three pronged test for determining whether a measure is more trade restrictive than required. This is the case if there is another SPS measure which: (i) is reasonably available taking into account technical and economic feasibility; (ii) achieves the Member’s appropriate level of SPS protection; and, (iii) is significantly less restrictive to trade than the SPS measure contested.
Brazil-Retreaded Tyres- Necessity test SPS
The determination of whether a measure is ‘“necessary” involves in every case a process of weighing and balancing a series of factors which prominently include: (i) the contribution made by the measure to the achievement of its objective; (ii) the importance of the interests or values at stake; and, (iii) the trade-restrictiveness of the measure.
EC – Hormones- Sufficient scientific evidence.
The requirement on scientific evidence (combined with the requirements of a risk assessment under Article 5.1) is essential for the maintenance of the delicate and carefully negotiated balance in the SPS Agreement between the shared interests of promoting international trade and of protecting life and health of humans, animals and plants.
Japan - Agricultural Products II – Sufficient scientific evidence- Measure applied without it.
To invoke provisional SPS measures in cases where the scientific evidence available is insufficient, four conditions must be cumulatively met (i) an Article 5.7 SPS measure must be imposed in respect of a situation where relevant scientific information is insufficient; (ii) the provisional measure must be adopted on the basis of available pertinent information; (iii) the Member adopting the measure must seek to obtain the additional information necessary for a more objective assessment of risk; and, (iv) the Member must review the SPS measure accordingly within a reasonable period of time.
Leading case TBT
EC – Sardines -conditions to be considered technical regulations:
- The document must apply to an identifiable product or group of products.
- The document must lay down one or more characteristics of the product-
- Compliance with the product characteristics must be mandatory’
Is there a special treatment for developing countries in TBT and SBS?
Both Agreements require Members to take into account the special needs of developing country Members in the preparation and application of SPS measures and TBT measures. Such measures shall not create unnecessary obstacles to exports from developing countries (Article 10.1 of the SPS Agreement and Article 12.3 of the TBT Agreement).
The SPS Agreement allows longer time-frames for compliance in cases of phased introduction of a new SPS measures by developing country Members (Article 10.2).
TBT Agreement
- Recognizes that developing Members shall not be expected to use international standards as a basis for their technical regulations or standards, when these are not appropriate to their development, financial and trade needs (Article 12.4).
- Allows developing country Members to adopt TBT measures aimed at preserving indigenous technologies and production methods and processes compatible with their development needs (Article 12.4).
- Members shall take reasonable measures as may be available to them to ensure that standardizing bodies, upon request of developing countries, examine the possibility of, and if practicable, prepare international standards for products of special interest to developing countries (Article 12.6).
Can the TBT agreement and the SPS apply simultaneously to a single measure?
If it’s a TBT measure, we don’t use SPS, if it’s an SPS measure, we don’t apply TBT. They are mutually exclusive.
Article 1.5 of TBT states that the provisions of this Agreement do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures. These are:
- Measures to protect animal or plant life or health from entry, spread or establishment of pests
- Measures to protect human or animal health from contaminants, toxins, additives, or disease-causing organisms in food, beverages and feedstuffs
- Protect human or animal health from zoonoses
- Other measures
What is the presumption clause?
In SPS 2.4: Sanitary or phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b).
SPS 3.2: Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994.
However, there is NO specific reference of such presumption clause in TBT. TBT 2.5: Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade. However, in the practice there is no big difference with the SPS Agreement. That means, When MS complies with TBT, it complies with GATT.
Are there any major differences as to the flexibilities provided in the GATT and those in the TBT Agreement?
The way to make PPM distinctions:
- under GATT, government can make PPM distinctions based on Art. 20
- under SPS/TBT, government can make PPM distinctions under the definitions for SPS/technical regulation in the annexes
National treatment and MFN
- The likeliness test and less favourable treatment test in article 2.1 of TBT are the same to those under GATT article III.4.
- With only one exception: there is no exceptions in TBT like article XX in GATT. Therefore, before drawing a final conclusion of a specific measure, we have to add a third element test—- does any detrimental impact stem from a legitimate regulatory distinction. If so, then no violation
Burden of proof:
The responding country has the burden of proof under article 20 because is a defense, but 5.6 of SPS and 2.2 if TBT agreement are obligations and the burden of proof is on the complaint. So, under art. 20 , normally the complaint brings a claim, the respondent mentions 20, and then the complaint brings alternative measures. In SPS case, from the beginning, the complaint needs to present alternative measures in order to demonstrate the respondent violates 5.6, it’s not the panel to decide the alternative measures, the complaint must specify that this is an alternative measure which will achieve the level of protection pursued
