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ON THIS PAGE:
> Annex 1.1 — “technical regulation” definition
> Annex 1.2 — Standards
> Article 2.4 — International standards as a basis for technical regulation. See also
Burden of Proof, General (B.3.1); Temporal Application of Rights and Obligations, TBT Agreement (T.5.3)
> Article 2.4 — “except when such international standards or relevant parts would be an ineffective or inappropriate means”
> Article 2.4 — Preparation, adoption and continued application of existing regulations
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T.4.1 Annex 1.1 — “technical regulation” definition
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T.4.1.1 EC — Asbestos, para. 67
(WT/DS135/AB/R)
The heart of the definition of a “technical regulation” is that a
“document” must “lay down” — that is, set forth, stipulate or
provide — “product characteristics”. The word “characteristic”
has a number of synonyms that are helpful in understanding the ordinary
meaning of that word, in this context. Thus, the “characteristics” of
a product include, in our view, any objectively definable “features”,
“qualities”, “attributes”, or other “distinguishing mark” of a
product. Such “characteristics” might relate, inter alia, to a
product’s composition, size, shape, colour, texture, hardness, tensile
strength, flammability, conductivity, density, or viscosity. In the
definition of a “technical regulation” in Annex 1.1, the TBT
Agreement itself gives certain examples of “product characteristics”
— “terminology, symbols, packaging, marking or labelling requirements”.
These examples indicate that “product characteristics” include, not
only features and qualities intrinsic to the product itself, but also
related “characteristics”, such as the means of identification, the
presentation and the appearance of a product. In addition, according to
the definition in Annex 1.1 of the TBT Agreement, a “technical
regulation” may set forth the “applicable administrative provisions”
for products which have certain “characteristics”. Further, we note
that the definition of a “technical regulation” provides that such a
regulation “may also include or deal exclusively with
terminology, symbols, packaging, marking or labelling requirements”
(emphasis added). The use here of the word “exclusively” and the
disjunctive word “or” indicates that a “technical regulation” may
be confined to laying down only one or a few “product characteristics”.
T.4.1.2 EC — Asbestos, para. 68
(WT/DS135/AB/R)
The definition of a “technical regulation” in Annex 1.1 of the TBT
Agreement also states that “compliance” with the “product
characteristics” laid down in the “document” must be “mandatory”.
A “technical regulation” must, in other words, regulate the “characteristics”
of products in a binding or compulsory fashion. It follows that, with
respect to products, a “technical regulation” has the effect of prescribing
or imposing one or more “characteristics” — “features”,
“qualities”, “attributes”, or other “distinguishing mark”.
T.4.1.3 EC — Asbestos, para. 69
(WT/DS135/AB/R)
“Product characteristics” may, in our view, be prescribed or
imposed with respect to products in either a positive or a negative form.
That is, the document may provide, positively, that products must
possess certain “characteristics”, or the document may require,
negatively, that products must not possess certain “characteristics”.
In both cases, the legal result is the same: the document “lays down”
certain binding “characteristics” for products, in one case
affirmatively, and in the other by negative implication.
T.4.1.4 EC — Asbestos, para. 70
(WT/DS135/AB/R)
A “technical regulation” must, of course, be applicable to an identifiable
product, or group of products. Otherwise, enforcement of the
regulation will, in practical terms, be impossible. This consideration
also underlies the formal obligation, in Article 2.9.2 of the TBT
Agreement, for Members to notify other Members, through the WTO
Secretariat, “of the products to be covered” by a proposed “technical
regulation” (emphasis added). Clearly, compliance with this obligation
requires identification of the product coverage of a technical regulation.
However, in contrast to what the Panel suggested, this does not mean that
a “technical regulation” must apply to “given” products
which are actually named, identified or specified in
the regulation (emphasis added). Although the TBT Agreement clearly
applies to “products” generally, nothing in the text of that Agreement
suggests that those products need be named or otherwise expressly identified
in a “technical regulation”. Moreover, there may be perfectly sound
administrative reasons for formulating a “technical regulation” in a
way that does not expressly identify products by name, but simply
makes them identifiable — for instance, through the “characteristic”
that is the subject of regulation.
T.4.1.5 EC — Asbestos, para. 72
(WT/DS135/AB/R)
… It is important to note here that, although formulated negatively
— products containing asbestos are prohibited — the measure, in
this respect, effectively prescribes or imposes certain objective
features, qualities or “characteristics” on all products. That
is, in effect, the measure provides that all products must not contain
asbestos fibres. Although this prohibition against products containing
asbestos applies to a large number of products, and although it is,
indeed, true that the products to which this prohibition applies cannot be
determined from the terms of the measure itself, it seems to us that the
products covered by the measure are identifiable: all products must
be asbestos free; any products containing asbestos are prohibited.…
T.4.1.6 EC — Sardines, paras. 175-176
(WT/DS231/AB/R)
As we explained in EC — Asbestos [at paragraph 59], whether a
measure is a “technical regulation” is a threshold issue because the
outcome of this issue determines whether the TBT Agreement is
applicable. If the measure before us is not a “technical regulation”,
then it does not fall within the scope of the TBT Agreement.…
We interpreted this definition in EC — Asbestos [at paragraphs
66-70]. In doing so, we set out three criteria that a document
must meet to fall within the definition of “technical regulation” in
the TBT Agreement. First, the document must apply to an
identifiable product or group of products. The identifiable product
or group of products need not, however, be expressly identified in
the document. Second, the document must lay down one or more
characteristics of the product. These product characteristics may be
intrinsic, or they may be related to the product. They may be prescribed
or imposed in either a positive or a negative form. Third,
compliance with the product characteristics must be mandatory. …
T.4.1.7 EC — Sardines, para. 180
(WT/DS231/AB/R)
… Thus, a product does not necessarily have to be mentioned explicitly
in a document for that product to be an identifiable product. Identifiable
does not mean expressly identified.
T.4.1.8 EC — Sardines, para. 183
(WT/DS231/AB/R)
… We observe that the EC Regulation does not expressly identify Sardinops
sagax. However, this does not necessarily mean that Sardinops sagax
is not an identifiable product. As we stated in EC — Asbestos [at paragraph 70], a product need not be expressly identified
in the document for it to be identifiable.
T.4.1.9 EC — Sardines, paras. 190-191
(WT/DS231/AB/R)
We do not find it necessary, in this case, to decide whether the
definition of “technical regulation” in the TBT Agreement makes
a distinction between “naming” and labelling. … We are of
the view that this requirement — to be prepared exclusively from fish of
the species Sardina pilchardus — is a product characteristic “intrinsic
to” preserved sardines that is laid down by the EC Regulation.…
In any event, as we said in EC — Asbestos [at paragraph 67], a
“means of identification” is a product characteristic. A name
clearly identifies a product; indeed, the European Communities concedes
that a name is a “means of identification”…
T.4.2 Annex 1.2 — Standards back to top
T.4.2.1 EC — Sardines,
paras. 222-223
(WT/DS231/AB/R)
… In our view, the text of the Explanatory note supports the
conclusion that consensus is not required for standards adopted by the
international standardizing community. The last sentence of the
Explanatory note refers to “documents”. The term “document” is
also used in the singular in the first sentence of the definition of a “standard”.
We believe that “document(s)” must be interpreted as having the same
meaning in both the definition and the Explanatory note. The European
Communities agrees. Interpreted in this way, the term “documents” in
the last sentence of the Explanatory note must refer to standards in
general, and not only to those adopted by entities other than international
bodies, as the European Communities claims.
Moreover, the text of the last sentence of the Explanatory note,
referring to documents not based on consensus, gives no indication
whatsoever that it is departing from the subject of the immediately
preceding sentence, which deals with standards adopted by international
bodies.…
Article 2.2 — “not be more trade-restrictive than necessary to
fulfil a legitimate objective”. See TBT Agreement, Article
2.4 — International standards as a basis for technical regulation (T.4.3)
T.4.3 Article 2.4 — International standards as a basis for technical
regulation. See also Burden of Proof, General (B.3.1); Temporal Application of Rights and Obligations, TBT Agreement
(T.5.3) back to top
T.4.3.1 EC — Sardines, para. 248
(WT/DS231/AB/R)
We see no need here to define in general the nature of the relationship
that must exist for an international standard to serve “as a basis for”
a technical regulation. Here we need only examine this measure to
determine if it fulfils this obligation. In our view, it can certainly be
said — at a minimum — that something cannot be considered a “basis”
for something else if the two are contradictory. Therefore, under
Article 2.4, if the technical regulation and the international standard contradict
each other, it cannot properly be concluded that the international
standard has been used “as a basis for” the technical regulation.
T.4.3.2 EC — Sardines, para. 250
(WT/DS231/AB/R)
In making this determination, we note at the outset that Article 2.4 of
the TBT Agreement provides that “Members shall use [relevant
international standards], or the relevant parts of them, as a basis
for their technical regulations” (emphasis added). In our view, the
phrase “relevant parts of them” defines the appropriate focus
of an analysis to determine whether a relevant international standard has
been used “as a basis for” a technical regulation. In other words, the
examination must be limited to those parts of the relevant international
standards that relate to the subject-matter of the challenged
prescriptions or requirements. In addition, the examination must be broad
enough to address all of those relevant parts; the regulating
Member is not permitted to select only some of the “relevant
parts” of an international standard. If a “part” is “relevant”,
then it must be one of the elements which is “a basis for” the
technical regulation.
T.4.4 Article 2.4 — “except when such international standards or
relevant parts would be an ineffective or inappropriate means”
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T.4.4.1 EC — Sardines, para. 285
(WT/DS231/AB/R)
… we noted earlier the Panel’s view that the term “ineffective or
inappropriate means” refers to two questions — the question of the effectiveness
of the measure and the question of the appropriateness of the
measure — and that these two questions, although closely related, are
different in nature. The Panel pointed out that the term “ineffective”
“refers to something which is not ‘having the function of
accomplishing’, ‘having a result’, or ‘brought to bear’, whereas
[the term] ‘inappropriate’ refers to something which is not ‘specially
suitable’, ‘proper’, or ‘fitting’ ”. The Panel also stated
that:
Thus, in the context of Article 2.4, an ineffective means is a means
which does not have the function of accomplishing the legitimate objective
pursued, whereas an inappropriate means is a means which is not specially
suitable for the fulfilment of the legitimate objective pursued. … The
question of effectiveness bears upon the results of the means employed,
whereas the question of appropriateness relates more to the nature of the
means employed. (original emphasis)
We agree with the Panel’s interpretation.
T.4.4.2 EC — Sardines, para. 286
(WT/DS231/AB/R)
As to the second question, we are of the view that the Panel was also
correct in concluding that “the ‘legitimate objectives’ referred to
in Article 2.4 must be interpreted in the context of Article 2.2”, which
refers also to “legitimate objectives”, and includes a description of
what the nature of some such objectives can be. Two implications flow from
the Panel’s interpretation. First, the term “legitimate objectives”
in Article 2.4, as the Panel concluded, must cover the objectives
explicitly mentioned in Article 2.2, namely: “national security
requirements; the prevention of deceptive practices; protection of human
health or safety, animal or plant life or health, or the environment”.
Second, given the use of the term “inter alia” in Article 2.2,
the objectives covered by the term “legitimate objectives” in Article
2.4 extend beyond the list of the objectives specifically mentioned in
Article 2.2. Furthermore, we share the view of the Panel that the second
part of Article 2.4 implies that there must be an examination and a
determination on the legitimacy of the objectives of the measure.
T.4.5 Article 2.4 — Preparation, adoption and continued application
of existing regulations back to top
T.4.5.1 EC — Sardines, para. 205
(WT/DS231/AB/R)
… We fail to see how the terms “where technical regulations are
required”, “exist”, “imminent”, “use”, and “as a basis for”
give any indication that Article 2.4 applies only to the two stages of preparation
and adoption of technical regulations. To the contrary, as the
Panel noted, the use of the present tense suggests a continuing obligation
for existing measures, and not one limited to regulations prepared and
adopted after the TBT Agreement entered into force.…
T.4.5.2 EC — Sardines, para. 208
(WT/DS231/AB/R)
Furthermore, like Articles 5.1 and 5.5 of the SPS Agreement,
Article 2.4 is a “central provision” of the TBT Agreement, and
it cannot just be assumed that such a central provision does not apply to
existing measures. Again, following our reasoning in EC — Hormones,
we must conclude that, if the negotiators had wanted to exempt the very
large group of existing technical regulations from the disciplines of a
provision as important as Article 2.4 of the TBT Agreement, they
would have said so explicitly. No such explicit exemption is found in the
terms “where technical regulations are required”, “exist”, “imminent”,
“use”, or “as a basis for”.
T.4.5.3 EC — Sardines, para. 215
(WT/DS231/AB/R)
… In our view, excluding existing technical regulations from the
obligations set out in Article 2.4 would undermine the important role of
international standards in furthering these objectives of the TBT
Agreement. Indeed, it would go precisely in the opposite direction.
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