Detailed Presentation of Transparency Requirements and Procedures for TBT in the WTO

Transcription

1 WTO E-LEARNING COPYRIGHT 12 Detailed Presentation of Transparency Requirements and Procedures for TBT in the WTO OBJECTIVES Present another core principle in the TBT Agreement: Transparency; Explain the Transparency Requirements and Procedures put forth in the TBT Agreement and in TBT Committee's relevant decisions and recommendations. M y C o u r s e s e r i e s

2 I. INTRODUCTION Harmonization may be commonly described as the establishment, recognition and application of common measures by different countries, where previously each might have had its own set of requirements. International standards are those adopted by international standardizing bodies. An international body is a body or system whose membership is open to the relevant bodies of at least all WTO Members. TBT Agreement does not offer specific reference to any particular international standardizing body. Therefore, the term is open and should be interpreted on a case by case basis. The TBT Committee has adopted some principles which should provide guidance in the elaboration, adoption and application of international standards by standardizing bodies: Transparency, Openness, Impartiality and Consensus, Effectiveness and Relevance, Coherence, Awareness of the Development Dimension. Harmonization is a central discipline of the TBT Agreement and is articulated into obligations and rights for WTO Members (and standardizing bodies, as the case may be). The three main requirements: WTO Members and standardizing bodies shall use international standards or relevant parts of them - as a basis for their technical regulations and standards; and international guides and recommendations as a basis for their conformity assessment procedures (Articles 2.4, 5.4, and Annex 3 paragraph F of the TBT Agreement). WTO Members and standardizing bodies shall participate, within the limits of their resources, in the preparation of international standards, guides and recommendations by international standardizing bodies (Articles 2.6, 5.5, Annex 3 paragraph H of the TBT Agreement). Standardizing bodies shall make every effort to avoid duplication of, or overlap with, the work of other standardizing bodies, including international or regional standardizing bodies (Annex 3 paragraph H of the TBT Agreement). The two main rights are that: WTO Members' technical regulations which are prepared, adopted or applied for one of the legitimate objectives stated in the TBT Agreement and which are in accordance with relevant international standards will be rebuttably presumed not to be creating an unnecessary obstacle to trade (Article 2.5 of the TBT Agreement). WTO Members and standardizing bodies may adopt technical regulations and standards which are not based on relevant international standards, when these are seen as ineffective or inappropriate to fulfil a legitimate objective. WTO Members have the same right regarding conformity assessment procedures, if the relevant international guides or recommendations are considered inappropriate for the WTO Member concerned. (Articles 2.4, 5.4, Annex 3 paragraph F of the TBT Agreement). When a WTO Member/standardizing body decides to create a new TBT measure - or revise one which is already in place - it should start its task by verifying if a relevant international standard exists for the product and/or measure in question. If it exists, the WTO Member/standardizing body shall use the relevant international standard as a basis for its measure, unless the international standard is ineffective (not in the case of conformity assessment procedures) and/or inappropriate to fulfil a WTO Member's legitimate interest. 2

3 If a WTO Member designs its technical regulation in conformity with an international standard, it shall be presumed not to create an unnecessary obstacle to trade. This presumption is a rebuttable one. Equivalence refers to the situation whereby a WTO Member accepts a technical regulation from another WTO Member as equivalent, even if it differs from its own, provided that it adequately fulfils the objective of its own regulation. It does not require measures to be identical. Now it is time to turn to the general obligations of transparency WTO Members have in the TBT Agreement. These obligations include to: notify to the WTO Secretariat the draft of new technical regulations or conformity assessment procedures when they may have significant effects on international trade and are not in accordance with international standards; notify to the WTO Secretariat agreements between WTO Members, namely those related to technical regulations, standards or the acceptance of conformity assessment results; publish all adopted technical regulations, conformity assessment procedures and agreements; provide copies of documents; and set up and operate a TBT Enquiry Point within its territory, where other WTO Members can obtain information about national TBT measures. Standardizing bodies also have some obligations related to transparency: they shall notify to the ISO/IEC Information Centre of their acceptance or withdrawal from the Code of Good Practice and the existence of a work programme. They shall also publish their standards. We will start our study by analysing the transparency obligations in the TBT Agreement, and the work developed by the TBT Committee on the implementation of these provisions. Then we shall examine all aspects of TBT notifications. In the following section, publications requirements will be presented. The final part of this Module will focus on the establishment of Enquiry Points, their functions and the role they have in facilitating information exchange and avoiding unnecessary obstacles to international trade. 3

4 II. TRANSPARENCY IN THE TBT AGREEMENT The word transparency in the context of the WTO is used to signify one of the fundamental principles of its agreements: the aim to achieve a greater degree of clarity, predictability and information exchange about trade policies, rules and regulations of WTO Members. WTO Members use notifications as the main instrument to implement transparency. Transparency features in many WTO agreements: such as the GATT (Article X), GATS (Article III), TRIPS (Article 63), the SPS Agreement (Articles 5.8, 7 and Annex B), and the TBT Agreement (Articles 2, 3, 5, 7 to 10 and Annex 3). IN BRIEF Transparency is an important tool to ensure that trade flows as smoothly, predictably and freely as possible. The TBT Agreement contains detailed transparency obligations: Articles 2 and 3 (technical regulations); Articles 5, 7, 8 and 9 (conformity assessment procedures); Annex 3, paragraphs J, L, M, N, O and P (standards); and Articles 10 (general transparency provision) and 15 (final provisions). Under the TBT Agreement, each WTO Member is required to: submit a statement on implementation and administration of the TBT Agreement; notify draft and adopted technical regulations and conformity assessment procedures; publish all technical regulations, conformity assessment procedures and agreements; and establish an Enquiry Point responsible for dealing with queries from other WTO Members about TBT related issues. Standardizing Bodies are required to notify adherence and withdrawal from the TBT Agreement's Code of Good Practice, the existence of a work programme, and to publish their work programme and standards, directly. Figure 1: Transparency provisions in the TBT Agreement 4

5 TIP To help WTO Members implement their transparency obligations, the WTO Secretariat elaborated a document that summarizes WTO Members' obligations in this field: "Transparency Requirements and Procedures", G/TBT/W/250. There you will find detailed descriptions of how to fulfil the TBT Agreement's transparency obligations. The document G/TBT/1/Rev.8 (Decisions and Recommendations adopted by the Committee, in force since 1 January 1995) contains the notification formats that shall be used by WTO Members while submitting notifications to the WTO Secretariat. Furthermore, it was agreed in 1995, that the TBT Committee would hold, on a biennial basis, "regular meetings of persons responsible for information exchange, including persons responsible for Enquiry Points and notifications" (See G/TBT/1/Rev.8). Such meetings are organized in order to provide WTO Members with an opportunity to discuss issues relating to information exchange and to review periodically the functioning of notification procedures and the operation of Enquiry Points. IF YOU WANT TO KNOW MORE... TBT COMMITTEE'S SPECIAL MEETINGS ON PROCEDURES FOR INFORMATION EXCHANGE Since 1995, four Special Meetings of persons responsible for information exchange have been held. The first (in 1995) hosted discussions on the difference in coverage of the TBT and SPS Agreements and technical assistance needs for the establishment of national Enquiry Points in developing countries and their effective operation (G/TBT/W/16). At the Second Special Meeting (in 1998), the Committee addressed the specific difficulties faced by WTO Members with respect to notification procedures (G/TBT/M/13, Annex 2). The Third Special Meeting (in 2001) dealt, inter alia, with the use of electronic tools, both in terms of facilities available in national Enquiry Points and the electronic transmission of information among WTO Members (G/TBT/M/24, Annex 1). The Fourth Special Meeting on Procedures for Information Exchange (in 2004) (G/TBT/M/34, Annex 2, see also the slideshows) highlighted the importance of three key crosscutting aspects of transparency: (i) the importance of internal coordination; (ii) the increased and better use of electronic tools; and (iii) the dissemination of information. The WTO TBT Committee's Fifth Special Meeting on Procedures for Information Exchange was held on the 7th, 8th and 9th of November

6 II.A. STATEMENT ON THE IMPLEMENTATION AND ADMINISTRATION OF THE TBT AGREEMENT WTO Members have an overarching transparency obligation to submit a statement on the measures in existence or adopted to ensure the implementation and administration of the TBT Agreement, including the provisions on transparency. This is a one-time notification obligation. However, if the information contained in the WTO Member's statement changes, the WTO Member must provide a revision to the statement indicating the changes. IN DETAIL Article 15.2 of the TBT Agreement reads: Each WTO Member shall, promptly after the date on which the WTO Agreement enters into force for it, inform the Committee of measures in existence or taken to ensure the implementation and administration of this Agreement. Any changes of such measures thereafter shall also be notified to the Committee. Such statements give a brief overview of how individual WTO Members implement the TBT Agreement, and enable WTO Members to take stock of their existing legislation and institutional structure for the implementation and administration of the Agreement. The TBT Committee decided in 1995 that the statements under Article 15.2 of the TBT Agreement should include (G/TBT/1/Rev.8): information on the legislative, regulatory and administrative laws and regulations currently in existence, and action taken as a result of the negotiation of the Agreement. On that which concerns transparency obligations, WTO Members are also required to include the following detailed information in their statement: the names of the publications used to announce that work is proceeding on draft technical regulations or standards and conformity assessment (CA) procedures and those used for the publication of their texts; the expected length of time allowed for presentation of comments in writing on technical regulations, standards or CA procedures; the Enquiry Point's name and address and indication of whether it is fully operational; if more than one Enquiry Point is established, clear information on the scope of responsibilities of each of them; the name and address of any other agencies that have specific functions under the Agreement; and measures and arrangements to ensure that national and sub-national authorities preparing new technical regulations or CA procedures, or substantial amendments to existing ones, provide early information on their proposals. 6

7 TIP Has your country submitted the statement under Article 15.2 of the TBT Agreement? All statements on implementation and administration of the Agreement are contained in the G/TBT/2/Add.X documents series. A complete list of WTO Members having submitted a statement on the implementation and administration of the Agreement under Article 15.2 of the TBT Agreement since 1995 is contained in document G/TBT/GEN/1/Rev.6. If your country has not yet submitted the statement under Article 15.2 of the TBT Agreement, please contact the TBT experts at the WTO Secretariat who will be able to provide advice on the matter. EXERCISES: 1. What are the WTO Members' obligations under Article 15.2 of the TBT Agreement (Statement on the Implementation and Administration of the TBT Agreement), on that which concerns transparency obligations? 7

8 III. NOTIFICATION OBLIGATIONS The obligation to notify is central to the transparency disciplines of the TBT Agreement. The TBT Agreement contains three sets of notification obligations: (i) regarding technical regulations and conformity assessment procedures: WTO Members are obliged to notify draft technical regulations and conformity assessment procedures, and those already adopted for urgent reasons (Articles 2.9 and 2.10; Articles 5.6 and 5.7 of the TBT Agreement); (ii) regarding agreements (plurilateral or bilateral): WTO Members are obliged to notify the agreements entered into on issues and measures within the scope of the TBT Agreement (Article 10.7 of the TBT Agreement); (iii) regarding Standardizing Bodies: Standardizing Bodies are obliged to notify the adherence to, or withdrawal from, the Code of Good Practice, and the existence of a work programme (Annex 3, paragraph C and J of the TBT Agreement). While (i) and (ii) are obligations undertaken by WTO Members (their central governments), (iii) falls under the responsibility of the Standardizing Body itself. We should keep in mind that, pursuant to Articles 3.2 (technical regulations) and 7.2 (conformity assessment procedures) of the TBT Agreement, WTO Members are required to fulfil the notification obligations contained in the TBT Agreement's Articles 2 and 5, for measures of local governments, at the level directly below that of WTO Members' central governments. However, notification is not required when a technical regulation or a conformity assessment procedure is "substantially the same" as a measure already notified by the central government authority. III.A. NOTIFICATION AUTHORITY Pursuant to Articles and of the TBT Agreement, WTO Members shall designate a single central government authority responsible for the implementation at national level of provisions concerning notification procedures, except those included in Annex 3. Often, this authority resides with the Ministry of Trade. The notification authority must be part of the central government, so this function cannot be carried out at the sub-national level (by a state, provincial or regional agency). If responsibility is divided between two or more authorities, complete and unambiguous information on the scope of responsibility of each authority shall be provided by the WTO Member. 8

9 III.B. NOTIFICATION OBLIGATIONS REGARDING TECHNICAL REGULATIONS AND CA PROCEDURES Notifications can make an important contribution towards avoiding unnecessary obstacles to trade and providing WTO Members with the opportunity to influence final requirements of other WTO Members. Articles 2 and 5 of the TBT Agreement contain the notification obligations related to, respectively, technical regulations and conformity assessment procedures. Detailed procedures for notification have been adopted by the TBT Committee in its Second Triennial Review (Annex 3 of G/TBT/9). Figure 2: Why to notify? You find above an example of typical questions that a WTO Member might raise while exporting to another WTO Member: how to find out about the measures adopted by the importing country? How to comment on such measures? When to comment? Where to obtain more information about the measure that is being implemented? We are going to discuss these and other issues below. Any WTO Member proposing to introduce a new technical regulation or conformity assessment procedure, or to modify one, is generally required to: submit a notification through the WTO Secretariat; allow reasonable time for other WTO Members to make comments in writing; discuss these comments upon request; take the comments and the results of the discussions into account; explain to the submitting WTO Member how it plans to take the comments into account; where appropriate, provide additional relevant information on the proposed technical regulation or conformity assessment procedure; provide the submitting WTO Member with a copy of the text of the corresponding technical regulation or conformity assessment procedure as adopted, or information that no corresponding measure will be put into force for the time being. The TBT notification system facilitates trade by allowing some lead time before new measures must be complied with (a "no surprise" approach). 9

10 IF YOU WANT TO KNOW MORE... STATISTICS ON NOTIFICATIONS In the period , 6869 notifications of technical regulations and conformity assessment procedures have been submitted. The TBT Committee receives, on average, 700 notifications a year. Since 1995, 84 WTO Members have notified at least one TBT measure. Nearly all developed and almost two-thirds of the developing country WTO Members have submitted notifications. Conversely, only a few LDCs have done so. You can check these numbers in Document G/TBT/21/Rev1. III.C. WHAT TO NOTIFY? The TBT Agreement requires WTO Members to notify other WTO Members, through the WTO Secretariat, of proposed new technical regulations and conformity assessment procedures or modifications to existing ones, when the following two circumstances apply: first, a relevant international standard does not exist OR; the technical content of a proposed measure is not in accordance with the technical content of the international standard; AND second, the proposed measure may have a significant effect on the trade of other WTO Members. For the sake of improved transparency, some WTO Members also notify regulations which conform to international standards, a practice which is welcome. IN DETAIL These two circumstances are stated for draft technical regulations in the introductory part of Article 2.9 of the TBT Agreement, which reads: Whenever a relevant international standard does not exist or the technical content of a proposed technical regulation is not in accordance with the technical content of relevant international standards, and if the technical regulation may have a significant effect on trade of other WTO Members, WTO Members shall:... 10

11 For draft conformity assessment procedures, the introductory part of Article 5.6 of the TBT Agreement reads: Whenever a relevant guide or recommendation issued by an international standardizing body does not exist or the technical content of a proposed conformity assessment procedure is not in accordance with relevant guides and recommendations issued by international standardizing bodies, and if the conformity assessment procedure may have a significant effect on trade of other WTO Members, WTO Members shall:... Figure 3: The Two Components of the Obligation to Notify Criteria for the definition of "significant effect on trade of other WTO Members" have been discussed by the TBT Committee and refer to the effect on trade: of one technical regulation or conformity assessment procedure only, or of various technical regulations or procedures for assessment of conformity, in combination; in a specific product, group of products or products in general; and between two or more WTO Members (which means that strictly bilateral TBT regulations must still be notified if they meet the other criteria). The TBT Committee recommended that when assessing the significance of the effect on trade of technical regulations, the WTO Member concerned should take into consideration such elements as (G/TBT/1/Rev.8): the value or other importance of imports in respect of the importing and/or exporting WTO Members concerned, whether from other WTO Members individually or collectively; the potential growth of such imports; and the difficulties for producers in other WTO Members to comply with the proposed technical regulations. The TBT Committee further clarified that the concept of a significant effect on trade of other WTO Members should include both import-enhancing and import-reducing effects, as long as such effects are significant. This means that TBT measures that facilitate trade must also be notified. TIP If you are not certain whether a proposed technical regulation or conformity assessment procedure will affect international trade, it is recommended that you notify the measure, for the sake of increased transparency. 11

12 RECALL As we mentioned above, WTO Members are required to fulfil the TBT Agreement's notification obligations for technical regulations and conformity assessment procedures adopted by local governments on the level directly below that of WTO Members' central governments. However, a notification is not required when a technical regulation or a conformity assessment procedure is "substantially the same" as a measure already notified by the central government body. Note When a technical regulation contains both SPS and TBT elements, it should be notified both under the SPS and the TBT Agreements, following the procedures contained in the respective Agreements, preferably with an indication of which parts of the regulation fall under the SPS Agreement (e.g., a food safety measure) and which parts fall under the TBT Agreement (e.g., quality or compositional requirements). ILLUSTRATION Vanin, a WTO Member, is adopting a new technical regulation on multipurpose lighters' safety, through its Ministry of Industry (Bureau of Safety). It currently imports most of the lighters consumed in its domestic market, mainly from Tristat and Rauritania, also WTO Members. The draft technical regulation provides that: "Non-adjustable fluid lighters shall not be capable of producing a flame height greater than 100mm when tested", among other things. ISO 9994:2005 is an international standard which establishes requirements for lighters to ensure a reasonable degree of safety for normal use or reasonably foreseeable misuse of such lighters by users. It states in Article that "Non-adjustable fluid lighters shall not be capable of producing a flame height greater than 120mm when tested in accordance with 5.2". Vanin recognized that such international standard exists, but choose to adopt a more stringent pattern for the flame of non-adjustable fluid lighters, which is the product preferred by national consumers. Tristat and Rauritania currently produce lighters in accordance with international standards, and are of the opinion that such regulation creates an effect on their trade. 12

13 In such circumstance, Vanin has the obligation to notify the draft technical regulation to the TBT Committee: first, because the measure is not in accordance with an international standard; and second, because it is likely to create a significant effect on trade. Figure 4: Recapitulation EXERCISES: 2. What are the circumstances in which WTO Members shall notify the TBT Committee of draft technical regulations and conformity assessment procedures? 13

14 III.D. WHEN TO NOTIFY? WTO Members have several obligations under the transparency provisions of the TBT Agreement. First, WTO Members shall publish a notice at an early stage so as to enable other interested WTO Members to become acquainted with the proposal to introduce a particular technical regulation or conformity assessment procedure. Once a draft measure exists, WTO Members should make a notification to other WTO Members, through the WTO Secretariat. In the previous section, we went through the cases that require WTO Members to notify a measure. Aside from emergencies, Articles and of the TBT Agreement provide that notifications of draft technical regulations and conformity assessment procedures shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account. The TBT Committee recommended in 1995 notifying once a draft with the complete text of a proposed technical regulation or conformity assessment procedure is available. For urgent measures, notification must be immediately upon adoption (Articles 2.10 and 5.7 of the TBT Agreement). The notification procedures require that draft measures be notified well before their entry into force. The TBT Committee adopted procedures which recommend allowing a comment period of at least 60 days before a draft regulation is adopted. This is the period during which WTO Members may make comments on the draft regulation. WTO Members are also encouraged to provide 30 days extension to the comment period whenever possible. Important note For proposed TBT technical regulations and conformity assessment procedures that unambiguously facilitate trade, WTO Members may reduce or eliminate the period for the receipt of comments. But to enhance transparency, notifications should be as early as possible. EARLY APPROPRIATE STAGE: (I) Complete draft text is available (II) When amendments can still be introduced and comments taken into account (III) Immediately upon adoption, when adopted for urgent reasons See the timetable for the different transparency obligations related to technical regulations and conformity assessment procedures below. 14

15 Figure 5: Timing of the Different Transparency Obligations Related to Technical Regulations and Conformity Assessment Procedures URGENT MEASURES WTO Members may notify a draft technical regulation or conformity assessment procedure upon adoption in the case of "urgent problems of safety, health, environmental protection or national security that have arisen or threaten to arise". The provisions on urgent problems, Articles and of the TBT Agreement read: [The Member, upon adoption... shall] notify immediately other Members through the Secretariat of the particular technical regulation/procedure and the products covered, with a brief indication of the objective and the rationale of the technical regulation/procedure, including the nature of the urgent problems. Technical regulations or conformity assessment procedures adopted for urgent problems may be notified either before or immediately after they are adopted, with a mention of the nature of the urgent problem. Notification requirements for urgent measures differ from the regular procedure in two important ways: first, the notification is made upon adoption of the measure; second, the notification form shall mention the nature of the urgent problem. Figure 6: What to notify? 15

16 III.E. HOW TO NOTIFY?(NOTIFICATION FORMATS) Notifications must contain information on the products covered, together with a brief indication of the objective and rationale of the proposed technical regulation or conformity assessment procedure. Remember that when a notification refers to an urgent measure, the notification form shall mention the nature of the urgent problem. Articles and of the TBT Agreement read: [Members shall] notify other Members through the Secretariat of the products to be covered by the proposed technical regulation/conformity assessment procedure, together with a brief indication of its objective and rationale. 16

17 The TBT Committee elaborated on and expanded these requirements and adopted the format below for the notification of draft technical regulations or conformity assessment procedures (G/TBT/1/Rev.8). Notifications must use the following format: Notification of Technical Regulations and Conformity Assessment Procedures WORLD TRADE ORGANIZATION Committee on Technical Barriers to Trade G/TBT/N/- ( ) Original: English NOTIFICATION The following notification is being circulated in accordance with Article Member to Agreement notifying: If applicable, name of local government involved (Articles 3.2 and 7.2): 2. Agency responsible: Name and address (including telephone and fax numbers, and web-site addresses, if available) of agency or authority designated to handle comments regarding the notification shall be indicated if different from above: 3. Notified under Article [ ], [ ], [ ], [ ],other: 4. Products covered (HS or CCCN where applicable, otherwise national tariff heading. ICS numbers may be provided in addition, where applicable): 5. Title, number of pages and language(s) of the notified document: 6. Description of content: 7. Objective and rationale, including the nature of urgent problems where applicable: 8. Relevant documents: 9. Proposed date of adoption: Proposed date of entry into force: 10. Final date for comments: 11. Texts available from: National Enquiry Point [ ], or address, telephone and fax numbers, and web-site addresses, if available of the other body: 17

18 As you can see, there are 11 sections in the notification form: Section 1 indicates the WTO Member, including the competent authorities of the European Union, notifying. In addition, when a local government is involved, it has to be mentioned in this section. Section 2 designates the agency responsible for elaborating a proposal or promulgating the technical regulation or the conformity assessment procedure. If the authority or agency designated to handle comments regarding the specific notification is different, it must be indicated. Section 3 contains the reference to the provision of the TBT Agreement under which the measure is notified. Since 1995, the majority of measures notified related to draft technical regulations proposed by central governmental bodies, under Article of the TBT Agreement. The format of a notification offers five possibilities: Article 2.9.2: Proposed technical regulation by a central government body; Article : Technical regulation adopted for urgent problems by a central government body; Article 5.6.2: Proposed conformity assessment procedure by a central government body; Article 5.7.1: Conformity assessment procedure adopted for urgent problems by a central government body; Other: In the TBT Agreement, there are four other provisions under which measures can be notified and which concern measures adopted by bodies other than the central government: Article 3.2: Proposed technical regulation or adopted for urgent problems by a local government; Article 7.2: Proposed conformity assessment procedure or adopted for urgent problems by a local government; Article 8.1: Adopted conformity assessment procedure by a non-governmental body; Article 9.2: Adopted conformity assessment procedure by an international or regional organization. Section 4 contains a clear description of the products covered by the measure (including tariff headings). HS or CCCN where applicable, as contained in national schedules deposited with the WTO. ICS numbers may be provided in addition, where applicable. TIP HS stands for Harmonized Commodity Description and Coding System of tariff nomenclature, which is an internationally standardized system of names and numbers for classifying traded products developed and maintained by the World Customs Organization (WCO, formerly named Customs Cooperation Council). CCCN stands for Customs Cooperation Council Nomenclature, a customs tariff nomenclature formerly used by many countries, including most European nations. It has been superseded by the Harmonized System Nomenclature to which most trading nations adhere. ICS stands for International Classification for Standards. The ICS was developed and is maintained by the International Organization for Standardization (ISO), as an international classification system for technical standards. It is designed to cover every economic sector where technical standards may be used. 18

19 Section 5 indicates the title of the proposed or adopted technical regulation or conformity assessment procedure that is notified and the number of pages in the notified document. Under this section, the following information is also provided: the language(s) in which notified documents are available; and, if a translation of the document is planned or available. Section 6 describes the content of the proposed or adopted technical regulation or conformity assessment procedure. The summary should be as complete and accurate as possible to allow the full understanding of the proposed regulation and its likely effects on trade. Section 7 states the objective and rationale (including the nature of urgent problems, if a regulation is adopted for this aim). WTO Members may indicate more than one objective for the measure. Section 8 provides a reference to relevant documents, such as (1) the publication where a notice appears; (2) the proposal and basic document to which the proposal refers; (3) the publication in which the proposal will appear when adopted; and (4) whenever practicable, the reference to a relevant international standard. Section 9 presents the proposed dates of adoption and entry into force of the technical regulation or conformity assessment procedure. Section 10 indicates a specific and final date by which WTO Members may submit comments. A WTO Member shall normally allow a period of at least 60 days for comment. Any WTO Member that is able to provide a time-limit beyond 60 days is encouraged to do so. WTO Members are encouraged to advice of any extension to the final date for comments. Section 11 provides information on whether the text of the measure is available from the national Enquiry Point or from another body. WTO Members shall also indicate here the exact address, where available, address, telephone and fax numbers of the body responsible for supplying the relevant documents if that body is not the Enquiry Point. If the document is available online, the web address should be included here. TIP Up-to-date Enquiry Point addresses are listed in documents in the G/TBT/ENQ/ series. You are encouraged to ensure that the information about your own Enquiry Point in these documents is correct, and to inform the WTO Secretariat of any changes. You can also check the list of Enquiry Points here. All notifications to the WTO Secretariat are required to be in one of the three working languages of the WTO: English, French or Spanish (Article 10.9 of the TBT Agreement). Notifications should be sent by , fax, or normal post to the Central Registry of Notifications (CRN) at the WTO, either directly or by WTO representatives in Geneva. The electronic transmission of notifications to the CRN is encouraged. The address is: Rue de Lausanne Geneva 21 Switzerland Fax: e mail: crn@wto.org 19

20 Although WTO Members are not required to send the texts of the proposed technical regulation or conformity assessment procedure being notified, WTO Members have been discussing the possibility of doing so, in order to improve transparency (G/TBT/19). IF YOU WANT TO KNOW MORE... THE HARMONIZED SYSTEM Before 1987, many countries and territories used the Customs Cooperation Council Nomenclature (CCCN) as a classification basis for their customs tariffs. However, some countries, notably the United States and Canada, used different nomenclatures. In 1970, a Study Group was established in the Customs Cooperation Council (nowadays the World Customs Organization - WCO) to examine the possibility of preparing a new system of nomenclature capable of meeting the principal requirements of customs authorities, statisticians, carriers and producers. The "Harmonized Commodity Description and Coding System" (Harmonized System or HS) is an international product nomenclature which has been developed as a result of the abovementioned study under the auspices of the WCO, an intergovernmental organization with over 160 WTO Member countries based in Brussels, Belgium. The HS is a six-digit nomenclature. Individual countries have extended it to ten digits for customs purposes, and to 8 digits for export purposes. This nomenclature is broadly based on the CCCN and the United Nations SITC (Standard International Trade Classification), but it also takes into account some aspect of the TSUS (national tariff of the United States) and the Canadian nomenclature. The Harmonized System was developed not only for customs purposes but also for the collection of trade statistics, and for all kinds of transactions in international trade (transport, insurance, etc). The HS comprises about 5,000 commodity groups, each identified by a six digit code, arranged in a legal and logical structure. The system is used by more than 200 countries and economies as a basis for their customs tariffs. Over 98 per cent of the merchandise in international trade is classified in terms of the HS. The Harmonized System is governed by "The International Convention on the Harmonized Commodity Description and Coding System". The official interpretation of the HS is provided in the Explanatory Notes (5 volumes in English and French) published by the WCO. The 2007 version is the third major revision of the HS since its adoption by the WCO Council in 1983 and its entry into force in The new version includes more than 350 amendments to the HS Nomenclature. If you want to know more, check the WCO website: 20

21 III.F. UPDATES & ADDITIONAL INFORMATION Finally, WTO Members, in addition to their original notifications, should also provide supplementary information in three different forms: An addendum is used to provide additional information or changes to an original notification. A WTO Member may wish to indicate on the addendum if the final regulation has been substantially modified from the notified proposal. A corrigendum is used to correct an error in an original notification such as an incorrect address detail. A revision is used to replace an existing notification. Any addendum or corrigendum should be read in conjunction with the original notification. ADDENDA WTO Members should notify changes in the status of a notified TBT measure. Addenda to TBT notifications should be presented under a number of circumstances, such as: when a proposed technical regulation or conformity assessment procedure is either adopted or comes into force. A WTO Member may wish to indicate on the addendum if the final measure has been substantially modified from the notified proposal. if a proposed measure is withdrawn; if a measure is revoked; if the comment period has been extended; if the period of application of the existing notification is extended; if the scope of application of the existing notification is reduced, either in terms of WTO Members affected or products covered. Such a change may warrant the extension of the comment period. CORRIGENDA WTO Members should inform the Secretariat of any error(s) contained in their original notification. Secretariat will issue a corrigendum accordingly. The REVISIONS Revisions replace an existing notification. Revisions should be submitted, for example: when the scope of application of a notified technical regulation or conformity assessment procedure is extended, either in terms of WTO Members affected or products covered; or if a notification contained a large number of errors which necessitated issuing a revision. A WTO Member should provide a further period for comments on the revised notification, normally 60 days. 21

22 TIP Notifications on technical regulations and conformity assessment procedures are issued in the G/TBT/N/- (followed by the country code) series of documents. Amendments (Addenda), Revisions and Corrigenda to notifications carry the same document symbol and number as the original, followed by Add., Rev., or Corr., respectively. This allows them to be adequately traced. The country codes are those proposed by ISO. You can find the various country codes at the Documents Online Help Session. ILLUSTRATION Let's go back to the example we presented before, on Vanin's draft technical regulation on the safety of lighters. As you remember, we came to the conclusion that Vanin was required to notify the draft technical regulation to the TBT Committee. Now it is time for us to prepare the notification form, based on the information Vanin provided. Vanin's country code is VAN and the regulation is written in Vaninian (5 pages) with English translation. This technical regulation applies to all flame-producing products commonly known as lighters, regarding their functional requirements (e.g. flame height, resistance to spitting, flame extinction), structural integrity requirements (compatibility with and resistance to fuels, resistance to pressure and temperature), test methods, instructions and warnings. This technical regulation establishes requirements for lighters to ensure a reasonable degree of safety for normal use or reasonably foreseeable misuse of such lighters by users. The notice was published in the Official Gazette (1 February 2007) and is also available at The final date for comments is 1 April 2007, so that the regulation may be adopted 15 days later. The entry into force is foreseen for 1 August, since the six months reasonable interval is considered to be ineffective to fulfil the legitimate objectives pursued, according to Vanin. 22

23 WORLD TRADE ORGANIZATION G/TBT/N/VAN/1 1st of February 2007 ( ) Committee on Technical Barriers to Trade Original: English NOTIFICATION The following notification is being circulated in accordance with Article WTO Member to Agreement notifying: VANIN If applicable, name of local government involved (Articles 3.2 and 7.2): 2. Agency responsible: MINISTRY OF INDUSTRY, SAFETY BUREAU Name and address (including telephone and fax numbers, and web-site addresses, if available) of agency or authority designated to handle comments regarding the notification shall be indicated if different from above: 3. Notified under Article [X], [ ], [ ], [ ],other: 4. Products covered (HS or CCCN where applicable, otherwise national tariff heading. ICS numbers may be provided in addition, where applicable): MULTIPURPOSE LIGHTERS 5. Title, number of pages and language(s) of the notified document: LIGHTERS' SAFETY REGULATION, 5 pages, VANINIAN (ENGLISH TRANSLATION available) 6. Description of content: This technical regulation establishes requirements for lighters to ensure a reasonable degree of safety for normal use or reasonably foreseeable misuse of such lighters by users. The safety specification applies to all flame-producing products commonly known as lighters, as to functional requirements (e.g. flame height, resistance to spitting, flame extinction), structural integrity requirements (compatibility with and resistance to fuels, resistance to pressure and temperature), test methods, instructions and warnings. 7. Objective and rationale, including the nature of urgent problems where applicable: Protection of Human Health and Safety 8. Relevant documents: Official Gazette 1st February Proposed date of adoption: Proposed date of entry into force: 15th April st August Final date for comments: 1st April Texts available from: National Enquiry Point [X], or address, telephone and fax numbers, and web-site addresses, if available of the other body: 23

24 EXERCISES: 3. When is the most appropriate time to notify a draft technical regulation or conformity assessment procedure? 4. Tristat, a developing country WTO Member, is notifying the TBT Committee a draft technical regulation. Its Beverages Bureau (in the Ministry of Commerce) proposes the adoption of mandatory labelling standards for major food allergens used in the production of fruit juices subject to the labelling requirements of the Beverages Administration Act. Under the proposed regulations, producers, bottlers, and importers of juices must declare, on a product label, the presence of milk, eggs, fish, Crustacean shellfish, tree nuts, wheat, peanuts, and soybeans, as well as ingredients that contain protein derived from these foods, unless an exemption applies to the product in question. Procedures for petitioning for an exemption from allergen labelling are provided in the regulation. The text of the proposed regulation has three pages and is available at The notice of a draft regulation was published in Tristat's Official Gazette, on 1 March The final date for comments to be sent to Tristat is the 15th of May and the regulation will be adopted on the 1st of the following month. Tristat also stated that the reasonable interval period for the entry into force of the regulation shall be respected. Please fill in the corresponding notification format. 24

25 WORLD TRADE ORGANIZATION Committee on Technical Barriers to Trade G/TBT/N/- ( ) Original: English NOTIFICATION The following notification is being circulated in accordance with Article Member to Agreement notifying: If applicable, name of local government involved (Articles 3.2 and 7.2): 2. Agency responsible: Name and address (including telephone and fax numbers, and web-site addresses, if available) of agency or authority designated to handle comments regarding the notification shall be indicated if different from above: 3. Notified under Article [ ], [ ], [ ], [ ],other: 4. Products covered (HS or CCCN where applicable, otherwise national tariff heading. ICS numbers may be provided in addition, where applicable): 5. Title, number of pages and language(s) of the notified document: 6. Description of content: 7. Objective and rationale, including the nature of urgent problems where applicable: 8. Relevant documents: 9. Proposed date of adoption: Proposed date of entry into force: 10. Final date for comments: 11. Texts available from: National Enquiry Point [ ], or address, telephone and fax numbers, and web-site addresses, if available of the other body: 25

26 III.G. PROCESSING AND CIRCULATION Once a TBT notification has reached the Central Registry for Notifications (CRN) at the WTO, it is put on a registry file, given a record number and forwarded to the Trade and Environment Division of the WTO Secretariat, where it is formatted and checked for completeness and accuracy. The notification is then transferred to the Document Management System (DMS) for circulation to WTO Members. It is then also posted on the WTO website and translated into the other working languages of the WTO. Figure 7: Processing and Circulation of Notifications Past experience shows that the accuracy with which notification forms are completed by WTO Members can significantly reduce the processing time required by the WTO Secretariat. An automated distribution has been set up to be sent weekly listing all the TBT notifications issued during the previous week. To subscribe, see RECALL Notifications of technical regulations and conformity assessment procedures are issued in the G/TBT/N/- (followed by the country code) series of documents. Amendments (Addenda), Revisions and Corrigenda to notifications carry the same document symbol and number as the original, followed by Add., Rev., or Corr., respectively. This allows them to be adequately traced. The country codes are those proposed by ISO. You can find the various country codes at the Documents Online Help Session. The WTO Secretariat also prepares monthly lists of notifications. They are contained in documents with the symbol G/TBT/GEN/N/. All documents are available on the WTO website and in the Documents Online Database ( 26

27 IF YOU WANT TO KNOW MORE... DOCUMENTS ON LINE HOW TO USE IT Documents Online is a database provided by the WTO. There you will be able to find every derestricted WTO document, including TBT notifications. If you have never used it, or if you still have doubts about how to use it, do not miss out the "tutorial" offered at the Help section of the Documents online link on the WTO webpage at There, you can also download the Documents online "manual", either in word or PDF file. III.H. HANDLING OTHER WTO MEMBERS' REQUESTS FOR COPIES AND COMMENTS ON DRAFT MEASURES When a WTO Member notifies a draft technical regulation or conformity assessment procedure, it is obliged to supply copies of the proposed regulation, upon request. All requests for documents should be made to the authority identified in field 11 of the Notification Form, usually the Enquiry Point of the notifying WTO Member. In the case of adoption of a measure due to urgent problems, copies of the adopted measures need to be provided (Articles and of the TBT Agreement). WTO Members should respond in the same way to all requests for notified documents, and ideally also to those which may come directly from industry groups or individuals (although this is not an obligation under the TBT Agreement). Requests should be dealt with by the notifying WTO Member within 5 working days. If this cannot be done, the request should be acknowledged by fax or and an estimate given of the anticipated delay. Regarding fees charged for the provision of documents, national treatment should be afforded to requests from foreign interested parties, with due adjustments to be made for differential costs of delivery. Pursuant to paragraphs M and P of the Code of Good Practice, standardizing bodies are required, upon request, to provide hard copies of draft and adopted standards, and of the most recent work programme. At the Fourth Triennial Review of the TBT Agreement (G/TBT/19), WTO Members discussed the issue of facilitating access to the texts of draft technical regulations and conformity assessment procedures. In particular, they agreed to encourage WTO Members to provide: (i) more detailed information on proposed technical regulations and conformity assessment procedures in Section 6 "Description of content" of the notification form; (ii) the website address where WTO Members can download the full text of the notified measure in Section 11 "Text available from" of the notification form or any other means to quickly and easily access the text; (iii) explore ways to attach to the notification form a copy of the text of the notified measure; and (iv) encourage WTO Members to notify the availability of the adopted final text as an addendum to the original notification and to provide information on where the final text can be obtained, including website addresses. 27

28 Furthermore, WTO Members are required, prior to the adoption of technical regulations or conformity assessment procedures, to: allow reasonable time for other WTO Members to make comments about the draft regulation in writing; discuss these comments upon request; and take these written comments and the results of these discussions into account. Articles and of the TBT Agreement read: [Members shall... ] without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account. As explained before, the TBT Committee recommended that the normal time-limit for presentation of comments on notified technical regulations and conformity assessment procedures should be at least 60 days before the adoption of the measure takes place. WTO Members which are able to provide a time limit of more than 60 days, such as 90 days, are encouraged to do so and to indicate this fact on the notification form. Insufficient comment periods may prevent WTO Members from exercising their right to submit comments, to hold consultations, and to have their comments taken into account. Lack of time is particularly problematic when drafts need to be requested and/or translated. Important note The same obligations relating to comments apply to technical regulations and conformity assessment procedures adopted for urgent reasons, with the exception that no time-limit is provided and that comments are made after the adoption of the measure. WTO Members should also take such reasonable measures to ensure compliance by local government and non-governmental bodies with the provisions on length of the comment period and the handling of comments. Figure 8: Comments - reasonable time WTO Members should grant requests for extensions of the comment period wherever practicable, notably with regard to notifications relating to products of particular interest to developing country WTO Members; where 28

29 there have been delays in receiving and translating the relevant documents; or where there is a need for further clarification of the measure notified. A 30-day extension should normally be provided. When the notification is of a trade-liberalizing measure, e.g. the lifting of a ban on imported products, the WTO Member should take the action without delay and does not need to provide a comment period. In order to clarify the procedures for the handling of comments on proposed technical regulations and conformity assessment procedures, the Committee agreed that each WTO Member should notify the WTO Secretariat of the authority or agency (e.g. its Enquiry Point) which it has designated to be in charge of handling comments received and should (See G/TBT/1/Rev.8 and G/TBT/19): Acknowledge the receipt of comments from another WTO Member; explain within a reasonable time to any WTO Member from which it has received comments, how it will proceed in order to take these comments into account and, where appropriate, provide additional relevant information on the proposed technical regulations or conformity assessment procedures concerned; provide any WTO Member from which it has received comments, a copy of the corresponding technical regulations or conformity assessment procedures as adopted, or information that no corresponding technical regulations or conformity assessment procedures will be adopted for the time being; if possible, inform other WTO Members about the comments and questions it has received and answers it has provided; and make use of electronic means to disseminate information, via the WTO Member's websites. The TBT Committee further encouraged WTO Members to provide information on these websites, to enable the Secretariat to prepare a corresponding list (check document G/TBT/19). An example of such a website is that of the United States, under " which is a service offered by the US Government Printing Office that provides a "one-stop" site for the public and other interested parties to: (i) access proposed regulations; (ii) express their views; and (iii) have the US government agencies take them into account before regulations are finalized. Another example is the website of the European Commission which contains a compilation of comments provided by the EU on third countries' notifications, as well as comments provided by third countries on EU notifications. III.I. TRANSLATIONS The TBT Agreement does not require the publication of texts nor the provision of details or copies of drafts other than in the language of the WTO Member. However, pursuant to Article 10.5 of the TBT Agreement, developed country WTO Members are required, upon request, to provide, in one of the three working languages of the WTO, translations of: the documents covered by a specific notification; or in case of voluminous documents, summaries of such documents. 29

30 The TBT Committee agreed on procedures to enhance the sharing and dissemination of existing translations in one of the WTO working languages (G/TBT/1/Rev.8). These arrangements for the sharing of translations can be summarized as follows: When a translation of a relevant document, or of its summary, exists or is planned, this fact should be indicated on the WTO notification form next to the title of the document (Section 5 of the notification format). If a WTO Member requests a copy of a regulation and its translation exists (in the WTO Member's language or in its WTO working language), it should be automatically sent with the original of the document requested. Where documents are not available in a WTO working language, developed country WTO Members shall, upon request, supply a translation of the document, or in case of voluminous documents, a translation of a summary of the documents, in a WTO working language. WTO Members are encouraged to seek unofficial translations from other WTO Members in cases where the notifying WTO Member does not have a copy of the document in the requesting WTO Member's WTO working language. The notifying WTO Member should advise the requesting WTO Member of other WTO Members that have requested, as of that date, a copy of the document. At the Fourth Triennial Review, the issue of translation was discussed again. In particular, WTO Members agreed to explore ways to enhance the sharing of translation of documents referred to in notifications, such as posting on WTO Members' websites or developing a format to inform other WTO Members of the existence of translations of notified measures. Regarding the translation of standards, paragraph J provides that Standardizing Bodies are required, upon request, to provide the titles of specific draft standards in English, French or Spanish. 30

31 ILLUSTRATION Vanin has already notified the TBT Committee about the draft technical regulation on the safety of lighters. Now it is the time for WTO Members, especially those such as Tristat and Rauritania who are going to have their trade directly affected by the regulation, to act. How? First, Tristat and Rauritania could request a copy of the draft measure to Vanin's Enquiry Point, and since translation into English already exists, they can have direct access to the translated document. Then, they shall make use of the time provided to make comments on the draft regulation to Vanin's Enquiry Point. These comments shall be acknowledged by the Enquiry Point once received. Note that Tristat and Rauritania should have at least 60 days to provide comments and in case this time is not enough, they may request an extension of this period. In addition to providing comments to Vanin, these two WTO Members are also entitled, under Article 2.5 of the TBT Agreement, to request that Vanin explains the justification of its measure, since it was not drafted in accordance with the relevant international standard. Vanin has thus to provide a justification for its technical regulation, if requested; and shall also explain how the comments provided by Tristat and Rauritania have been taken into account in the process of the elaboration/adoption of the measure. In case Vanin decided for the non-adoption of the measure, it should inform WTO Members. Figure 9: Recapitulation 31

32 III.J. WHAT ELSE TO NOTIFY? III.J.1. NOTIFICATION OF AGREEMENTS Figure 10: Notification of Agreements Pursuant to Article 10.7 of the TBT Agreement, WTO Members have the obligation to notify agreements reached on issues related to technical regulations, standards or conformity assessment procedures which may have a significant effect on trade. At its Second Triennial Review, the TBT Committee reiterated the importance that WTO Members notify their mutual recognition agreements. At least one WTO Member shall notify other WTO Members through the WTO Secretariat of the products covered by the agreement, while including a brief description of the agreement itself. WTO Members that have reached an agreement are encouraged to enter, upon request, into consultations with other WTO Members for the purposes of concluding similar agreements or of arranging for their participation in such agreements. TIP The notification forms must be sent to the CRN of the WTO Secretariat. The form for notifications under Article 10.7 of the TBT Agreement is contained in document G/TBT/1/Rev.8, page 24. Such notifications are circulated under document symbol G/TBT/10.7/N/country code. IF YOU WANT TO KNOW MORE... NOTIFICATION OF AGREEMENTS - STATISTICS From 1995 till November 2006, there were 50 notifications of agreements between WTO Members on issues related to technical regulations, standards or conformity assessment procedures. The majority of the notified agreements involved bodies or entities in Europe, followed by Asia and the Pacific, and North America. 32

33 III.J.2. NOTIFICATION OF TECHNICAL ASSISTANCE NEEDS In November 2005, the TBT Committee adopted a voluntary notification format for the notification of technical assistance needs and responses by WTO Members (document G/TBT/16). This notification format is intended to assist coordination on current and future technical assistance activities and to facilitate the voluntary identification of specific needs. The submission of such notifications follows established WTO procedures. WTO Members may continue to provide general information on their technical cooperation activities as separate submissions to the TBT Committee. EXERCISES: 5. Where should you send your notifications, at the WTO? What is the document code for notifications? How can you retrieve information about other WTO Members' notifications? 6. What are WTO Members' transparency obligations under the TBT Agreement, in relation to the provision of requested copies and to the handling of comments on draft technical regulations and conformity assessment procedures made by other WTO Members? 7. What are the obligations related to the notification of Agreements? 33

34 III.K. NOTIFICATION OBLIGATIONS REGARDING STANDARDS RECALL The Code of Good Practice for the Preparation, Adoption and Application of Standards (Code of Good Practice), contained in Annex 3 of the TBT Agreement, lays down disciplines applicable to standardizing bodies, whether a central government, local government, non-governmental or regional body. The Code is open to the acceptance of any such bodies. The obligation to notify applies to standardizing bodies directly and includes: the notification of their acceptance of, or withdrawal from, the Code of Good Practice (paragraph C); and the existence of a work programme (paragraph J). A WTO-ISO Information System was put in place on 1995 to encompass a WTO standards information service operated by ISO and the notification activities above. The ISO and the WTO Secretariats developed notification formats and related guidelines, to be used by standardizing bodies accepting the Code of Good Practice (ISO/WTO Guidelines on Notifications, G/TBT/W/Rev.1). III.K.1. NOTIFICATION OF THE ACCEPTANCE OF, OR WITHDRAWAL FROM, THE CODE OF GOOD PRACTICE Standardizing bodies that have accepted, or withdrawn from, the Code of Good Practice, are required to notify such action to the ISO/IEC Information Centre in Geneva. According to paragraph C of Annex 3 of the TBT Agreement (the Code of Good Practice), the format of this notification shall include the name of the body concerned, its address, and the scope of its current and expected standardization activities. Standardizing bodies can choose between three possibilities when sending the notification. They can send this notification: Directly to the ISO/IEC Information Centre in Geneva; through the national WTO Member body of ISO/IEC; or preferably through the relevant national WTO Member or international affiliate of ISONET. 34

35 The ISO/WTO Guidelines on Notifications recommends standardizing bodies that have accepted the Code of Good Practice to notify this fact to the ISO/IEC Information Centre in Geneva by completing the following form: NOTIFICATION OF ACCEPTANCE UNDER PARAGRAPH C OF THE CODE OF GOOD PRACTICE ISO/IEC Information Centre International Organization for Standardization Case postale 56 CH GENEVA 20 Switzerland NOTIFICATION UNDER PARAGRAPH C OF THE WTO TBT CODE OF GOOD PRACTICE (Notification of acceptance of the WTO TBT Code of Good Practice) Country (or regional arrangement):... Name of standardizing body:... Address of standardizing body:... Telephone:... Telefax:... Telex: Scope of current and expected standardization activities:... The above indicated standardizing body hereby notifies its acceptance of the Code of Good Practice for the Preparation, Adoption and Application of Standards presented in Annex 3 to the WTO Agreement on Technical Barriers to Trade.... (Name) (Signature) (Date)... (Title) Standardizing bodies that have decided to withdraw from the Code of Good Practice should notify by completing the following form: 35

36 NOTIFICATION OF WITHDRAWAL UNDER PARAGRAPH C OF THE CODE OF GOOD PRACTICE ISO/IEC Information Centre International Organization for Standardization Case postale 56 CH-1211 GENEVA 20 Switzerland NOTIFICATION UNDER PARAGRAPH C OF THE WTO TBT CODE OF GOOD PRACTICE (Notification of withdrawal from the WTO TBT Code of Good Practice) Country/Customs Territory/Regional Arrangement:... Name of standardizing body:... The above indicated standardizing body hereby notifies its withdrawal from the Code of Good Practice for the Preparation, Adoption and Application of Standards presented in Annex 3 to the WTO Agreement on Technical Barriers to Trade.... (Name)(Signature)(Date)... (Title) TIP These forms are contained in G/TBT/W/4/Rev.1, pages 4 and 5. Each notification is circulated under the document series G/TBT/CS/N/-. The WTO Secretariat provides a list by WTO Member of all standardizing bodies that have accepted the Code, as well as a list of those standardizing bodies that have accepted or withdrawn from the Code since the previous review. The two lists are respectively circulated in documents G/TBT/CS/2/Rev.X and G/TBT/CS/1/Add.X. The ISO/IEC Information Centre has to publish the WTO TBT Standards Code Directory every year. The Directory lists all standardizing bodies that have notified acceptance of the Code of Good Practice and contains information related to the availability of their work programmes. It is available to ISONET members and, through the WTO Secretariat, to WTO Members. Monthly updated information is also contained in the ISO Bulletin. At the Fourth Triennial Review of the TBT Agreement, the TBT Committee (i) invited the ISO/IEC Information Centre to provide information to the Committee on the status of notifications of the existence of a work programme when the WTO TBT Standards Code Directory is published. 36

37 In addition, the ISO/IEC Information Centre provides a variety of services: an ISO/IEC information website with information on standardization and conformity assessment, the TBT Agreement, the TBT Standards Code Directory, other standards publications, general vocabulary on standardization, general classification of standards widely used; answers to enquiries posted at the website, which are, depending on the scope of the enquiry, directed to IEC, ISO or other standardizing bodies; information to the WTO Secretariat, including on the registration of notifications received from standardizing bodies, e.g. on the acceptance of the Code of Good Practice and the existence of work programmes; and maintenance of a library of ISO and IEC publications. The TBT Committee reviews the ISO/IEC Information Centre Publication at its first meeting each year. IF YOU WANT TO KNOW MORE... ACCEPTANCE OF THE CODE OF GOOD PRACTICE - STATISTICS Between 1995 and March 2007, 160 standardizing bodies from 116 WTO Members have accepted the Code of Good Practice. Among them, 84 central governmental standardizing bodies, 65 non governmental standardizing bodies, three statutory bodies, two parastatal bodies, three non-governmental regional bodies, one central governmental/non governmental body, one central governmental/local governmental body, and one autonomous body (G/TBT/CS/2/Rev.13). III.K.2. NOTIFICATION OF THE EXISTENCE OF A WORK PROGRAMME Standardizing bodies that have accepted the Code of Good Practice must also notify the existence of a work programme at least once every six months, no later than at the time of its publication. Pursuant to paragraph J of the Code of Good Practice, the notification of the existence of a work programme shall contain the name and address of the body concerned, the name and issue of the publication in which the work programme is published, the period to which the work programme applies, its price (if any) and how and where it can be obtained. The notification of the existence of a work programme may be sent: directly to the ISO/IEC Information Centre; or preferably through the relevant national member or international affiliate of ISONET, as appropriate. 37

38 The ISO/WTO Guidelines on Notifications recommend the use of the following form (the form is contained in G/TBT/W/4/Rev.1): NOTIFICATION OF THE EXISTENCE OF A WORK PROGRAMME UNDER PARAGRAPH C OF THE CODE OF GOOD PRACTICE ISO/IEC Information Centre International Organization for Standardization Case postale 56 CH GENEVA 20 Switzerland NOTIFICATION UNDER PARAGRAPH C OF THE WTO TBT CODE OF GOOD PRACTICE (Notification of existence of work programme) Country (or regional arrangement):... Name of standardizing body:... Address of standardizing body:... Telephone:... Telefax:... Telex: Name and issue of the publication in which the work is published: The period to which the work programme applies: The price of the work programme (if any): How and where the work programme can be obtained: (Name) (Signature) (Date)... (Title) At the Fourth Triennial Review of the TBT Agreement, the TBT Committee encouraged standardizing bodies that communicate their work programmes via the internet to specify the exact web pages where the information on work programmes is located, under the item "Publication" of the notification form. 38

39 III.K.3. COMMENTS ON STANDARDS Standardizing bodies shall allow time for comments on standards before their adoption (paragraphs L and N of the Code of Good Practice). They must fulfil the following requirements: Allow a period of at least 60 days for the submission of comments on the draft standard by interested parties within the territory of a Member of the WTO; this period may be shortened in cases where urgent problems of safety, health or environment arise or threaten to arise; comments shall be taken into account; comments received by standardizing bodies that have accepted the Code of Good Practice shall, if so requested, be replied to as promptly as possible; and the reply shall include an explanation why a deviation from relevant international standards is necessary, when this is the case. EXERCISES: 8. Which are the notification obligations related to standards? 39

40 IV. PUBLICATION OBLIGATIONS A fundamental component of transparency under the TBT Agreement is the publication of technical regulations, standards and conformity assessment procedures. The TBT Committee has adopted detailed procedures to facilitate the access to, and the dissemination of, information, as related to the use of electronic tools; provision of copies of documents; their translation; and their publication. The provisions of copies and the translation of documents have already been explained above. Regarding the use of electronic tools, the TBT Committee has recognized it as a means to increase access to, and exchange of, information by WTO Members. Electronic instruments can also make it easier, and maximize the time available, to receive notifications, obtain and translate relevant documents, and present comments. WTO Members should use and fax facilities in their Enquiry Points, to the extent possible, while responding to requests for documentation or information. WTO Members are also encouraged to publish their technical regulations and conformity assessment procedures on the world wide web, to facilitate the supply of documents. At the Third Triennial Review, the Committee noted that the exchange of information between WTO Members on the future development of draft technical regulations and conformity assessment procedures could be done electronically (G/TBT/13). Below, we shall present the obligations concerning the publication of technical regulations and conformity assessment procedures in one subsection and those related to the publication of standards in another, since they are slightly different. IV.A. PUBLICATION OBLIGATIONS OF WTO MEMBERS (TECHNICAL REGULATIONS AND CA PROCEDURES) Articles 2.11/5.8 and 2.12/5.9 provide that: 2.11 (5.8) Members shall ensure that all technical regulations/conformity assessment procedures which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them (5.9) Except in those urgent circumstances referred to in paragraph (10/7), Members shall allow a reasonable interval between the publication of technical regulations/ requirements concerning conformity assessment procedures and their entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member. 40

41 WTO Members are thus obliged to: Promptly publish all adopted technical regulations and conformity assessment procedures (Articles 2.11 and 5.8); Allow a reasonable interval between the publication of the technical regulation or conformity assessment procedure and its entry into force, except under urgent circumstances (Articles 2.12 and 5.9 of the TBT Agreement). The 2001 Ministerial Decision on Implementation-Related Issues and Concerns (WT/MIN(01)/17) defined that "reasonable interval" between the publication of a TBT measure and its entry into force should normally mean a period of not less than six months, except when this would be ineffective to fulfil the legitimate objectives pursued. At the Fourth Triennial Review of the TBT Agreement the Committee agreed to encourage WTO Members to provide, whenever possible, an interval of more than six months between the publication of a measure and its adoption. Important note The entry into force of measures which liberalize trade should not be unnecessarily delayed. WTO Members must fulfil publication obligations both before the adoption of a technical regulation, or a conformity assessment procedure, and thereafter. IV.A.1. BEFORE THE ADOPTION OF THE MEASURE WTO Members are required to publish an early notice of their intention to introduce a particular technical regulation or conformity assessment procedure. The requirements for the publication of such notice are the same as for the notification of regulations: a notice should be published if the proposed technical regulation or conformity assessment procedure may have a significant effect on trade and whenever an international standard does not exist or the draft measure is not in accordance with an international standard. Pursuant to Articles 2.10 and 5.7, this step can be waived in case of urgent problems. IN DETAIL Articles and read: WTO Members shall publish a notice in a publication at an early appropriate stage, in such a manner as to enable interested parties in other WTO Members to become acquainted with it, that they propose to introduce a particular technical regulation / conformity assessment procedure. Remember that WTO Members have to provide the names of the publications used for such notices in their statements under Article 15.2 of the TBT Agreement. 41

42 IV.A.2. AFTER THE ADOPTION OF THE MEASURE WTO Members are required to promptly publish, or make otherwise available, all adopted technical regulations and conformity assessment procedures, including those which do not have a significant effect on the trade of other WTO Members, or those which are in accordance with an international standard. The obligation to publish all adopted technical regulations and conformity assessment procedures is wider than that to notify draft measures or to publish an early notice, and includes measures whose notice does not have to be published or which do not have to be notified a priori. Articles 2.11 and 5.8 reads as follows: WTO Members shall ensure that all technical regulations / conformity assessment procedures which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other WTO Members to become acquainted with them. In relation to conformity assessment procedures, WTO Members shall also ensure that the standard processing period of each conformity assessment procedure is published. Relevant parts of Article of the TBT Agreement read:... WTO Members shall ensure that: 5.2.2: the standard processing period of each conformity assessment procedure is published or that the anticipated processing period is communicated to the applicant upon request;... IV.B. PUBLICATION OBLIGATIONS OF STANDARDIZING BODIES (WORK PROGRAMME AND STANDARDS) Under paragraph J of the Code of Good Practice, Standardizing Bodies shall publish, at least every six months, their work programme, and a notice of the existence of the work programme. The communication of work programmes may be made via the Internet, while the notice of the existence of the work programme shall be published in a national or, as the case may be, regional publication of standardization activities. A Standardizing Body's work programme must contain, besides its name and address, the standards it is currently preparing and the standards it adopted in the preceding period. For each standard, the Body needs to indicate, in accordance with any ISONET rules, the classification relevant to the subject matter, the stage attained in the standard's development, and references to any international standards taken as a basis. TIP The corresponding ISONET rules, according to the ISO/WTO Guidelines on Notifications, can be found in document G/TBT/W/4/Rev.1. 42

43 PUBLICATION OBLIGATIONS RELATING TO INDIVIDUAL STANDARDS Before adopting a standard, the standardizing body shall publish a notice, no later than at the beginning of the comment period, specifying the exact duration of that period (paragraph L of Code of Good Practice), and whether the draft standard deviates from relevant international standards. Electronic publication of notices announcing the periods for comments could constitute another possibility for the fulfilment of this transparency obligation. Pursuant to paragraph O of the Code of Good Practice, once adopted, the text of the standard shall be published promptly. EXERCISES: 9. Which are the main obligations relating to the publication of technical regulations and conformity assessment procedures? 10. WTO Members shall allow a reasonable interval between the publication of technical regulations and conformity assessment procedures and their entry into force, except in the case of urgent circumstances. What is considered a "reasonable interval between publication and entry into force"? 11. Which are the transparency obligations that apply to standardizing bodies which have accepted the Code of Good Practice, regarding publications? 12. Put the following transparency obligations related to technical regulations and conformity assessment procedures in chronological order: Publication of the measure Drafting of the measure Entry into force of the measure End of comment period and discussion of comments Provision of copies Adoption of the measure Notification to other WTO Members Publication of a notice 43

44 V. ENQUIRY POINTS V.A. ESTABLISHMENT OF ENQUIRY POINTS The Enquiry Point system was created to allow WTO Members to easily obtain information about TBT-related issues, without having to identify and directly contact the agency responsible for any given function in another country. The Enquiry Point (EP) is the contact point to which any relevant enquiry can be made. It has the responsibility of obtaining the answers from the relevant national bodies and replying to the WTO Member making the enquiry. Under the TBT Agreement, two provisions mandate WTO Members to create Enquiry Points. Article 10.1: WTO Members shall ensure that an Enquiry Point exists and is able to reply to enquiries regarding, inter alia, technical regulations, conformity assessment procedures and standards issued by central and local government bodies, and non-governmental bodies which are entrusted with the legal power to enforce a technical regulation. Article 10.3: WTO Members shall take such reasonable measures as may be available to them to ensure that an Enquiry Point exists to deal with enquiries on standards and conformity assessment procedures issued by other non governmental bodies and regional bodies of which they are WTO Members. Under Article 10.1, WTO Members are encouraged to set up only one Enquiry Point (although the possibility exists under Article 10.2 of setting up more than one, for legal or administrative reasons) while under Article 10.3 it is recognized that more than one Enquiry Point may be established. In the period between 1995 and 2006, 131 WTO Members have provided information on the existence of one or more TBT Enquiry Point(s). Most WTO Members have one Enquiry Point only, while few have two (or more), e.g. Austria, Chile, Thailand and the United Kingdom. When this is the case, their respective responsibility relates to either technical regulations or standards; or are specifically related to certain products or categories of products. For transparency reasons, if more than one Enquiry Point is established, WTO Members shall provide "complete and unambiguous information" on the scope of responsibility of each Enquiry Point. TIP The addresses of WTO Members' TBT Enquiry Points are contained in the document "National Enquiry Points", Note by the Secretariat, G/TBT/ENQ/29. They are also available and regularly updated on the TBT website at: 44

45 V.B. FUNCTIONING OF ENQUIRY POINTS V.B.1. WHAT TYPE OF INFORMATION? Pursuant to Articles 10.1, 10.2 and 10.3 of the TBT Agreement, Enquiry Points are required to respond to all reasonable enquiries from other WTO Members and to provide relevant documents regarding: Any technical regulations, conformity assessment procedures, or standards, adopted or proposed within the WTO Member's territory by central or local government bodies; non-governmental bodies with legal power to enforce a technical regulation; or regional standardizing bodies of which the bodies abovementioned are members or participants; the participation in, the provisions and membership of, international and regional standardizing bodies and conformity assessment systems, as well as bilateral and multilateral arrangements within the scope of this Agreement, of the following bodies: the WTO Member; relevant central or local government bodies; or relevant non-governmental bodies; the location of notices published pursuant to the Agreement, or the provision of information as to where such information can be obtained; and the location of the Enquiry Points mentioned in Article 10.3 of the TBT Agreement, i.e. the Enquiry Point in charge of answering queries on standards and conformity assessment procedures issued by nongovernmental bodies, which do not have legal power to enforce a technical regulation, and regional bodies of which they are members. Pursuant to Articles 10.4 and 10.5 of the TBT Agreement, Enquiry Points shall supply copies of requested documents to WTO Members and interested parties of WTO Members at an equitable price. Developed WTO Members' Enquiry Points also provide translations or summaries of the documents related to a notification. Figure 11: Enquiry Points Functions Pursuant to Articles 10.1 and 10.3 of the TBT Agreement, an Enquiry Point is mandated to answer all "reasonable enquiries", that is, those limited to a specific product, or group of products (see G/TBT/1/Rev.8, page 21). When an enquiry is made on a composite product, the parts or components are to be defined to the greatest extent possible; when a request is made concerning the use of a product, it should be related to a specific field (since many products have multiple use). Enquiry Points should, as a first step, acknowledge the receipt of the enquiry, without further request. 45

46 V.B.2. GOING BEYOND OBLIGATIONS In addition to fulfilling the obligations discussed above, certain Enquiry Points perform additional tasks related to the better dissemination and understanding of TBT-related information. In fact, Enquiry Points may play a significant role in this area if they are made responsible for collecting and sharing information (e.g. notifications) received from other WTO Members. Such information often interests private parties as well, for example, producers, importers, exporters, chambers of commerce, associations, etc. Those directly affected by the foreign regulation may have the opportunity to make comments and raise concerns to, or via, the Enquiry Point, if good coordination between these parties is in place. The Enquiry Point can collect these comments and concerns and be responsible, in consultation with the relevant agencies, of formulating and sending comments to the notifying WTO Member. Some WTO Members' Enquiry Points work as focal points that coordinates information exchange on trade barriers' issues. Such coordination and consultations may result in a specific trade concern being raised at a TBT Committee meeting. For instance, at the Third and Fourth Special Meetings on Procedures for Information Exchange, Canada described the functioning of its Export Alert! system, which disseminates foreign notifications to Canadian stakeholders through a web-enabled application. Export Alert! allows tracking regulatory developments in selected countries and selected areas, to request regulatory texts and to receive HTML s on new notifications. Canada has also developed a Spanish version of Export Alert! to help Latin American countries with the dissemination of WTO notifications to national stakeholders. Similar systems have been set up by other national Enquiry Points: "TBT website" in the European Union; "AlertaExportador" in Brazil; "Notificarnom-Alert" in Mexico; and the Chinese TBT/SPS web site. Figure 12: Using the Enquiry Point: Beyond Obligations 46