How do you know what agreement to look to first?
Examine measure on basis of agreement that deals “specifically and in detail” with such measures.
ABR, EC-Bananas III
What types of measures does TBT apply to?
Technical regulations (arts 2 and 3)
Standards (art 4)
Conformity Assessment Procedure (art 5)
What is a technical regulation?
Defined in Annex 1.
- Applies to identified product or group of products.
- Lawys down one or more characteristics; and
- Compliance with characteristics is mandatory.
ABR, EC-Sardines
What is a standard?
Defined in Annex 1, para 2
- Document approved by recognised body;
- Provides for common and repeated use, rules, guidelines or characteristics;
- For products or related processes and production methods; and
- For which compliance is not mandatory.
What is difference between technical regulation and standard?
Main difference is compliance is not mandatory for standards.
What is a Conformity Assessment Procedure?
Defined in Annex 1, para 3:
Any procedure used directly or indirectly to determine that relevant requirements in technical regulations or standards are fulfilled.
What does TBT require of regulations?
Art 2.1: Treatment must be no less favourable than national treatment and MFN (same analysis as Art III:4 GATT, Panel, EC-Trademarks).
Likeness differs from GATT when dealing with public health regulations - competition not primary perspective.
Art 2.2: regs must pursue legitimate objective and be not more trade-restrictive than necessary. Two steps (Panel, US-Clove Cigarettes).
How does TBT deal with international standards for analysing technical regulations?
Art 2.4 - Three step analysis (ABR, EC-Sardines):
- Does a relevant international standard (as per ISO/IEC Guide 2 definition) exist or imminent exist?
- Was it used as basis of technical regulation?
- Is international standard ineffective or inappropriate means for fulfilment of legitimate objective?
