The Agreement on Technical Barriers to Trade 

3MODULE

ESTIMATED TIME:  3 hours 

OBJECTIVES OF MODULE 3

Present the background of the Agreement on Technical Barriers to Trade

(TBT Agreement); and

explain the TBT Agreement structure and application.

I. INTRODUCTION 

As learn in the previous Module, the multilateral trading system was founded in 1947. In its earliest years, the

General Agreement on Tariffs and Trade (GATT), which later evolved into the WTO, concentrated on reducing

tariffs and quantitative restrictions.

Soon, however, Contracting Parties recognized that other non-tariff measures needed to be tackled. In

the 1960s, an inventory based on notifications from Contracting Parties revealed that more issues were raised

on technical barriers to trade than on any other category of measures.

This provided the impetus for the first Agreement on Technical Barriers to Trade, which came into force on a

plurilateral basis in 1980, at the end of the GATT Tokyo Round of trade negotiations (1973-1979). This

agreement will be referred to here as the "Tokyo Round TBT Agreement".

TIP

Please keep in mind that the Tokyo Round TBT Agreement is also known as the "Standards Code".

In 1994, with the creation of the World Trade Organization, the new WTO Agreement incorporated a modified

and strengthened multilateral Agreement on Technical Barriers to Trade. This is the "TBT Agreement" we have

nowadays.

IN BRIEF 

Within the WTO framework, the TBT Agreement is intended to ensure that technical regulations, standards

and conformity assessment procedures do not constitute unnecessary barriers to international trade while

recognizing the right of Members to take regulatory measures to achieve their legitimate objectives:

national security requirements, quality requirements, protection of human health or safety, protection of

animal or plant life or health, protection of the environment, prevention of deceptive practices, among

others.

It is time for us to proceed to an examination of the TBT Agreement: its history, objectives, structure, scope of

application, coverage, matters not covered by it and its relationship with the SPS Agreements, definitions,

institutional application and temporal scope of application.

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II. THE TBT AGREEMENT 

II.A. HISTORY OF THE TBT AGREEMENT 

The GATT 1947 had not established a comprehensive legal structure for the treatment of technical regulations

and standards. The idea that a specific agreement was necessary emerged during the 1970s.

A Plurilateral Tokyo Round TBT Agreement was signed at the end of the Tokyo Round on 12 April 1979 and

entered into force on 1 January 1980. It laid down rules for the preparation, adoption and application of

technical regulations, standards and conformity assessment procedures. By the time the Uruguay Round of

negotiations was concluded, 46 GATT Contracting Parties had accepted the Tokyo Round TBT Agreement

(BISD 26S/8 (1980)). This Agreement was seen as a "highly successful" one, in the sense that many GATT

Parties adhered to it, which was not always the case for other plurilateral agreements created under the

GATT 1947.

Note that plurilateral obligations regarding general disciplines (different to the plurilateral sectoral agreements

we have today) can be quite problematic with regards to the predictability, stability and uniformity of the legal

system. In order to tackle these issues, the "single undertaking" rule was envisaged for the Uruguay Round

Agreements. This ensured that all WTO Members would be bound by the same obligations, making the system

more balanced and predictable.

RECALL 

Do you recall the single undertaking rule? If not, take a look at Module 1 again. This is the principle that

states that WTO Members are bound by all WTO Multilateral Agreements. There are very few Plurilateral

Agreements, currently two, which only bind the WTO Members who have accepted to be bound by them.

The Tokyo Round TBT Agreement applied to technical regulations, standards and conformity assessment

procedures in general, including measures aiming at food safety and human, animal and plant life or health

protection from contaminants, pests and diseases. Such topics are currently under the discipline of the

multilateral Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement).

The main differences between the WTO TBT Agreement and the Tokyo Round TBT Agreement are:

Under the Uruguay Round's "single undertaking", when signing the WTO Agreement, all Members were

automatically signing into the TBT Agreement, too. This stands in contrast to the plurilateral nature of

the Tokyo Round TBT Agreement.

Under the WTO, two separate agreements have been created – the SPS Agreement on food safety and

animal and plant health protection against pests and diseases – and the TBT Agreement, whose

combined coverage is roughly the same as the Tokyo Round TBT Agreement.

The WTO TBT Agreement is subject to the unified dispute settlement provisions of the WTO, although it

also contains some specific additional provisions on the matter. The Tokyo Round TBT Agreement had

its own dispute settlement mechanism.

Unlike the Tokyo Round TBT Agreement, the WTO TBT Agreement covers measures applicable both to

products and to related processes.

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The WTO TBT Agreement, negotiated during the Uruguay Round, is one out of 12 multilateral trade

agreements on the international trade in goods, subsumed under the General Agreement on Tariffs and Trade

1994 (GATT 1994). The WTO TBT Agreement has strengthened and clarified the provisions of the Tokyo Round

TBT Agreement. Many of the latter's provisions have been carried forward, but there are significant

differences, both in form and content, as explained above.

II.B. OBJECTIVES 

IN BRIEF 

The Preamble of the TBT Agreement clearly outlines a balance.

While the main objective of the Agreement is to ensure that technical regulations, standards and

conformity assessment procedures do not create unnecessary obstacles to international trade;

It is recognized that no country shall be prevented from taking measures necessary to ensure,

inter alia, the following:

the quality of its exports;

the protection of human, animal or plant life or health;

the protection of the environment;

the prevention of deceptive practices, at levels it considers appropriate; and

the protection of its essential security interest.

Given that this list is not exhaustive, Members may protect other legitimate objectives while using the

measures prescribed under the TBT Agreement. Nevertheless, regulatory measures undertaken with the

purpose to protect a Member's legitimate objectives shall neither hinder the rights of other WTO Members nor

what has been achieved through market access liberalization, that is, through lower import duties and taxes.

To sum up, regulatory measures are permitted as long as they are not applied in a manner which constitutes a

means of "arbitrary or unjustifiable discrimination between countries where the same conditions prevail" or a

"disguised restriction on international trade", and are otherwise in accordance with the provisions of the

Agreement. This is will be further explained throughout our course.

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IN DETAIL 

The relevant part of the Preamble to the TBT Agreement reads as follows:

( ... )

Desiring however to ensure that technical regulations and standards, including packaging, marking and

labelling requirements, and procedures for assessment of conformity with technical regulations and

standards do not create unnecessary obstacles to international trade;

Recognizing that no country should be prevented from taking measures necessary to ensure the quality of

its exports, or for the protection of human, animal or plant life or health, of the environment, or for the

prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that

they are not applied in a manner which would constitute a means of arbitrary or unjustifiable

discrimination between countries where the same conditions prevail or a disguised restriction on

international trade, and are otherwise in accordance with the provisions of this Agreement;

Recognizing that no country should be prevented from taking measures necessary for the protection of its

essential security interest;

( ... )

As we are going to see below, being aware of the objectives incorporated in the TBT Agreement is very

important for verifying if such Agreement applies to a certain measure.

Moreover, the preamble of an international treaty provides information about the object and purpose of the

treaty. That is, the preamble is important for the interpretation of the agreement, as provided by the

customary rules of treaty interpretation referred to in Article 3.2 of the WTO Dispute Settlement

Understanding.

IF YOU WANT TO KNOW MORE ... 

CUSTOMARY RULES OF TREATY INTERPRETATION

The customary rules of treaty interpretation are enumerated in Article 31 and 32 of the Vienna Convention

on the Law of Treaties (VCLT) of 1969, which can be found at our Digital Library. These two articles

provide that a treaty shall be interpreted in good faith and according to the ordinary meaning of its terms in

their context and in the light of its object and purpose. Besides the Preamble, other instruments serve to

determine the context of a treaty, such as other (related) agreements celebrated between the same

parties.

The Appellate Body, while deciding the case US - Gasoline (WT/DS2), noted that Article 31 of the VCLT

forms part of the customary rules of treaty interpretation, incorporated into Article 3.2 of the WTO Dispute

Settlement Understanding.

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EXERCISES:

1. What are the objectives of the TBT Agreement?

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II.C. STRUCTURE 

The TBT Agreement consists of a Preamble, setting out the general objectives of the Agreement, 15 articles

and three annexes. Its structure is straightforward:

The first set of provisions concerns the preparation, adoption and application of technical regulations

(Articles 2-3).

The second set deals with the preparation, adoption and application of standards (Article 4, and Code of good

practice for the preparation, adoption and application of standards (Annex 3).

The third set of provisions relates to conformity assessment procedures (Articles 5-9).

The remainder of the Agreement (Articles 10-14) deals with transparency, technical assistance, special and

differential treatment, dispute settlement and institutional issues (the work of the TBT Committee).

In addition, Annex 1 contains definitions of the terms used in the Agreement and Annex 2 lays down provisions

referred to technical experts groups. Annex 3 deals with the preparation, adoption and application of

standards by standardizing bodies.

IN DETAIL 

PROVISIONS OF THE TBT AGREEMENT

PREAMBLE

Article 1 General Provisions

TECHNICAL REGULATIONS AND STANDARDS

Article 2 Preparation, Adoption and Application of Technical Regulations by Central Government

Bodies

Article 3 Preparation, Adoption and Application of Technical Regulations by Local Government Bodies

and Non-Governmental Bodies

Article 4 Preparation, Adoption and Application of Standards

CONFORMITY WITH TECHNICAL REGULATIONS AND STANDARDS

Article 5 Procedures for Assessment of Conformity by Central Government Bodies

Article 6 Recognition of Conformity Assessment by Central Government Bodies

Article 7 Procedures for Assessment of Conformity by Local Government Bodies

Article 8 Procedures for Assessment of Conformity by Non-Governmental Bodies

Article 9 International and Regional Systems

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INFORMATION AND ASSISTANCE

Article 10 Information About Technical Regulations, Standards and Conformity Assessment

Procedures

Article 11 Technical Assistance to Other Members

Article 12 Special and Differential Treatment of Developing Country Members

INSTITUTIONS, CONSULTATION AND DISPUTE SETTLEMENT

Article 13 The Committee on Technical Barriers to Trade

Article 14 Consultation and Dispute Settlement

FINAL PROVISIONS

Article 15 Final Provisions (Reservations, Review and Annexes)

ANNEXES

Annex 1 Terms and their definitions for the purpose of this Agreement

Annex 2 Technical expert groups

Annex 3 Code of good practice for the preparation, adoption and application of standards

Now it is time for us to present the TBT Agreement's provisions on applicability, coverage, matters excluded

from the TBT Agreement, relationship with the SPS Agreements, relevant definitions, institutional coverage and

temporal applicability.

II.D. SCOPE OF APPLICATION 

The TBT Agreement applies to:

Technical regulations: measures which lay down product characteristics or their related processes

and production methods, with which compliance is mandatory.

Standards: measures approved by a Recognised Body that provide, for common and repeated use,

rules, guidelines or characteristics for products or related processes and production methods, with which

compliance is voluntary (i.e. not mandatory).

Conformity assessment procedures: procedures used, directly or indirectly, to determine the

fulfilment of relevant requirements contained in technical regulations or standards.

The TBT Agreement covers the measures above, as well as their amendments and additions, as applied to final

products and/or to related processes and production methods. Technical regulations and standards include

terminology, symbols, packaging, marking or labelling requirements, among others.

It is important to know the scope of application of the TBT Agreement, to be able to verify if it applies to a

certain measure, since there are two other WTO agreements, the GATT 1994 and the SPS Agreement which

also regulate internal measures (such as domestic technical regulations).

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In fact, the Agreement on Sanitary and Phytosanitary Measures covers regulations with very specific objectives

such as to prevent risks arising from food, and animal or plant-carried diseases and pests. Thus, the

verification of a measure's characteristics and the identification of its object are important steps to determine

if a measure is covered by the TBT Agreement.

However, it is clear that often the same regulation has more than one objective and may be subject to the

disciplines of both, the SPS and the TBT Agreements. Parts of the regulation (that is, some provisions) could

fall within the scope of the SPS Agreement, while others could fall within that of the TBT Agreement.

We shall present a full definition of the three types of measures regulated by the TBT Agreement in Module 4.

For now, let’s just keep in mind that "technical regulations", "standards", and "conformity assessment

procedures" are the three types of measures within the scope of applicability of the TBT Agreement.

II.E. COVERAGE 

IN DETAIL 

The coverage of the TBT Agreement extends to all technical regulations, standards and conformity assessment

procedures that apply to trade in goods, i.e. to all agricultural and industrial products.

Article 1.3 reads:

All products, including industrial and agricultural products, shall be subject to the provisions of this

Agreement.

In terms of the definitions contained in Annex 1, paragraphs 1 and 2 of the TBT Agreement:

... technical regulations and standards which lay down related "processes and production methods"

(PPMs) that are related to characteristics of products are also covered by the TBT Agreement.

In addition, the second sentence of Annex 1, paragraphs 1 and 2 provides that:

... technical regulations and standards "may also include or deal exclusively with terminology, symbols,

packaging, marking or labelling requirements as they apply to a product, process or production method".

The TBT Agreement does NOT apply to:

Sanitary and phytosanitary (SPS) measures

Purchasing specifications prepared by governments

Regulations and standards related to services

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Important note

Technical measures relating to services are dealt with under Article VI.4 of the GATS, and not under the

TBT Agreement.

II.E.1. PROCESS AND PRODUCTION METHODS (PPMS) 

It is important to keep in mind that, in contrast to the Tokyo Round TBT Agreement, the current

TBT Agreement does regulate technical regulation and standards focused on processes and production methods

(PPMs), when they are related to the characteristics of products covered by the TBT Agreement.

However, PPMs not related to these characteristics, in other words, PPMs that are not detectable in the final

product, i.e., do not leave traces, or, in trade jargon, "non-product related PPMs", are seen by the majority of

Members as not regulated by the TBT Agreement. The issue of coverage of non-product related PPMs has

triggered a complex debate both in the TBT Committee and, in the context of the discussion on eco-labelling, in

the Committee on Trade and Environment (CTE). Non product related PPMs may constitute important policy

tools in order to secure the safety of employees or to protect the environment.

The applicability of the TBT Agreement to non-product related PPMs has never been interpreted at the WTO by

a Panel or the Appellate Body, nor has it been the object of an Understanding of Interpretation by Members.

Nevertheless, even if the TBT Agreement were not applicable to measures on non-product related PPMs, these

are covered by other WTO Agreements, for example, Article XX of the GATT.

GATT Article XX has been interpreted in WTO dispute settlement cases time and again. An important case was

decided in 2001 in the US - Shrimp Turtle dispute (United States — Import Prohibition of Certain Shrimp and

Shrimp Products WT/DS58). Here, the Appellate Body (AB) had the opportunity to examine PPMs measures

under the GATT Agreement, not under the TBT Agreement.

The case involved a typical situation of non-product related PPMs. The measure in question was a regulation

adopted by the United States (US) which banned imported shrimps which had been caught using a different

method to the one recommended to prevent killing sea turtles. Now, shrimps caught using a method that

could kill sea turtles and shrimps caught with the recommended method that prevents such occurrence (TED),

cannot be distinguished between one another, at least not solely based on the product's characteristics.

The Appellate Body recognized the right of WTO Members to protect exhaustible natural resources, as long as

they do not do this in a way that arbitrarily or unjustifiably discriminates between countries where the same

conditions prevail, or that disguisedly restricts international trade.

However, in the US - Shrimp Turtle case, the Appellate Body did not expressly recognize the two "types" of

shrimp as "unlike" products. What it did, during the case's implementation phase, was to accept that a WTO

Member may adopt a PPM measure that is non-product related and still find a justification for it under

Article XX (General Exceptions). That is, the measure may be seen as a valid reason for violating other

WTO obligations, such as the prohibition on quantitative restriction or the national treatment principle, as long

as it complies with all the requirements of Article XX, i.e., be subsumed to at least one of the paragraphs of

Article XX and be in accordance with the obligations provided for in the chapeau of the Article.

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RECALL 

Do you remember which are the GATT basic obligations and general exceptions?

GATT Article I

Pursuant to Article I, on the Most Favoured Nation Principle, WTO Members are bound to grant to the

products of other Members treatment no less favourable than that accorded to the products of any other

country. Thus, no Member is to give special trading advantages to one Member at the exclusion of others.

All Members are meant to be treated on an equal footing and share the benefits of any moves towards

lower trade barriers.

GATT Article III

Article III contains the National Treatment Principle. It stipulates that once goods have entered a market,

they must be treated no less favourably than like products that are domestically produced. More

specifically, Article III:4 requires that the products of any Member imported into any other Member shall be

accorded treatment no less favourable than that accorded to like products of national origin in respect of

"all laws, regulations and requirements affecting their internal sale, offering for sale, purchase,

transportation, distribution or use".

Other GATT provisions

Further provisions of the GATT 1994 are also relevant. Article XI requires the general elimination of

quantitative restrictions on the importation or exportation of products. Article XI:2(b) introduces an

exception to the general rule and allows import and export prohibitions or restrictions "necessary to the

application of standards or regulations for the classification, grading or marketing of commodities in

international trade".

Exceptions

Finally, Article XX establishes exceptions to GATT obligations that may be relevant to TBT measures. This

provision lays out a number of specific instances in which Members may be "exempted" from GATT rules,

including for the protection of "exhaustible natural resources" or the "protection of human, animal or plant

life or health". However, the chapeau, which is the introductory sentence to Article XX, is designed to

ensure that such measures do not result in arbitrary or unjustifiable discrimination and do not constitute a

disguised restriction on international trade.

IF YOU WANT TO KNOW MORE ...  

TRADE AND ENVIRONMENT AT THE WTO

Trade and Environment is an important topic in the WTO Trade Agenda. There is a Committee (The

Committee on Trade and Environment) in charge of the discussions, whose mandate was established by

the 1994 Decision on Trade and Environment.

If you want to know more about this subject and the discussions around PPMs, check the background paper

prepared by the WTO Trade and Environment Division, Trade and Environment at the WTO.

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EXERCISES:

2. What is the structure of the TBT Agreement?

3. What is the coverage of the TBT Agreement?

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II.F. MATTERS EXCLUDED FROM THE TBT AGREEMENT 

Two areas of trade in goods are excluded from the TBT Agreement:

Sanitary and phytosanitary measures, which are subject to the provisions of the Agreement on the

Application of Sanitary and Phytosanitary Measures (SPS Agreement); and

Government procurement specifications, which are addressed in the plurilateral Agreement on

Government Procurement, only for its specific membership and covered entities (GPA Agreement).

In addition, technical measures relating to services are dealt with under Article VI.4 of the GATS, and not

under the TBT Agreement.

II.F.1. EXCLUSION OF SANITARY AND PHYTOSANITARY MEASURES 

Article 1.5 of the TBT Agreement excludes sanitary and phytosanitary measures from its scope of application.

It reads:

The provisions of this Agreement do not apply to sanitary and phytosanitary measures as defined in

Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures.

Likewise, Article 1.4 of the SPS Agreement provides that:

Nothing in this Agreement shall affect the rights of Members under the Agreement on Technical Barriers to

Trade with respect to measures not within the scope of this Agreement.

The scope of application of the SPS and the TBT Agreements are therefore mutually exclusive. That is: the

TBT Agreement covers all technical regulations, standards and conformity assessment procedures, except

when these are sanitary or phytosanitary measures as defined by the SPS Agreement.

Note

Sometimes a regulation may have more than one objective and, therefore, could be covered by both

Agreements, the SPS and the TBT. Parts of the regulation (that is, some provisions) could fall within the

scope of the SPS Agreement, while others will fall within that of the TBT Agreement.

As mentioned before, prior to 1994 and the conclusion of the SPS Agreement, the Tokyo Round TBT Agreement

also used to cover technical requirements resulting from food safety and animal and plant health measures,

including pesticide residue limits, inspection requirements and labelling.

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IF YOU WANT TO KNOW MORE 

For more details on the SPS Agreement see "Understanding the WTO Agreement on Sanitary and

Phytosanitary Measures" on the WTO web site.

II.F.2. EXCLUSION OF GOVERNMENT PROCUREMENT REQUIREMENTS 

Article 1.4 of the TBT Agreement excludes government procurement specifications from its coverage. It reads:

Purchasing specifications prepared by governmental bodies for production or consumption requirements of

governmental bodies are not subject to the provisions of this Agreement but are addressed in the

Agreement on Government Procurement, according to its coverage.

Such specifications are subject to the relevant provisions in the plurilateral Agreement on Government

Procurement (GPA) which apply only to GPA parties.

The GPA applies to "any law, regulation, procedure or practice regarding any procurement by entities covered

by this Agreement" as specified in a positive list of entities annexed to the Agreement by each Party, and to

procurement beyond defined threshold levels for each Party "by any contractual means, including through such

methods as purchase or as lease, rental or hire purchase, with or without an option to buy, including any

combination of products and services" (GPA, Articles I.1 and I.2).

Any "law, regulation, procedure" includes technical specifications. The GPA provides, among others, that

technical specifications applied in government procurement by Parties to the Agreement shall be in terms of

performance rather than design or descriptive characteristics, and be based on international standards, where

such exist; otherwise, on national technical regulations, recognized national standards, or building codes

(GPA, Article VI.2).

Currently, the GPA has 38 individual Members (12 Members if counting the European Union as one) and nine

others currently negotiating their accession.

IF YOU WANT TO KNOW MORE 

THE GOVERNMENT PROCUREMENT AGREEMENT

If you want to know more about the GP Agreement, check the section on the subject at the WTO website.

You may learn a lot about this subject, which is of interest not only to the Parties to the Plurilateral

Agreement!

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II.G. RELATIONSHIP BETWEEN THE SPS AND THE TBT AGREEMENTS 

The SPS Agreement covers all measures, even if these are technical requirements, whose purpose is to protect

human or animal health from food-borne risks, human health from animal or plant-carried diseases, animals

and plants from pests or diseases, or to prevent other damage from pests. Annex A, paragraph 1 of the

SPS Agreement provides that SPS Measures include:

All relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product

criteria; processes and production methods; testing, inspection, certification and approval procedures;

quarantine treatments including relevant requirements associated with the transport of animals or plants,

or with the materials necessary for their survival during transport; provisions on relevant statistical

methods, sampling procedures and methods of risk assessment; and packaging and labelling

requirements directly related to food safety.

The TBT Agreement covers all technical regulations, standards or conformity assessment procedures, except

when these are SPS measures, regardless of their objective.

Important note

It is the type (technical regulations, standards or conformity assessment procedures) of measure which

determines coverage by the TBT Agreement, but it is the objective of the measure which is relevant in

determining whether it is subject to the SPS Agreement. SPS Measures are those whose objective is

specified in Annex A of the SPS Agreement

Summarizing, the objectives of SPS MEASURES ARE:

To protect From

animal or plant life or

health

the entry, establishment or spread of pests, disease-carrying or disease-causing

organisms

human or animal life or

health

risks arising from additives, contaminants, toxins or disease-causing organisms

in their food, beverages or feedstuffs

human life or health diseases carried by plants, animals or products thereof (zoonoses)

a country damage caused by the entry, establishment or spread of pests

Table 1: Objectives of SPS Measures

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Important Note

"Animal" includes fish and wild fauna;

"plant" includes forests and wild flora;

"pests" include weeds; and

"contaminants" include pesticide and veterinary drug residues and extraneous matter.

TBT MEASURES

TBT measures could cover any subject, from car safety to energy-saving devices, to the shape of food cartons.

To give some examples pertaining to human health, TBT measures could include requirements for

pharmaceuticals or the labelling of cigarettes. In terms of food, most labelling requirements, nutrition claims

and concerns, quality and packaging regulations are generally considered to be TBT measures.

As illustrated below, international trade of fruits and bottled water may be subject to regulations that would fall

under both the TBT and SPS Agreement: a measure dealing with the treatment of the imported fruit to

prevent the spread of pests would fall under the SPS Agreement, while a measure addressing quality, grading

and labelling characteristics of the imported fruit would fall under the TBT Agreement. Regulation on the

international trade of bottled water could set forth measures aimed at the prevention of the presence of

contaminants and disease-causing organisms in the water, while also setting packaging and labelling standards

aimed at quality and consumer safety concerns.

TBT OR SPS?

AN EXAMPLE: ORANGES

Figure 1: TBT and SPS measures relating to the international trade of orange

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ANOTHER EXAMPLE: BOTTLED WATER – SPECIFICATION FOR BOTTLES

Figure 2: TBT and SPS measures relating to the international trade of bottled water

COMMON FEATURES

The two Agreements have some common elements, including the requirement that a measure be the least

trade restrictive; disciplines regarding control and inspection procedures (Conformity Assessment Procedures

in the TBT Agreement, and Control, Inspection and Approval procedures in SPS Agreement); basic obligations

of non-discrimination and similar requirements for the advance notification of proposed measures and the

creation of information offices (so-called transparency requirements).

Furthermore, both Agreements encourage the use of international standards in order to promote

harmonization.

DIFFERENCES

Sanitary and phytosanitary measures may be imposed only to the extent necessary to protect human, animal

and plant health, and on the basis of scientific information.

Governments may, however, introduce TBT regulations when necessary to meet a number of objectives, such

as national security, the prevention of deceptive practices, protection of human, animal or plant life or health,

or the environment, among others. Because the obligations that governments have accepted are different

under the two agreements, it is important to know whether a measure falls under the realm of SPS or TBT.

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Examples of TBT and Examples of SPS measures

SPS measures

typically deal with:

Additives in food or drink; contaminants in food or drink; poisonous substances in

food or drink; residues of veterinary drugs or pesticides in food or drink;

certification of food safety, animal or plant health; processing methods with

implications for food safety; labelling requirements directly related to food safety;

plant/animal quarantine; declarations of areas free from specific pests or diseases;

other sanitary requirements for imports (on imported pallets used to transport

animals, for example); etc.

TBT measures

typically deal with:

Composition of certain processed foods; labelling of food, drink and drugs; quality

requirements for fresh food; packaging requirements for fresh food; packaging and

labelling for dangerous chemicals and toxic substances; regulations for electrical

appliances; regulations for cordless phones, radio equipment; textiles and

garments product/production description; testing of vehicles and accessories;

safety for toys; etc.

Table 2: Examples of TBT and SPS Measures

EXERCISES:

4. What are the measures excluded from the TBT Agreement?

5. Can you place the measures taken by WTO Members below under the correct category? TBT or

SPS Measures?

1) The limitation on the use of lithium in batteries, for reasons of health and safety.

2) Requirements on the size, colour and quality of fruits.

3) The control of pesticide use in fruits, for reasons of food safety.

4) Specifications on recyclable packaging for strawberries, for environmental purposes.

5) Prohibition of the use of CFC products in microchips, to protect the ozone layer.

6) The ban of chicken imports from bird flu affected areas, to protect domestic birds and human health.

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II.H. RELEVANT DEFINITIONS 

Annex 1 of the TBT Agreement defines many of the terms used in the Agreement, namely technical

regulations; standards; conformity assessment procedures; international body or system; regional body or

system; central government body; local government body; and non-governmental body. Understanding

these definitions is essential for the comprehension of the TBT Agreement disciplines and for engaging in this

course. In brief:

1. Technical regulation: Document which lays down product characteristics or their related processes and

production methods, with which compliance is mandatory.

2. Standard: Document approved by a recognized body, that provides, for common and repeated use,

rules, guidelines or characteristics for products or related processes and production methods, with which

compliance is not mandatory.

Technical regulations and standards include terminology, symbols, packaging, marking or labelling

requirements.

3. Conformity assessment procedures: Any procedure used, directly or indirectly, to determine that relevant

requirements in technical regulations or standards are fulfilled. They include, inter alia, procedures for

sampling, testing and inspection; evaluation, verification and assurance of conformity; registration,

accreditation and approval as well as their combinations.

4. International body or system: Body or system whose membership is open to the relevant bodies of at

least all Members.

5. Regional body or system: Body or system whose membership is open to the relevant bodies of only some

of the Members.

6. Central government body: Central government, its ministries and departments, or any body subject to

the control of the central government in respect of the activity in question.

7. Local government body: Government other than a central government (e.g. states, provinces, Länder,

cantons, municipalities, etc.), its ministries or departments, or any body subject to the control of such a

government in respect of the activity in question.

8. Non-governmental body: Body other than a central government body or a local government body,

including a non-governmental body which has legal power to enforce a technical regulation.

In the case of the European Union, the provisions governing central government bodies apply. However,

regional bodies or conformity assessment systems may be established within the European Union, and in such

cases would be subject to the provisions of this Agreement on regional bodies or conformity assessment

systems.

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Pursuant to Article 1.1 of the TBT Agreement, the terms for standardization, procedures and assessment of

conformity not specifically defined in Annex 1, shall have the meaning adopted within the United Nations

system and by international standardizing bodies. The definitions in the ISO/IEC Guide 2:1991 - Sixth Edition,

which corresponds to the period when the TBT Agreement was being drafted, are used for standardization

purposes. The definition of standards contained in the ISO/IEC Guide 2:1991 reads:

Document, established by consensus and approved by a recognised body, that provides, for common and

repeated use, rules, guidelines or characteristics for activities or their results, aimed at the achievement of

the optimum degree of order in a given context.

NOTE – Standards should be based on the consolidated results of science, technology and experience, and

aimed at the promotion of optimum community benefits.

We may note three main differences in terms of coverage and definition of standards between the

TBT Agreement and the ISO/IEC Guide 2:1991:

The ISO/IEC Guide 2:1991 covers services while the TBT Agreement does not;

pursuant to ISO/IEC Guide 2:1991, a standard may be either voluntary or mandatory while for the

purpose of the TBT Agreement standards are voluntary; and

in the Guide, standards are consensus-based while the TBT Agreement also covers standards that are

not based on consensus.

You should keep in mind that the definition and coverage of standards provided in the TBT Agreement shall

prevail over those presented in the ISO/IEC Guide 2:1991, for the interpretation and application of the

Agreement's rights and obligations.

II.I. INSTITUTIONAL COVERAGE 

The TBT Agreement applies to a wide range of bodies and systems, both governmental and non-governmental:

Central government, local government, international, regional and non-governmental bodies.

Members are responsible for the implementation of the TBT Agreement, but their obligation to ensure

compliance is different at different levels of governmental bodies, non-governmental entities and regional

bodies.

In its Annex 1, paragraphs 4 to 8, the TBT Agreement provides definitions of the five different levels of bodies

and systems mentioned above. Members' obligations regarding the compliance with the TBT Agreement of

each category of body are summarized below:

Central Government Bodies: Members are fully responsible for ensuring that central government bodies

comply with the obligations regarding technical regulations and conformity assessment procedures.

Members shall also ensure that central government standardizing bodies accept and comply with the

Code of Good Practice for the Preparation, Adoption and Application of Standards (Code of Good

Practice).

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Local Governmental Bodies: Members are responsible and shall take reasonable measures to ensure

those bodies' compliance with the Agreement's provisions on technical regulations and conformity

assessment procedures; as well as ensure that such bodies accept and comply with the Code of Good

Practice.

Non-governmental entities within the territory of the Members and Regional Bodies of which it (or a

national entity within its territory) is a member: Members shall take reasonable measures to ensure

that they accept and comply with the Code of Good Practice and the relevant provisions of the

Agreement, particularly Articles 5 and 6 on conformity assessment, and shall only rely on such bodies'

conformity assessment procedures if they comply with these two provisions.

International bodies: Members shall take reasonable measures to ensure that they comply with

Articles 5 and 6 on conformity assessment, and shall only rely on such bodies' conformity assessment

procedures if they comply with these two provisions.

Furthermore, Members shall not take measures which require or encourage any of the abovementioned

standardizing bodies to act inconsistently with the Agreement, its Code of Good Practice, or both. The

obligations of Members regarding compliance of standardizing bodies with the provisions of the Code of

Good Practice apply irrespectively of whether a standardizing body has accepted the Code.

A number of regional bodies undertake work on TBT issues, and there is a growing use of commercial or

private standards developed by non-governmental bodies which address performance or product specifications.

Furthermore, for the same product, there may be a "patchwork" of requirements, which include local and

central regulations as well as non-governmental standards, adopted following the demand of industries and

consumer interests groups.

II.J. TEMPORAL SCOPE OF APPLICATION 

The TBT Agreement applies to measures currently in legal force, regardless of the date they were enacted by

the Member.

Article XVI:4 of the WTO Agreement provides for the temporal scope of application of the WTO Agreement,

including the TBT Agreement. It reads as follows:

Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its

obligations as provided in the annexed Agreements.

Concerning the TBT Agreement, in the EC – Sardines case, the Appellate Body upheld the Panel's finding that

Article 2.4 applies not only to the "preparation and adoption" of technical regulations, but also to the

"application" of existing measures adopted prior to 1 January 1995. The Panel and the Appellate Body in the

EC - Sardines case did not find any temporal limitations in the language of the Agreement.

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EXERCISES:

6. Members are responsible for the implementation of the TBT Agreement, but their obligation to ensure

compliance is different at different levels of governmental bodies, non-governmental entities and regional

bodies. Could you elaborate on this?

7. What is the temporal scope of application of the TBT Agreement?

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III. SUMMARY 

OBJECTIVES OF THE TBT AGREEMENT

While the main objective of the Agreement is to ensure that technical regulations, standards and

conformity assessment procedures do not create unnecessary obstacles to international trade, it is

recognized that no country shall be prevented from taking measures necessary to ensure, inter alia, the

following:

the quality of its exports;

the protection of human, animal or plant life or health;

the protection of the environment;

the prevention of deceptive practices, at levels it considers appropriate; and

the protection of its essential security interests.

THE TBT AGREEMENT APPLIES TO

Technical regulations, which are measures that lay down product characteristics or their related processes

and production methods, with which compliance is mandatory;

Standards, which are measures approved by a Recognised Body that provide, for common and repeated

use, rules, guidelines or characteristics for products or related processes and production methods, with

which compliance is voluntary (i.e. not mandatory);

Conformity assessment procedures, which are procedures used, directly or indirectly, to determine that

relevant requirements in technical regulations or standards are fulfilled.

THE TBT AGREEMENT DOES NOT APPLY TO

Sanitary and phytosanitary measures; purchasing specifications prepared by governments (government

procurement); and to regulations related to services.

RELATIONSHIP BETWEEN THE SPS AND TBT AGREEMENT

The SPS and the TBT Agreements are mutually exclusive (Article 1.5 of the TBT Agreement).

The SPS Agreement covers all measures intended to protect human or animal health from food-

borne risks; human health from animal or plant-carried diseases; animals and plants from pests or

diseases; or to prevent other damage from pests.

The TBT Agreement covers all technical regulations, standards and conformity assessment

procedures, regardless of their objectives, except when these are sanitary or phytosanitary

measures, as defined by Annex A of the SPS Agreement.

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THE INSTITUTIONAL COVERAGE OF THE TBT AGREEMENT INCLUDES

A wide range of bodies and systems, governmental and non-governmental: central government, local

government, regional and international bodies, and non-governmental entities. Members' obligations vary

according to the type of body.

THE TEMPORAL SCOPE OF THE AGREEMENT

The TBT Agreement applies to measures in legal force, regardless of the date they were enacted by the

WTO Member.

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PROPOSED ANSWERS:

1. The Preamble of the TBT Agreement outlines a balance:

While the main objective of the Agreement is to ensure that technical regulations, standards and

conformity assessment procedures do not create unnecessary obstacles to international trade;

It is recognized that no country should be prevented from taking measures necessary to ensure,

inter alia, the following:

the quality of its exports;

the protection of human, animal or plant life or health;

the protection of the environment;

the prevention of deceptive practices, at levels it considers appropriate; and

the protection of its essential security interest.

2. The TBT Agreement consists of a Preamble, setting out the general objectives of the Agreement,

15 Articles and three Annexes. Its structure is straightforward:

The first set of provisions concerns the preparation, adoption and application of technical regulations

(Articles 2-3).

The second set deals with the preparation, adoption and application of standards (Article 4, and Code of

Good Practice (Annex 3)).

The third set of provisions relates to conformity assessment procedures (Articles 5-9).

The remainder of the Agreement (Articles 10-14) deals with transparency, technical assistance, special

and differential treatment, dispute settlement and institutional issues, i.e. the work of the

TBT Committee.

In addition, Annex 1 contains definitions of the terms used in the Agreement and Annex 2 lays down

provisions for technical expert groups.

3. Within the scope of the TBT Agreement we find (i) technical regulations, (ii) conformity assessment

procedures, and (iii) standards.

Technical regulations are measures which lay down product characteristics or their related processes

and production methods, with which compliance is mandatory;

Standards are measures approved by a Recognised Body that provide, for common and repeated

use, rules, guidelines or characteristics for products or related processes and production methods,

with which compliance is voluntary (i.e. not mandatory);

Conformity assessment procedures, which are procedures used, directly or indirectly, to determine

that relevant requirements in technical regulations or standards are fulfilled.

The TBT Agreement covers the measures above, and their amendments and additions, as applied to final

products and/or to related processes and production methods.

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4. Two areas of trade in goods are excluded from the TBT Agreement:

(i) Sanitary and phytosanitary measures, which are subject to the provisions of the Agreement on the

Application of Sanitary and Phytosanitary Measures (SPS Agreement); and

(ii) Government procurement specifications, which are addressed (only for its specific membership and

covered entities) in the plurilateral Agreement on Government Procurement (GPA Agreement).

In addition, technical measures relating to services are dealt with under Article VI.4 of the GATS, and not

under the TBT Agreement.

5. SPS Measures, numbers 3 and 6.

TBT Measures, numbers 1, 2, 4 and 5

6. Members are responsible for the implementation of the TBT Agreement, but their obligation to ensure

compliance is different at different levels of governmental bodies, non-governmental entities and regional

bodies.

In its Annex 1, paragraphs 4 to 8, the TBT Agreement provides definitions of the five different levels of

bodies and systems mentioned above. Members' obligations regarding the compliance with the

TBT Agreement of each category of body are summarized below:

Central Government Bodies: Members are fully responsible for ensuring that central government

bodies comply with the obligations regarding technical regulations and conformity assessment

procedures. Members shall also ensure that central government standardizing bodies accept and

comply with the Code of Good Practice for the Preparation, Adoption and Application of Standards

(Code of Good Practice).

Local Governmental Bodies: Members are responsible and shall take reasonable measures to ensure

those bodies compliance with the Agreement's provisions on technical regulations and conformity

assessment procedures; as well as ensure that such bodies accept and comply with the Code of

Good Practice.

Non-governmental entities within the territory of the Members and Regional Bodies of which it (or a

national entity within its territory) is a member: Members shall take reasonable measures to ensure

that they accept and comply with the Code of Good Practice and the relevant provisions of the

Agreement, particularly Articles 5 and 6 on conformity assessment, and shall only rely on such

bodies conformity assessment procedures if they comply with these two provisions.

International bodies: Members shall take reasonable measures to ensure that they comply with

Articles 5 and 6 on conformity assessment, and shall only rely on such bodies conformity

assessment procedures if they comply with these two provisions.

Furthermore, Members shall not take measures which require or encourage any of the

abovementioned standardizing bodies to act inconsistently with the Agreement, its Code of Good

Practice, or both. The obligations of Members regarding compliance of standardizing bodies with the

provisions of the Code of Good Practice apply irrespectively of whether a standardizing body has

accepted the Code.

7. The TBT Agreement applies to measures currently in legal force, regardless of the date they were enacted

by the Member.

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