AGREEMENT ON TECHNICAL BARRIERS TO TRADE
Members,
Having regard to the Uruguay Round of Multilateral Trade Negotiations;
Desiring to further the objectives of GATT 1994;
Recognizing the important contribution that international standards and conformity assessment systems can make in this regard by improving efficiency of production and facilitating the conduct of international
trade;
Desiring therefore to encourage the development of such international standards and conformity assessment systems;
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;
Recognizing the contribution which international standardization can make to the transfer of technology from developed to developing countries;
Recognizing that developing countries may encounter special difficulties in the formulation and application of technical regulations and standards and procedures for assessment of conformity with technical regulations and standards, and desiring to assist them in their endeavours in this regard;
Hereby agree as follows:
Article 1 - General Provisions
1.1 General terms for standardization and procedures for assessment of conformity shall normally have the meaning given to them by definitions adopted within the United Nations system and by international
standardizing bodies taking into account their context and in the light of the object and purpose of this Agreement.
1.2 However, for the purposes of this Agreement the meaning of the terms given in Annex 1 applies.
1.3 All products, including industrial and agricultural products, shall be subject to the provisions of this Agreement.
1.4 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.
1.5 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.
1.6 All references in this Agreement to technical regulations, standards and conformity assessment procedures shall be construed to include any amendments thereto and any additions to the rules or the product coverage thereof, except amendments and additions of an insignificant nature.
TECHNICAL REGULATIONS AND STANDARDS
Article 2 - Preparation, Adoption and Application of Technical Regulations
- by Central Government Bodies
With respect to their central government bodies:
2.1 Members shall ensure that in respect of technical regulations,
products imported from the territory of any Member shall be accorded
treatment no less favourable than that accorded to like products of
national origin and to like products originating in any other country.
2.2 Members shall ensure that technical regulations are not prepared,
adopted or applied with a view to or with the effect of creating
unnecessary obstacles to international trade. For this purpose, technical
regulations shall not be more trade-restrictive than necessary to fulfil a
legitimate objective, taking account of the risks non-fulfilment would
create. Such legitimate objectives are, inter alia: national security
requirements; the prevention of deceptive practices; protection of human
health or safety, animal or plant life or health, or the environment. In
assessing such risks, relevant elements of consideration are, inter alia:
available scientific and technical information, related processing
technology or intended end-uses of products.
2.3 Technical regulations shall not be maintained if the circumstances or
objectives giving rise to their adoption no longer exist or if the changed
circumstances or objectives can be addressed in a less trade-restrictive
manner.
2.4 Where technical regulations are required and relevant international
standards exist or their completion is imminent, Members shall use them,
or the relevant parts of them, as a basis for their technical regulations
except when such international standards or relevant parts would be an
ineffective or inappropriate means for the fulfilment of the legitimate
objectives pursued, for instance because of fundamental climatic or
geographical factors or fundamental technological problems.
2.5 A Member preparing, adopting or applying a technical regulation which
may have a significant effect on trade of other Members shall, upon the
request of another Member, explain the justification for that technical
regulation in terms of the provisions of paragraphs 2 to 4. Whenever a
technical regulation is prepared, adopted or applied for one of the
legitimate objectives explicitly mentioned in paragraph 2, and is in
accordance with relevant international standards, it shall be rebuttably
presumed not to create an unnecessary obstacle to international trade.
2.6 With a view to harmonizing technical regulations on as wide a basis as
possible, Members shall play a full part, within the limits of their
resources, in the preparation by appropriate international standardizing
bodies of international standards for products for which they either have
adopted, or expect to adopt, technical regulations.
2.7 Members shall give positive consideration to accepting as equivalent
technical regulations of other Members, even if these regulations differ
from their own, provided they are satisfied that these regulations
adequately fulfil the objectives of their own regulations.
2.8 Wherever appropriate, Members shall specify technical regulations
based on product requirements in terms of performance rather than design
or descriptive characteristics.
2.9 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
Members, Members shall:
2.9.1 publish a notice in a publication at an early appropriate stage, in
such a manner as to enable interested parties in other Members to become
acquainted with it, that they propose to introduce a particular technical
regulation;
2.9.2 notify other Members through the Secretariat of the products to be
covered by the proposed technical regulation, together with a brief
indication of its objective and rationale. Such notifications shall take
place at an early appropriate stage, when amendments can still be
introduced and comments taken into account;
2.9.3 upon request, provide to other Members particulars or copies of the
proposed technical regulation and, whenever possible, identify the parts
which in substance deviate from relevant international standards;
2.9.4 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.
2.10 Subject to the provisions in the lead-in to paragraph 9, where urgent
problems of safety, health, environmental protection or national security
arise or threaten to arise for a Member, that Member may omit such of the
steps enumerated in paragraph 9 as it finds necessary, provided that the
Member, upon adoption of a technical regulation, shall:
2.10.1 notify immediately other Members through the Secretariat of the
particular technical regulation and the products covered, with a brief
indication of the objective and the rationale of the technical regulation,
including the nature of the urgent problems;
2.10.2 upon request, provide other Members with copies of the technical
regulation;
2.10.3 without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and take these
written comments and the results of these discussions into account.
2.11 Members shall ensure that all technical regulations 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.
2.12 Except in those urgent circumstances referred to in paragraph 10,
Members shall allow a reasonable interval between the publication of
technical regulations 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.
Article 3 - Preparation, Adoption and Application of Technical Regulations
- by Local Government Bodies and Non-Governmental Bodies
With respect to their local government and non-governmental bodies within
their territories:
3.1 Members shall take such reasonable measures as may be available to
them to ensure compliance by such bodies with the provisions of Article 2,
with the exception of the obligation to notify as referred to in
paragraphs 9.2 and 10.1 of Article 2.
3.2 Members shall ensure that the technical regulations of local
governments on the level directly below that of the central government in
Members are notified in accordance with the provisions of paragraphs 9.2
and 10.1 of Article 2, noting that notification shall not be required for
technical regulations the technical content of which is substantially the
same as that of previously notified technical regulations of central
government bodies of the Member concerned.
3.3 Members may require contact with other Members, including the
notifications, provision of information, comments and discussions referred
to in paragraphs 9 and 10 of Article 2, to take place through the central
government.
3.4 Members shall not take measures which require or encourage local
government bodies or non-governmental bodies within their territories to
act in a manner inconsistent with the provisions of Article 2.
3.5 Members are fully responsible under this Agreement for the observance
of all provisions of Article 2. Members shall formulate and implement
positive measures and mechanisms in support of the observance of the
provisions of Article 2 by other than central government bodies.
Article 4 - Preparation, Adoption and Application - of Standards
4.1 Members shall ensure that their central government standardizing
bodies accept and comply with the Code of Good Practice for the
Preparation, Adoption and Application of Standards in Annex 3 to this
Agreement (referred to in this Agreement as the "Code of Good Practice").
They shall take such reasonable measures as may be available to them to
ensure that local government and non-governmental standardizing bodies
within their territories, as well as regional standardizing bodies of
which they or one or more bodies within their territories are members,
accept and comply with this Code of Good Practice. In addition, Members
shall not take measures which have the effect of, directly or indirectly,
requiring or encouraging such standardizing bodies to act in a manner
inconsistent with the Code of Good Practice. The obligations of Members
with respect to compliance of standardizing bodies with the provisions of
the Code of Good Practice shall apply irrespective of whether or not a
standardizing body has accepted the Code of Good Practice.
4.2 Standardizing bodies that have accepted and are complying with the
Code of Good Practice shall be acknowledged by the Members as complying
with the principles of this Agreement.
CONFORMITY WITH TECHNICAL REGULATIONS AND STANDARDS
Article 5 - Procedures for Assessment of Conformity by Central Government
Bodies
5.1 Members shall ensure that, in cases where a positive assurance of
conformity with technical regulations or standards is required, their
central government bodies apply the following provisions to products
originating in the territories of other Members:
5.1.1 conformity assessment procedures are prepared, adopted and applied
so as to grant access for suppliers of like products originating in the
territories of other Members under conditions no less favourable than
those accorded to suppliers of like products of national origin or
originating in any other country, in a comparable situation; access
entails suppliers' right to an assessment of conformity under the rules of
the procedure, including, when foreseen by this procedure, the possibility
to have conformity assessment activities undertaken at the site of
facilities and to receive the mark of the system;
5.1.2 conformity assessment procedures are not prepared, adopted or
applied with a view to or with the effect of creating unnecessary
obstacles to international trade. This means, inter alia, that conformity
assessment procedures shall not be more strict or be applied more strictly
than is necessary to give the importing Member adequate confidence that
products conform with the applicable technical regulations or standards,
taking account of the risks non-conformity would create.
5.2 When implementing the provisions of paragraph 1, Members shall ensure
that:
5.2.1 conformity assessment procedures are undertaken and completed as
expeditiously as possible and in a no less favourable order for products
originating in the territories of other Members than for like domestic
products;
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; when receiving an application,
the competent body promptly examines the completeness of the documentation
and informs the applicant in a precise and complete manner of all
deficiencies; the competent body transmits as soon as possible the results
of the assessment in a precise and complete manner to the applicant so
that corrective action may be taken if necessary; even when the
application has deficiencies, the competent body proceeds as far as
practicable with the conformity assessment if the applicant so requests;
and that, upon request, the applicant is informed of the stage of the
procedure, with any delay being explained;
5.2.3 information requirements are limited to what is necessary to assess
conformity and determine fees;
5.2.4 the confidentiality of information about products originating in the
territories of other Members arising from or supplied in connection with
such conformity assessment procedures is respected in the same way as for
domestic products and in such a manner that legitimate commercial
interests are protected;
5.2.5 any fees imposed for assessing the conformity of products
originating in the territories of other Members are equitable in relation
to any fees chargeable for assessing the conformity of like products of
national origin or originating in any other country, taking into account
communication, transportation and other costs arising from differences
between location of facilities of the applicant and the conformity
assessment body;
5.2.6 the siting of facilities used in conformity assessment procedures
and the selection of samples are not such as to cause unnecessary
inconvenience to applicants or their agents;
5.2.7 whenever specifications of a product are changed subsequent to the
determination of its conformity to the applicable technical regulations or
standards, the conformity assessment procedure for the modified product is
limited to what is necessary to determine whether adequate confidence
exists that the product still meets the technical regulations or standards
concerned;
5.2.8 a procedure exists to review complaints concerning the operation of
a conformity assessment procedure and to take corrective action when a
complaint is justified.
5.3 Nothing in paragraphs 1 and 2 shall prevent Members from carrying out
reasonable spot checks within their territories.
5.4 In cases where a positive assurance is required that products conform
with technical regulations or standards, and relevant guides or
recommendations issued by international standardizing bodies exist or
their completion is imminent, Members shall ensure that central government
bodies use them, or the relevant parts of them, as a basis for their
conformity assessment procedures, except where, as duly explained upon
request, such guides or recommendations or relevant parts are
inappropriate for the Members concerned, for, inter alia, such reasons as:
national security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or health, or
the environment; fundamental climatic or other geographical factors;
fundamental technological or infrastructural problems.
5.5 With a view to harmonizing conformity assessment procedures on as wide
a basis as possible, Members shall play a full part, within the limits of
their resources, in the preparation by appropriate international
standardizing bodies of guides and recommendations for conformity
assessment procedures.
5.6 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 Members, Members shall:
5.6.1 publish a notice in a publication at an early appropriate stage, in
such a manner as to enable interested parties in other Members to become
acquainted with it, that they propose to introduce a particular conformity
assessment procedure;
5.6.2 notify other Members through the Secretariat of the products to be
covered by the proposed conformity assessment procedure, together with a
brief indication of its objective and rationale. Such notifications shall
take place at an early appropriate stage, when amendments can still be
introduced and comments taken into account;
5.6.3 upon request, provide to other Members particulars or copies of the
proposed procedure and, whenever possible, identify the parts which in
substance deviate from relevant guides or recommendations issued by
international standardizing bodies;
5.6.4 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.
5.7 Subject to the provisions in the lead-in to paragraph 6, where urgent
problems of safety, health, environmental protection or national security
arise or threaten to arise for a Member, that Member may omit such of the
steps enumerated in paragraph 6 as it finds necessary, provided that the
Member, upon adoption of the procedure, shall:
5.7.1 notify immediately other Members through the Secretariat of the
particular procedure and the products covered, with a brief indication of
the objective and the rationale of the procedure, including the nature of
the urgent problems;
5.7.2 upon request, provide other Members with copies of the rules of the
procedure;
5.7.3 without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and take these
written comments and the results of these discussions into account.
5.8 Members shall ensure that all 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 7,
Members shall allow a reasonable interval between the publication of
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.
Article 6 - Recognition of Conformity Assessment by Central Government
Bodies
With respect to their central government bodies:
6.1 Without prejudice to the provisions of paragraphs 3 and 4, Members
shall ensure, whenever possible, that results of conformity assessment
procedures in other Members are accepted, even when those procedures
differ from their own, provided they are satisfied that those procedures
offer an assurance of conformity with applicable technical regulations or
standards equivalent to their own procedures. It is recognized that prior
consultations may be necessary in order to arrive at a mutually
satisfactory understanding regarding, in particular:
6.1.1 adequate and enduring technical competence of the relevant
conformity assessment bodies in the exporting Member, so that confidence
in the continued reliability of their conformity assessment results can
exist; in this regard, verified compliance, for instance through
accreditation, with relevant guides or recommendations issued by
international standardizing bodies shall be taken into account as an
indication of adequate technical competence;
6.1.2 limitation of the acceptance of conformity assessment results to
those produced by designated bodies in the exporting Member.
6.2 Members shall ensure that their conformity assessment procedures
permit, as far as practicable, the implementation of the provisions in
paragraph 1.
6.3 Members are encouraged, at the request of other Members, to be willing
to enter into negotiations for the conclusion of agreements for the mutual
recognition of results of each other's conformity assessment procedures.
Members may require that such agreements fulfil the criteria of paragraph
1 and give mutual satisfaction regarding their potential for facilitating
trade in the products concerned.
6.4 Members are encouraged to permit participation of conformity
assessment bodies located in the territories of other Members in their
conformity assessment procedures under conditions no less favourable than
those accorded to bodies located within their territory or the territory
of any other country.
Article 7 - Procedures for Assessment of Conformity by Local Government
Bodies
With respect to their local government bodies within their territories:
7.1 Members shall take such reasonable measures as may be available to
them to ensure compliance by such bodies with the provisions of Articles 5
and 6, with the exception of the obligation to notify as referred to in
paragraphs 6.2 and 7.1 of Article 5.
7.2 Members shall ensure that the conformity assessment procedures of
local governments on the level directly below that of the central
government in Members are notified in accordance with the provisions of
paragraphs 6.2 and 7.1 of Article 5, noting that notifications shall not
be required for conformity assessment procedures the technical content of
which is substantially the same as that of previously notified conformity
assessment procedures of central government bodies of the Members
concerned.
7.3 Members may require contact with other Members, including the
notifications, provision of information, comments and discussions referred
to in paragraphs 6 and 7 of Article 5, to take place through the central
government.
7.4 Members shall not take measures which require or encourage local
government bodies within their territories to act in a manner inconsistent
with the provisions of Articles 5 and 6.
7.5 Members are fully responsible under this Agreement for the observance
of all provisions of Articles 5 and 6. Members shall formulate and
implement positive measures and mechanisms in support of the observance of
the provisions of Articles 5 and 6 by other than central government
bodies.
Article 8 - Procedures for Assessment of Conformity by Non-Governmental
Bodies
8.1 Members shall take such reasonable measures as may be available to
them to ensure that non-governmental bodies within their territories which
operate conformity assessment procedures comply with the provisions of
Articles 5 and 6, with the exception of the obligation to notify proposed
conformity assessment procedures. In addition, Members shall not take
measures which have the effect of, directly or indirectly, requiring or
encouraging such bodies to act in a manner inconsistent with the
provisions of Articles 5 and 6.
8.2 Members shall ensure that their central government bodies rely on
conformity assessment procedures operated by non-governmental bodies only
if these latter bodies comply with the provisions of Articles 5 and 6,
with the exception of the obligation to notify proposed conformity
assessment procedures.
Article 9 - International and Regional Systems
9.1 Where a positive assurance of conformity with a technical regulation
or standard is required, Members shall, wherever practicable, formulate
and adopt international systems for conformity assessment and become
members thereof or participate therein.
9.2 Members shall take such reasonable measures as may be available to
them to ensure that international and regional systems for conformity
assessment in which relevant bodies within their territories are members
or participants comply with the provisions of Articles 5 and 6. In
addition, Members shall not take any measures which have the effect of,
directly or indirectly, requiring or encouraging such systems to act in a
manner inconsistent with any of the provisions of Articles 5 and 6.
9.3 Members shall ensure that their central government bodies rely on
international or regional conformity assessment systems only to the extent
that these systems comply with the provisions of Articles 5 and 6, as
applicable.
INFORMATION AND ASSISTANCE
Article 10 - Information About Technical Regulations, Standards and -
Conformity Assessment Procedures
10.1 Each Member shall ensure that an enquiry point exists which is able
to answer all reasonable enquiries from other Members and interested
parties in other Members as well as to provide the relevant documents
regarding:
10.1.1 any technical regulations adopted or proposed within its territory
by central or local government bodies, by non-governmental bodies which
have legal power to enforce a technical regulation, or by regional
standardizing bodies of which such bodies are members or participants;
10.1.2 any standards adopted or proposed within its territory by central
or local government bodies, or by regional standardizing bodies of which
such bodies are members or participants;
10.1.3 any conformity assessment procedures, or proposed conformity
assessment procedures, which are operated within its territory by central
or local government bodies, or by non-governmental bodies which have legal
power to enforce a technical regulation, or by regional bodies of which
such bodies are members or participants;
10.1.4 the membership and participation of the Member, or of relevant
central or local government bodies within its territory, in international
and regional standardizing bodies and conformity assessment systems, as
well as in bilateral and multilateral arrangements within the scope of
this Agreement; it shall also be able to provide reasonable information on
the provisions of such systems and arrangements;
10.1.5 the location of notices published pursuant to this Agreement, or
the provision of information as to where such information can be obtained;
and
10.1.6 the location of the enquiry points mentioned in paragraph 3.
10.2 If, however, for legal or administrative reasons more than one
enquiry point is established by a Member, that Member shall provide to the
other Members complete and unambiguous information on the scope of
responsibility of each of these enquiry points. In addition, that Member
shall ensure that any enquiries addressed to an incorrect enquiry point
shall promptly be conveyed to the correct enquiry point.
10.3 Each Member shall take such reasonable measures as may be available
to it to ensure that one or more enquiry points exist which are able to
answer all reasonable enquiries from other Members and interested parties
in other Members as well as to provide the relevant documents or
information as to where they can be obtained regarding:
10.3.1 any standards adopted or proposed within its territory by
non-governmental standardizing bodies, or by regional standardizing bodies
of which such bodies are members or participants; and
10.3.2 any conformity assessment procedures, or proposed conformity
assessment procedures, which are operated within its territory by
non-governmental bodies, or by regional bodies of which such bodies are
members or participants;
10.3.3 the membership and participation of relevant non-governmental
bodies within its territory in international and regional standardizing
bodies and conformity assessment systems, as well as in bilateral and
multilateral arrangements within the scope of this Agreement; they shall
also be able to provide reasonable information on the provisions of such
systems and arrangements.
10.4 Members shall take such reasonable measures as may be available to
them to ensure that where copies of documents are requested by other
Members or by interested parties in other Members, in accordance with the
provisions of this Agreement, they are supplied at an equitable price (if
any) which shall, apart from the real cost of delivery, be the same for
the nationals[1] of the Member concerned or of any other Member.
10.5 Developed country Members shall, if requested by other Members,
provide, in English, French or Spanish, translations of the documents
covered by a specific notification or, in case of voluminous documents, of
summaries of such documents.
10.6 The Secretariat shall, when it receives notifications in accordance
with the provisions of this Agreement, circulate copies of the
notifications to all Members and interested international standardizing
and conformity assessment bodies, and draw the attention of developing
country Members to any notifications relating to products of particular
interest to them.
10.7 Whenever a Member has reached an agreement with any other country or
countries on issues related to technical regulations, standards or
conformity assessment procedures which may have a significant effect on
trade, at least one Member party to the agreement shall notify other
Members through the Secretariat of the products to be covered by the
agreement and include a brief description of the agreement. Members
concerned are encouraged to enter, upon request, into consultations with
other Members for the purposes of concluding similar agreements or of
arranging for their participation in such agreements.
10.8 Nothing in this Agreement shall be construed as requiring:
10.8.1 the publication of texts other than in the language of the Member;
10.8.2 the provision of particulars or copies of drafts other than in the
language of the Member except as stated in paragraph 5; or
10.8.3 Members to furnish any information, the disclosure of which they
consider contrary to their essential security interests.
10.9 Notifications to the Secretariat shall be in English, French or
Spanish.
10.10 Members shall designate a single central government authority that
is responsible for the implementation on the national level of the
provisions concerning notification procedures under this Agreement except
those included in Annex 3.
10.11 If, however, for legal or administrative reasons the responsibility
for notification procedures is divided among two or more central
government authorities, the Member concerned shall provide to the other
Members complete and unambiguous information on the scope of
responsibility of each of these authorities.
Article 11 - Technical Assistance to Other Members
11.1 Members shall, if requested, advise other Members, especially the
developing country Members, on the preparation of technical regulations.
11.2 Members shall, if requested, advise other Members, especially the
developing country Members, and shall grant them technical assistance on
mutually agreed terms and conditions regarding the establishment of
national standardizing bodies, and participation in the international
standardizing bodies, and shall encourage their national standardizing
bodies to do likewise.
11.3 Members shall, if requested, take such reasonable measures as may be
available to them to arrange for the regulatory bodies within their
territories to advise other Members, especially the developing country
Members, and shall grant them technical assistance on mutually agreed
terms and conditions regarding:
11.3.1 the establishment of regulatory bodies, or bodies for the
assessment of conformity with technical regulations; and
11.3.2 the methods by which their technical regulations can best be met.
11.4 Members shall, if requested, take such reasonable measures as may be
available to them to arrange for advice to be given to other Members,
especially the developing country Members, and shall grant them technical
assistance on mutually agreed terms and conditions regarding the
establishment of bodies for the assessment of conformity with standards
adopted within the territory of the requesting Member.
11.5 Members shall, if requested, advise other Members, especially the
developing country Members, and shall grant them technical assistance on
mutually agreed terms and conditions regarding the steps that should be
taken by their producers if they wish to have access to systems for
conformity assessment operated by governmental or non-governmental bodies
within the territory of the Member receiving the request.
11.6 Members which are members or participants of international or
regional systems for conformity assessment shall, if requested, advise
other Members, especially the developing country Members, and shall grant
them technical assistance on mutually agreed terms and conditions
regarding the establishment of the institutions and legal framework which
would enable them to fulfil the obligations of membership or participation
in such systems.
11.7 Members shall, if so requested, encourage bodies within their
territories which are members or participants of international or regional
systems for conformity assessment to advise other Members, especially the
developing country Members, and should consider requests for technical
assistance from them regarding the establishment of the institutions which
would enable the relevant bodies within their territories to fulfil the
obligations of membership or participation.
11.8 In providing advice and technical assistance to other Members in
terms of paragraphs 1 to 7, Members shall give priority to the needs of
the least-developed country Members.
Article 12 - Special and Differential Treatment of Developing Country
Members
12.1 Members shall provide differential and more favourable treatment to
developing country Members to this Agreement, through the following
provisions as well as through the relevant provisions of other Articles of
this Agreement.
12.2 Members shall give particular attention to the provisions of this
Agreement concerning developing country Members' rights and obligations
and shall take into account the special development, financial and trade
needs of developing country Members in the implementation of this
Agreement, both nationally and in the operation of this Agreement's
institutional arrangements.
12.3 Members shall, in the preparation and application of technical
regulations, standards and conformity assessment procedures, take account
of the special development, financial and trade needs of developing
country Members, with a view to ensuring that such technical regulations,
standards and conformity assessment procedures do not create unnecessary
obstacles to exports from developing country Members.
12.4 Members recognize that, although international standards, guides or
recommendations may exist, in their particular technological and
socio-economic conditions, developing country Members adopt certain
technical regulations, standards or conformity assessment procedures aimed
at preserving indigenous technology and production methods and processes
compatible with their development needs. Members therefore recognize that
developing country Members should not be expected to use international
standards as a basis for their technical regulations or standards,
including test methods, which are not appropriate to their development,
financial and trade needs.
12.5 Members shall take such reasonable measures as may be available to
them to ensure that international standardizing bodies and international
systems for conformity assessment are organized and operated in a way
which facilitates active and representative participation of relevant
bodies in all Members, taking into account the special problems of
developing country Members.
12.6 Members shall take such reasonable measures as may be available to
them to ensure that international standardizing bodies, upon request of
developing country Members, examine the possibility of, and, if
practicable, prepare international standards concerning products of
special interest to developing country Members.
12.7 Members shall, in accordance with the provisions of Article 11,
provide technical assistance to developing country Members to ensure that
the preparation and application of technical regulations, standards and
conformity assessment procedures do not create unnecessary obstacles to
the expansion and diversification of exports from developing country
Members. In determining the terms and conditions of the technical
assistance, account shall be taken of the stage of development of the
requesting Members and in particular of the least-developed country
Members.
12.8 It is recognized that developing country Members may face special
problems, including institutional and infrastructural problems, in the
field of preparation and application of technical regulations, standards
and conformity assessment procedures. It is further recognized that the
special development and trade needs of developing country Members, as well
as their stage of technological development, may hinder their ability to
discharge fully their obligations under this Agreement. Members,
therefore, shall take this fact fully into account. Accordingly, with a
view to ensuring that developing country Members are able to comply with
this Agreement, the Committee on Technical Barriers to Trade provided for
in Article 13 (referred to in this Agreement as the "Committee") is
enabled to grant, upon request, specified, time-limited exceptions in
whole or in part from obligations under this Agreement. When considering
such requests the Committee shall take into account the special problems,
in the field of preparation and application of technical regulations,
standards and conformity assessment procedures, and the special
development and trade needs of the developing country Member, as well as
its stage of technological development, which may hinder its ability to
discharge fully its obligations under this Agreement. The Committee shall,
in particular, take into account the special problems of the
least-developed country Members.
12.9 During consultations, developed country Members shall bear in mind
the special difficulties experienced by developing country Members in
formulating and implementing standards and technical regulations and
conformity assessment procedures, and in their desire to assist developing
country Members with their efforts in this direction, developed country
Members shall take account of the special needs of the former in regard to
financing, trade and development.
12.10 The Committee shall examine periodically the special and
differential treatment, as laid down in this Agreement, granted to
developing country Members on national and international levels.
INSTITUTIONS, CONSULTATION AND DISPUTE SETTLEMENT
Article 13 - The Committee on Technical Barriers to Trade
13.1 A Committee on Technical Barriers to Trade is hereby established, and
shall be composed of representatives from each of the Members. The
Committee shall elect its own Chairman and shall meet as necessary, but no
less than once a year, for the purpose of affording Members the
opportunity of consulting on any matters relating to the operation of this
Agreement or the furtherance of its objectives, and shall carry out such
responsibilities as assigned to it under this Agreement or by the Members.
13.2 The Committee shall establish working parties or other bodies as may
be appropriate, which shall carry out such responsibilities as may be
assigned to them by the Committee in accordance with the relevant
provisions of this Agreement.
13.3 It is understood that unnecessary duplication should be avoided
between the work under this Agreement and that of governments in other
technical bodies. The Committee shall examine this problem with a view to
minimizing such duplication.
Article 14 - Consultation and Dispute Settlement
14.1 Consultations and the settlement of disputes with respect to any
matter affecting the operation of this Agreement shall take place under
the auspices of the Dispute Settlement Body and shall follow, mutatis
mutandis, the provisions of Articles XXII and XXIII of GATT 1994, as
elaborated and applied by the Dispute Settlement Understanding.
14.2 At the request of a party to a dispute, or at its own initiative, a
panel may establish a technical expert group to assist in questions of a
technical nature, requiring detailed consideration by experts.
14.3 Technical expert groups shall be governed by the procedures of Annex
2.
14.4 The dispute settlement provisions set out above can be invoked in
cases where a Member considers that another Member has not achieved
satisfactory results under Articles 3, 4, 7, 8 and 9 and its trade
interests are significantly affected. In this respect, such results shall
be equivalent to those as if the body in question were a Member.
FINAL PROVISIONS
Article 15 - Final Provisions - Reservations
15.1 Reservations may not be entered in respect of any of the provisions
of this Agreement without the consent of the other Members.
Review
15.2 Each 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.
15.3 The Committee shall review annually the implementation and operation
of this Agreement taking into account the objectives thereof.
15.4 Not later than the end of the third year from the date of entry into
force of the WTO Agreement and at the end of each three-year period
thereafter, the Committee shall review the operation and implementation of
this Agreement, including the provisions relating to transparency, with a
view to recommending an adjustment of the rights and obligations of this
Agreement where necessary to ensure mutual economic advantage and balance
of rights and obligations, without prejudice to the provisions of Article
12. Having regard, inter alia, to the experience gained in the
implementation of the Agreement, the Committee shall, where appropriate,
submit proposals for amendments to the text of this Agreement to the
Council for Trade in Goods.
Annexes
15.5 The annexes to this Agreement constitute an integral part thereof.
ANNEX 1 - TERMS AND THEIR DEFINITIONS FOR THE PURPOSE OF THIS AGREEMENT
The terms presented in the sixth edition of the ISO/IEC Guide 2: 1991,
General Terms and Their Definitions Concerning Standardization and Related
Activities, shall, when used in this Agreement, have the same meaning as
given in the definitions in the said Guide taking into account that
services are excluded from the coverage of this Agreement.
For the purpose of this Agreement, however, the following definitions
shall apply:
1. Technical regulation
Document which lays down product characteristics or their related
processes and production methods, including the applicable administrative
provisions, with which compliance is mandatory. It may also include or
deal exclusively with terminology, symbols, packaging, marking or
labelling requirements as they apply to a product, process or production
method.
Explanatory note
The definition in ISO/IEC Guide 2 is not self-contained, but based on the
so-called "building block" system.
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.
It may also include or deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as they apply to a product,
process or production method.
Explanatory note
The terms as defined in ISO/IEC Guide 2 cover products, processes and
services. This Agreement deals only with technical regulations, standards
and conformity assessment procedures related to products or processes and
production methods. Standards as defined by ISO/IEC Guide 2 may be
mandatory or voluntary. For the purpose of this Agreement standards are
defined as voluntary and technical regulations as mandatory documents.
Standards prepared by the international standardization community are
based on consensus. This Agreement covers also documents that are not
based on consensus.
3. Conformity assessment procedures
Any procedure used, directly or indirectly, to determine that relevant
requirements in technical regulations or standards are fulfilled.
Explanatory note
Conformity assessment procedures 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 systemBody or system whose membership is open to the relevant bodies of at least
all Members.
5. Regional body or systemBody or system whose membership is open to the relevant bodies of only
some of the Members.
6. Central government bodyCentral government, its ministries and departments or any body subject to
the control of the central government in respect of the activity in question.
Explanatory note:
In the case of the European Communities the provisions governing central government bodies apply. However, regional bodies or conformity assessment systems may be established within the European Communities, and in such cases would be subject to the provisions of this Agreement on regional bodies or conformity assessment systems.
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.
ANNEX 2 - TECHNICAL EXPERT GROUPS
The following procedures shall apply to technical expert groups established in accordance with the provisions of Article 14.
1. Technical expert groups are under the panel's authority. Their terms of reference and detailed working procedures shall be decided by the panel, and they shall report to the panel.
2. Participation in technical expert groups shall be restricted to persons of professional standing and experience in the field in question.
3. Citizens of parties to the dispute shall not serve on a technical expert group without the joint agreement of the parties to the dispute, except in exceptional circumstances when the panel considers that the need for specialized scientific expertise cannot be fulfilled otherwise.
Government officials of parties to the dispute shall not serve on a technical expert group. Members of technical expert groups shall serve in their individual capacities and not as government representatives, nor as representatives of any organization. Governments or organizations shall therefore not give them instructions with regard to matters before a technical expert group.
4. Technical expert groups may consult and seek information and technical advice from any source they deem appropriate. Before a technical expert group seeks such information or advice from a source within the jurisdiction of a Member, it shall inform the government of that Member.
Any Member shall respond promptly and fully to any request by a technical expert group for such information as the technical expert group considers necessary and appropriate.
5. The parties to a dispute shall have access to all relevant information provided to a technical expert group, unless it is of a confidential nature. Confidential information provided to the technical expert group shall not be released without formal authorization from the government, organization or person providing the information. Where such information is requested from the technical expert group but release of such information by the technical expert group is not authorized, a non-confidential summary of the information will be provided by the government, organization or person supplying the information.
6. The technical expert group shall submit a draft report to the Members concerned with a view to obtaining their comments, and taking them into account, as appropriate, in the final report, which shall also be circulated to the Members concerned when it is submitted to the panel.
ANNEX 3 - CODE OF GOOD PRACTICE FOR THE PREPARATION, ADOPTION AND APPLICATION OF STANDARDS
General Provisions
A. For the purposes of this Code the definitions in Annex 1 of this Agreement shall apply.
B. This Code is open to acceptance by any standardizing body within the territory of a Member of the WTO, whether a central government body, a local government body, or a non-governmental body; to any governmental regional standardizing body one or more members of which are Members of the WTO; and to any non-governmental regional standardizing body one or more members of which are situated within the territory of a Member of the WTO (referred to in this Code collectively as "standardizing bodies" and individually as "the standardizing body").
C. Standardizing bodies that have accepted or withdrawn from this Code
shall notify this fact to the ISO/IEC Information Centre in Geneva. The
notification shall include the name and address of the body concerned and
the scope of its current and expected standardization activities. The
notification may be sent either directly to the ISO/IEC Information
Centre, or through the national member body of ISO/IEC or, preferably,
through the relevant national member or international affiliate of ISONET,
as appropriate.
Substantive provisions
D. In respect of standards, the standardizing body shall accord treatment
to products originating in the territory of any other Member of the WTO no
less favourable than that accorded to like products of national origin and
to like products originating in any other country.
E. The standardizing body shall ensure that standards are not prepared,
adopted or applied with a view to, or with the effect of, creating
unnecessary obstacles to international trade.
F. Where international standards exist or their completion is imminent,
the standardizing body shall use them, or the relevant parts of them, as a
basis for the standards it develops, except where such international
standards or relevant parts would be ineffective or inappropriate, for
instance, because of an insufficient level of protection or fundamental
climatic or geographical factors or fundamental technological problems.
G. With a view to harmonizing standards on as wide a basis as possible,
the standardizing body shall, in an appropriate way, play a full part,
within the limits of its resources, in the preparation by relevant
international standardizing bodies of international standards regarding
subject matter for which it either has adopted, or expects to adopt,
standards. For standardizing bodies within the territory of a Member,
participation in a particular international standardization activity
shall, whenever possible, take place through one delegation representing
all standardizing bodies in the territory that have adopted, or expect to
adopt, standards for the subject matter to which the international
standardization activity relates.
H. The standardizing body within the territory of a Member shall make every effort to avoid duplication of, or overlap with, the work of other standardizing bodies in the national territory or with the work of
relevant international or regional standardizing bodies. They shall also make every effort to achieve a national consensus on the standards they develop. Likewise the regional standardizing body shall make every effort to avoid duplication of, or overlap with, the work of relevant international standardizing bodies.
I. Wherever appropriate, the standardizing body shall specify standards based on product requirements in terms of performance rather than design or descriptive characteristics.
J. At least once every six months, the standardizing body shall publish a work programme containing its name and address, the standards it is currently preparing and the standards which it has adopted in the preceding period. A standard is under preparation from the moment a decision has been taken to develop a standard until that standard has been adopted. The titles of specific draft standards shall, upon request, be provided in English, French or Spanish. A 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.
The work programme shall for each standard indicate, in accordance with any ISONET rules, the classification relevant to the subject matter, the stage attained in the standard's development, and the references of any international standards taken as a basis. No later than at the time of publication of its work programme, the standardizing body shall notify the existence thereof to the ISO/IEC Information Centre in Geneva.
The notification shall contain the name and address of the standardizing body, 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 may be sent directly to the ISO/IEC Information Centre, or, preferably, through the relevant national member or international affiliate of ISONET, as appropriate.
K. The national member of ISO/IEC shall make every effort to become a
member of ISONET or to appoint another body to become a member as well as
to acquire the most advanced membership type possible for the ISONET
member. Other standardizing bodies shall make every effort to associate themselves with the ISONET member.
L. Before adopting a standard, the standardizing body shall 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, however, be shortened in cases where urgent problems of safety, health or environment arise or threaten to arise. No later than at the start of the comment period, the standardizing body shall publish a notice announcing the period for commenting in the publication referred to in paragraph J. Such notification shall include, as far as practicable, whether the draft standard deviates from relevant international standards.
M. On the request of any interested party within the territory of a Member
of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of a draft standard which it has submitted for comments. Any fees charged for this service shall, apart from the real cost of
delivery, be the same for foreign and domestic parties.
N. The standardizing body shall take into account, in the further processing of the standard, the comments received during the period for commenting. Comments received through standardizing bodies that have
accepted this Code of Good Practice shall, if so requested, be replied to as promptly as possible. The reply shall include an explanation why a deviation from relevant international standards is necessary.
O. Once the standard has been adopted, it shall be promptly published.
P. On the request of any interested party within the territory of a Member of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of its most recent work programme or of a standard which it produced. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.
Q. The standardizing body shall afford sympathetic consideration to, and adequate opportunity for, consultation regarding representations with respect to the operation of this Code presented by standardizing bodies that have accepted this Code of Good Practice. It shall make an objective effort to solve any complaints.
[1] "Nationals" here shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial
establishment in that customs territory.
Com-Law > Findlaw > WTO Doc > Technical Barriers
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
Bright Jon
Brighten Law Firm email@com-law.net
Tel:+86-0520-3519435 Fax: +86-520-3516040
Taicang Hotel, No.6, South People Road, Taicang, Jiangsu 215400 China