The Agreement on Technical Barriers to Trade, commonly referred to as the TBT Agreement, is an international treaty administered by the World Trade Organization. It was last renegotiated during the Uruguay Round of the General Agreement on Tariffs and Trade, with its present form entering into force with the establishment of the WTO at the beginning of 1995, binding on all WTO members.
Purpose
The TBT exists to ensure that technical regulations, standards, testing, and certification procedures do not create unnecessary obstacles to trade. The agreement prohibits technical requirements created in order to limit trade, as opposed to technical requirements created for legitimate purposes such as consumer or environmental protection. In fact, its purpose is to avoid unnecessary obstacles to international trade and to give recognition to all WTO members to protect legitimate interests according to own regulatory autonomy, although promoting the use of international standards. The list of legitimate interests that can justify a restriction in trade is not exhaustive and it includes protection of environment, human and animal health and safety.
Structure of the agreement on technical barriers to trade
The TBT Agreement can be divided into five parts. The first part defines the scope of the Agreement which includes "[a]ll products, including industrial and agricultural" but not sanitary and phytosanitary measures. The second part sets out the obligations and principles concerning technical regulations. The third part addresses conformity and assessments of conformity. The fourth part deals with information and assistance, including the obligation of nations to provide assistance to each other in drafting technical regulations. Lastly the fifth part provides for the creation of the Committee on Technical Barriers to Trade and sets out the dispute settlement procedures.
Scope of application
According to Art.1, this agreement covers all industrial and agricultural products, with the exception of services, sanitary and phytosanitary measures (as defined by Agreement on the Application of Sanitary and Phytosanitary Measures) and "purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies" (Art. 1.4).
The scope of the TBT consists of substantive scope (what measures are included), personal scope (to whom the measures apply), and temporal scope.
Substantive scope
There are three categories of substantive measures found in Annex 1 of the TBT; technical regulations, standard, and conformity assessment. The Appellate Body in EC-Asbestos held these to be a limited class of measures.
Technical regulation: annex 1.1
A technical regulation is a document stipulating conditions that is mandatory. The measures may include terminology, symbols, packaging or labelling requirements, and may apply to a product, process or production method.
The Appellate Body in EC-Sardines found there to be a three-step test for determining whether a measure is a technical regulation: a) The measure applies to an identifiable product or group of products; b) It lays down one or more characteristics of the product; and c) Compliance with the product characteristic is mandatory.
If a measure is found to be a technical regulation, it will be regulated by Article 2 TBT.
Standard: annex 1.2
A standard is a document approved by a recognized body that stipulates guidelines or characteristics that are not mandatory. It may include terminology, symbols, packaging or labelling requirements, and may apply to a product, process or production method. Standards are distinct from technical regulation in that they are not mandatory. Despite being voluntary, producers often have no choice but to comply with them for commercial practicality.
Standards are guided by Article 4 TBT and Codes of Good Practice.
Conformity assessment: annex 1.3
A conformity assessment is a direct or indirect procedure used to determine the fulfillment of requirements in a technical regulation or standard. Conformity assessments may include sampling, testing, and inspections.
The rules for conformity assessment are outlined in Articles 5, 6, 7, 8 and 9 TBT.
Issues of scope
Determining whether a measure is a technical regulation or a standard
Whether a measure is a technical regulation as opposed to a standard centers on whether it is "mandatory."