TradeCom Seminar on legal aspects of trade policy and regional and multilateral trade

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TradeCom Seminar onlegal aspects of trade policy
and regional and multilateral trade

• Technical Barriers to Trade
• Alex Inklaar and Hannes Schloemann

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• Agenda
• What are TBT?
• Why care about TBT?
• How to avoid unnecessary TBT
• Checklist Conformity of a Law, Regulation or
  other Measure with the TBT Agreement

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Warming up to the topic (1)

• Standards are technical barriers to trade.
• True or false?

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Warming up to the topic (2)

• The TBT Agreement is all about avoiding technical
  barriers to trade.
• True or false?

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What are TBT?

• In the strict sense, all
• Technical regulations
• Standards
• Conformity assessment procedures
• are technical barriers to trade.

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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

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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

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CONFORMITY ASSESSMENT PROCEDURE

• Any procedure used, directly or indirectly, to
  determine that relevant requirements in technical
  regulations or standards are fulfilled

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A closer look at regulations and standards (1)
Technical regulations
Standards
Status Compulsory Responsibility Ministries,
regulatory authorities Motivation and purpose
Protect citizens and the environment market
failure
Status Voluntary application Responsibility
Recognized standards organizations Motivation
and purpose demand by economic operators and
other interested parties
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A closer look at regulations and standards (2)
Technical Regulations
Standards
Development process Initiative by authorities
Consultation of interested parties yes, but
consensus not a binding requirement Coherence
analysis Regulatory impact analysis WTO
Notification of drafts where required Regular
review of approved legislation
Development process Standards bodies support and
facilitate the process which is initiated by
interested parties Consensus-based process
Publication of draft standards for public review
review of approved standards every 3 or 5 years
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A closer look at regulations and standards (3)
Technical Regulations
Standards
Compliance Authorities enforce regulations or
retain final responsibility in case of delegation
to other bodies Degree of acceptance Varied
Conformity assessment By certification and
inspection bodies Degree of acceptance High
to very high
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Examples of standards

• on terminology
• on systems
• on test procedures
• on packaging and labelling
• on the design of products
• on the performance of products

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Standards on the safety of bicycle helmets

• In the US
• CPSD 16 CFR Safety Standard for Bicycle Helmets
• In the EU
• EN 1078 Helmets for bicycle riders and users of
  skateboards and roller skates

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Reference to standards in legislation (1)

• In the US
• The Bicycle Helmet Safety Act makes exclusive
  reference to the relevant standard, thus
  rendering its application mandatory

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Reference to standards in legislation (2)

• In the EU
• The EC Directive on Personal Protective Equipment
  makes indicative reference to the relevant
  (harmonised) standard
• presumption of conformity
• application of standard remains voluntary

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Significant effect on trade

• Technical regulations and standards
• Whose technical requirements are significantly
  different from those of international standards
• Which contain design criteria rather than
  performance criteria
• which concern commodities that are traded
  internationally in significant volumes

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Significant effect on trade (2)

• are very likely to have a significant
• negative
• effect on trade.

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Significant effect on trade (3)

• In practice, however, it is not the standards or
  regulations that should worry us most.
• Its conformity assessment that causes the
  problems
• rubber stamp practices
• Insufficient recognition of equivalence
• least trade restrictive measures seldom chosen

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How to avoid unnecessary TBT (1)

• Harmonise
• Use International Standards (as a basis for both
  regulations and standards)
• Strengthen your regional standardization
• Participate in international organisations and
  networks

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How to avoid unnecessary TBT (2)

• Recognise and be recognised
• Conclude recognition agreements
• Recognise equivalence
• Establish competence based metrology and
  conformity assessment systems

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How to avoid unnecessary TBT (3)

• Introduce Good Regulatory Practice
• UNDERSTAND the differences between voluntary
  standardization and regulation
• Introduce differentiated systems of technical
  regulation
• Find alternatives to regulations
• in general, choose least trade restrictive
  measures

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• Thank you for your attention