The Department of Food Science and Technology
The University of Reading,
UK
Food Law
WTO Papers
Committee on Sanitary and Phytosanitary Measures
REVIEW OF THE OPERATION
AND IMPLEMENTATION OF THE AGREEMENT ON THE APPLICATION OF SANITARY AND
PHYTOSANITARY MEASURES
G/SPS/12
11 March 1999
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INTRODUCTION
Article 12.7 of the Agreement on the Application of
Sanitary and Phytosanitary Measures ("The Agreement") provides that "[T]he
Committee shall review the operation and implementation of this Agreement three
years after the date of entry into force of the WTO Agreement, and thereafter as
the need arises. Where appropriate, the Committee may submit to the Council for
Trade in Goods proposals to amend the text of this Agreement having regard,
inter alia, to the experience gained in its implementation."
At its meeting of 15-16 October 1997, the SPS Committee agreed on a procedure
to review the operation and implementation of the Agreement (G/SPS/10). In 1998,
the Committee held four informal meetings and four formal meetings, at which it
considered issues and proposals identified by Members. These discussions were
informed by a number of background papers submitted by Members.
In its discussion of issues concerning the operation and/or implementation of
the Agreement, the Committee focussed especially on the provisions relating to
transparency of sanitary and phytosanitary measures (Annex B), including the
notification procedures; special and differential treatment of developing
country Members (Article 10) and technical assistance (Article 9). The Committee
also discussed international harmonization (Article 3); equivalence (Article 4);
adaptation to regional conditions (Article 6); risk assessment (Article 5); and
dispute resolution (Articles 11 and 12.2).
General
The Committee emphasized that the SPS Agreement was a new
framework which, during its first three and a half years of implementation, had
contributed to improving international trading relationships with respect to
sanitary and phytosanitary measures, although a number of implementation issues
gave concern to some Members, including a number of developing country Members.
The Agreement specified Members' rights and obligations in the application of
sanitary and phytosanitary measures and provided a useful set of international
rules for the relevant national and subnational authorities within each Member.
The Committee noted that a substantial part of each of its formal meetings was
devoted to the discussion of specific implementation problems. On these
occasions, the Committee had also discussed other issues of a more general
nature, including matters related to the operation of the Agreement. The
Committee welcomed the fact that a substantial number of SPS-related trade
matters had been resolved following their discussion at formal meetings of the
Committee or bilaterally.
Since its inception, the Committee has adopted a number of decisions,
recommendations and arrangements aimed at improving the operation and
implementation of the Agreement. However, the Committee observed that Members
had not exhausted the discussions on the operation and implementation of the
Agreement. It recognized that a number of issues needed to be addressed in the
context of the future work programme of the Committee, and that further issues
could be raised at any time by Members. It recalled that in accordance with
Article 12.7, the operation and implementation of the Agreement shall be
reviewed "… as the need arises …".
Transparency of Sanitary and Phytosanitary Measures (Annex B)
Paragraph
5 of Annex B of the SPS Agreement requires Members to notify new sanitary and
phytosanitary regulations or modification of existing regulations "[W]henever an
international standard, guideline or recommendation does not exist or the
content of a proposed sanitary or phytosanitary regulation is not substantially
the same as the content of an international standard, guideline or
recommendation, and if the regulation may have a significant effect on trade of
other Members (…)". The Committee noted that the Agreement had significantly
improved transparency in the application of sanitary or phytosanitary measures.
This was illustrated by the fact that Members are progressively, and in a more
comprehensive manner, meeting their notification obligations. Also, significant
progress had been made in the establishment of Enquiry Points and National
Notification Authorities. As of 11 March 1999, over 1100 notifications had been
submitted by 59 Members; 91 Members had established National Notification
Authorities; and 100 Members had established National Enquiry Points to respond
to requests for information.
The SPS Agreement requires Members to publish their sanitary and
phytosanitary measures. In this respect, the Committee encouraged Members to
publish their sanitary and phytosanitary measures on the world wide web, in
order to improve transparency.
The Committee recalled that it had adopted recommended notification
procedures, as well as formats for routine and emergency notifications
(G/SPS/7). It stressed that a number of the concerns raised during the course of
the review related to the operation of the transparency provisions of the
Agreement could be resolved if Members more comprehensively and systematically
applied the recommended procedures. In this context, the Committee noted that
there was a procedure allowing for the extension of the recommended comment
period on notifications. The Committee also stressed the need for an accurate
summary of the notified measure in one of the WTO official languages. The
Committee noted that access to informal translations (especially if in a WTO
official language) of texts of notified measures would facilitate their
consideration by other Members, particularly if made available to Members
through electronic means. It noted that a number of the other concerns
identified in this area could be addressed by modification or clarification of
the recommended procedures. In this regard, and with a view to ensuring a more
effective functioning of the transparency provisions, the Committee agreed to
the revised recommended notification procedures and notification formats
contained in the Annex of this report.
Technical Assistance (Article 9)
The Committee stressed the need for
enhanced technical assistance and cooperation to developing countries, in
particular with regard to human resource development, national capacity building
and the transfer of technology and information, particularly by way of concrete,
"hands-on" assistance. It recognized that technical assistance has been provided
by Members on a bilateral basis, as provided in Article 9.1. In addition, in
accordance with Article 9.2, some importing Members had provided technical
assistance to developing country Members when substantial investments were
required in order for these countries to fulfil the importing Member' sanitary
and phytosanitary requirements.
The Committee also noted that the Secretariat provided technical assistance
to developing country Members in the areas of its competence.
The Committee appreciated that the international organizations recognized in
the Agreement, as well as other international organizations, including the World
Health Organization (WHO), the Food and Agriculture Organization (FAO) and the
International Trade Center (ITC), also provided considerable technical
assistance to developing country Members. However, the Committee emphasized that
there was still a need for further assistance which, due to the expertise
required, could best be provided by the relevant standard-setting international
organizations. It agreed to bring this matter to their attention, keeping in
mind that this could have a significant impact on the resources of these bodies
and/or Members' resources.
The Committee reiterated the need for Members and the relevant international
organizations to provide information on their technical cooperation and
assistance programmes on a regular basis. In this regard, and with a view to
making the most efficient use of the resources available and to facilitate
coordination of different technical assistance initiatives, Members agreed to
make available such information. It was noted that several Members have reported
regularly to the Committee concerning ongoing activities and their continuing
involvement in this area.
Special and differential treatment (Articles 10 and 14)
The Committee
recalled that Article 10.1 of the Agreement provides that "[I]n the preparation
and application of sanitary or phytosanitary measures, Members shall take
account of the special needs of developing country Members, and in particular of
the least-developed country Members". Moreover, Article 10.2 provides that
"Where the appropriate level of sanitary or phytosanitary protection allows
scope for the phased introduction of new sanitary or phytosanitary measures,
longer time-frames for compliance should be accorded on products of interest to
developing country Members so as to maintain opportunities for their exports".
The Committee noted that it had no information on the extent to which the
special and differential treatment provided for in Articles 10.1 and 10.2 had
been accorded to developing country Members, nor information on the extent to
which developing country Members had made use of any special and differential
treatment accorded to them.
The Committee noted that the notification procedures for proposed sanitary
and phytosanitary measures allow developing country Members, as well as other
Members, to identify potential problems in meeting new requirements which may
adversely affect their exports before the new measure(s) come into force.
The Committee noted the proposals submitted by some developing country
Members in the context of the review and encouraged Members to further the
practical implementation of Articles 10.1 and 10.2. In particular, the Committee
stressed that Members should, in accordance with Article 10.2, accord longer
time-frames for compliance on products of interest to developing country
Members. Concerns identified by developing countries in the implementation of
the SPS Agreement are summarized in document G/SPS/W/93.
The Committee recalled that under Article 14 of the Agreement,
least-developed country Members could delay application of the Agreement, with
respect to their sanitary and phytosanitary measures affecting importation or
imported products, for a period of five years following its implementation
(i.e., until 2000). Other developing country Members had the possibility to
delay the application of the provisions of the Agreement, other than obligations
pursuant to Articles 5.8 and 7, for two years following the entry into force of
the WTO Agreement with respect to their existing sanitary and phytosanitary
measures affecting importation and imported products (i.e., until 1997).
Moreover, under Article 10.3 of the Agreement, developing country Members could
request further time-limited exceptions with respect to any obligation under the
Agreement taking into account their financial, trade and development needs.
Although there had been some suggestions to extend the period for application by
all developing country Members, the Committee noted that during the period under
review no specific requests had been submitted to the Committee under Article
10.3.
International harmonization (Articles 3 and 12.4)
The Committee recalled
that, as required by Articles 3.5 and 12.4 of the SPS Agreement, it had adopted
a preliminary procedure to monitor the process of international harmonization
and the use of international standards, guidelines or recommendations (G/SPS/11
refers). The Committee noted that several concrete examples had been submitted
to the Committee as reflected in the annual report on the procedure
(G/SPS/W/94). It encouraged Members to submit further examples. The Committee
recalled that the operation of the monitoring procedure was to be reviewed 18
months after its initial implementation.
The Committee noted the concerns raised by developing country Members with
regard to the procedures for the development and adoption of international
standards, including difficulties in actively participating in the development
of international standards and the lack of a mechanism to take into account the
economic and technical capacity of developing country Members to implement such
standards. However, the Committee considered that it was more appropriate for
these concerns to be addressed within the relevant international organizations.
It noted that some of these issues were already under discussion in the
standard-setting bodies, including an evaluation of how to ensure a greater and
more effective participation of developing countries in the development and
adoption of international standards. The Committee agreed to communicate the
concerns expressed by developing country Members to these organizations and to
request the representatives of these organizations to keep the Committee
informed of actions taken in this regard.
The Committee welcomed the cooperation of, and developments in, the
international organizations recognized under the Agreement. In addition to their
contribution in the context of technical assistance, this included: (i) the
intensification and simplification of the Codex Alimentarius Commission (Codex)
standard-setting procedures; (ii) the increased activity in the Office
International des Epizooties (OIE), with which the WTO had signed a Cooperation
and Consultation Agreement; and (iii) the revision of the International Plant
Protection Convention (IPPC).
Equivalence (Article 4)
Article 4.1 states that "Members shall accept
the sanitary or phytosanitary measures of other Members as equivalent, even if
these measures differ from their own or from those used by other Members trading
in the same product, if the exporting Member objectively demonstrates to the
importing Member that its measures achieve the importing Member's appropriate
level of sanitary or phytosanitary protection." While recognizing that further
discussions were necessary regarding this issue, the Committee noted the
progress in the application of the concept of equivalence of sanitary and
phytosanitary measures as illustrated by the increasing number of instances
where equivalence has been accepted and of negotiations aimed at the recognition
of equivalence. Bearing in mind the importance of this provision of the
Agreement for facilitating trade, the Committee recognized the need for further
efforts to achieve the practical application of this provision, including with
respect to recognition of equivalence of measures applied by developing country
Members. In this context, the Committee stressed the need for Members to provide
relevant information regarding the determination of their appropriate level of
protection and to recognize equivalence rather than sameness of measures. With a
view to further enhancing transparency, it encouraged Members to submit
information on their bilateral equivalency agreements and determinations. The
Committee welcomed the work underway in some of the relevant international
organizations that could further the application of this concept.
Adaptation to regional conditions (Article 6)
The Committee noted that
adaptation to regional conditions, including the recognition of pest- or
disease-free areas or areas of low pest or disease prevalence, was of
significant importance for trade in agricultural products. In this regard, the
Committee welcomed the application of these concepts by an increasing number of
Members. However, the Committee also noted certain difficulties in the
implementation of this Article. Such difficulties included divergences in
interpretation and implementation of international guidelines; an excessively
lengthy administrative process in importing countries for recognizing pest- or
disease-free areas or areas of low pest or disease prevalence; and the
complexities often involved in risk assessment. The Committee welcomed the
contributions of the relevant international standard-setting bodies which assist
Members in fulfilling the provisions of Article 6 of the Agreement.
RISK ASSESSMENT (ARTICLEs 5.1, 5.2 and 5.3)
The Committee noted that
since the entry into force of the Agreement, Codex, OIE and IPPC had undertaken
a considerable amount of work in the area of risk assessment and that their work
had significantly progressed. These international organizations had begun work
on guidelines on risk analysis, including on relevant terminology, facilitating
Members' compliance with obligations under the Agreement. Other international
organizations, including the WHO and the FAO, were also working in this area.
The Committee agreed to continue to closely follow developments in this area.
DISPUTE RESOLUTION (Articles 11 and 12.2)
The Committee noted that three
cases involving the Agreement had been examined by Panels/Appellate Body under
formal WTO dispute settlement procedures.
With regard to the application of Article 12.2 of the SPS Agreement, there
had been a number of bilateral consultations between Members which had
facilitated the clarification of misunderstandings or otherwise resolved the
issues involved. In some cases, the Chairman and/or the Secretariat had
facilitated the consultations and the efforts to reach a mutually satisfactory
solution. Without prejudice to the right of Members to invoke formal dispute
settlement procedures at any time, the Committee noted that the use of Article
12.2 could be an effective means of satisfactorily resolving problems.
Finally, the Committee observed that extensive discussions on particular
implementation problems at its formal meetings had helped to draw attention to
specific trade concerns and related issues and to avoid potential trade
conflicts.
OTHER ISSUES
The SPS Committee recalled that its review of the
operation and implementation of the Agreement at this time had not been
exhaustive. It recognized that Members could at any time raise any issue for
consideration by the Committee.
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