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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This is a copy of the document which can be dowloaded from the WTO web-site. To download (Word 97 format), go to: http://www.wto.org/wto/ddf/ep/D1/D1007e.doc

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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