Technical Barriers to Trade

In one line

A member may regulate what a product must be like and how it must be labelled, but the regulation must not discriminate, must be no more restrictive than necessary, must be based on international standards where they exist, and must be notified before it takes effect.

In exam wording: the Agreement on Technical Barriers to Trade disciplines technical regulations, standards and conformity assessment procedures, requiring national treatment and most favoured nation treatment, necessity, the use of relevant international standards as a basis, and transparency.

The three instruments, and why the distinction decides the answer

Mandatory or not is therefore the first question in any TBT answer, and it decides which articles apply. It also decides the strength of the obligation, since a member is responsible for its own technical regulations but only for using its best endeavours in respect of non-governmental standardising bodies.

The obligations on technical regulations, Article 2

Article 2.1, non-discrimination. 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. It carries both national treatment and most favoured nation treatment in one sentence.

Article 2.2, necessity. Technical regulations shall not be prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade, and for this purpose shall not be more trade restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. The article names legitimate objectives: national security requirements, the prevention of deceptive practices, the protection of human health or safety, animal or plant life or health, or the environment. The list is illustrative rather than closed.

Article 2.4, international standards. Where 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 where they 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. Article 2.5 adds a presumption: a technical regulation prepared for a listed legitimate objective and in accordance with relevant international standards is rebuttably presumed not to create an unnecessary obstacle.