6 - The status of PPM measures under the TBT Agreement and the SPS Agreement

Summary

Introduction

In contrast to the GATT, both the TBT and the SPS Agreement explicitly mention ‘processes and production methods’. This chapter therefore explores whether PPM measures have a special legal status under both agreements. Despite the explicit reference, however, it is unclear whether both agreements cover all types of PPM measures, or whether coverage is limited to incorporated PPMs. The question arises if the GATT remains of any actual relevance, since a large part of NPA measures could fall within the scope of the TBT and the SPS Agreements as lex specialis. While this issue is very complex and contentious for the TBT Agreement, section 6.3 explains that the SPS Agreement covers only incorporated PPMs and is therefore of little importance to this work. The TBT Agreement, on the other hand, relates to a specific subject matter, namely, technical barriers to trade, and therefore cannot cover all PPM, let alone NPA, measures. In addition, the relationship between the TBT Agreement and the GATT in the case of conflicting provisions is not entirely clear. The following section argues that the TBT Agreement is applicable to an important group of technical norms, namely, labelling regulation, even if these concern unincorporated PPMs. Its focus is on the consideration of consumer information as a legitimate objective highly relevant to labelling requirements concerning unincorporated PPMs.

The TBT Agreement and PPMs

Given the lack of international harmonization, technical standards and regulation have the potential to create substantial non-tariff barriers to international trade.