| ALICOM 99/5
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| ALICOM 99/5
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Conference on International Food Trade
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Review of the Implementation of the SPS and TBT Agreements |
by |
Mrs G. Stanton, Counsellor, World Trade Organization |
1. The General Agreement on Tariffs and Trade (GATT) came into force in 1948, establishing rules on international trade in all goods, including food and agricultural products. But the GATT rules also contained an exception which permitted countries to apply measures "necessary to protect human, animal or plant life or health" as long as these did not unjustifiably discriminate between countries nor were a disguised restriction to trade. During the GATT's Tokyo Round of multilateral trade negotiations (1974-79), an Agreement on Technical Barriers to Trade (often referred to as the "Standards Code") was negotiated, which inter alia covered technical requirements resulting from food safety and animal and plant health measures.
2. This Standards Code was rewritten during the GATT's Uruguay Round of multilateral trade negotiations (1986-94), and at the same time a separate agreement covering sanitary and phytosanitary measures was negotiated. Both the current Technical Barriers to Trade Agreement (TBT Agreement) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) entered into force with the establishment of the World Trade Organization on 1 January 1995. The WTO superseded the GATT as the umbrella intergovernmental organization for international trade. As of mid-1999, 136 countries were members of the WTO.
3. The TBT Agreement covers technical regulations, standards and conformity assessment procedures. Technical regulations are mandatory requirements of governments designed to fulfil certain legitimate objectives. The TBT Agreement provides an open-ended list of such legitimate objectives, which include the prevention of deceptive practices, protection of human and animal health, and protection of the environment. Standards are voluntary documents developed for common use, with similar objectives. Conformity assessment procedures are the procedures used to ensure that technical regulations or standards are met, such as inspection, testing, certification, etc. The TBT Agreement also includes a Code of Good Practice for the Preparation, Adoption and Application of Standards by any (governmental or non-governmental) standardizing body.
4. The aim of the TBT Agreement is to ensure that technical requirements, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not in themselves create unnecessary obstacles to international trade. The TBT Agreement recognizes that all governments have the right to take measures necessary to ensure that their legitimate objectives are met, however, the TBT Agreement requires that these measures are not prepared, adopted or applied in a manner that would unjustifiably discriminate between countries, or result in a disguised restriction on trade.
5. The TBT Agreement has five main principles. The first principle is non-discrimination. In preparing, adopting and applying technical regulations and conformity assessment procedures, Members should not discriminate between imported and like domestic products, or between like products imported from different countries. National governments have to make sure that local governments, as well as non-governmental bodies, comply with these provisions. Second they are responsible for ensuring that their standardizing bodies accept and comply with the Code of Good Practice set out in an annex to the Agreement. Since international standards and conformity assessment systems can facilitate international trade, the TBT Agreement encourages the development and use of such international standards. This principle is called harmonization. If a government is not using an existing international standard, it must be able to justify its decision as proportional and necessary to fulfil a legitimate objective
6. A third principle of the TBT Agreement is the avoidance of unnecessary obstacles to trade. This implies applying the least trade restrictive measure available, and finding a measure that is proportional to the problem to be addressed. A fourth principle is the equivalence of technical requirements, or mutual recognition of conformity assessment procedures.
7. The fifth principle is transparency. In the interest of transparency, all technical regulations and conformity assessment procedures which are not based on international standards and might affect trade have to be published and notified to the WTO. Except in emergency situations, Members must allow time for comments when preparing new regulations, and take comments into account. Voluntary standards must be notified to the ISO/IEC information centre in Geneva when they are still at a draft stage. Members must establish an enquiry point which, upon request, provides copies of regulations
8. Upon request, Members are required to provide technical assistance on the preparation of technical regulations, on the establishment of standardizing bodies, and on matters related to conformity assessment.
9. The SPS Agreement affirms the right of WTO Members to restrict international trade when necessary to protect human, animal or plant life or health. At the same time, it aims to ensure that unnecessary health and safety regulations are not used as an excuse for protecting domestic producers from trade competition. To avoid that SPS measures be used as disguised trade restrictions, the SPS Agreement requires such measures to be based on science. They may be applied only to the extent necessary to protect human, animal or plant life or health. And they may not arbitrarily or unjustifiably discriminate between countries where identical or similar conditions prevail.
10. Members are encouraged to base their measures on internationally-developed standards, in order to ensure their scientific justification and advance the harmonization of sanitary and phytosanitary requirements. The SPS Agreement explicitly recognizes the international standards, guidelines and recommendations established by three intergovernmental organizations: the FAO/WHO Codex Alimentarius Commission, the Office International des Epizooties, and the FAO International Plant Protection Convention. Measures based on international standards developed by these organizations are deemed to be consistent with the SPS Agreement.
11. Governments may select to impose measures which result in a level of protection higher than that of an existing international standard. However, in this case, or when no relevant international standard exists, the measures have to be based on a risk assessment. If asked, Members have to explain why the level of protection achieved by an international standard is not sufficient and make their risk assessment available to other Members.
12. When preparing their risk assessment, Members have to take into account available scientific evidence. In cases where relevant scientific evidence is not sufficient, Members may adopt temporary measures based on the available pertinent information while seeking to obtain the necessary scientific evidence. Although governments have a right to determine the level of health protection which they consider appropriate, they should aim to be consistent in the level of protection sought. Arbitrary or unjustifiable differences in levels of protection which result in discrimination or a disguised restriction on trade must be avoided.
13. Furthermore, in considering what measure to apply to achieve their health objective, a government must choose the least trade restrictive measure which is feasible.
14. When an exporting Member can demonstrate that its measures achieve the level of protection required by an importing country, then that importing country should accept the exporting country's measure as equivalent. Members cannot refuse to enter into consultations about equivalence if another Member requests them.
15. The SPS Agreement recognizes that because of differences in climate, existing pests or diseases, or food safety conditions, SPS regulations have to be adapted to local conditions. The SPS Agreement requires Members to recognize pest or disease-free areas, and to adapt their measures accordingly. These areas can consist of all of a country, part of a country, or all or parts of several countries.
16. In the interest of transparency, Members have to publish their SPS regulations. In addition, each WTO Member must identify a national notification authority and an enquiry point. They are responsible for submitting notifications, providing the full text of SPS regulations to interested Members, and responding to requests for more information about new or existing measures. In particular, new or changed measures which are not based on international standards and which could affect trade have to be notified to the WTO when they are at the draft stage, except in emergency situations. Members' comments have to be taken into account.
17. Members are also required to facilitate the provision of technical assistance to help other countries achieve the level of protection desired in their export markets.
18. Since both the SPS and TBT Agreements apply to food in international trade, it is sometimes difficult to decide which one applies to a certain regulation. Although the two Agreements have common elements, many of the substantive rules are different. Both Agreements include basic obligations for non-discrimination and similar requirements for the advance notification of proposed measures and the creation of enquiry points. Both Agreements also encourage the use of international standards. However, under the TBT Agreement governments may decide not to use international standards when they are "ineffective or inappropriate" for achieving a given objective (due to, for instance, technological or geographical reasons), whereas under the SPS Agreement the only reason for not using such a standard are scientific arguments resulting from an assessment of the potential health risks.
19. Furthermore, the TBT Agreement allows governments to impose technical regulations for many objectives, for example national security or the prevention of deceptive practices. The SPS Agreement stipulates that sanitary and phytosanitary measures may only be imposed to the extent necessary to protect human, animal or plant health, on the basis of scientific information. Because the two Agreements place different obligations on governments, it is important to know whether a regulation is an SPS or a TBT measure.
20. The scope of the two Agreements is different. The TBT Agreement is broader; it covers all technical regulations, voluntary standards and the procedures to ensure that these are met (conformity assessment procedures), except when these are sanitary or phytosanitary measures as defined by the SPS Agreement.
The SPS Agreement covers all measures whose purpose is to protect
whether or not these are technical requirements. It is thus the type of measure which determines whether it is covered by the TBT Agreement, but the purpose of the measure which decides whether the measure is subject to the SPS Agreement.
21. TBT measures could cover any subject, including human health and food. Measures related to human disease control fall under the TBT Agreement, unless they concern diseases carried by plants or animals (such as BSE or rabies). When it comes to food, most labelling requirements, nutrition claims and concerns, quality and packaging regulations are not considered to be sanitary or phytosanitary measures and are thus covered by the TBT Agreement.
22. On the other hand, any regulation which addresses microbiological contamination of food, sets allowable pesticide or veterinary drug residue levels, or identifies permitted food additives fall under the SPS Agreement. Packaging and labelling requirements are subject to the SPS Agreement if they are directly related to the safety of the food.
23. To give some examples, quality, grading and labelling of imported fruit are covered by the TBT Agreement, while regulations on treatment of imported fruit to prevent pests spreading or on chemical residue levels in the fruit are SPS measures. With respect to bottled water, for example, general water quality concerns and specifications of bottle sizes and shapes would be TBT matters. Contamination of drinking water, including from bottle materials or disinfectant residues, would be covered by the SPS Agreement.
24. Separate WTO committees have been established as fora for overseeing the implementation of the TBT and SPS Agreements among Members. All WTO Member governments are automatically members of both the TBT and SPS committees, and governments which have observer status in the WTO have observer status also in these committees. Both committees have also granted observer status to the FAO/WHO Codex Alimentarius Commission, as well as to other international standard-setting bodies.
25. The TBT Committee meets at least once per year, but usually more frequently, to discuss the administration and implementation of the Agreement, and technical assistance. It carries out annual reviews of the implementation and operation of the Agreement, as well as a triennial review.
26. The Committee has noted that it is important to avoid unnecessary technical regulations, limit regulations to their specific requirements, and align them with international standards. When preparing, adopting and applying technical regulations, in the First Triennial Review Members agreed to first identify the related problem, including its magnitude and the legitimate objective, and then consider all options available consistent with the Agreement. Members should bear in mind that technical regulations should not be more trade restrictive than required, and should not be maintained longer than necessary. Members also agreed to avoid duplication, and to exchange information on approaches to technical regulation on a voluntary basis.
27. In cases where positive assurance of conformity with a technical regulation is required, Members should prepare, adopt and apply conformity assessment procedures in such a way that they do not represent unnecessary obstacles to trade. To avoid a restrictive effect on trade from multiple testing requirements, the Committee recommended the principle of "one standard, one test", and if required "one certification, one time". In the First Triennial Review, Members noted that there was an emerging interest in bilateral mutual recognition agreements. Some problems associated with mutual recognition agreements, particularly for developing countries, included costs, transparency, and their non-MFN nature.
28. Regarding international guides and recommendations related to conformity assessment procedures, Members agreed on a voluntary exchange of information. For transparency purposes, the Secretariat was asked to establish a list of relevant international guides and recommendations, which will be circulated and updated regularly.
29. In the Triennial Review, Members stressed the importance of timely notifications at the drafting stage of a new regulation or procedure, and of leaving sufficient time for other Members' comments to be taken into account. The Committee also revised the notification format, reiterating the importance of clearly indicating the content of the regulation in question.
30. In the interest of transparency, Members asked the Secretariat to prepare a list of Members whose local governments are authorized to adopt technical regulations or conformity assessment procedures.
31. Members considered that at the time of the Triennial Review, the implementation of the provisions regarding the Code of Good Practice was not satisfactory. Many standardizing bodies that do not follow the Code of Good Practice prepare, adopt and apply standards, which could have an adverse effect on trade, even if standards are voluntary. The Committee considered that the failure to accept and comply with the Code undermined the effectiveness of the TBT Agreement, and the balance of rights and obligations between Members.
32. In order to improve acceptance of and compliance with the Code, Members agreed to inform their standardizing bodies of the provisions of the Code and the benefits gained from accepting it, and to examine any implementation problems, for example those related to publishing work programs every six months so that technical assistance can be provided.
33. Since international standards can contribute to improving the efficiency of production, facilitating the conduct of international trade and transferring technology from developed to developing countries, the TBT Agreement encourages Members to use these standards for their regulations. Developing country Members have voiced concerns that they have insufficient resources to effectively participate in international standardizing bodies to ensure that the international standards developed are representative of their interests and concerns. The TBT Committee stressed that cooperation between governmental, non-governmental and international standardizing bodies and the WTO was essential. In its Triennial Review, the Committee thus invited Members to submit specific examples of problems with international standards, which could then be communicated to the international standardizing bodies. The Committee has also begun to invite international standardizing bodies to Committee meetings on an ad hoc basis to enable them to take into account the on-going discussions, and to increase Members' awareness of the activities of these organizations.
34. To ensure that technical assistance is provided as specified by the Agreement, in the Triennial Review Members agreed to a voluntary information exchange regarding national and regional technical assistance programmes. The Committee also invited Members to inform the Committee of technical assistance required to resolve difficulties in the implementation and operation of the Agreement.
35. Regarding special and differential treatment, the Committee agreed on a work programme for the three years following the First Triennial Review. This programme includes capacity building in developing countries; the preparation of a study by the Secretariat about the technical barriers to market access encountered by developing country suppliers; invitations to the relevant international bodies to make written and oral statements concerning the special problems of developing countries; and the organization of international meetings in developing countries to facilitate their participation.
36. The SPS Committee usually meets three times per year. A typical agenda includes discussion on specific trade concerns identified by Members, a wide range of transparency issues, and technical assistance needs and projects carried out by Members, the WTO Secretariat or observer organizations. In addition, the Committee is monitoring the use of international standards and developing guidelines to assist governments with the objective of achieving consistency in their application of the concept of the appropriate level of sanitary and phytosanitary protection.
37. As stipulated by the SPS Agreement, the Committee carried out a three-year review of the operation and implementation of the SPS Agreement, which was finalized in March 1999. In the Three Year Review, Members agreed that the SPS Agreement was a useful set of international trade rules, which had contributed to improving international trading relationships with respect to sanitary and phytosanitary measures. However, the Committee noted that a number of implementation issues gave concern to some Members, including a number of developing country Members. The Committee welcomed that a substantial number of SPS-related trade matters had been solved through discussions at formal SPS meetings, or through bilateral consultations.
38. In the Three Year Review, Members noted that through the establishment of enquiry points and national notification authorities and through notifications, the Agreement had significantly improved transparency in the application of sanitary or phytosanitary measures. The Committee encouraged Members to publish their sanitary and phytosanitary measures on the world wide web. The Committee also made some changes to the recommended notification procedures, including asking countries where possible to indicate which countries would be particularly affected by a proposed regulation. Members especially stressed the need to provide sufficient time for other countries to comment on proposed regulations. Access to unofficial translations of texts of notified measures, and to summaries in one of the official WTO languages, would facilitate their consideration by other Members, especially if made available by electronic means.
39. The SPS Agreement asks Members to take into account the needs of developing countries in the preparation and application of sanitary and phytosanitary measures. Where possible, developing country Members should receive longer time frames for compliance with new sanitary or phytosanitary measures. In the Three Year Review, the Committee noted that it had no information on the extent to which these provisions had been implemented. Developing country Members had been able to postpone the implementation of certain provisions of the Agreement until 1997. Least developed countries can delay the application of the Agreement for a period of five years, which ends at the beginning of the year 2000.
40. The SPS Committee considered that although Members, the WTO Secretariat and observer organizations had provided substantial technical assistance over the first three years of the implementation of the Agreement, there was a need for enhanced technical assistance and cooperation. Assistance and cooperation were needed especially in the areas of human resource development, national capacity building, and the transfer of technology and information.
41. The Committee has adopted a preliminary procedure to monitor the process of international harmonization and the use of international standards, guidelines and recommendations. This procedure encourages Members to identify where there are problems with existing international standards, or where an international standard is lacking. Other Members are then asked whether they share the identified concerns, and these are brought to the attention of the relevant standard-setting organizations.
42. International standards can be of particular importance to developing countries. However, developing countries have indicated that they often have difficulties in participating actively in the development of international standards. The Committee has welcomed the cooperation of the Codex and of the other international standard-setting organizations recognized by the Agreement, and their continuing work in updating and expanding international standards.
43. Although there has been an increase in the recognition of equivalence and in bilateral negotiations to this end, in the Three Year Review the Committee recognized that further efforts were necessary to implement this provision in view of its importance for trade facilitation, especially for developing country Members. Members recognized the need to provide information on their appropriate level of protection and to recognize equivalence in achieving this level of protection, rather than sameness of measures. The Committee asked Members to provide more information on bilateral equivalence agreements, and welcomed the work to further the application of equivalence which is being carried out by Codex and other relevant international organizations.
44. The Committee also welcomed that an increasing number of Members were applying the concept of adaptation to regional conditions, in particular by recognizing pest or disease-free areas, or areas of low pest or disease prevalence. There were still some difficulties in the implementation of these concepts, which stemmed from divergences in the interpretation and implementation of international guidelines, excessively lengthy administrative processes in importing countries, and the complexities often involved in risk assessment. The international standard-setting bodies assist Members in the application of pest or disease-free areas.
45. Through their respective review processes, the SPS and TBT Committees thus assessed the experience of WTO member governments with the two Agreements after three years of application. In both Committees, a number of suggestions were made to enhance implementation in the future. While some of the suggestions were specific for only one of the Agreements, there are at least three areas common to both Agreements where efforts to further their implementation could significantly contribute to facilitating food trade in the future. These areas are transparency, harmonization and technical assistance.
46. Transparency can be improved in several ways. Many Members have still not notified any SPS or TBT measures, and have not identified enquiry points. Members who notify do not always provide all the information necessary to judge whether the measure in question could affect another Members' exports. The timing of notifications is another essential factor. Notifying regulations when they are at the draft stage and leaving sufficient time for comments allows a country to identify potential problems at a stage where it is still relatively easy to find solutions, for example by modifying the draft measure. Exchanging information electronically, including publishing regulations and unofficial translations on the world wide web, can significantly speed up the process. Enquiry points need to be able to follow the activities of all the government agencies involved in SPS or TBT measures, and provide information to Members upon request. They can also serve as information centres for domestic producers, for example making information on changes in the regulations of important export markets available to interested industries.
47. Harmonization, through the adoption of international standards and guidelines, facilitates trade by reducing the number of different standards exporters have to meet. Harmonization also increases transparency. Moreover, in terms of the SPS Agreement, international standards ensure the scientific justification of the measure. Although there has been increased activity in this area, much remains to be done. Suggestions by Members refer not only to a more widespread adoption of these standards, but also to their development. Many developing countries are concerned that their interests are not adequately taken into account in the standard-setting organizations. While developed countries fear that the standards might become a "lowest common denominator", developing and least developed countries often find the standards unnecessarily stringent. At the same time, it would be illusory to believe that the level of international standards could be lowered, at a time when consumers around the world are demanding an ever higher quality and safety of food. Although most WTO Members are members of the relevant standard-setting organizations, ways to increase developing countries' participation have been proposed, for example by organizing meetings in developing countries. Once established, standards have to be reviewed regularly to maintain them up to date, especially when scientific opinions change. Where problems with existing standards, or the lack of standards have an impact on trade, cooperation and communication between WTO and the standard-setting bodies is especially important.
48. In the area of technical assistance, Members, the WTO Secretariat and other relevant organizations have provided substantial technical assistance and cooperation. However, there continues to be a need for more such activities. Both the SPS and TBT Agreements contain provisions concerning hands-on cooperation, for example between importers and exporters trying to meet their requirements. However, there is little information regarding the implementation of these provisions. Countries which need such assistance should make use of Committee meetings to inform Members of their needs. Countries willing to provide assistance should use the Committee meetings to make known their projects and willingness. A need for greater coordination of technical assistance activities by Members, and also by the WTO Secretariat and other international organizations was recommended. This need for coordination can partly be addressed through the Integrated Framework for Trade-Related Technical Assistance to Least Developed Countries. Through this framework, IMF, ITC, UNCTAD, UNDP, World Bank and WTO are coordinating their assistance efforts in response to country needs assessments prepared by least developed countries.
49. Discussions of special trade concerns at SPS meetings draw attention to potential trade conflicts and may help avoid formal disputes. In a few cases, bilateral consultations, sometimes with the participation of the Chairman of the SPS Committee or the WTO Secretariat, helped to facilitate the clarification of misunderstandings or otherwise resolve the issues involved. In the Three Year Review, the Committee noted that ad hoc consultations "could be an effective means of satisfactorily solving problems".
50. Independent of the opportunity that the Committees provide in this respect, every WTO Member has the right to take recourse, at any time, to the formal WTO dispute settlement procedures. Between the establishment of the WTO in 1995 and mid-year 1999, over 175 disputes have been raised under this procedure. As a first step, the procedure requires formal consultations among the parties, of which the WTO must be advised. Other interested governments may request to join in the consultations.
51. If the difference is not resolved through consultations, a Member may request that an independent panel be established to consider the case. A Member has the right to have a panel established at the latest upon its second request. Any other Member may reserve the right to be a third party to the dispute. A panel is normally composed of three individuals considered to be unbiased regarding the issue in dispute, and who are not nationals of any party to the dispute.
52. The panel receives both written and oral arguments from the parties to the dispute, considers the measure in light of the legal obligations of a Member to the WTO, and issues its findings in a report on the matter. A single dispute may concern alleged violations of any one or several of the WTO agreements. In cases where a violation of a WTO obligation is found by the panel, the usual recommendation is that the Member bring its measure(s) into conformity with its obligations.
53. The recommendations of a dispute settlement panel are considered by all WTO Members, sitting as the Dispute Settlement Body (DSB). The panel's recommendations are automatically adopted, unless there is a consensus in the DSB not to adopt. Alternatively, parties to the dispute may appeal the legal interpretations of a panel. In such circumstances, three of the WTO's standing Appellate Body judges will re-examine the case and issue a final decision.
54. The dispute settlement procedure provides that a Member be given a "reasonable" period of time to implement the panel/appellate body decision. When the parties to the dispute cannot agree what constitutes a "reasonable" period, an arbitrator may be asked to specify the period of time permitted. A Member must regularly report to the DSB on what actions it is taking to implement the panel/Appellate Body decision.
55. In cases where a Member government cannot comply with its obligations within the established "reasonable" time-period, it can offer to compensate its trading partners for opportunities subsequently lost. However, such compensation must be acceptable to the trading partners. If this is not the case, the "winning" parties to a dispute may request authorization from the DSB to "retaliate" against the non-complying government. Both compensation and retaliation normally take the form of increased (or reduced) import access for products from the other country.
56. Certain time intervals have been established for all steps of the dispute resolution process, and a summary of the steps, with the established maximum time limits, is annexed.
57. Since SPS disputes usually involve scientific or technical issues, panels seek advice from experts chosen in consultation with the parties. The panel can consult individual experts, establish an advisory technical experts group, or consult the relevant international organizations.
58. Three cases involving the SPS Agreement have been examined by panels and the
Appellate Body under the formal dispute WTO settlement procedures:
Only the Hormones case dealt with food safety. The Salmon and Varietal Testing cases dealt with animal and plant health, respectively.
59. In the Hormones Case, the Panel and the Appellate Body found the EC's import ban on beef from cows treated with certain growth-promoting hormones to be in violation of the SPS Agreement. In particular, because Codex standards existed for five of the six hormones at issue, the Panel judged that the EC was required to justify its ban, and hence its non-application of the international standards, on the basis of an assessment of the risks to human health. The Panel further found that the EC could not justify establishing a higher level of health protection in the case of beef from animals treated with the growth-promoting hormones when compared with other food products containing higher levels of the same hormones, or when compared to the levels of risk apparently accepted from other veterinary drugs. The Appellate Body agreed that the EC's import ban was in violation of the SPS Agreement because it was not based on a risk assessment. However, the Appellate Body did not agree that the different levels of protection from risk established by the EC resulted in discrimination or a disguised restriction of trade. The DSB requested the EC to bring its measure into conformity with its obligations, and an arbitrator established that a reasonable period of time for the EC to comply was by 13 May 1999. When the EC indicated that it would not be able to comply by that date, both the United States and Canada requested the right to retaliate against EC products to compensate for their lost trade opportunities. The original Panel was convened to determine what would be the appropriate amount of retaliation; its final decision was issued on 12 July 1999.
60. Although the Salmon and Varietal Testing cases do not directly deal with food safety, some of the legal findings could nonetheless be of interest in this context. In the Salmon case, the Panel and Appellate Body examined the assessment done by Australia of the risks of introducing fish diseases through salmon imports for human consumption. They found the risk assessment to be lacking in several critical aspects. In addition, the difference in levels of protection sought by Australia from the risk of salmon diseases compared to some other risks accepted by Australia was found to be unjustifiable and a disguised restriction of trade.
61. An interesting issue in the Varietal testing dispute concerns Article 5.7, which, in cases where sufficient scientific evidence is not available, allows countries to take provisional measures. The Panel and Appellate Body ruled that countries maintaining provisional measures on the basis of Article 5.7 have to actively search for scientific evidence that could enable them to undertake a risk assessment to justify their measure.
62. Although complaining parties have invoked the TBT Agreement in various disputes, the Agreement has not yet been judged by panels to be central to any particular dispute. However, there is currently one on-going dispute between Canada and the European Communities regarding a French measure banning asbestos and asbestos products where the TBT Agreement is the major Agreement invoked by the complaining party.
63. Even only four years after their entry into force, the benefits of the SPS and TBT Agreements are increasingly evident. International trade in foods is becoming more predictable, and trade restrictions less arbitrary, to the benefit of consumers around the globe. The improved transparency of sanitary requirements and of other technical regulations resulting from both Agreements enables exporters to identify, before shipping, what conditions their products must meet. The advance notification procedures permit governments and traders to seek changes in new requirements which might be unnecessarily damaging to their trade. Consumers also benefit from the requirement that their governments publish all regulations and respond to reasonable enquiries regarding trade measures.
64. More substantively, both the TBT and SPS Agreements clearly give governments the right to restrict trade when this is necessary to achieve certain legitimate objectives, but the measures must indeed be necessary and proportionate. The SPS Agreement explicitly recognizes that the protection of health must take priority over trade, yet its disciplines ensure that governments don't abuse this right, by using unnecessary health measures as trade barriers.
65. The application of both Agreements will continue to evolve as governments gain more experience in their implementation, and as specific trade concerns arise. Developing countries in particular will benefit as they learn to use the Agreements as tools to maximize their benefits from world food trade.
Annex
THE PANEL PROCESS
The various stages a dispute can go through in the WTO. At all stages, countries in dispute are encouraged to consult each other in order to settle `out of court'.
At all stages the WTO director-general is available to offer his good offices, to mediate or to help achieve a conciliation.
