The Ministry of Business, Innovation and Employment (MBIE) has developed a user guide titled A Regulator’s Guide to New Zealand’s TBT obligations [PDF, 842 KB]. The guide outlines how regulators can ensure technical barriers to trade (TBT) obligations are met when they next develop or amend a regulation, standard, or a conformity assessment procedure that falls within scope.
The TBT Agreement puts in place rules relating to the preparation and adoption of standards and conformance-related measures affecting international trade. The scope of the Agreement encompasses technical regulations (which may include mandatory product standards) and mandatory conformity assessment procedures which are used to determine whether a product meets the requirements of a particular regulation or mandatory standard. The Agreement seeks to prevent the use of such technical measures for protectionist purposes.
Key obligations include:
Use of international standards where possible
Where a WTO Member requires compliance with a standard as part of a technical regulation, and there are relevant international standards being developed or already in existence, the standards – or relevant parts of them – are to be used as a basis for the national technical regulations.
The exception to this is where the adoption of an international standard would be an ineffective or inappropriate means of fulfilling the legitimate objectives of the WTO Member adopting the regulation. For example, a WTO Member's climatic or geographical conditions might make the adoption of an international standard impractical. Legitimate objectives for regulating include such things as the protection of public health and safety, protection of the environment, or the prevention of deceptive practices (ie truth in labelling).
In preparing or adopting a technical regulation, WTO Members are obliged to avoid setting regulations that are more trade restrictive than necessary to fulfil a legitimate objective. The aim of the Agreement is to avoid creating unnecessary obstacles, and to actually encourage international trade through greater harmonisation of technical requirements.
National treatment/most favoured nation
Under the Agreement, when adopting mandatory technical regulations, Members are obliged not to discriminate between imports of like products from different countries (the Most Favoured Nation principle) or between imported and domestic products (the National Treatment principle).
A WTO Member may require that testing is carried out to prove that a product meets its particular standard or technical regulation. When manufacturers are exporting their products as well as selling them domestically, further tests may be required to be carried out in the country of destination. This often results in a duplication of assessments and an added cost.
The Agreement encourages each WTO Member to recognise the conformity assessment procedures of other Members as equivalent to its own. It also seeks to ensure the testing procedures are transparent and do not become an unnecessary barrier to trade.
Each Member's procedures do not have to be identical, so long as the Member is satisfied that the procedures carried out in another Member's territory offer an assurance of conformity with applicable technical regulations or Standards which is equivalent to that assurance under their own procedures.
Such recognition can be formalised in advance, through mutual recognition agreements, which the TBT Agreement encourages.
Members are required to give positive consideration to accepting other Member's technical regulations as equivalent to their own, even if the two differ. The proviso is that the importing Member is satisfied that these regulations adequately fulfil the objectives of their own regulations.
Transparency – consultation and notification
The provisions in the Agreement on notification and consultation are important features for protecting the interests of exporters. These provisions are aimed at achieving transparency in the process of setting standards and technical regulations, and at providing a vehicle for the resolution of concerns about that process.
As an example, a WTO Member is required to notify other Members well in advance of the adoption of any new mandatory technical regulation or conformity assessment procedure which is not based on relevant international standards, and which may significantly affect products involved in international trade. The adopting Member must answer enquiries about its proposed regulation or conformity assessment procedure, allow reasonable time (60 days) for comment from other members, and take into account the comments received.
The transparency provisions of the TBT Agreement also require Members to set up national enquiry points to ensure, primarily, that other WTO members are notified well in advance of the adoption of mandatory standards or technical regulations. The enquiry point must also answer enquiries from other parties about national standards-related measures.
In New Zealand the functions of the national enquiry point are carried out by Standards New Zealand, on behalf of the Ministry of Foreign Affairs and Trade.
The transparency process allows New Zealand to scrutinise the standards-related measures of its trading partners. This information is assessed to determine whether the potential trade impact warrants further action. It may be that relevant export interests in New Zealand simply need to be kept informed of the overseas technical regulations of interest to them. New Zealand has several screening mechanisms in place at the policy and technical levels to facilitate review of such information. Feedback from affected or potentially affected exporters is always welcome.
Local government and non-governmental bodies
The Agreement also contains notification provisions applying to local government and non-governmental bodies. All of these obligations contribute to the objective of preventing standards and technical regulations from being used as technical barriers to trade. However, they do not compromise the right of each Government to set its own standards, technical regulations and conformity assessment procedures.
A Code of Good Practice for the Preparation, Adoption and Application of Standards by standardising bodies, open to acceptance by private sector bodies and the public sector, is included as an annex to the Agreement. Standards New Zealand is a signatory to this Code.
Last updated 30 April 2018