WORLD TRADE  
ORGANIZATION  G/SPS/W/159 
14 October 2004 
 (04-4329) 
Committee on Sanitary a nd Phytosanitary Measures Original:   English 
  
 
  
REVIEW OF THE OPERATION AND IMPLEMENTATION  
OF THE SPS AGREEMENT 
 
Submission by the European Communities
 
  
 The following communication, received on 12 Octo ber 2004, is being circulated at the request 
of the Delegation of the European Communities. 
 
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 The Secretariat invited th e Members in its document G/ SPS/W/147 of 10 June 2004 to 
identify issues for discussion as part of the Review.  
 
 The European Communities would like to indicat e their interest to discuss the question of 
transparency involving Annex B, in particular para graphs 1, 5, and 6(a).  Please see Attachment 1. 
  The European Communities also wish that the issue of control procedures, Annex C, 
paragraph 2, be considered.  Please see Attachment 2. 
  In addition the European Communities would li ke to encourage the Committee to continue 
the examination of questions involving the impl ementation of Article 6 (adaptation to regional 
conditions).  G/SPS/W/159 
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 ATTACHMENT 1 
 
REVIEW OF THE OPERATION AND IMP LEMENTATION OF THE SPS AGREEMENT 
 
Transparency
 
 
 
1. Publication of SPS adopted regulations  
1. Paragraph 1 of Annex B of the Agreement stipul ates that Members must promptly publish all 
sanitary and phytosanitary regulations that have been adopted  in order to enable interested Members 
to become acquainted with them.  Paragraph 2 pr escribes that a reasonable interval is arranged 
between the publication and the entry into force of  the regulation in order to give time to the 
Members' exporting producers to adapt their pr oducts and production methods to the importing 
Member's requirements. 
2. This provision aims at the regulations that we re already adopted and therefore for which there 
is no longer any possibility of comments from other Me mbers.  It aims to inform the interested 
Members of the final regulatory text that will enter into force. 
3. The notification procedures described in paragr aph 5 (a) to (d) allow amendments to be 
brought to a proposal of SPS regulation taking account of the comments of other Members.  The internal decision-making processes of a Member ca n make amendments to the original proposal, 
which was notified pursuant to the SPS Agreement and which was the subject of comments.  The final 
adopted text can be substantially different to the te xt that had been notified, sometimes several months 
or years before. 
4. Experience shows that, frequently, a Member wh o notified a SPS regulation project omits to 
inform other Members of the final text adopted at  the end of the decision-making process and the date 
of entry into force. 
5. The European Communities consider that, as from their adoption, and, except in an 
emergency, before their entry into force, the final te xt of the SPS regulations that were the subject of a 
prior notification should be communicated to all Me mbers in the form of an Addendum to the initial 
notification.  
2. Notification procedures 
6. Paragraph 5 of Annex B envisages two conditions to notify a draft SPS regulation: the first is 
either the absence of an internationa l standard or a substantial deviation of the proposal in relation to 
an existing international standard and the second is a significant effect on the trade of other Members.  
7. Experience shows that when an importing country adopts a new SPS regulation based on an 
international standard without warning other Member s about it, it can result in obstacles to the trade 
of exporting Members who were not informed of the new provisions and who did not have the time to 
adapt their conditions of production and of certifi cation to the new requirements of the importing 
Member. Legally, Members are obliged by paragr aphs 1 and 2 of Annex B to publish their SPS 
regulations and to give a reasonable period for their application.  This publication is often not known 
by exporting Members who become aware of the new requirements only when products, plants or 
animals are refused at the importing Member's border. 
8. The European Communities consid er that the significant effect on the trade of a SPS measure 
is a sufficient reason for its notification even if th is measure is based on an international standard.  G/SPS/W/159 
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 9. For example:  an importing Member adopts a maximum residue limit for a contaminant at a 
level identical to that adopted by the Codex Alim entarius Commission.  In accordance with paragraph 
5 of Annex B of the SPS Agreement, it is not re quired to notify it.  However, in accordance with 
paragraph 1 it has to publish it.  This publicati on is not communicated to exporting Members and the 
application of this residue limit disturbs current tr ade resulting in rejections of the products concerned 
at the border. 
10. To avoid these negative effects on trade and to  facilitate trade, the European Communities 
propose that Members notify the adoption of an intern ational standard in their national legislation for 
information and without a period for comments, gran ting a reasonable period for the entry into force 
of the new standard in order to allow expo rting Members to adapt to its application. G/SPS/W/159 
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 ATTACHMENT 2 
 
REVIEW OF THE OPERATION AND IMP LEMENTATION OF THE SPS AGREEMENT 
 
Control Procedures
 
 
 
 Paragraph 2 of Annex C of the SPS Agree ment says that where a sanitary or 
phytosanitary measure specifies control at the level of production , the Member in whose 
territory the production takes place shall provide the necessary assistance  to facilitate such 
control and the work of the controlling authorities.  
1. As different Members may have different inte rpretations of the terminology "level of 
production", it may be adviseable to better define the terms.  The SPS Agreement indicates that an 
SPS measure includes "all relevant laws, decrees, regulations, requirements and procedures including, 
inter alia , end-product testing, processes and producti on methods" (Annex A, Art. 1), but here 
specific reference is made to a certain level
, which may be confusing.  A clearer reference might be 
"control at the level of production sensu largo" . 
2. The European Communities is particularly in terested in the views of Members on how 
"necessary assistance" should be interpreted. 
3. This provision applies differently pending on the particular situation and the nature of the 
assistance can lead to contradictory interpretations.  Therefore a number of items need clarification. 
4. The following general concerns  should be taken into account: 
- When a country or region is declared free/ exempt of a disease as recognized by an 
international standard-setting organization su ch as OIE or IPPC, then there is no need 
for inspections  to be carried out by  the importing Member for that purpose; 
- Inspections can only be carried out by qualified persons. 
5. Under "necessary assistance" may be underst ood all preparatory and accompanying measures 
facilitating the control activities,  inter alia :  
- practical organization  and mission planning for the control activities (including 
assistance with visas, administrative authorizations, hotel reservations, etc.); 
- possibility for meetings with the relevant national/local competent authorities; 
- availability and easy access to all necessary information (approval procedures, 
inspection and certification practices, information concerning the epidemiologic situation in the country or region; results of control procedures, etc.); 
- guided access to production premises, facilities and related premises (i.e. laboratories, 
retail etc.) (announced or non-announced); 
- provisions to enable appropriate control (i.e . ensure that inspection visits are carried 
out during production activity; ensure that all necessary tools (including equipment, staff, raw materials etc.) are available at the time of inspection in close co-operation 
with the management of the facilities;  G/SPS/W/159 
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 - provisions for good communication between local producers and competent 
authorities on the one hand and the contro lling authorities on the other hand (presence 
of interpreters, to be agreed beforehand); 
- availability of necessary staff both from the production site and from the local 
competent authorities. 
6. A wider interpretation of "necessary assistance" could include, inter alia : 
(i) Reference to the expenses as a result of th e inspection carried out by the importing 
Member on the territory of the exporting Member.  Payment of mission expenses should be arranged between the parties,  but it cannot be understood under "necessary 
assistance" that these expen ses are automatically paid by the exporting Member.  
Distinction can be made between: 
- travel and subsistence expenses for the inspectors team; 
- inspection costs related to e.g. specific production costs, laboratory testing, 
etc. 
 For the latter, normal practice is that the costs are borne by the exporting Member. 
 
(ii) Special and Differential Treatment and T echnical Assistance to the competent 
authorities of developing Members.  In this respect the European Communities would like to highlight that under the new regulation (EC) 882/2004 on official controls entering into force on 1 January 2006, special provisions are foreseen for third countries under Art. 50.  These include mainly assistance by EC experts in several 
areas related to controls as well as trai ning within the European Communities.  
Particular efforts are foreseen to be implemented in due course. 
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