G/TBT/W/453  
 
25 October 2017  
(17-5785) Page: 1/8 
Committee on Technical Barriers to Trade  Original: English  
 
 
CERTIFICATES OF FREE  SALE: COMPLIANCE WIT H THE PROVISIONS  
OF THE WTO AGREEMENT  ON TECHNICAL BARRIER S TO TRADE  
EIGHTH TRIENNIAL REV IEW 
Submission from South Africa  
The following submission , dated 23 October 2017, is being circulated at the request of the 
delegation of South Africa .  
 
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1.1  Introduction  
1.1.  The information contained and opinions expressed in this document  are made in good faith 
by South Africa and are made without prejudice to the rights and obligations of any other WTO 
Member in terms of the WTO multilateral agreements including the Agreement on Technical 
Barriers to Trade (TBT). The document is not a legal opinion and is merely circulated to Members 
to encourage further discussion and po ssible consensus recommendations of the TBT Committee 
on the occasion of the Eighth Triennial Review of the Operation and Implementation of the 
Agreement on Technical Barriers to Trade under Article 15.4 of the Agreement.   
1.2.  A short abstract of the Certifica te of Free Sale matter, further elaborated on in the Annex to 
this document, is firstly provided followed by South Africa 's proposal.  
1.2  Abstract  
1.3.  A number of South Africa 's exporters have raised concerns about the requirement of several 
WTO Members to which t hey are exporting to, for Certificates of Free Sale to accompany certain 
products in order to receive market access.   
1.4.  A Certificate of Free Sale is a document which states that a specific product meets the 
domestic regulatory requirements of the exporting Member and that the product is freely available 
for purchasing in the exporting Member 's domestic market.  
1.5.  There are alternative terms for Certificates of Free Sale, but such certificates are mostly 
required from exporting Members to receive market access f or products such as foodstuffs, 
cosmetics, toiletries, fragrances, household detergents, medical devices, pharmaceuticals 
fertilizers and pesticides, amongst others, in certain importing Members ' market.  
1.6.  A Certificate of Free Sale complies with th e TBT Ag reement definitions for  a technical 
regulation and a conformity assessment procedure as contained in Annex 1 of the TBT Agreement.  
1.7.  The TBT Agreement allows importing Members to regulate domestic products and imported 
goods for the legitimate provisions as provided in Article 2.2 of the TBT Agreement. Furthermore, 
the TBT Agreement provides for conformity assessment procedures to certify compliance with the 
performance requirements contained in the technical regulations of an importing Member, but the 
TBT Ag reement is silent on the obligations of an exporting Member.  G/TBT/W/453  
 
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  1.8.  However, there are questions about the compliance of Certificates of Free Sale with the 
most-favoured nation and the national treatment provisions of the TBT Agreement as well as the 
elimination of quantitative restrictions in terms of the GATT 1994, Article XI.  
1.3  Proposal  
1.9.  In view of the information provided above and in the Annex, South Africa would like to 
request the TBT Committee to:  
 Reemphasize the use of technical regulations, when consideri ng the risks posed by 
unregulated products, to address legitimate policy objectives for national security 
requirements, product quality requirements, the prevention of deceptive practices, the 
protection of human health or safety, animal or plant life or h ealth and the environment;  
 Reiterate that Members shall ensure that their technical regulations and conformity 
assessment procedures are based on relevant international standards, guides or 
recommendations issued by international standardizing bodies where  they exist or their 
completion is imminent, except in cases where such international standards or relevant 
parts thereof would be an ineffective or inappropriate manner for the fulfilment of the 
legitimate policy objectives pursued;  
 Encourage Members with  financial, human and technological resource constraints for the 
development of appropriate technical regulations and conformity assessment 
procedures, to request technical assistance from other Members, or the use and 
adoption of technical regulations and  conformity assessment procedures already adopted 
by other Members in addressing a similar regulatory objective;  
 Recommend to Members requiring Certificates of Free Sale to accompany certain imports 
into their market, to replace it with appropriate technical regulations and conformity 
assessment procedures as a matter of urgency.  
 
 
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  G/TBT/W/453  
 
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  ANNEX  
1.1  Background  
1.1.  A number of South Africa 's exporters have raised concerns about the requirement from 
several WTO Members to which they are exporting certain products to, for Certificates of Free Sale 
to accompany these products in order to receive market access into the importing Member 's 
market.  Without such certificates, the products are refused entry into the market of such importing 
Members.   
1.2.   A Certificate of Free Sale is an official document issued by a governmental or a government 
authorized authority of the exporting Member, which should attest that a specific product meets 
the domestic regulatory requirements of the exporting  Member and that th e product is freely 
available for purchase by the general public at retailors or wholesalers in the exporting Member 's 
domestic market. The Certificate of Free Sale is in almost all circumstances, a mandatory legal 
requirement in terms of an importing Memb er's domestic legislation imposed at the borders of the 
importing Member, making the Certificate of Free Sale a prerequisite for the goods subject to the 
measure, to enter the market of these importing Members.  
1.3.  Alternative terms used for a Certificate of Free Sale include, amongst other related terms, 
Free Sale Certificate, Certificate of Free Trade, Certificate of Export, Export Certificate and 
Certificate to a Foreign Government. The preferable term to use for the certificate is usually 
prescribed by the  importing government.  
1.4.  Goods being exported that require a Certificate of Free Sale, include amongst others, but are 
not limited to, foodstuffs , cosmetics, toiletries, fragrances, household detergents, medical  devices, 
pharmaceuticals fertilizers and pesti cides.   
1.2  Rights and Obligations of WTO Members  
1.5.  South Africa recognizes the sovereign right and obligation of all governments, considering the 
risks, to adopt and enforce measures necessary for national security requirements, the protection 
of public morals,  human, animal or plant life or health and for the prevention of deceptive 
practices in terms of the General Agreement on Tariffs and Trade 1994 Articles XX and XXI in 
relation with the Agreement on Technical Barriers to Trade  (TBT)  Article 2.2 and the Agr eement on 
the application of Sanitary and Phytosanitary Measures  (SPS) Article 2.2 in normal and when 
necessary, in urgent circumstances.  
1.6.  However, the right to introduce regulatory measures necessary and to regulate for the 
legitimate objectives, as prescr ibed in the TBT and SPS Agreements, are underpinned with the 
obligation that such measures are transparent and not applied in a manner which would 
constitutes a means of arbitrary or unjustifiable discrimination between countries where the same 
conditions prevail, or as a disguised restriction on international trade.  
1.7.  The purpose of the TBT Agreement is, on the one hand, to provide to governments the policy 
space and rules to introduce standards, technical regulations and conformity assessment 
procedures to address legitimate public policy objectives pursued, whilst on the other hand, the 
TBT Agreement provides rules that should be followed to prevent that such legitimate policy 
objectives being addressed, don 't lead to the creation of unnecessary, unjustifia ble, discriminatory 
and arbitrary obstacles to international trade.  
1.8.  Although some Members will reason a Certificate of Free Sale is not a "technical regulation " 
or a "conformity assessment procedure ", it is perhaps necessary to refer to the definitions as  
provided in the TBT Agreement, Annex 1:  
A technical regulation is defined under point 1 of Annex 1 of the TBT Agreement as a 
"Document which lays down product characteristics or their related processes and 
production methods, including the applicable adm inistrative provisions, with which 
compliance is mandatory. It may also include or deal exclusively with terminology, 
symbols, packaging, marking or labelling requirements as they apply to a product, 
process or production method ".  G/TBT/W/453  
 
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  1.9.  It is therefore, South Africa 's opinion that a Certificate of Free Sale requirement by an 
importing WTO Member, complies with the TBT Agreement 's definition of a technical regulation for 
the following reasons:  
 firstly, the Certificate of Free Sale is a document which lays down a n administrative 
procedure with which compliance is mandatory where required by an importing Member;  
 secondly, although the Certificate of Free Sale does not provide detail of product 
performance requirements, it nevertheless, lays down a mandatory compli ance 
requirement with the terminology, symbols, packaging, marking or labelling 
requirements as they apply to a product, process or production method of the exporting 
Member.  
1.10.   Since a Certificate of Free Sale should demonstrate that a product meets the regulatory 
requirements of the exporting  Member, South Africa considers a Certificate of Free Sale as also 
being a conformity assessment procedure within the meaning of its definition contained in Annex 1 
point 3 of the TBT Agreement th at reads:  
"Any procedure used, directly or indirectly, to determine that relevant requirements in 
technical regulations or standards are fulfilled ".  
1.11.   The attestation that a product complies with the relevant requirements in the technical 
regulations of th e exporting Member, falls clearly within the definition of a conformity assessment 
procedure.  
1.12.   Occasionally, importing Members require that some products comply with both the 
exporting Member and importing Member 's technical regulations. As technical regul ations are not 
always equivalent or harmonized, such a requirement makes it extremely difficult for exporters 
that have to ensure that a product of export interest to them complies to multiple and sometimes 
disproportionate technical regulations. This requ irement, makes certain products of export interest 
of an exporter, subject to multiple conformity assessment procedures.  
1.13.   South Africa is of the view that the TBT Agreement provisions relate to the rights and 
obligations of importing Members to ensure that regulatory and conformity assessment measures 
introduced for addressing legitimate policy objectives, do not create unnecessary obstacles to 
international trade. This view is supported by the various WTO Dispute Settlement Panel and 
Appellate Body findings  on the rights and obligations of WTO Members in terms of the TBT 
Agreement provisions which in all cases concern measures introduced by an importing Member.  
1.14.   Furthermore, the Specific Trade Concerns raised by Members in meetings of the Committee 
on Techni cal Barriers to Trade, form a substantial part of the regular work of the triannual WTO 
TBT Committee meetings. Thus, the onus to regulate for legitimate policy objectives, as provided 
for in TBT Agreement Article 2.2, is on the importing Member for its do mestic market and 
definitely not on the exporting Member. However, the exporting manufacturers and traders in the 
exporting Member are obliged to ensure that the products they export, comply with the statuary 
product performance requirements of the importi ng Member.  
1.15.   South Africa recognizes the rights of developing countries, especially least developed 
countries, contained in Article 12.4 of the TBT Agreement that provides as follows: "Members 
recognize that, although international standards, guides or reco mmendations may exist, in their 
particular technological and socio -economic conditions, developing Members adopt certain 
technical regulations, standards or conformity assessment procedures aimed at preserving 
indigenous technology and production methods a nd processes compatible with their development 
needs. Members therefore recognize that developing Members should not be expected to use 
international standards as a basis for their technical regulations or standards, including test 
methods, which are not a ppropriate to their development, financial and trade needs ".  
1.16.   Nevertheless, this Article 12.4 provision, does not exonerate any developing WTO Member 
from its obligation of non -discrimination, national treatment and the elimination of arbitrary and 
unjusti fiable technical barriers to trade.  G/TBT/W/453  
 
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  1.17.   South Africa also understands and recognizes that some developing Members do not have 
the necessary human, financial, technical and institutional resources to fully participate in 
standards development work of internatio nal standards setting bodies and to develop domestic 
standards, technical regulations and conformity assessment procedures. Some of these Members, 
therefore, rely on Certificates of Free Sale to obtain the necessary confidence that certain imported 
product s would not pose any risks to their domestic public consumption and use.  
1.18.   However, the constraints caused by a lack of human, financial, technical and institutional 
resource can be addressed with appropriate technical assistance provided by other Members a nd 
the use of relevant parts of international standards, or the adoption of technical regulations and 
conformity assessment procedures, already in use by trading partners which have addressed 
similar or identical policy objectives pursued.  
1.3  Compliance with the Certificate of Free Sale requirement  
1.19.   The compliance with a Certificate of Free Sale requirement with the WTO rules, especially 
the TBT Agreement and GATT 1994 rules is questionable. The TBT Agreement Article 2.1, 
stipulates as follows: "Members shall e nsure that in respect of technical regulations, 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 
Member ." The TBT Agreement Article 2.1 contains both a most -favoured -nation (MFN) and a 
national treatment requirement that form the fundamental principles of the multilateral trading 
system.  
1.20.   Considering that a Certificate of Free Sale should state that the product  for which such a 
certificate is required for, complies fully with the applicable technical regulations of the exporting 
Member, and not with that of the importing Member, the compliance with the WTO Most -Favoured -
Nation (MFN) principle is questionable. Th e importing Member requiring the Certificate of Free Sale 
may import like or similar products from various sources, which in effect means that the Certificate 
of Free Sale is based on the regulatory needs of the exporting Member, which may differ from 
Memb er to Member, including the importing Member. The Certificate of Free Sale requirement is 
thus, establishing multiple product characteristics for similar or like products. Not alone is the 
compliance with the MFN principle questionable, but also the compli ance with TBT Agreement 
Article 2.8 due to the absence of clear product performance requirements.  
1.21.   Although the harmonization1 of technical regulations is an objective of the TBT Agreement 
to facilitate trade, this objective has not yet been achieved for al l products and exporting 
Members, thus resulting in still divergent technical regulations and conformity assessment 
procedures around the world for similar or like products depending on the regulatory objective 
pursued.  
1.22.   Where importing Members require that  some products comply with both the exporting 
Member and importing Member 's technical regulations the compliance with the MFN and national 
treatment principles are also questioned.  
1.23.   It also happens that exporters sometimes manufacture specifically for the export market 
and therefore, the product is not sold in the domestic market of the exporting Member. A specific 
product may also not be regulated by a Member, but may be manufactured for exporting in 
accordance with international standards. In such cases i t is also not possible to verify compliance 
with applicable domestic technical regulations since such specifications do not exist. International 
standards have a voluntary application in terms of TBT Agreement Annex 1, point 2 and therefore, 
compliance wit h international standards testing and certification can only be done at conformity 
assessment bodies in a position to do so, which may even be situated in the territory of another 
Member. In such cases, such bodies are not mandated, or in a position to iss ue Certificates of Free 
Sale, resulting in a de facto ban on the importation of such products by the importing Member 
requiring a Certificate of Free Sale.  
1.24.   Furthermore, the exporting Member may have a specific technical regulation in place that is 
not bas ed on international standards or relevant parts thereof as it would be an ineffective or 
                                                
1 Article 2.6 of the TBT Agreement.  G/TBT/W/453  
 
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  inappropriate means for the fulfilment of the legitimate policy objective being pursued, but its 
exporters may also manufacture in accordance with the applicable inter national standard or parts 
thereof for export purposes. Therefore, such products would not be able to acquire a Certificate of 
Free Sale.  
1.25.   Due to the integration of different economies resulting from preferential trade agreements 
negotiated in terms of the  General Agreement on Tariffs and Trade (GATT) 1994, Article XXIV or 
the enabling clause2 as well as from existing or emerging global value chains, the final product 
being exported may not have origin in the Member from which the product is exported. In su ch 
cases, and cases of trans -shipment and trans -loading, it is not possible for the exporting Member 
to issue a Certificate of Free Sale declaring compliance with domestic technical regulations and the 
availability of the product in the domestic retail. In  such cases a product will not have the required 
Certificate of Free Sale. As a result, it will not be allowed entry into the market of the Certificate of 
Free Sale requiring Member. As a consequence, such a product will not be treated the same as 
similar or like products originating from other Members. This in effect comprises a de facto  import 
ban contrary to the provisions of GATT 1994 Articles I3 and XI4.  
1.26.   Surely the test for MFN is not in the Certificate of Free Sale requirement in itself, but in the 
same product characteristics and performance requirements of similar or like products imported 
from different trading partners.  
1.27.   The national treatment requirement in Article 2.1 of the TBT Agreement, is equally 
important in the application of the TBT Agree ment provisions. National treatment is defined in 
GATT 1994 Article III:4 as;  
"The products of the territory of any contracting party imported into the territory of 
any other contracting party shall be accorded treatment no less favourable than that 
accor ded to like products of national origin in respect of all laws, regulations and 
requirements affecting their internal sale, offering for sale, purchase, transportation, 
distribution or use ".  
1.28.   The question is to what technical regulations and conformity ass essment procedures the 
products manufactured and originating in the importing Member requiring the Certificate of Free 
Sale should comply with?  
1.29.   In the cases where the importing Members require that some products comply with both the 
exporting Member and i mporting Member 's technical regulations, there is a conflict in terms of 
national treatment as the same is not required from the importing Member 's domestic 
manufactured product. Where an importing Member does not have manufacturing capacity of a 
specific product for which a Certificate of Free Sale is required, the attestation that the product 
complies with the applicable technical regulations of the exporting Member is also not in line with 
the national treatment principle, as technical regulations are no t always harmonized amongst 
exporting Members and different product performance requirements may apply in the different 
exporting Members.  
1.30.   Importing Members requiring Certificates of Free Sale seldom provide information about 
which legitimate objective th ey want to address as the requirement for importation is compliance 
with the exporting Member 's technical regulations.  As exporters may have different technical 
regulations to address different policy objectives, product performance characteristics may not  be 
the same for similar or like products produced in different countries. Thus the policy objective of 
the Certificate of Free Sale requirement is questionable. The lack of a clear policy objective and 
appropriate technical regulations and conformity asse ssment procedures on the part of some 
importing Members requiring Certificates of Free Sale, raise the question whether the Certificate of 
Free Sale requirement is not perhaps an unnecessary obstacle to international trade?  
                                                
2 Differential and More Favourable Treatment, Reciprocity and Fuller Participation of  Developing 
Countries , GATT BISD, 26th Supp, 203, GATT Doc L/4903 (1979)  (Multilateral Trade Negotiations Decision, 
adopted on 28 November 1979).  
3 Most-favoured -nation treatment.  
4 The elimination of quantitative restrictions  G/TBT/W/453  
 
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  1.31.   Certificates of Free Sale also a ct as conformity assessment procedures in the sense that an 
attestation indicating that the product complies with the exporting Member 's applicable technical 
regulations. In this regard, Members are referred to Article 5.1 of the TBT Agreement, stating;  
"Members shall ensure that, in cases where a positive assurance of conformity with 
technical regulations or standards is required, their central government bodies apply 
the following provisions to products originating in the territories of other Members " 
1.32.   Article 5.1 of the TBT Agreement clearly requires that Members shall ensure their central 
government bodies apply the provisions. Therefore, the obligation is on the importing Member to 
institute conformity assessment procedures and not the exporting Member as is required to be 
attested in Certificates of Free Sale.  
1.33.   Article 5.4 of the TBT Agreement furthermore states;  
"In cases where a positive assurance is required that products conform with technical 
regulations or standards, and relevant guides or recommendations issued by 
international standardizing bodies exist or their completion is imminent, Members 
shall ensure t hat central government bodies use them, or the relevant parts of them, 
as a basis for their conformity assessment procedures, except where, as duly 
explained upon request, such guides or recommendations or relevant parts are 
inappropriate for the Members c oncerned, for, inter alia , such reasons as: national 
security requirements; the prevention of deceptive practices; protection of human 
health or safety, animal or plant life or health, or the environment; fundamental 
climatic or other geographical factors;  fundamental technological or infrastructural 
problems ". 
1.34.   In the cases where Certificates of Free Sale are required, it is evident that the central 
government bodies of those importing Members did not use relevant guides or recommendations 
issued by interna tional standardizing bodies or the relevant parts thereof. Although South Africa 
recognizes that some countries requiring Certificates of Free Sale may experience specific 
challenges, such as fundamental technological or infrastructural problems, exporters  who 
requested more information on the purpose of the Certificate of Free Sale requirement, have only 
received very vague general responses such as that it is a legislative requirement, without being 
informed of the actual policy reasons.  
1.35.   Where circumstanc es or objectives giving rise to the Certificate of Free Sale requirement 
exist, why are the Members requiring it for certain imports, not making use of the TBT Agreement 
Article 2.2 right to regulate through using appropriate technical regulations?  Surely the Certificate 
of Free Sale requirement emanated from the identification of risks associated with the available 
scientific and technical information, related processing technology or intended end -uses of the 
products for which Certificates of Free Sale ar e required.  
1.36.   Since the Certificates of Free Sale need to be issued by government or a government 
authorized body, it creates legal and administrative issues for the exporting government. 
Governments and their authorized bodies issuing Certificates of Free Sale, are not always 
designated or approved conformity assessment bodies, or accredited to certify compliance with 
technical regulations or standards. On the other hand, accredited conformity assessment bodies in 
many instances, do not have legal authority  to certify that a product is freely available for use in 
the exporting Member 's domestic market. The verification of compliance with regulations and the 
certification of the domestic availability of a product for the purpose to obtain Certificates of Free  
Sale, create an additional burden for authorities of exporting Members and is increasing the cost of 
exports.   
1.4  Bibliography/Resource documents  
1.37.   Arthur E. Appleton and Claudio Dordi, Certificates of Free Sale: Who is being protected from 
whom? - Journal of International Economic Law, Volume14, Issu e 4.1, December 2011, 
Pages  719-763, 16 December 2011, https://doi.org/10.1093/jiel/jgr033 , Published;  G/TBT/W/453  
 
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  1.38.   World Trade Organization, The Legal Texts, The Results of t he Uruguay Round of Multilateral 
Trade Negotiations, Cambridge University Press;  
a. Annex 1A, Multilateral Agreements on Trade in Goods;  
i. Agreement on the Application of Sanitary and Phytosanitary Measures;  
ii. Agreement on Technical Barriers to Trade  
iii. General Agre ement on Tariffs and Trade 1947;  
1.39.   World Trade Organization, Committee on Technical Barriers to Trade, Note by the 
Secretariat, Twenty -Second Annual Review of the Implementation and Operation of the TBT 
Agreement, document G/TBT/39 of 15 March 2017;  
1.40.   World Tr ade Organization, Committee on Technical Barriers to Trade, Note by the 
Secretariat, Decisions and Recommendations Adopted by the WTO Committee on Technical 
Barriers to Trade since 1 January 1995, W TO document G/TBT/1/Rev.13 of 8 March  2017.  
 
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