RESTRICTED  WORLD TRADE  
ORGANIZATION  S/WPDR/W/32 
1 February 2005 
 
 (05-0420) 
Working Party on Domestic Regulation Original:   English 
  
 
COMMUNICATION FROM SWITZERLAND  
  
Proposal for Disciplines on Technical Standards in Services 
 
  
The following communication, dated 1 February 2005, from the delegation of Switzerland, is 
being circulated to the Members of the Working Pa rty on Domestic Regulation.  Switzerland reserves 
the right to revise, supplement or withdraw its  proposal according to the results of further 
examinations. 
_______________ 
  
1. The provision of services in many sectors is heavily affected by an array of domestic 
regulations.  Recognizing the right of Members to regulate, and to introduce new regulations, on the 
supply of services within their territories as provided for in the preamble of the GATS, Switzerland 
considers the development of regulatory discipl ines as an important element of the current 
negotiations. Therefore, disciplines need to strike a balance between the right of Members to adopt 
and implement domestic regulations  deemed necessary to pursue legitimate policy objectives and 
ensuring that such measures do not constitute unnecessar y barriers to trade in services. Provided that 
this balance can be found, establishing disciplin es is in the interest of all Members alike. 
2. In line with other WTO Agreements, it is neith er the intention nor the purpose that these 
disciplines formulate the substance of any regulation.   Domestic regulations shall be formulated and 
developed in response to changing legal, so cial and economic environments and differing 
circumstances in the territory of each Member. 
3. The Working Party on Domestic Regulation (WPDR) has made important progress in recent 
times towards a deeper understanding of the scope of  these disciplines and the balance to be achieved 
therein.  With this contribution, Switzerland inte nds to complement other valuable contributions by 
Members to the Working Party.  Our approach has been to present a comprehensive set of disciplines 
on technical standards, mindful of the fact that it  contains common elements with disciplines that are 
or will be developed for licensing and qualification requirements and pr ocedures.  These elements for 
disciplines on technical standards have been develope d with the intention that they integrate the Draft 
Annex on Domestic Regulation deve loped by the delegation of Japan.
1  They take into account the 
examples of regulatory measures to be addressed by disciplines under GATS Article VI:4 that have 
been submitted by Members.2 
4. There have been numerous discussions in the WPDR whether disciplines should be of 
horizontal application or be developed on a sectoral b asis. Switzerland is of the view that many of the 
                                                      
1 See document Job(03)/45/Rev.1 Communication from Japan, Dra ft Annex on Domestic regulation  of 
2 May 2003. 
2 See document Jo b(02)/20/Rev.9 Examples of measures to be addressed by disciplines under GATS 
Article VI:4, informal note by the Secretariat  of 16 November 2004. S/WPDR/W/32 
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 issues to be addressed by the disciplines are suffi ciently similar across services sectors that common 
building blocks can be developed.  Yet, Switzerla nd also acknowledges the high diversity of services 
sectors and therefore can easily see the merits for focused sectoral complements where appropriate.  
Thus the two approaches should not be seen as mutually exclusive. 
5. Switzerland has paid particular attention to the fact that the elements it proposes for 
disciplines on technical standards do not address measures subject to be scheduled under GATS 
Articles XVI and XVII.  They are also intended to underpin GATS Articles II and III.  This approach 
does not preclude work on the development of other regulatory principles that may be necessary. 
6. Technical standards have been looked at under the development of disciplines for the 
accountancy sector. Hitherto, only two paragraphs are devoted to technical standards, the one making 
sure that such standards are prepared, adopted or applied only to fulfil the legitimate objective, and 
the other making reference to international standard s.  The accountancy sector certainly is one of the 
sectors where international standards play a recognized  role.  Yet, this is not the case for the time 
being for other services sectors.  For this reas on, Switzerland believes that more comprehensive 
disciplines are necessary. 
7. One particular difficulty encountered during the work on disciplines on technical standards is 
that GATS Article VI:4 does not provide any definition of technical standards.  In this regard three 
central questions needed to be answered:  
(i) Which kind of requirements should technical standards cover? 
(ii) Should technical standards comprise mandatory and voluntary standards? 
(iii) Should technical standards only cover standards prepared, adopted or applied by 
governmental authorities and non-government al bodies to whom such authority has 
been delegated or should it also include  non-governmental standardizing bodies? 
8. Switzerland shares the analysis by the WTO-Secretariat
3 that work carried out in the 
accountancy sector would suggest that standards in the area of trade in services apply not only to the technical characteristics of the service itself but also  to the rules according to which the service must 
be performed. 
9. The second and third question are closely linked.  Professional associations play an important 
role in setting the state of the art of providing a ser vice (which may become relevant in the settlement 
of disputes).  Particularly professional services as sociations very often exercise a standard setting 
activity.  We therefore consider that voluntary st andards, even if they are developed by non-
governmental bodies to which no standardizing power has been formally delegated, may constitute 
important barriers to trade and should be addressed in  the disciplines.  Neverthe less, there needs to be 
some degree of connection to governmental action; th ese links need not to be formal or concrete. It 
would be sufficient that governmental action is ju st generally authorizing certain private activities, 
where the question is the extent to which such activities are attributable to the government.  We 
therefore understand that the disciplines on volunt ary "private" standards are essentially considered 
for those technical standards that have a significant effect on trade of other Members.  Moreover, 
some other distinction are made between mandatory  and voluntary technical standards where deemed 
reasonable. 
                                                     
 
3 See document S/WPPS/W/9 The relevance of the disciplines of the Agreements on Technical Barriers 
to Trade (TBT) and on Import Licensing Procedures to Article VI:4 of the General Agreement on Trade in 
Services, note by the Secretariat of 11 September 1996.  S/WPDR/W/32 
 Page 3 
 
 
 10. Members will realise that the WTO Agreement on Technical Barriers to Trade (TBT) has 
been a valuable source of inspiration for the deve lopment of disciplines on technical standards, while 
taking into account the differences that exist betwee n trade in goods and trade in services.  This has 
been the more evident as the TBT and the discip lines to be developed under GATS Article VI:4 
pursue the same objective of striking a balance between the right to regulate and not creating 
unnecessary barriers to trade.  Switzerland is of the view that despite some difficulties with this 
Agreement since its adoption, it has shown to be effec tive.  Lessons learnt have been reflected in the 
proposed elements for disciplines on technical standard s.  This link to the TBT could be made even 
stronger by making e.g. an explicit reference to th e provisions in the TBT with regards to Members' 
obligation to notify technical re gulations and extending them to technical standards in services, 
instead of the proposed language of paragraph 26. 
11. Members will also realise that particular em phasis has been put on the role international 
standards can play towards achieving the objectives set  out in GATS Article VI:4.  Attention is also 
paid to potential difficulties some  developing countries may face to comply with these disciplines. 
12. Taking into account the progress made in understanding the scope of the disciplines, the 
objective of this communication is to go beyond genera l considerations on technical standards and to 
engage in detailed discussions.  Switzerland is of the view that this objective is best met when 
submitting concrete text to the Members of the WP DR, as divergences of view can sometimes only be 
detected at a certain level of details.  We suggest to invite the WPDR to consider the elements for 
disciplines on technical standards in order to aliment further discussion. 
 S/WPDR/W/32 
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GATS Article VI:4. Technical Standards
 
 
ELEMENTS FOR DISCIPLINES ON TECHNICAL STANDARDS4 
 General provisions
 
 13. For the purpose of these disciplines, technical standards are measures by Members, whether 
they are mandatory or voluntary if not otherwise specified, are defined as requirements, which may 
apply both to the characteristics or definition of th e service itself and to the manner in which it is 
performed. [S/WPPS/W/9 §4 ]  
14. Where technical standards, prepared, adopted or applied by the federal, sub-federal authority 
or non-governmental body in the exercise of power s delegated by them, affect the provision of a 
service in a sector where specific commitments ar e undertaken, the following disciplines shall apply. 
[EU §18 modified; Japan §29 ] Members shall take such reasonable measures as may be available to 
them to ensure that non-governmental standardizi ng bodies within their territories comply with the 
principles of these disciplines. [TBT 4.1 adapted ]
4 
15. Members shall ensure that governmental techni cal standards are not prepared, adopted or 
applied with a view to or with the effect of creating unnecessary barriers to trade in services.  They 
should also make every effort that non-governme ntal standardizing bodies do not apply technical 
standards creating such barriers to trade.  For this  purpose, Members shall ensure that such measures 
are not more trade-restrictive than necessary to fulfil a leg itimate national policy objective5, taking 
account of the risks non-fulfilment would create. Such legitimate national policy objectives are, inter 
alia: the protection of human health or safety, animal or plant life or health; the protection of public 
morals and the maintenance of public order; national security requirements; the access to essential services; the quality of the service; professional comp etence; the integrity of the profession; or the 
prevention of deceptive and fraudulent practices.  Requirements should be based on objective and 
transparent criteria. [GATS VI:4, XIV, TBT 2.2, AD §2 ]
4. 
16. Prior to the adoption of a mandatory technical  standard, the competent authorities should 
demonstrate in a regulatory impact assessment th e technical, economic and legal viability of such 
standard and its effects on trade. [Mexico §11 (c) ]4 
17. Technical standards shall not be maintained if  the circumstances or objectives giving rise to 
their adoption no longer exist of if the changed ci rcumstances or objectives can be addressed in a less 
trade-restrictive manner. [TBT 2.3]4 
18. Nothing shall prevent a Member or other competent authorities from carrying out reasonable 
conformity checks with technical standards during and after the supply of a service. [TBT 5.3 
adapted]4 
                                                      
4 Wherever possible, language is based on existing WTO texts, in particular Article VI and the Annex 
on Telecommunications of the GATS (hereafter GATS VI and AT, respectively), the Disciplines on Domestic 
Regulation in the Accountancy Sector (S/L/64, hereafter AD), the Agreement on Technical Barriers to Trade 
(hereafter TBT), the Japanese paper (Job(03)/45/Rev.1, hereafter Japan), the Mexican submission 
(S/WPDR/W/30, hereafter Mexico), the submission by the EU (S/WPDR/W/25, hereafter EU) and the submission by Canada in the SPS committee (G /SPS/W/132/Rev.3, hereafter SPS Canada). 
5 The term "legitimate national policy objective" makes reference on the one hand to the preamble of 
the GATS stipulating the right of Members to regulate , and to introduce new regulations, on the supply of 
services within their territories in order to meet the national policy objectives, and on the other hand to the use 
of "legitimate objectives" as codified in the TBT-Agreement (and the Accounting Disciplines).  S/WPDR/W/32 
 Page 5 
 
 
  
Equivalency  
 19. For the supply of a service from the territory of  one Member into the territory of any other 
Member, where both Member's technical standards are developed with a view to achieving the same 
legitimate national policy objectives, a person prov iding services who has the right or has been 
authorised to provide a service may do this on th e same terms as those imposed by the home country 
Member on its own services suppliers.  Where aspects of these objectives are not met, the Member can set additional requirements. 
International standards and the relation to international organizations and agreements
 
 
20. Where technical standards are required and rele vant international standards exist or the 
completion is imminent, Members shall use them or the relevant parts of them, as a basis for their technical standards, except when such  international standards or releva nt part would be an ineffective 
or inappropriate means for the fulfilment of the legitimate national policy objective pursued, for 
instance because of infant institutional devel opment or fundamental technological problems. [TBT 2.4 
adapted]
4. 
21. Members shall work in cooperation with rele vant intergovernmental and non-governmental 
organizations towards the establishment and adopt ion of common international standards for the 
practice of relevant services trades and professions, and undertake to promote such standards through 
the work of relevant international organizations6. [GATS VII:5; AT 7(a) ]4 
22. Members recognize the role played by relevant  international bodies (intergovernmental and 
non-governmental organizations) in establishing and pr omoting international best practices to ensure 
the efficient trade in services. [GATS AT 7(b) adapted ]4 
23. Whenever a technical standard is prepared, a dopted or applied for one of the legitimate 
objectives explicitly mentioned in paragraph 3, and is in accordan ce with relevant international 
standards of relevant in ternational organizations7, it shall be rebuttably presumed not to create an 
unnecessary obstacle to international trade. [TBT 2.5]4 
Transparency  
 24. In cases of mandatory technical standards, Memb ers shall make publicly available, or shall 
ensure that their competent authorities make public ly available, including through the enquiry and 
contact points, and in an easily accessible manner, where possible by electronic means: [AD §4; EU 
§12]
4 
(i) the list of service activities subject to technical standards; [EU §12(b); AD §4(a) ] 4 
(ii) information on the technical standards; [AD §4(c) ] 4 
(iii) information on the relevant findings of the regulatory impact assessment of 
mandatory technical standards. [Mexico §11 (c) ] 4 
 
                                                      
6 The term "relevant international organizations" refers to international bodies whose membership is 
open to the relevant bodies of at least all Members of the WTO. 
7 The term "relevant international organizations" refers to international bodies whose membership is 
open to the relevant bodies of at least all Members of the WTO. S/WPDR/W/32 
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 25. The list of services and a summary of the inform ation required under (ii) and (iii) shall be 
made available in one of the WTO languages. 
26. In cases, where technical standards are volunt ary but can reasonably be considered as 
building state of the art, the obligations of  article 12 (i) and (ii) shall also apply. 
27. Whenever a relevant international standard does not exist or the technical content of a 
proposed technical standard is not in accordance with  the technical content of relevant international 
standards, and if the technical standard may have a significant effect on trade  of other Members, 
Members shall: [TBT 2.9; Japan 29; Mexico §11 ]
4 
(i) publish a notice in a publication at an early appropriate stage, in such a manner as to 
enable interested parties in other Members to become acquainted with it, that they 
propose to introduce a particular technical standard; [TBT 2.9.1 ]4 
(ii) notify other Members through the Secretaria t of the sectors to be covered by the 
proposed technical standard, together with information on regulatory impact 
assessment. Such notifications shall take pl ace at an early appropriate stage, when 
amendments can still be introduced and comments taken into account; [TBT 2.9.2 ]4 
(iii) without discrimination, allow at least 60 days for other Members to make comments 
in writing, discuss these comments upon request, and take these written comments 
and the results of these discussions into account. [TBT 2.9.4; SPS Canada Step 1 ]4 
Fees 
 28. Fees for acquiring the texts of technical standard s shall be in relation to effective costs and 
shall not represent an indirect protection to services providers that are members of a non-
governmental standardization body. 
Special and differential treatm ent for developing countries
 
 29. Developing countries may request special and differential treatment in cases where 
international standards entail high compliance costs a nd result in policies and institutions that are ill 
suited to a Member's legal and in stitutional development level. Members therefore recognize that in 
this case developing country Members should not be exp ected to use international standards as a basis 
for their technical standards, which are not approp riate to their development, financial and trade 
needs. [second sentence: TBT 12.4 ]
4 
30. Members shall take such reasonable measures as may be available to them to ensure that 
relevant international organizations are organised  and operated in a way which facilitates active and 
representative participation of relevant bodies in  all Members, taking into account the special 
problems of developing country Members. [TBT 12.5 ]4 
31. It is recognized that developing country Members may face special problems, including 
lacking institutional capacities, in the field of prepar ation and application of technical standards. It is 
further recognized that the special development a nd trade needs of developing country Members, as 
well as their stage of technological development, may hinder their ability to discharge fully their 
obligations in respect to technical standards unde r these disciplines. Accordingly, with a view to 
ensuring that developing country Members are able to comply with these disciplines, the Council for 
Trade in Services is enabled to grant, upon request , specified, time-limited exceptions in whole or in 
part from these obligations. [TBT 12.8 ]4  S/WPDR/W/32 
 Page 7 
 
 
  
32. Where the appropriate fulfilment of the legitim ate national policy objective allows scope for 
the phased introduction of the new technical standa rd, longer time-frames for compliance should be 
accorded on the supply of services of interest to  developing country Members so as to maintain 
opportunities for their exports. [SPS 10.2]4 
Technical assistance  
 33. If, following the entry into force of a new tec hnical standard, an exporting developing country 
Member identifies significant difficulties which its se rvices suppliers face in complying with the new 
regulation, it may request an opportunity to discuss its difficulties with the importing Member to 
attempt to resolve the issue of concern. The di scussions may lead the importing Member to examine 
whether and how the identified problem could best be addressed – as for example through technical 
assistance – to take into account th e special needs of the interested exporting developing country 
Member. [SPS Canada Step 6 ]
4 
34. Members shall, if requested, take such reasona ble measures as may be available to them to 
advise developing country Members, on the preparation of technical standards. [TBT 11.1 ]4 
35. Members shall, if requested, take such reasona ble measures as may be available to them to 
arrange for technical assistance to developing country  Members to establish or strengthen institutional 
capacity to prepare, adopt or apply technical standards. 
36. Members shall make every effort to ensure pa rticipation in relevant  international bodies 
(intergovernmental and non-governme ntal organizations) by the standa rd setting bodies of developing 
countries. 
 
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