. /.   WORLD TRADE  
ORGANIZATION  G/SPS/W/245 
15 September 2009 
 (09-4356) 
Committee on Sanitary a nd Phytosanitary Measures Original:   English 
  
 
THIRD REVIEW OF THE SPS AGREEMENT - 
GUIDELINES ON THE IMPLEMENTATION OF ARTICLE 13  
OF THE SPS AGREEMENT 
 
Communication from Mercosur (Argentina, Brazil, Paraguay and Uruguay)
 
 
  The following communication, received on 27 July  2009, is being circualted at the request of 
the Delegation of Mercosur
 (Argentina, Brazil, Paraguay and Uruguay). 
 
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 1. In the Third Review of the Operation a nd Implementation of the Agreement on the 
Application of Sanitary and Phytosanitary Measures, Mercosur considers that priority should be given 
to the development of guidelines to furt her the implementation of Article 13. 
2. Since the 2005 Review of the SPS Agreement, de veloping countries have been raising the 
issue of private and commercial standards and their impact on market access, officially expressed in documents such as G/SPS/GEN/764, G/SPS/GEN/766, G/SPS/W/225, G/SPS/GEN/792 and G/SPS/GEN/843.  Among the concerns, they emphasized  higher costs associated with the imposition 
of private standards, mainly by purchasers in  importing countries, which are based on commercial 
quality schemes and a non-scientific and market approach. 
3. In many cases, private standards introduce ne w and scientifically unjustified requirements 
regarding food safety, animal and plant health , which can encompass higher production, processing 
and marketing costs, and have the potential to cause confusion (i.e. multiplication of certificates), 
inequity and lack of transparency and accountability.   Private standards that are not based on scientific 
principles can jeopardize Articles 2.2 and 5.1 of th e SPS Agreement.  Normally private standards are 
voluntary but seem to have become de facto  mandatory for exporters  in general and often 
discriminatory against small scale producers, particular ly those located in developing countries.  In 
G/SPS/GEN/822, OIE raised relevant considerations regarding the disproportionate effects of private 
standards on developing countries, jeopardi zing Article 5.6 of the SPS Agreement. 
4. Additionally, private standards can jeopardize the principle of equivalence and appropriate 
level of protection, foreseen in Articles 4 and 5 of the SPS Agreement.  Members may determine the 
level of protection deemed appropria te to protect human, animal and plant life or health within their 
territories and shall establish sanitary and phytosan itary measures accordingly.  The SPS Agreement 
encourages Members to enter into consultations w ith a view to mutually recognize equivalence of 
different measures that achieve the same appropriate level of protection.  On the other hand, private 
standards establish very specific measures or procedures in order to have access to a particular 
market.  In other words, they tend to be extremel y prescriptive on how to achieve an appropriate level 
of protection and therefore undermine the very prin ciple of equivalence of the SPS Agreement.  G/SPS/W/245 
Page 2  
 
  5. Due to the wide debate in the SPS Committee, the issue was included as part of its agenda in 
February 2007 and an ad hoc  working group on private standards was created in 2008.  International 
standard-setting bodies, such as OIE, Codex and IPPC , were invited to give support to the Committee 
in its discussions, and some other internati onal organizations, like UNCTAD and OECD, have 
conducted studies on private standards systems, correlated countries' experiences and possible 
consequences to world trade.  
6. Despite other legal aspects related to private standards and the debate on whether the issue 
falls under the jurisdiction of the SPS Agreement, Me mbers do have an obliga tion under Article 13 to 
take reasonable measures available to them to ensure that non-governmental entities within their 
territories comply with the relevant provisions of the Agreement.  Furthermore, Members shall not 
take measures which have the effect of, directly or  indirectly, requiring or encouraging such regional 
or non-governmental entities to act in a manner inconsistent with the provisions of the SPS 
Agreement.  WTO Members have a responsibility to  ensure that the Agreement is complied with, 
even to the extent of introducing positive measu res and mechanisms to achieve its observance. 
7. Having in view that some Members do have difficulties in fully understanding and applying 
Article 13, Mercosur considers of great importa nce that the Committee u ndertakes the task of 
elaborating guidelines to implement Article 13 and render its provisions effectively applicable by 
Members.  In its task, and to avoid duplicati on of work, the SPS Committee may use conclusions 
made by the ad hoc  working group on private standards, in order to elaborate useful guidelines to 
implement Article 13. 
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