WORLD TRADE  
ORGANIZATION  TN/MA/W/127 
4 December 2009 
 (09-6230) 
Negotiating Group on Market Access Original:   English 
  
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
Horizontal questions concerning systemic issues related to the TBT Agreement 
 
in Non-tariff barriers (NTBs) pr oposals listed in paragraph 24   
of document TN/MA/W/103/Rev.3  
 
Communication from Brazil 
 
  The following communication, dated 3 December 2009, is being circulated at the request of 
the delegation of Brazil. 
_______________ 
 
 
 This document follows the ideas expressed in  document JOB(09)/103 and presents the main 
“cross-cutting” and systemic dispositions in the verti cal proposals enrolled in paragraph 24, ‘b’, of the 
draft modalities document (TN/MA/W/103/Rev.3). The di spositions are formulated in such a manner 
they could be extended to be a pplied to all products, thus enhanc ing the implementation of the TBT 
Agreement.  
  This document does not intend to  be exhaustive in relation to the “cross-cutting” dispositions 
present in the proposals circulated in this Negotia ting Group that could be extended to all products, 
whether they are listed or not in paragraph 24, ‘b ’. Furthermore, it does not preclude discussions on 
dispositions which are adequate only for sectoral application. 
 
 Brazil would like to stress its complete availa bility for discussing on the adequate instrument 
for the adoption of the following dispositions.  
I.  GOOD REGULATORY PRACTICE 
 
A. Where a Member prepares or proposes to adopt a technical regulation or conformity 
assessment procedure, it shall:  (1) consider, inter alia, the costs of comply ing with the proposed technical regulation or 
conformity assessment procedure.; and 
 
(2) consider the available regulatory and non-re gulatory alternatives to the proposed technical 
regulation or conformity assessment procedur e that may fulfill the Member’s legitimate 
objective, including the use of an existing inte rnational standard.  This requirement does not 
imply any determination on the way or fo rmat this consideration shall take.  
 
B. The process of determining whether an in ternational standard, guide or recommendation 
within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement exists should be based on TN/MA/W/127 
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  the principles set out in the Committee Decision1, including whether the standardizing body takes into 
account relevant regulatory or market needs and scie ntific and technological developments as set out 
in paragraph 11 of the Committee Decision  when preparing a standard, guide or recommendation. 
“Relevant regulatory market needs and scientific and technological developments” shall include the 
technical and economic feasibility of alternative a pproaches to the standard under development, the 
relative benefits and cost-effectiv eness of alternative approaches and the available technologies, and 
shall take into account the particular situation of Developing Countries.   
 
II.  CONFORMITY ASSESSMENT PROCEDURES 
 
A.  When a supplier’s declaration is accepte d as a positive assurance that a product conforms 
with a standard or technical regulation, the Memb er shall accept that the supplier in the exporting 
country has sole responsibility for issuing, changi ng or withdrawing the declaration of conformity. 
The Member may require that the declaration of conformity shall identify the supplier, or the supplier’s authorised representative, the goods c overed by the declaration, and the technical 
regulations with which conformity is declared , as well as other information deemed necessary to 
assure the responsibility of the supplier and the re paration of the consequences of non-compliance. A 
Member may refuse to accept a declaration from an y supplier if, upon request from the Member's 
regulatory or enforcement authorities, the supplier does not provide to those authorities documentation necessary to demonstrate the basis for a d eclaration or declarations (e.g., relevant test 
results) within a reasonable period after the date of the request.  
B. When practicable, especially taking into ac count possible capacity constraints of developing 
countries, Members requiring positive assurance of conformity for products covered by the TBT 
Agreement  should endeavour to accept a supplier’s declaration of conformity 
 C.  Where an assurance of conformity is requi red, Members are encouraged to accept that the 
supplier declares that the product meets the techni cal regulations on the basis of an assurance of 
conformity issued by a conformity assessment bod y approved for that purpose by the authorities of 
another Member when the conformity assessment body that issued it participates in relevant 
international accreditation systems in which that Member participates.  D. In the case a Member accepts, for a conformity assessment procedure, the recourse to 
conformity assessment bodies in the territory of othe r Members it shall accord to those conformity 
assessment bodies treatment no less favourable than that it accords to conformity assessment bodies in 
its own territory with respect to the procedures, cr iteria, and other conditions with which conformity 
assessment bodies must comply in order for the Memb er to accredit or otherwise approve them as 
competent to test or certify that a product confor ms with the Member's standard or technical 
regulation.  
 E.    If a Member requires a conformity assessment body to comply with requirements concerning the assessment of conformity of a product with a st andard or technical regulation or requires the body 
that accredits or otherwise approves the conform ity assessment body to comply with requirements 
concerning that accreditation or approval, it shall ensure that such requirements are based on:  
 (a) a relevant international standard, guide or  recommendation that has been developed in 
accordance with the TBT Agreement and the Committee Decision; or 
 
                                                     
 
1 G/TBT/1/Rev. 8,  23/05/2002, Section IX – “Decision of the Committee on Principles for the 
Development of International Standards, Guides and Recommendations with relation to Articles 2 and 5 and 
Annex 3 of the TBT Agreement”.  TN/MA/W/127 
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  (b) a conformity assessment procedure establis hed by the Member in accordance with the 
procedures set out in paragraphs XXX  
 
III.  TRANSPARENCY 
 A.  The special development, financial and trad e needs of developing country members will be 
taken into account when considering the costs of  compliance and the available regulatory and non-
regulatory alternatives, with a view to ensuring that such technical regulations, standards and 
conformity assessment procedures do not create unn ecessary obstacles to exports from developing 
country members.   
B.  Where a Member prepares, proposes to adopt or adopt a standard, technical regulation, or 
conformity assessment procedure that may have a significant effect on trade of other Members, the Member shall, in addition to Articles 2.9, 2.10, 5.6,  5.7 and paragraphs L through N of Annex 3 of the 
TBT Agreement: 
 
(a) upon request from another Member or inter ested party, provide information on how the 
Member took into account the elements set out in paragraph A 
 (b) publish, in print or electronically, an y written comments it received from Members or 
interested parties on the proposed standard, t echnical regulation, or conformity assessment 
procedure. 
 (c) In the case of developed country members, publish, in print or electronically:  
(i)  its responses to any significant issues raised in comments it received from Members 
during the comment period;
2 and  
 (ii)  the objective and rationale for preparing or adopting the standard, technical 
regulation, or conformity assessment procedure.  
 (d) ensure that, in the case of central governme nt bodies, its proposed  and final standards, 
technical regulations and conformity assessment procedures, as well as any relevant penalties, 
are published in a single official journal of national circulation, and encourage their distribution through additional outlets. 
 
IV.  CONFIDENTIALITY OF INFORMATION 
 
A. Nothing in the TBT Agreement shall be constr ued to require a Member to furnish or allow 
access to confidential information the disclosure of which would impede law enforcement or 
otherwise be contrary to the public interest or which would prejudice the legitimate commercial 
interests of particular enterprises, public or private.  V. PROCEDURES FOR REVIEW 
 
A. Each Member shall establish or maintain judi cial, quasi-judicial, or administrative tribunals 
and procedures for the purpose of the prompt review  and, where warranted, correction of its final 
administrative actions relating to technical regula tions and conformity assessment procedures.  Each 
Member shall ensure that such tribunals are impa rtial and independent of the office or authority 
entrusted with administrative enfo rcement and do not have any substan tial interest in the outcome of 
                                                     
 
2 For greater certainty, if raised in comments re ceived from a Member or an interested party, a 
Member's response shall include a response to the items described in subparagraphs 3(i)-(iii). TN/MA/W/127 
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  the matter, and that proceedings before such tribuna ls are transparent and comply with due process of 
law.    B. Each Developed Country Member shall establis h or maintain procedures for it to review, at 
regularly-scheduled intervals, its technical re gulations and conformity assessment procedures to 
determine whether such measures should be modified  or eliminated so as to make the Member’s 
regulatory program more effective in achieving the legitimate objective(s) pursued.  In reviewing its 
technical regulations and conformity assessment pr ocedures to determine whether such measures 
should be modified or eliminated, relevant elements  of consideration include whether such technical 
regulations and conformity assessment procedures ha ve become unnecessary or outdated by reason of 
changed circumstances, such as fundamental chan ges in technology. Developing Country Members 
are encouraged to apply the provisions of this Article.  
VI.  SPECIAL AND DIFFERENTIAL TREATMENT 
 A. The dispositions in this instrument shall be applied without prejudice to the full applicability 
of special and differential treatment dispositions of  the TBT Agreement. In particular, the special 
development, financial and trade needs of deve loping country members will be taken into account 
when considering the costs of compliance and the available regulatory and non-regulatory alternatives, with a view to en suring that such technical regulations, standards and conformity 
assessment procedures do not create unnecessary obstacles to exports from developing country 
members.  
  
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