WORLD TRADE  
ORGANIZATION  G/TBT/W/309 
11 May 2009 
 (09-2309) 
Committee on Technical Barriers to Trade Original:   English 
  
 
FIFTH TRIENNIAL REVIEW OF THE AGREEMENT ON  
TECHNICAL BARRIERS TO TRADE: TRANSPARENCY 
 
Communication from the European Communities
 
 
 
 The following communication, dated 7 May 2009, is being circulated at the request of the 
delegation of the European Communities . 
 
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I. INTRODUCTION 
1. Transparency is an important element in orde r to render the TBT Agreement effective.  The 
TBT Committee made on several occasions, includin g during the Triennial Reviews, decisions and 
recommendations with a view to facilitating access to information and further improving the 
implementation of the transparency procedures under the Agreement.  
2. As a result, transparency in the notification pr ocedure has indeed been considerably improved 
during the last years.  However, in the view of  the European Communities (EC) certain aspects can 
still be further enhanced.  Given the numerous re commendations developed by the Committee, the EC 
is of the opinion that the Fifth Triennial Review should not only focus on developing new 
recommendations, but look as a matter of priority at how the existing body of recommendations is 
actually being applied by Members and how its application can be made more effective. 
3. To help take the discussion forward, the EC be lieves it may be useful in the first place to 
share its experience on how it has, when necessary, modi fied its internal practices in order to give 
effect to the Committee’s recommendations.  In add ition, the EC would like to submit some concrete 
proposals on possible improvements to the implementa tion of the transparency provisions of the TBT 
Agreement in some areas which it considers to be of particular importance. 
4. As a useful support to the debate, the EC woul d also suggest exploring ways of gathering 
information about the practical application of th e Committee’s recommendations.  The EC trusts that 
at least some information would be purely statistical  and therefore possible to extract directly from the 
TBT notification database by the WTO Secretariat (e .g. the number of instances when draft notified 
texts had been provided in electronic form, the number of cases where the adoption of texts has been 
notified by addenda etc.).  
II. NOTIFICATION AND ENQUIRY POINT OBLIGATIONS 
5. Pursuant to Article 10.10 of the TBT Agreement, a single central government authority that is 
responsible for the implementation on the nationa l level of provisions concerning notification 
procedures under the TBT Agreement (except those included in Annex 3) has to be designated. G/TBT/W/309 
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  According to Article 10.1 each Member shall ensure that an enquiry point exists which is able to 
answer all reasonable enquiries from other Member s and interested parties in other Members. 
6. The EC welcomes the fact that most Members have now appointed such Notification and 
Enquiry Points.  However, the EC notes that not  all Notification and Enquiry Points are fully 
operational and able to ensure in a consistent way the tasks and obligations foreseen by the TBT 
Agreement.  
7. In particular, the EC observes that certain No tification and Enquiry Points do not provide 
answers about enquiries, even very simple ones such as requests for prolongation of the comment 
period or acknowledgement of the receipt of comm ents.  An absence of any dialogue considerably 
impedes the objectives and effectiveness of the TBT Agreement. In this respect, the EC welcomes the 
seminars organised by the WTO Secretariat in wh ich Members still developing their Notification and 
Enquiry Points can get useful information and support in order to improve the work of the 
Notification and Enquiry Points.  The EC, at its Notification and Enquiry Point situated in the 
European Commission, has also received study visits  from some Members who were interested to see 
how the EC is organised internally.  
8. The EC would be interested to know what kinds  of problem impede certain Notification and 
Enquiry Points from fully satisfying their tasks.  The EC continues to be open to receive further visits 
from interested Members in order to share info rmation on the organisation of Notification and 
Enquiry Points.  The EC also suggests explor ing further how technical assistance could help 
overcome the difficulties developing countries in partic ular face with respect to the establishment and 
operation of their Notification and Enquiry Points. 
III. NOTIFICATION OBLIGATION 
9. Furthermore, the EC observes that not all technical regulations and conformity assessment 
procedures of Members are notified under the TBT Agre ement or that several times they were notified 
only when they had already been adopted, wit hout, however, relying on the urgency procedure of 
Article 2.10 of the TBT Agreement. In other cases,  only the implementing measures were notified, but 
not the basic act which however already provided fo r technical regulations and conformity assessment 
procedures.  The EC considers that this practi ce deprives Members of the possibility of commenting 
at an important stage where basic requirements are already laid down and of influencing the 
development of technical requirements of other Members. 
10. The EC would also like to reiterate its concerns  about the generally low level of notifications 
under Articles 3.2 and 7.2 of the TBT Agreement of  technical regulations and conformity assessment 
procedures of local governments at the level direc tly below that of Members’ central governments. 
According to the Background Note by the WTO Secretariat on Transparency Requirements and Procedures (JOB(07)/139 of 25 September 2007) and the latest Annual Review of the TBT 
Agreement (G/TBT/25 of 4 March 2009), 92 notifica tions under Article 3.2 a nd 3 notifications under 
Article 7.2 were made in the period 1995 to December 2008.  In this respect, the EC submits that it is 
particularly important for Members with a federal structure or substantially decentralised regulatory 
powers to develop effective mechanisms enabling the tracking of measures at sub-federal or sub-state 
level.  The EC invites the Committee to continue to discuss possible ways to improve the coordination 
between the central and local state level (e.g . through benchmarking and dissemination of good 
practices).  It also invites the Secretariat to remain  engaged in providing statistical information on this 
matter. 
11. The EC knows from its own experience that a consta nt effort is required from the Notification 
Authority to make authorities which develop t echnical regulations or conformity assessment 
procedures aware of the notification obligations.  The coordination with the authorities developing  G/TBT/W/309 
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  technical regulations or conformity assessment proce dures is a key element in order to correctly fulfil 
the notification obligation, as well as to provide an swers to reasonable enquiries as foreseen in the 
TBT Agreement.  The EC would therefore like to  reaffirm the importance of Members having 
mechanisms in place to ensure effective internal information and coordinatio n about the applicable 
TBT notification obligations. 
IV. ACCESS TO TEXTS 
A. DIRECT  ACCESS  TO TEXTS  
12. The access to the full texts of notified technical regulations and conformity assessment 
procedures is one of the aspects that have been c onsiderably improved during the last years.  Indeed, 
many Members now provide directly or through the WTO Secretariat a direct hyperlink on the 
notification form which significantly facilitates this  work and saves time, since an enquiry to obtain 
the full text is no longer necessary.  The EC invites Members not yet giving direct access to the full 
text to examine why this way of proceeding has not yet been adopted and what could be done to 
provide such direct access. 
13. The EC regularly sends the notified draft together with the notification form and the WTO 
Secretariat provides for a hyperlink or the EC directly indicates the internet link on the notification 
form so that the full text can be directly downloaded through the internet.  The links usually leads to the English version of the proposed legislation. In  the case of European Commission proposals to the 
European Parliament and the Council, other offici al EU language versions, including French and 
Spanish versions, are also available on the internet under http://eur-lex.europa.eu/en/index.htm
.  This 
can be helpful for certain Members, especially deve loping countries, having in consequence access to 
a language version spoken or understood in their country. 
B. TRANSLATIONS 
14. When the EC makes or receives translations of documents notified by other Members, it 
makes them available on its website ( http://ec.europa.eu/enterprise/tbt/ ).  In this case the EC also 
regularly sends them to the WTO Secretariat. The WTO Secretariat distributes these unofficial 
translations to other Members.  The EC has,  however, observed that not many Members share 
translations.  The EC considers that it would be interesting to know more about the reasons why few 
Members share translations.  The EC is of the opini on that unofficial translations can greatly improve 
transparency, since the content of the notified documents becomes understandable to many more 
Members, including developing countries which migh t not have the financial or human resources to 
set up translations.  If more translations were sh ared, financial and human resources for translation 
could be used more effectively and more notifie d documents would become understandable to more 
Members.  
C. NOTIFICATION  OF DOCUMENTS  IN LANGUAGES  OTHER  THAN  OFFICIAL  WTO  
LANGUAGES 
15. Since a full translation of the text is still rare, the EC proposes that the Committee discuss 
whether there can be further improvement for tr ansparency for cases where Members notify technical 
regulations or conformity procedures which are not  written in one of the official WTO languages. 
16. In this case, the description of the content under point 6 of the notification form remains of 
utmost importance, since this description is the onl y source of information for understanding what the 
notifications and its documents are about.  G/TBT/W/309 
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  17. The EC would therefore like the Committee to consider recommendations for improved 
transparency in th ese cases, such as: 
(a) the description of the content of the notifi ed draft should be comprehensive and give 
a detailed overview of the envisaged techni cal regulations and conformity assessment 
procedures; 
(b) Members should in principle give a comment period of at least 90 days. 
 
D. AMENDMENTS
 OF NOTIFIED  TECHNICAL  REGULATIONS  AND  CONFORMITY  
ASSESSMENT  PROCEDURES 
18. The EC notes that some Members notify prop osed modifications to adopted technical 
regulations and conformity assessment procedures only  as an addendum to the original notification. 
The EC is of the opinion that this practice does not contribute to transparency, since it is more 
difficult for the other Members to realise that in fact the addendum presents a new notification to 
which comments could be sent.  
19. In the EC's view, addenda should be used to ensure the follow-up of information about the 
original notification (i.e. important changes introd uced during the legislative process, prolongation of 
the applicability of legislation, adoption and publicat ion of the legislation etc.), while a modification 
of adopted technical regulations or conformity ass essment procedures should in principle be notified 
to the WTO by sending a new filled in notificati on form in order to ensure full transparency. 
V. HANDLING OF COMMENTS 
20. Pursuant to Articles 2.9.4 and 5.6.4 of the TBT Agreement, Members must allow reasonable 
time for other Members to make comments in writi ng on the notified draft technical regulations or 
conformity assessment procedures, respectively, di scuss these comments upon request, and take these 
written comments and the results of these discussions into account.  
21. The Committee recommended in th e past that a Member receiving comments should explain 
within a reasonable time to any Member from whic h it has received comments how it will proceed in 
order to take these comments into account and,  where appropriate, provi de additional relevant 
information on the proposed technical regulati ons or conformity assessment procedures. The 
Committee also encouraged  Members to voluntarily respond to comments in writing if so requested, 
and to share their responses with the TBT Committee. 
22. The EC observes that some Members do not provide written answers to comments sent. 
While for certain Members the absence of any reply to  comments seems to be the result of the lack of 
operational capacity of the Notification and Enqu iry Points (see Section I above), some other 
Members, as a matter of principle, never provide a written reply before the adoption of the notified 
legislation.  The reply is only given in paralle l with the adoption/publication of the technical 
regulations and conformity assessment procedure.  
23. The EC is of the opinion that such an approach is not fully consistent with the aim of Articles 
2.9.4 and 5.6.4 of the TBT Agreement, which ex plicitly provide for a discussion of the written 
comments received upon request and the obligation for the notifying Member to take account of both 
the written comments and of the results of discu ssions with other Member(s) concerned.  The 
systematic refusal to reply in writing to the comm ents received prevents an effective exchange 
between Members, thereby not only undermining the purpose of the above provisions but also  G/TBT/W/309 
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  harming the attainment of one of the general objectives of the TBT Agreement i.e. to create a 
possibility for a dialogue and discussion between Members.  
24. The EC therefore invites the Committee to r eaffirm its earlier recommendations to Members 
regarding the provision of written replies to comment s received before the adoption of the notified 
drafts and, more generally, to continue to explore ways of further improving the effective 
implementation of the provisions of th e TBT Agreement on handling comments.  
VI. SHARING OF COMMENTS 
25. The Committee also encouraged Members to ex change comments and to provide information 
on websites on which comments received from Members and replies thereto are posted.  The EC is indeed of the opinion that the possibility for all Members to access exchanges that are taking place on 
specific trade concerns would help Members, and especially developing countries, to further extend 
and develop knowledge and expertise with regard to the not ification procedure and regulatory 
approaches. In this respect the EC would like to draw the attention of the Committee to its website 
http://ec.europa.eu/enterprise/tbt/
 where all exchanges with other Members (i.e. comments of the EC 
to third country notifications, replies received, co mments from third countries to EC notification, as 
well as EC replies) are publicly available.  
VII. COMMUNICATION OF ADOPTION AND PUBLICATION 
26. All adopted EC legislation is published promptly  in the Official Journal of the European 
Union (which is also available on the internet under http://eur-lex.europa.eu/JOIndex.do ).  In addition, 
the EC communicates to the other Members important follow-up in formation on EC TBT 
notifications.  In particular the EC has started to inform regularly by addenda once a notified draft has 
been adopted.  
27. The EC Notification and Enquiry Point invests cons iderable effort to be able to provide this 
information to Members, since tracking such data requires a close follow-up and good cooperation 
with the services developing technical regulations and conformity assessment procedures.  The EC 
strongly believes that this approach facilitates the information of other Members about the adoption of 
notified drafts and therefore contributes to transparency.  
28. The EC would also appreciate receiving informa tion about the adoption and the publication of 
notified measures from other Member s, especially since the information given under point 9 of the 
notification form is not always clear with regard to the adoption and entry into force of the notified 
draft.  This probably results from the fact that such  information is difficult to provide at the stage of 
notification.  The EC would therefore be in favour  of the Committee encouraging Members to provide 
information on the adoption, publication and entry in to force of the notified drafts, where appropriate 
in the form of addenda to the original notification.  
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