WORLD TRADE  
ORGANIZATION  G/SPS/GEN/802 
9 October 2007 
 (07-4327) 
Committee on Sanitary a nd Phytosanitary Measures Original:   English 
  
PRIVATE VOLUNTARY STANDA RDS WITHIN THE WTO  
MULTILATERAL FRAMEWORK 
 
Submission by the United Kingdom
 
  
 The following communication, received on 1 October 2007, is being circulated at the request 
of the Delegation of the United Kingdom.  
_______________ 
 
 
The Department for International Developmen t (DFID) of the United Kingdom Government 
working in collaborations with the UK SPS Enquiry Po int is pleased to make available a recent study 
entitled, "Private voluntary standards within the WTO multilateral framework".  This study was 
carried out by Mr. Digby Gascoine in collaboration with O’Connor and Company, a legal firm based 
in Brussels.  
This work is part of a wider initiative on the ro le that public and private agricultural product 
regulations and standards play in helping a nd/or hindering developing countries' access to 
international markets.   The United Kingdom is keen  to develop a public-private process that results in 
supermarket procurement with an  enhanced development impact on small scale producers and the 
rural poor.  Other activities include project rese arch into mapping fresh produce movements, 
encouraging dialogue between public regulator y bodies and private standard setting bodies and 
working with private standard-setters to help th em consider the development impact of new and 
revised standards.  
The particular objectives of this study were as follows: 
• To investigate the position of non-government bodies' standards within the WTO's 
Sanitary and Phytosanitary (SPS) and Techni cal Barriers to Trade (TBT) Agreements;  
• To ascertain how delegations to the TBT and SPS Committees include the views of 
industry or private standard-setting bodies in their positions; 
• To examine the pros and cons of better de fining the position of non-government bodies' 
standards within the SPS Agreement and TB T Agreement (which may cover non-food 
safety aspects of these standards e.g. product size); 
• To make suggestions on how the relati onship between the SPS Agreement and non-
government bodies' standards might be improve d, e.g. adopting a decision or guidance 
on how to implement Article 13. 
The views expressed do not necessarily represent t hose of the Department for International 
Development or the United Kingdom or of the European Communities, but provide information and clarity on issues related to the debate on privat e standards and standard setting processes within a 
WTO framework.  The report does not make recommendations on a way forward. G/SPS/GEN/802 
Page 2  
 
   
PRIVATE VOLUNTARY STANDA RDS WITHIN THE WTO  
MULTILATERAL FRAMEWORK 
 
 
 
 
A report prepared by  
 
Digby Gascoine  
 
and  
 
O'Connor and Company 
 
 
for the United Kingdom Department for International Development under the  
Programme of Advisory and Support Services to DFID administered by HPSTE Limited 
    
 
  
April 2007 
  
 
    
 
   
This report was written by Digby Gascoine as lead consultant, and by Paol o Vergano and Ignacio 
Carreño of O'Connor and Company, European Lawyer s, who prepared the legal advice contained in 
Annexes 5 and 6. 
 
The views expressed do not necessarily represent t hose of the Department for International 
Development. 
 
The contributions of those persons interviewed dur ing the preparation of the report are gratefully 
acknowledged, as is the guidance provided by Tim Leyland of DFID.  G/SPS/GEN/802 
 Page 3 
 
 
  Table of contents  
 
 
  
List of abbreviations and acronyms 4 
Executive summary 5 
Main Report 13 
Terms of reference 13 Methodology 13 
Background to the issue 14 
Commentaries and empirical studies 15 
GATT/SPS/TBT negotiating history 19 The WTO and private bodies 22 WTO Members and private standard-setting bodies 22 Defining the role of non-government standa rd-setting bodies within the SPS Agreement 23 
Improving the SPS Agreement 27 
Government and non-government bodi es in the TBT Agreement 30 
Annex 1: Terms of reference 34 Annex 2: Terms of reference for le gal aspects of the consultancy 39 
Annex 3: List of persons consulted 44 Annex 4: References 46 
Annex 5: Legal reports 1 and 2 48 
Annex 6: Legal report 3 85    G/SPS/GEN/802 
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  Abbreviations and acronyms
 
 
 
BRC British Retail Consortium 
CIES Comité International d'Entreprises à Succursales (International Committee 
of Food Retail Chains) 
DFID Department for International Development  (UK) 
EurepGAP Euro-Retailer Produce Working Group Good Agricultural Practice 
GAP Good agricultural practice 
GATT General Agreement on Tariffs and Trade 
GFSI Global Food Safety Initiative 
GMP Good manufacturing practice 
HACCP Hazard analysis and critical control points 
ISEAL Alliance International Social and Environm ental Accreditation and Labelling 
Alliance 
ISO International Organisation for Standardisation 
OECD Organisation for Economic  Cooperation and Development 
PPMs Process and production methods 
SPS Sanitary and phytosanitary (measure; Agreement; etc.) 
SPS 
Committee The Committee on Sanitary and Phytosanitary Measures 
TBT Technical barriers to trade 
TBT 
Committee The Committee on Technical Barriers to Trade 
UK United Kingdom 
UNCTAD United Nations Conference on Trade and Development 
WTO World Trade Organisation 
 
  G/SPS/GEN/802 
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  I. EXECUTIVE SUMMARY 
1. This report responds to a brief by the UK Depa rtment for International Development, whose 
purpose is to learn lessons from the Technical Barri ers to Trade (TBT) Agreement about how to work 
with private standard-setters, and to clarify the position of private standard-setters within the SPS 
Agreement.  It is based on a selective literature review, interviews with representatives of several 
international organisations, standard-setting bodies a nd the private sector, and a legal analysis carried 
out by O'Connor and Company.  
2. At the national level there is no apparent legal impediment to  prevent buyers from defining 
and applying specific technical requirements to the products that they purchase; and in the case of 
food wholesalers and retailers there are many good r easons why the application of such requirements 
is justified in order to manage business risks.  However for suppliers, and in particular those in 
developing exporting countries, the proliferation and strengthening of private standards is an 
increasing concern.  A short list of possible issu es of concern about private voluntary standards 
includes: 
• While private voluntary standards may in many instances provide a stimulus to improved 
production practices and performance in expo rting countries, and potentially give a 
competitive advantage to complying producers,  they may also act as significant barriers 
to market access for some industries in some countries – especially least developed countries.  There may also be a proportionate ly greater disadvantage to smaller-scale 
producers. 
• These barriers to trade are associated with a number of factors including up-front capital 
costs, initial and on-going costs of third-party certification, higher operating costs for producers, and reduced profit margins.  
• The burden on exporters is heavier where (for example): 
- private voluntary standards are develope d without consultation with suppliers; 
- there are different private requirements that must be met for different markets and 
for different purchasers in the same export market;  
- third party certification can only be obtained at develope d-world prices;  
- purchasers do not offer long-term purchase contracts to reduce uncertainty for 
those willing suppliers who must invest in order to meet private voluntary 
standards.  
 
Producers may also feel aggrieved if there is no objective justification for ostensibly stricter private standards, or if it is difficult to reconcile impor ters' requirements that are not related to product 
attributes with local circumstances, values and practices. 
 3. The taking up of consumer concerns about animal welfare, environmental, occupational 
health and safety and consumer sa fety aspects of foods, for example, in private voluntary standards is 
a phenomenon that largely post-dates the negotiatio n of the SPS and TBT Agreements; and it is a 
development that parallels the rapid increase of market  penetration by very large supermarket chains.  
The possible application of the SPS Agreement to th e development of private voluntary standards or 
conformity assessment against such standards was never anticipated.  The TBT Agreement, on the 
other hand, deals not only with the developm ent and implementation (including "conformity 
assessment") of mandatory technical regulations by governments but also, explicitly, with private activities to develop and adopt standards and to  conduct conformity assessment.  The General 
Agreement on Tariffs and Trade does not define a role for non-government bodies. G/SPS/GEN/802 
Page 6  
 
  A. I
NTERACTIONS OF PRIVATE STANDARD -SETTING BODIES WITH THE WTO  AND ITS MEMBERS  
4. In general, because the Memb ers of the WTO are national gove rnments and the disciplines of 
the covered agreements apply to what Members do,  the relationships between the WTO and private 
bodies (to the limited extent that they may from ti me to time exist) are mostly about mutually 
beneficial information-sharing.  In those countri es that have mechanisms for consultation between 
government and interested parties on issues arising in the SPS or TBT Committees, it would be 
normal for there to be information exchange with private standard-setting bodies in advance of any 
meeting where private voluntary standards might be  discussed.  However it is not an obligation on 
WTO Members to represent private bodies in the pr oceedings of the WTO committees.  It is open to 
the Committees to arrange for ad hoc consultations and information sharing with private standard 
setters, and such a process has been  initiated by the SPS Committee. 
B. USE OF CODES OF PRACTICE  
5. Various codes of practice for standardisati on and conformity assessment are available as 
guides that might be followed by private standa rd setters and implemen ters, including the ISEAL 
Alliance's Code of Good Practice for Setting Social and Environmental Standards  and the TBT 
Agreement's Code of Good Practice for the Preparati on, Adoption and Application of Standards .  It is 
questionable whether the widespread observance of such codes would make a significant difference to 
the circumstances of developing country exporters in  relation to private voluntary standards.  A study 
would be necessary to analyse a sample of the rele vant environmental, labour  and other standards, 
identify their objectionable features from the exporters' point of view, and make a judgment as to whether a better structured process for the formula tion of the standard might have produced a more 
mutually satisfactory outcome.  It is tempting to guess that the conclusion of such a study would be 
along the lines that the better process for standard-set ting would remove some or all of the complaints 
that concern procedure
 (prior notice, consultation, etc.), but ultimately not make much difference to 
the burden of compliance borne by exporters.  On e major point of difference between the standard 
setters and the standard compliers would almost certainly be the justification of the need for a 
standard and the clear specification of its objectives.  Similar considerations a pply to codes of practice 
concerning conformity assessment, where the central problem may be that in developing exporting countries credible local conformity assessors who charge  local rates rather than international parity 
may be few and far between. 
C. I
MPROVING THE SPS  AGREEMENT  
6. The key provision of the SPS Agreement is Artic le 13, which commits Members to take such 
reasonable measures as may be available to them to  ensure that non-governmental entities within their 
territories comply with the relevant provisions of th e Agreement.  There are legal questions about the 
scope of the term "reasonable measures", and as to whether "non-governmental entities" includes the 
various private standard-setting bodies and standard -implementing bodies.  It appears highly unlikely 
that Article 13 of the SPS Agreement will be ame nded by WTO Members to make a clear obligation 
to apply the Agreement to the development and use of private voluntary standards, even if only on a 
best endeavours basis.  Amongst other things, there would be the problem of obtaining the agreement 
of about 100 countries to the wording of any prop osed amendment.  In any event, the perceived 
problem is not yet so significant as to warrant such  a major step, and other initiatives, both within the 
framework of the WTO and amongst the private bodi es concerned, may be able to ameliorate 
particular difficulties more conveniently. 
7. An alternative approach is to consider the feasibility of developing guidance on the 
implementation of Article 13 of the Agreement.  Both developed as well as developing countries 
would need to perceive a clear need for an in itiative along these lines, and there would have to be 
broad consensus as to what should be done.  Any proposition that WTO Members should morally  G/SPS/GEN/802 
 Page 7 
 
 
  commit themselves, via an agreed interpretation of  the SPS Agreement, to  shape or curb the  
implementation of private voluntary sanitary standard s would almost certainly fail, because in many 
developed countries the businesses that develop a nd apply private voluntary standards (because of the 
benefits that accrue to their commercial interest) would see no advantage and some significant disadvantages to their interests in such an in itiative, and would therefore prevail upon their 
governments to oppose it. 
8. If all of the Members of the WTO could not agree on an interpretation of the SPS Agreement 
in this field, another option theo retically available would be for a subset of like-minded Members to 
voluntarily enter into an agreement amongst themselv es to behave in a certain way in relation to 
private voluntary standards.  Precedents for this approach are the GATT Standards Code, to which a 
number of GATT signatories adhered, and the four plurilateral agreements negotiated in the Uruguay 
Round.  However, since the practice has been that  such agreements are negotiated as part of a 
negotiating round, and negotiation is typically a prot racted procedure, no ne w plurilateral agreement 
is likely to be achievable in the near future.  
9. A more practical approach might be available via the TBT Agreement.  The SPS Agreement 
covers only those measures defined in Annex A of that Agreement; all other sanitary and 
phytosanitary technical regulations and standards are covered by the TBT Agreement in accordance 
with the definitions in its Annex A.  Rather than  attempting to modify the SPS Agreement to do what 
it was not originally intended to achieve, it would be better to consider how the TBT disciplines, such as they are, could be used to address the concerns that have arisen in relation to private voluntary 
standards. 
D. U
SING THE TBT  AGREEMENT  
10. Notwithstanding that the TBT Agreement speci fically addresses private standard-setting and 
conformity assessment activities, there remain difficulties in the path of its effective application in this 
sphere.  Members are obliged to take such reasonabl e measures as may be available to them to ensure 
compliance by non-governmental organisations with th e provisions of Article 2 of the Agreement, but 
there is again the issue of the scope of "reasona ble measures".  Many developing countries believe 
that eco-labelling requirements that relate to matte rs other than attributes incorporated into products 
(e.g. pesticide residues) are pro scribed under WTO rules; other Members do not agree.  O'Connor and 
Company believe that from the language of the TB T Agreement there is reason to doubt that the 
Agreement is applicable to processes and production methods which are "not related to the product".  
The legal advice goes on to say that there is no case law that assists understanding of the applicability 
of the TBT Agreement to voluntary standards that ar e not product-related.  And, as mentioned above, 
it is possible that widespread conformity with th e TBT Code of Practice would not make a significant 
difference to the circumstances of developing country exporters in relation to private voluntary standards.    
11. Nonetheless there are many initiatives that governments might take to encourage observance 
of the TBT Agreement's provisions on st andard-setting and c onformity assessment : 
• disseminating information about the TBT Agre ement and its provisions applicable to 
private standard-setting; 
• developing and circulating a national polic y, whether hortatory or for mandatory 
application, in relation to compliance with these provisions; 
• dialogue with the responsible private organi sations to encourage behaviour consistent 
with the provisions of the TBT Agreement; 
• entering into memoranda of understandi ng with the private organisations; 
• providing financial incentives to encourage compliance by private organisations. 
 G/SPS/GEN/802 
Page 8  
 
  Such initiatives do not depend upon an y particular legal interpretati on of obligations under the TBT 
Agreement.   E. O
THER POSSIBLE APPROACHES  
12. Representatives of very large supermarket chai ns acknowledge that there is a business risk 
associated with the negative reaction of developing c ountries to their private voluntary standards.  The 
WTO offers an arena in which this tension betw een importers and exporters over private voluntary 
standards can be dramatized, information can be sh ared and mutually acceptable solutions explored.  
There is a range of possible initiatives in the SPS and TBT Committees that would continue to keep 
the issue before Member governments, who in turn c onnect with stakeholders at the national level.  
For example: 
• It could be proposed to the SPS and TBT Comm ittees that Members be invited to submit 
reports on their national experience of private standards as barriers to trade, including with respect to such issues as opportunities for involvement in the setting of private 
standards, other consultation, equivalence, conformity assessment/auditing, market access 
gained or retained, etc. 
• Members could be requested to report to the Committees examples of the reasonable 
measures that they have implemented in  conformity with Article 13 of the SPS 
Agreement and Articles 3, 8 and 9 of the TBT Agreement. 
• The SPS Committee might have a useful discussion on how Members in establishing or 
revising their official SPS measures take  into account the contribution to risk 
management that is made by the voluntary in itiatives of private producers and retailers. 
• There could be periodic informal joint me etings between SPS/TBT Committee delegates 
and private standard-setting bodies to allow developing country delegates to raise their 
concerns, and perhaps to allow private standa rd-setting bodies to report on what actions 
they may have taken. 
• Members could be invited to report to the Committees any initiatives they have taken to 
provide technical assistance relevant to compliance with private standards. 
 In the near term this kind of activity is certainly  the most important opportunity offered by the WTO 
framework for action in relation to private sta ndards.  If the SPS and TBT Committees do maintain 
the private standards issue on their agendas for a period of time, some donors may find it appropriate 
to facilitate the participation of  developing countries w ho have relevant experience to share.   
 13. In parallel, other technical assistance activitie s relevant to private standards could be 
continued.  There have been several main strands  of technical assistance in this area: studies to 
identify and evaluate the incidence and effects of  private standards; and on-the-ground support of 
production and marketing activities aimed at assi sting compliance with private standards in 
developing countries.  With respect to further studi es on the issue, it would be useful to open up a new 
strand of work which would subject key private sta ndards to detailed scrutiny on aspects such as their 
scientific underpinning, their relationship to official standards applying in key markets, their 
effectiveness in terms of human health and consumer  protection outcomes, and so forth.  Such studies 
would assist private sector organisations to improve the relevance and precision of their standards.  
They would also enable better informed discussion of issues by Members in the WTO, by NGOs, and 
elsewhere.  At an appropriate time  it may be valuable to sponsor an  international conference to bring 
the many interested parties together to review the scene and explore possibilities for cooperation in 
the design and implementation of private standards.  G/SPS/GEN/802 
 Page 9 
 
 
  The legal findings 
 
14. O'Connor and Company were contract ed to report on three issues: 
a. Review and legal analysis of the relevant WTO provisions, principally within (but not 
limited to) the SPS and TBT Agreements.   
b. Relevant WTO case law and interpretative guida nce in the form of ad hoc decisions, or 
preparatory works on the SPS and TBT Agreements.   
c. Legal options and possible suggestions for amen dments to be brought to the provisions of 
the SPS and/or TBT Agreements.    
 
Their report on the first two points is at Annex 5;  the report on the third point is at Annex 6. 
 15. Their conclusions in relation to the first point are as follows: 
(i) Application of the provisions of the SPS Agreement to non-governmental standard 
setting and standard applying entities  in the light of Article 13 of the SPS Agreement 
depends very much on the defin ition of "non-governmental body". 
(ii) It may be argued that only private entiti es which have been entrusted by government 
with the performance of certain tasks or wh ich have otherwise a special legal status 
fall under the definition of non-government al entity under the SPS Agreement.   
(iii) On the other hand, it can also be argued that "non-governmental entity" under the 
SPS Agreement is broader and also includes other private bodies which have not been 
entrusted by government with certain tasks but which operate within the territories of 
a WTO Member.  
(iv) From the literary interpretation of Article  13 of the SPS Agreement, the question of 
the definition of "non-gover nmental entity" remains open. 
(v) Even if non-governmental entities are not directly addressed by the provisions of the 
SPS Agreement, in the light of Article 13 of the SPS Agreement , WTO Members have 
a responsibility to ensure that the activiti es of non-governmental entities comply with 
the Agreement.   
(vi) Under Article 4 of the TBT Agreement, WTO Members shall take such reasonable 
measures as may be available to them to en sure that non-governmental standardizing 
bodies within their territories accept and comply with this Code of Good Practice.  
Furthermore, WTO Members shall not take measures which have the effect of, 
directly or indirectly, requiring or encour aging such standardizing bodies to act in a 
manner inconsistent with th e Code of Good Practice. 
(vii) Article 8 of the TBT Agreement relates dir ectly to the obligations of WTO Members 
concerning activities of non-governmental bodies that apply procedures for 
assessment of conformity. 
(viii) Other WTO Agreements, such as the Genera l Agreement on Trade in Services, the 
Annex on Telecommunications, the Agre ement on Subsidies and Countervailing 
Measures and the Agreement on Preshipmen t Inspection are helpful in order to 
delimit non-governmental from governmental activities. 
 G/SPS/GEN/802 
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  16. The conclusions in relation to the second point are as follows: 
(i) There is no WTO case law in relation to non-governmental entities and Article 13 of 
the SPS Agreement.  However, a Panel report which did not concern non-governmental bodies, permits to draw some indications on how a Panel could analyse 
a possible violation of the SPS Agreement by a non-governmental body.  First, it 
would look at Article 13 of the SPS Ag reement to determine whether there is 
"responsibility" of a WTO Member; then, "reading in the light of Article 1.1 of the SPS Agreement" it would establish whether the measure at stake is an SPS measure; finally, it would decide whether there is a violation of the SPS Agreement. 
(ii) According to other WTO case law, a degree of government involvement is required 
to put a measure under the scrutiny of the WTO Agreements.  Furthermore, case law 
on the entrustment and direction provisi ons of the Agreement on Subsidies and 
Countervailing Measures concluded that the or dinary meaning of the words "entrusts" 
and "directs" requires an "explicit and affirm ative action of delegation or command."  
(iii) Other interpretative information, such as the preparatory works to the TBT and SPS 
Agreements or the work in the resp ective WTO Committees, does not add much 
interpretation in relation to the activities of non-governmental standard-setting and 
standard-applying organisations.  Dis tinguishing between private bodies and non-
governmental entities appears to be a crucial step that may need to be taken at WTO 
level. 
(iv) From the negotiating history of the SPS Ag reement, it appears that there were no 
propositions by any individual or countr y that the SPS Agreement would have 
application to the activities of private sector organisations. 
(v) In addition, there has not been, to date any other examination of this matter under 
WTO law within the SPS Committee or in the WTO in general. 
17. The conclusions in relation to the third point are as follows: 
(i) Concerning WTO Members' constitutional systems and the direct effect of WTO law: 
- Imposing provisions of WTO law to private entities without 
public/governmental intervention by the individual WTO Member having jurisdiction on those private entities would require the direct effect of WTO law. 
- WTO agreements have remained neutra l on the issue of whether their rules 
should produce direct effect and it is for each WTO Member to decide how to 
incorporate WTO law into its national legal order. 
- Some of the contracting parties have  concluded from the subject-matter and 
purpose of the WTO agreements that they are not among the rules applicable by their judicial organs when reviewing the legality of their rules of domestic 
law. 
(ii) There may be a domestic competition issue w ith private standards (e.g. the abuse of a 
dominant position or collusion by retailers ) that could be worth looking at and 
studying further as a possible way forward.  G/SPS/GEN/802 
 Page 11 
 
 
  (iii) The issue of private or non-governmental body standards could also be addressed by 
seeking interpretative guidance, for example in  the form of an ad hoc decision within 
the WTO system and, in particular, the SPS and TBT Agreements.  While this approach is theoretically possible and mayb e even to be encouraged, in practice the 
discussion and adoption of such an ad hoc decision appears difficult to be achieved 
because of the difficulty of triggering the necessary procedural mechanisms within 
the WTO system, the complexity of the di scussions and negotiations, the foreseeable 
disagreement among WTO Members as to the need for such step and the likely 
opposition of powerful lobbies to any such development. 
(iv) Steps could be taken to provide an institu tionalised forum for discussion within the 
WTO on the issue of private or non-governmental body standards and their relation to 
trade.  For this to happen, the WTO Me mbers would have to agree on relevant 
language to be added to th e SPS and/or TBT Agreements (by means of amendment or 
a stand-alone legal instrument).  This app ears to be a possible but probably unrealistic 
avenue. 
(v) A similar option could be to seek agreement on the issue of private or non-
governmental body standards and their relati on to trade, between a selected group of 
WTO Members that would draft, adopt and commit to certain ad hoc  obligations by 
means of a "plurilateral instrument".  An ex ample of such plurilateral effort in the 
WTO system is provided by the Reference Paper on Telecommunications Services .  
This legal instrument would offer the opportunity to regulate certain key aspects of 
private or non-governmental body standard s while not imposing them on the WTO 
Membership as a whole, but allowing WTO Members to voluntarily adopt such additional commitments.  Again, the practi cal feasibility of such approach appears 
somewhat remote. 
(vi) Formal WTO dispute settlement could also be considered as a possible legal avenue 
through which to address the matter of privat e standards.  Although not very likely, a 
developing country could initiate dispute settlement proceedings against another 
WTO Member in relation to a private standard which is presumably not based on science, which is widely used by a number of retailers, and which is de facto  required 
for accessing that WTO Member's market.  WTO dispute settlement is expensive, politically sensitive, and often incapable  of delivering the expected results. 
(vii) To address the issue of standards of non-governmental bodies (and other issues 
relating to NGOs), a specific committee coul d be established within the WTO system, 
as a means of consultation and cooperati on with non-governmental organizations 
concerned with matters related to those of the WTO.  It is difficult to imagine that an 
NGO could be identified and organized to  capture the discontent of developing 
countries' traders in relation to the issue of private or non-governmental body 
standards.  In addition, the lobbies that have opposite interests and agendas would 
likely to set-up similar NGOs in order to have their contrasting voices heard in the debate. 
(viii) A formal amendment of one or more of the covered Agreements (SPS, TBT 
Agreement) could be another way to address the issue of private standards and the 
position of non-governmental bodies' standard s within the WTO system.  In essence, 
a proposal to amend WTO agreements such as the SPS or the TBT Agreement would need to be submitted to the WTO Ministerial Conference, which would then submit the proposed amendment to the WTO Membership for discussion and possible 
acceptance.  Article X of the WTO Charter describes which majorities are needed for G/SPS/GEN/802 
Page 12  
 
  a formal amendment.  In practice, the pr ocedure to follow and the majorities to be 
reached clearly indicate that amendmen ts to the WTO Agreements would be 
particularly difficult to achieve.  G/SPS/GEN/802 
 Page 13 
 
 
  II. MAIN REPORT 
A. TERMS OF REFERENCE  
1. The terms of reference for this project (set out in full at Annex 1) require the following tasks 
to be performed in order to inform DFID Policy Division and its partners: 
• review of how the TBT and SPS and GATT Agre ements evolved to include and define 
the role of non-government bodies;  
• brief review of how other rele vant relationships with privat e bodies are considered within 
the WTO as well as Members' positions and agreements on this issue;  
• analysis of the relationship between gover nment and non-government bodies in the TBT 
Agreement with both legal and practical examples (based on discussions with key players and textual research);  
• brief analysis of how WTO Members represent the interests of private standard-setting 
bodies in the WTO TBT and SPS Committees;  
• examination of the use of the TBT 'code of good practice' by non-governmental bodies, 
and other relevant non-governmental sch emes such as the ISEAL Alliance, and 
consideration of the appropriateness of a sim ilar system  for the SPS Agreement / private 
food safety schemes;  
• investigation of pros and c ons of better defining the role  of non-government standard-
setting bodies within the SPS Agreement (b ased on discussions with key players 
including private standard setting bodies)  
- with consideration of some of the po licy questions raised in the recent OECD
1 
report on this subject including;  
 what issues should be left for the pr ivate sector to determine and what 
needs oversight or intervention by governments?  
 in which areas is there a need for co llaboration to meet the needs of food 
industry/retailers and government  responsibilities towards society?  
• conclusions on any possible process by whic h the SPS Agreement could be improved to 
enhance interactions with private standard setting bodies.  
 2. As well a legal analysis is called for.  The te rms of reference for this part of the project 
require: 
a. review and legal analysis of the relevant WTO provisions, principally within (but not 
limited to) the SPS and TBT Agreements; 
b. relevant WTO 'case law' and interpretative gui dance in the form of ad hoc decisions, or 
preparatory works on the SPS and TBT Agreements; 
c. legal options and possible suggestions for amendm ents to be brought to the provisions of 
the SPS and/or TBT Agreements.    
The full text of the terms of referenc e for the legal team is at Annex 2. 
 
B. M
ETHODOLOGY  
3. This report is based on three main sources:  
• interviews with the persons listed in Annex 3; 
• the references listed in Annex 4; 
                                                      
1 OECD 2006. G/SPS/GEN/802 
Page 14  
 
  • the legal analysis conducted by Paolo Ve rgano and Ignacio Carreno of O'Connor and 
Company (Annexes 5 and 6). 
 C. B
ACKGROUND TO THE ISSUE  
4. The background to the project is set out in the te rms of reference at Annex 1.  In brief, the 
project responds to concerns expressed by so me developing countries about the costs and the 
increased difficulty of access to developed country markets for their agricu ltural produce associated 
with the imposition of strict conditions by purchasers,  in particular very large supermarket chains in 
the importing countries.  These conditions may deal with production methods as well as actual product attributes, and may cover not only food sa fety (traditionally the function of government 
authorities in importing countries) but also food quality, animal feedstuffs, animal welfare, 
environmental protection, labour practices and occupa tional health and safety.  Even in relation to 
food safety, where regulatory authorities in the impor ting countries could be expected to insist that 
official requirements are fully adequate to protect  consumers' health, standards imposed by buyers 
may be yet more stringent.  For their part, private interests in the importing countries assert that their private voluntary standards (PVS)
2 are necessary to ensure compliance with official requirements, to 
complement or reinforce official import contro ls, to respond to consum er concerns, and (most 
important of all) to protect the value of private brands and retailers' reputations.   
5. In reaction to the trend towards increasingly strict and comprehensive private voluntary 
standards over the past decade, developing countries have turned to the World Trade Organisation to 
explore whether relief may be available under the pr ovisions of the relevant covered agreements, in 
particular the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS 
Agreement) and the Agreement on Technical Barriers to Trade (the TBT Agreement).  
Representatives of very large supermarket chains ack nowledge that there is a business risk associated 
with the negative reaction of developing countries to their private voluntary standards. 
1. Some examples of private voluntary standards 
6. The WTO Secretariat's background paper3 for the February 2007 meeting of the SPS 
Committee provides a tabulation of some of the more prominent private voluntary standards schemes: 
 
                                                      
2 In the literature the terms "private standards" and "private voluntary standards" are used 
interchangeably. Both terms refer to requirements that are conditions of purchase of goods established by 
private buyers. These requirements are voluntary in the sense that they are not mandated by law; at the same 
time, however, a supplier in practice may have no option other than to meet the norms in order to sell to the 
major purchasers of particular commoditie s for particular markets. As the terms of reference of this project have 
noted, in this latter respect compliance with the private standards may be de facto  compulsory. In this report 
"private standards", "private voluntary standards" and are used, with no difference in meaning. 
3 WTO: Private Standards and the SPS Agreement  (G/SPS/GEN/746).  G/SPS/GEN/802 
 Page 15 
 
 
  Individual firm 
schemes Collective national schemes Collective international 
schemes 
o Tesco Nature's 
Choice 
o Carrefour Filière 
Qualité 
  o Assured Food Standards 
o British Retail Consortium 
Global Standard – Food 
o QS Qualitat Sicherheit  
o Label Rouge 
o Food and Drink 
Federation/British Retail Consortium Technical 
Standard for the Supply of 
Identity Preserved Non-Genetically Modified Food Ingredients and Product o EurepGAP 
o International Food 
Standard 
o Global Food Safety 
Initiative 
o ISO 22000: Food 
safety management systems  
o Safe Quality Food 
(SQF) 1000 and 2000 
o ISO 22005: 
Traceability in the feed and food chain  
 
 
7. Private voluntary standard schemes typically be gan with a focus on product integrity issues 
(on- and post-farm), and increasingly have moved on to include provenance issues (environmental, 
labour/occupational health and safety, etc.).  So me schemes (like EurepGAP) are particularly 
concerned with good agricultural practice and so rela te primarily to on-farm activities, while others 
(like the BRC Global Standard) are concerned with  subsequent phases of the food production and 
distribution chain.  Many schemes emphasise process control by means of food safety systems built 
around HACCP or other approaches.  Some schemes (like the Global Food Safety Initiative) have the 
main purpose of harmonising or benchmarking a ra nge of individual schemes; other schemes provide 
for benchmarking against themselves.  Some schem es (like Tesco's Nature's Choice) are developed 
and implemented by individual firms for their own exclusive use; others (ISO 22000) are intended for 
general application.  Most schemes depend for their implementation on third party auditing by 
accredited certifying bodies.  Notwithstanding that  there are myriad differences (major and minor) 
between the various schemes, for the purposes of this  study no distinction will be made between the 
three categories of scheme identified in the table above unless such a distinction is significant in 
relation to the appropriate respon se to the terms of reference. 
D. COMMENTARIES AND EMPIRICAL STUDIES  
8. In recent years an extensive literature has accumulated on the subject of private voluntary 
standards, including a number of empirical studies on specific industries and countries.  It is not a purpose of this report to survey and summarise this literature; and there are in any case several recent commentaries which provide excellent overviews
4.  Nevertheless the analysis in this report must be 
based on an appreciation of the nature of the problem (if there is one), its particular characteristics, 
and its scale. 
                                                      
4 See for example Jaffee and Henson 2004, OECD 2006, Chia-Hui Li 2006 G/SPS/GEN/802 
Page 16  
 
  9. According to an OECD study
5 based on interviews with l eading food retailers, standards 
owners and selected manufacturers and surveys of farmer associations:  
"Ensuring food safety is considered a basic re quirement to doing business in the food sector.  
Over 85% of the retailers reported that their required standard is higher than that of the 
government and about half reported that they  were significantly higher .... This result is 
attributed to both the safety and quality mana gement protocols adopted and the additional 
firm specific requirements applied.  The la tter may include expanded lists of possible 
allergens, contaminants, packaging materials a nd care in transport, storage and distribution 
procedures." 
 
In summary: 
 "Overall the study finds that private voluntary standards schemes can contribute to improving 
food system efficiency so as to deliver and en sure specific product and process attributes at 
reasonable cost to consumers.  Nevertheless, these standards may also be exclusionary for 
certain producers.  Compliance with private vol untary standards schemes may exclude those 
producers who, due to lack of potential scale economies or otherwise can not easily meet the standards' requirements and remain economically viable.  The study also notes that this issue may potentially be more important for small holde rs in developing countries, which must also 
contend oftentimes with a lack of well func tioning institutional and physical infrastructure 
services.  This development is not, however, excl usively due to private standard schemes, but 
is likely to be part of general trends in industrial organisation ( e.g. concentration, search for 
scale economies or new ways of doing business) which are occurring in all sectors of the economy." 
 The study also concluded that: 
 
"Survey results of farmer associations confirme d the high emphasis on food safety but also on 
other production process characteristics, particularly agri-environmental practices.  Meeting private standards was considered a conditio n to do business with both manufacturers and 
retailers.  However many responses noted the overlap of requirements among standards and 
expressed the wish for harmonization among standa rds.  The reported effects of standards on 
income and environment were ambiguous." 
 10. Spencer Henson (IATRC paper 2006) reports that: 
 
"Examining first the potential for private food safety and quality standards to impede trade, it 
is evident that the associated  enhanced systems of food safety and quality management, which 
in many cases go well beyond regulatory requirements, can impose significant costs of compliance on exporters.  In turn, these costs are likely to be greater for exporters in countries 
where public and/or private food safety sta ndards are less well-developed. … At the same 
time, however, in many agricultural and food pr oduct markets, public standards remain the 
predominant form of governance (for exam ple bulk grains, vegetables and fruit for 
processing, etc) such that business-to-business and collective private food safety and quality 
standards are unlikely to be a major impediment to trade at the current time.  Likewise, there 
                                                     
 
 5 Committee for Agriculture: Final report on private standards and the shaping of the agro-food 
system , OECD Directorate for Food, Agricultu re and Fisheries, Paris, 2006. Li sa Fulponi was the contact officer 
for this study. 
  G/SPS/GEN/802 
 Page 17 
 
 
  are many countries in the world where privat e standards are less evolved (for example Japan) 
and public regulations are the dominant influence on trade." 
 In another paper Henson and Reardon
6 point out that: 
 
"Communicating to the urban or  developed country consumer that private standards exceed 
the stringency and/or enforcement of public st andards encourages consumers to buy products 
from countries that they may see otherwise as having lax quality and safety regulations." 
 11. According to a major World Bank study
7: 
"Although new or more stringent standards can serve as a trade barrier, they act more often 
as a catalyst for progressive change.  Stricter standards can provide a stimulus for 
investments in supply-chain modernization, pr ovide increased incentiv es for the adoption of 
better safety and quality control practices in ag riculture and food manufacturing, and help 
clarify the appropriate and necessary roles of  government in food safety and agricultural 
health management.  Rather than degradi ng the comparative advantage of developing 
countries, the compliance process can result in new forms of competitive advantage and contribute to more sustainable and profitable trade over the long term, as shown by the case studies of Thai and Kenyan horticulture, Thai  and Nicaraguan shrimp, and Indian spices." 
 And again: 
 
"Developing countries as a group are not suffering fro m the tightening of SPS standards.  Yet, 
differential approaches to the challenge of compliance, and technical and administrative difficulties in ensuring compliance, are aff ecting the relative competitiveness of some 
countries in high-value food markets.  Larger , incumbent suppliers tend to have an 
incremental advantage, because they can realize economies of scale, have better access to 
information, and benefit from well-establishe d reputations (for example with overseas 
inspectors).  Still, effective action can make  a difference.  There are examples of well-
organized industries and well-managed firms a nd supply chains in low-income countries 
(such as Kenya) that have maintained or even  enhanced their competitiveness and market 
share during this period of more stringent standards." 
 
12. The World Bank authors caution that the environment in which standards are being applied is 
complex and dynamic, and it is not easy to genera lise: the balance between standards-as-barriers and 
standards-as-catalysts is specific to particular commodities in particular markets.   
13. A major study for the US Agency  for International Development
8 on the relationship of third-
party certification (TPC) to sanitary/phytosanitary  measures and the international agri-food trade 
included three country case studies.  The study report comments (in Annex 4 on the relationship between US food retailers and TPC) that: 
"The question of who pays for TPC is easy to answer: the supplier.  All participants 
[representatives of US retailers] explained that s uppliers are expected to pay the entire cost of 
implementing TPC and the subsequent follow-up co sts for annual audits.  It was noted that 
normally such costs would be passed on down the supply chain, but that in such a competitive 
environment where there are so many suppliers  and so few buyers, it is very difficult for 
suppliers to pass on such costs.  Retailers were  aware that it is not unusual for suppliers in 
                                                     
 
6 Henson and Reardon 2005 
7 World Bank 2005 
8 See Development Alternatives, Inc. 2005 G/SPS/GEN/802 
Page 18  
 
  developing countries to be required to fly in auditors to places where no local third-party 
auditing company exists.  Realizing that TPC c ould be exorbitantly e xpensive and that this 
placed an enormous burden on suppliers, some participants were trying to find ways that did not burden suppliers with any more unnecessary co sts.  This was one of the main reasons for 
encouraging the development of standards for a uditing, and for using an auditor's standard 
rather than those of an individual retailer—so th at suppliers would only have to have in place 
one audit, rather than multiple audits, which would satisfy all of their buyers in a cost 
effective manner.    In general, however, participants believed that th e benefits of TPC outweigh the costs.  First, 
TPC could be used as a marketing device to  promote their products (although none of the 
participants had said that they respond to such marketing campaigns).  Second, TPC grants buyers access to the largest retail chains.  Hence, if buyers want to participate in these markets, they will have no choice but to implement TPC." 
 1. Issues of concern 
14. This small sample
9 of views expressed in some of the relevant literature suggests the 
following as a short list of possible issues of concern: 
• While private voluntary standards may in many instances provide a stimulus to improved 
production practices and performance in expo rting countries, and potentially give a 
competitive advantage to complying producers,  they may also act as significant barriers 
to market access for some industries in some countries – especially least developed 
countries.  There may also be a proportionate ly greater disadvantage to smaller-scale 
producers 
• These barriers to trade are associated with a number of factors including: 
- up-front capital costs for new buildings and other facilities, for development of 
enterprise HACCP and other food safety plans, and so forth; 
- initial and on-going costs of third-party certification; 
- higher operating costs for producers; 
- reduced profit margins.   
• The burden on exporters is heavier where (for example): 
- private voluntary standards are develope d without consultation with suppliers; 
- there are different private requirements that must be met for different markets and 
for different purchasers in the same export market;  
- third party certification can only be obtained at develope d-world prices;  
- purchasers do not offer long-term purchase contracts to reduce uncertainty for 
those willing suppliers who must invest in order to meet private voluntary standards.   
Producers may also feel aggrieved if it is plain th at there is no objective justification for ostensibly 
stricter private standards, for example in the case wh ere a European supermarket chain insisted that it 
would require pesticide residues to be limited to no  more than one third of the official requirement
10.  
Similarly producers may find it difficult to reconcile importers' requirements that are not related to 
                                                      
9 It is not implied that the sample is in any way representative. 
10 See Chia-Liu (2006), p. 27. Such an action imp lies either that the retailer was ignorant of the 
technical basis on which maximum residue limits are nor mally established – as far below the scientifically-
determined safe level as good agricultu ral practice will allow – or that the re tailer intended to deceive customers 
by claiming that its offerings were safer by virtue of its more stringent private standards, or both. Another major European retailer says that it simply will not allow the application of a particular agricultural chemical to 
products that it purchases, even if the chemical is sa fe when properly used, "if our customers don't like it".  G/SPS/GEN/802 
 Page 19 
 
 
  product attributes (for example, animal welfare or environmental protection requirements – so-called 
"credence characteristics") with local circumstances, values and practices.  15. The list of issues set out above is not intended to  be exhaustive; its purpose is simply to give 
focus to the discussion which follows on dealing with the broad issue of private voluntary standards in 
the context of the World Trade Organisation. 
E. GATT/SPS/TBT
 NEGOTIATING HISTORY  
• review of how the TBT and SPS and GATT Agreements evolved to include and define 
the role of non-government bodies;11 
 
1. Overview of the SPS Agreement 
16. The rationale for the negotiation of the SPS Agreement during the Uruguay Round was to 
establish disciplines on the potential use of technical  measures (food standards, quarantine controls, 
and so forth) so as to prevent their arbitrary or unj ustified use as barriers to trade.  Similar objectives 
lay behind the development of the TBT Agreemen t to replace the voluntary GATT Standards Code 
negotiated in the Tokyo Round and adopted in 1979. 
17. The SPS Agreement confirms the right of WTO Members to apply any measures that they 
deem to be necessary to protect human, animal and pl ant life or health against certain specified risks.  
At the same time it imposes obligations on WTO Members to achieve their appropriate level of protection in a manner that does not result in arbitrary or unjustified restrictions on trade.  Consequently SPS measures (laws, regulations, sta ndards, official requirements for inspection, 
certification, sampling, testing, and so forth) must  be applied only to the extent necessary, and they 
cannot be maintained without sufficient scientific evidence.  Nor can measur es be maintained in a 
discriminatory way, taking into account relative ri sks.  Measures that are based on international 
standards, guidelines and recommenda tions are deemed to meet these requirements, and Members are 
obliged to base their measures on international norms , where available, unless they have a scientific 
justification for adopting a stricter approach or a st ricter approach is necessary in order to achieve the 
appropriate level of protection.  Measures not base d on international norms must be based on a risk 
assessment that is appropriate to the circumstances and they must reflect a consistent approach to 
achieving the acceptable level of risk.  Measu res may be applied on provisional basis where 
insufficient scientific evidence is available to allow a proper risk assessment, but the necessary 
information must be sought for a more objective ass essment of risk, and provisional measures must be 
reviewed within a reasonable period of time.   
18. There are special provisions in relation to the recognition of areas that are free of pests and 
diseases or where the incidence of pests and diseases  is low, and in relation to the acceptance by 
importing countries of measures used by exporting countries that are different from but which achieve the same level of protection as the measures sp ecified by the importing country (and which are 
therefore equivalent ). 
19. The SPS Agreement contains de tailed provisions regarding transparency  to ensure that all 
Members can access information about SPS measures actua lly or potentially affecting their trade with 
other WTO Members.  In particular each Member mu st maintain an enquiry point for the use of other 
Members, and new measures not based on internationa l norms must be notified in advance to other 
Members so that their comments can  be taken into account.  For the latter purpose a single national 
notification point must be designated. 
                                                     
 
11 For convenience, the text of the relevant part of the terms of reference for this project is quoted in 
this manner at the beginning of  each corresponding section. G/SPS/GEN/802 
Page 20  
 
  20. The international standards, guidelines a nd recommendations referenced by the SPS 
Agreement are the relevant norms promulgated by the Codex Alimentarius Commission (for food 
safety), the OIE (the world organisation for anim al health), and under the International Plant 
Protection Convention.  It is important to note that the term standard  in this context does not have the 
same meaning as it does in the text of the parallel WTO Agreement on Technical Barriers to Trade 
(the TBT Agreement).  In the SPS Agreement a sta ndard is a normative specification that is given 
mandatory application; in the TBT Agreement a st andard is a normative specification that is for 
voluntary application, whereas mandatory norms – whether official or private -  under the latter 
Agreement are termed technical regulations . 
21. The provision of the SPS Agreement that appears potentially to relate most directly to the 
issue of private standard-setting and impl ementation is Article 13 on implementation: 
Members are fully responsible under this Agreemen t for the observance of all obligations set 
forth herein.   Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of this Agreement by other than central 
government bodies.  Members shall take such rea sonable measures as may be available to 
them to ensure that non-governmental entities [emphasis added]  within their territories, as 
well as regional bodies in which relevant entities within their territori es are members, comply 
with the relevant provisions of this Agreemen t.  In addition, Members shall not take measures 
which have the effect of, directly or indirec tly, requiring or encouraging such regional or 
non-governmental entities , or local governmental bodies, to  act in a manner inconsistent 
with the provisions of this Agreement.  Me mbers shall ensure that they rely on the services of 
non-governmental entities  for implementing sanitary or phyto sanitary measures only if these 
entities comply with the provisions of this Agreement.   
 
The applicability of this provision to private st andard-setting and implem entation depend on whether 
the term "non-governmental entities" is to be taken to include private bodies. 
 
2. Overview of the TBT Agreement 
22. Under the TBT Agreement WTO Members are exp ected to base their technical regulations 
affecting imported goods (like product quality requirements or rules concerning communications 
equipment) on international standards where availabl e and relevant.  If technical regulations are not 
based on an international standard but could signif icantly affect trade they must be made in a 
transparent manner and the comments of other countri es must be invited and taken into account before 
finalization.  Technical regulations must have a legitimate objective, and they should be no more trade 
restrictive than is necessary to  achieve that objective having regard to the possibility of adverse 
outcomes in the event of non-compliance.  The meas ures applied should not disc riminate in favour of 
domestically produced goods, nor in favour of th e goods from one exporting country over similar 
goods from another exporting country.  There ar e parallel provisions concerning conformity 
assessment procedures (mechanisms  mandated by an importing country to verify that a product 
conforms with the relevant national requirement s).  The TBT Agreement contains transparency 
provisions broadly similar to those in the SPS Agreement. 
23. Article 3 of the TBT Agreement deals with th e preparation, adoption and application of 
technical regulations by local government bodies and non-governmental bodies (defined as including, 
but not limited to, a non-governmental body which has legal power to enforce a technical regulation).  
Broadly, Members are obliged by this article to u se reasonable measures available to them to ensure 
compliance by non-governmental organisations with the provisions of Article 2 of the Agreement 
(other than the notification aspect) – that is, to ensure compliance with th e matters outlined in the 
paragraph above this.  In parallel, Article 8 says that Members must use their best endeavours to 
ensure that non-governmental bodies operating conf ormity assessment procedures comply with the  G/SPS/GEN/802 
 Page 21 
 
 
  provisions of the Agreement concerning conform ity assessment by government bodies.  And Article 4 
applies the same best endeavours obligation to co mpliance by non-governmental standardising bodies 
with the Code of Good Practice for the Preparation,  Adoption and Application of Standards that is 
annexed to the Agreement.  (Article 4 makes it mandatory for central government standardising 
bodies to accept and comply with the Code of Good Practice.) 
24. The Code of Good Practice provides that sta ndardising bodies should follow the principles of 
non-discrimination, avoidance of unnecessary obstacles to  international trade, alignment with existing 
international standards, engageme nt with relevant international standardising bodies, avoidance of 
duplication of the work of other standardisi ng bodies, specification of standards for product 
requirements in terms of performance rather than design or descriptive characteristics, transparency 
and consultation with interested parties.  Standardising bodies that accept the Code must notify the 
ISO/IEC Information Centre, which regularly pub lishes a list of such  bodies.  There were 
standardising bodies from 113 countries as well as H ong Kong China and European organisations on 
the list published in January 2006.12 The majority of the bodies on the list are central government 
standards agencies, and most of the rest are br oad-based national standards bodies whose activities are 
not confined to a single sector of industry.  A few industry-specific bodies are listed, for example in 
Australia, Japan and Korea, and these are mainly concerned with electrical, electronic and telecommunications standards.  No non-governmental  standard-setting bodies concerned with sanitary 
or phytosanitary standards, or with food standards specifically, were included in the January 2006 list. 
3. Consideration of private standards a nd the role of non-government bodies 
25. The SPS and TBT Agreements were negotia ted in the Uruguay Round, between 1986 and 
1994.  While private voluntary standards were extens ively in use before and during this period, safety 
standards were typically considered to be a matter for action by governments in the form of technical 
regulations (in the terminology of the TBT Agreem ent) or sanitary measures (in the terminology of 
the SPS Agreement).  The taking up of consumer c oncerns about animal welfare, environmental, 
occupational health and safety and consumer safety asp ects of foods, for example, in private voluntary 
standards is a phenomenon that largely post-dat es the negotiation of the SPS and TBT Agreements; 
and it is a development that parallels the rapid increase of market penetration by very large 
supermarket chains ("multiples" in UK terms).  In  the recollection of two individuals who were 
centrally involved in the negotiati ons that produced the SPS Agreement
13, the possible application of 
the Agreement to private voluntary standards was never mentioned either in formal negotiating 
meetings or in informal discussions.  As discussed further below, the refere nce to "non-governmental 
entities" in Article 13 of the Agreement did not, therefore, specifically contemplate the application of 
the SPS Agreement to the development of privat e voluntary standards or conformity assessment 
against such standards. 
26. The TBT Agreement, on the other hand, deals not only with the development and 
implementation (including "conformity assessment ") of mandatory technical regulations by 
governments but also, explicitly, with private activitie s to develop and adopt standards and to conduct 
conformity assessment.  There were antecedents for these WTO obligations in relation to private 
activities in the GATT Standards Code, which cont ained provisions concerning the preparation, 
adoption and application of technical regulati ons and standards by non-governmental bodies, and 
concerning procedures for assessment of conformity by non-governmental bodies .  Major additions in 
the TBT Agreement were the Code of Good Practice for the Preparation, Adoption and Application of 
Standards, and the substantially expanded provisi ons on conformity assessment.  The latter could be 
regarded as a direct response to prior, notorious instances in which, for example, a European country 
                                                      
12 ISO/IEC 2006 
13 Gretchen Stanton, who chaired almost all of the negotiating meetings, and the principal author of this 
report (Digby Gascoine), who represented Australia throughout the negotiations. G/SPS/GEN/802 
Page 22  
 
  required post-arrival conformity assessment on certa in imported consumer electronic equipment but 
limited the availability of that conformity assessment  to a single site remote from entry ports, while 
also ensuring that there were significant delays in assessment procedures.  (More detailed information 
on the negotiating history of the TBT Agreement is contained in section 2.1.1 of the legal advice at 
Annex 5, and in the WTO Secretariat's paper of 1995.) 
4. GATT 
27. The General Agreement on Tariffs and Trade does not define a role for non-government 
bodies. 
F. T
HE WTO  AND PRIVATE BODIES  
• brief review of how other relevant relations hips with private bodies are considered 
within the WTO as well as Members' positions and agreements on this issue; 
 
28. In general, because the Memb ers of the WTO are national gove rnments and the disciplines of 
the covered agreements apply to what Members do,  the relationships between the WTO and private 
bodies (to the limited extent that they may from ti me to time exist) are mostly about mutually 
beneficial information-sharing.  The WTO's Me mbers, through a decision of  the General Council 
around ten years ago, decided not to give non-governme nt organisations observer status in the various 
WTO committees; an exception, however, is th e ISO (whose membership is a mixture of 
governmental and non-governmental bodies) which pa rticipates as an observer in the SPS and TBT 
Committees14. 
G. WTO  MEMBERS AND PRIVATE STANDARD -SETTING BODIES  
• brief analysis of how WTO Members represen t the interests of private standard-setting 
bodies in the WTO TBT and SPS Committees; 
 
29. Given that the SPS Agreement contains no direct  mention of private standard-setting bodies it 
is unsurprising that there was no reference to th ese organisations in the proceedings of the SPS 
Committee before the interventions of St . Vincent and the Grenadines and others15 in June 2005 in 
relation to EurepGAP and banana (and other product) exports.  The Eu ropean Union's reaction on that 
occasion was summarized as follows: 
"The representative of the European Communiti es clarified that Eurep/Gap was not an EC 
body nor one of its member States.  It was a private sector consortium representing the interests of major retailers.  In no case could Eurep/Gap requirements be presented as EC 
requirements.  Even if these standards, in cer tain cases, exceeded the requirements of EC SPS 
standards, the EC could not object to them as th ey did not conflict with EC legislation.  This 
issue was one the EC was willing to discuss at the information seminar to be held on 19 July 
2005 in Brussels.  The representative of the Eu ropean Communities encouraged developing 
countries, particularly LDCs, to discuss this issue with non-governmental organizations since, 
in many respects, the Eurep/Gap requirement s reflected their concerns.  The current 
accumulation of such standards constituted an oppo rtunity to emphasize the value of official 
standards, since private standards were often much more demanding."
16  
 Subsequently an information session was organi zed in the margins of the October 2006 SPS 
Committee meeting with representatives of EurepGAP and UNCTAD.   
                                                     
 
14 ISO had similar status in relation to the former Standards Code. 
15 Jamaica, Peru, Ecuador, and Argentina. 
16 WTO: G/SPS/R/37.  G/SPS/GEN/802 
 Page 23 
 
 
   
30. In February 2007 Members of the SPS Committee again discussed the issue.  Papers were 
presented by the Secretariat, St. Vincent and th e Grenadines, the Bahamas, UNCTAD, ISO and 
OECD.  In the debate, most dele gations who spoke thought private standards were a mixed blessing – 
providing some benefits for those who can meet the standards in terms of better market access, but 
raising considerable concerns rega rding additional certification costs, lack of accountability, lack of 
participation of developing  countries in developing the standards,  etc.  Nonetheless, private standards 
were here to stay and larger exporters would find it easier to comply with them than smaller ones.  
Consequently there was a need to focus on assi sting smaller producers and on ensuring more 
participation of developing countries in setting privat e standards.  It was ag reed to discuss the issue 
again at the June meeting of the Committee, whic h would be preceded by another informal meeting 
including representation of EurepGAP and the TBT Committee. 
31. In those countries that have mechanisms for consultation between government and interested 
parties on issues arising in the SPS or TBT Comm ittees, it would be normal for there to be 
information exchange with private standard-setti ng bodies in advance of a meeting such as the one 
planned for next June.  This woul d be the case in most developed c ountries and probably also in many 
developing countries whose export industries are potentially affected by private standards.  However it is not an obligation on WTO Members to repres ent private bodies in the proceedings of the WTO 
committees.  On the other hand, in the event that Memb ers were to decide that the provisions of either 
or both of the Agreements required a pro-active appr oach by government to discipline the activities of 
private standard-setters, the latter would certainly  want their views to be made clear to the 
Committees as well as to Member governments, and it would be necessary to consider how this could 
be done.  At the same time, by analogy with the provisions of the SPS Agreement and the TBT 
Agreement  that require that Members participate so  far as they can in the activities of the relevant 
international standard-setting bodies, Members might  see a need to be more actively engaged with 
private standard-setting.  Each of these hypothetical propositions is problematic. 
H. D
EFINING THE ROLE OF NON -GOVERNMENT STANDARD -SETTING BODIES WITHIN THE SPS  
AGREEMENT , INCLUDING POSSIBLE APPLICATION OF THE TBT  CODE OF GOOD PRACTICE  
• investigation of pros and cons of better de fining the role of non-government standard-
setting bodies within the SPS Agreement (based on discussions with key players including private standard setting bodies) 
- with consideration of some of the po licy questions raised in the recent OECD
17 
report on this subject including; 
 what issues should be left for the private sector to determine and what 
needs oversight or intervention by governments? 
 in which areas is there a need for collaboration to meet the needs of 
food industry/retailers and government  responsibilities towards society? 
• examination of the use of the TBT 'code of  good practice' by non-governmental bodies, 
and other relevant non-governmental schemes such as the ISEAL Alliance, and 
consideration of the appropriateness of a similar system  for the SPS Agreement / 
private food safety schemes; 
 
1. Scope of the issue 
32. The discussion of this term of reference sets aside the practical issue of whether the SPS 
Agreement could  be changed in some way to better de fine the role of non-government standard-
setting bodies; for this, see the next section.  The centr al question at issue here is whether on balance 
it would be desirable  to bring some kind of discipline, cons traint or guidance to the development and 
                                                      
17 OECD 2006 G/SPS/GEN/802 
Page 24  
 
  implementation of private voluntary standards that relate to sanitary and phytosanitary matters as 
covered by the SPS Agreement.  The analysis w ill encompass not only private standard-setting bodies 
but also the private bodies that implement these standards.  (Sometimes, as for some major supermarket chains, the standard sette r is also the standard applier.) 
2. Principles 
33. Regulatory or other intervention by governments in private sector economic activity serves 
objectives such as improvement of the efficiency of  resource utilization (for example, by facilitating 
competition in markets) or reducing disparities between  private benefits and costs and social benefits 
and costs (the latter including externalities such as environmental damage).  Governments also act to 
redress inequities in the distribution of income or wealth.  The case for inte rvention is contingent on 
there being a practical and efficient form of inte rvention available that will provide an effective 
response to a significant problem.   
34. In the framework of the WTO, the principal goal is to reduce, deter or prevent unjustified 
barriers to trade.  Equity issues in this context re late not to individuals but to the imbalance between 
richer and poorer countries, recognised in various ways in a number of the covered agreements by 
provisions dealing with technical assistance, special and differential treatment, and so forth.   
3. Positive attributes of PVS 
35. Do private voluntary standards give rise to ar bitrary or unjustified barriers to trade? The 
representatives of supermarket chains that are implem enting private standards claim firstly that their 
action is necessary to ensure that official requirement s are met.  In at least some countries the legal 
onus is unequivocally on food traders to ensure th at product is safe; they must exercise due diligence 
to guarantee conformance with official standards.  There is intermittently evidence that official 
measures may not be effective all the time, so there is a rationale for food wh olesalers and retailers to 
implement appropriate safety measures.  In any even t, it is part of the contemporary philosophy of 
food control that the primary responsibility for ensu ring that food is safe rests with food producers, 
distributors and sellers, not with the official re gulatory bodies whose role is increasingly one of 
auditing private actions in this regard.  To the ex tent that private standards are aimed at meeting 
official requirements, it is hard to see a case for intervention to constrain the private bodies involved. 
36. Secondly, it is argued that cons umers demonstrate a desire fo r safer foods above and beyond 
what is achieved by official control systems.  Some  supermarket chains and ot her industry participants 
say that their private standards are a legitimat e response to such demand.  Although government 
agencies tend to frown on retailers using safety cl aims as a selling point (b ecause of the implication 
that food sold by others may be less safe or even unsafe), it is difficult to make a conclusive case 
against the industry view if due weight is accorded to consumer sovereignty and so long as the safety 
measures adopted are not excessively costly in relation to what they actually achieve.  It may even be 
the case that private bodies engaged in food produc tion, distribution and sale have better knowledge 
of food safety risks than government agencies.  Th ere is no clear evidence that private voluntary 
standards operate significantly to the disadvantage of consumers, especially if the additional costs 
associated with additional safety measures required by  retailers can be offset against reductions in 
other costs or profit margins back along the supply chain.   
37. Thirdly, the retailers argue that their large i nvestment in the development and marketing of 
their house brands justifies very stringent measures to  prevent damage to their brands by a food safety 
breakdown.  While this argument is self-serving, it is difficult to see a case for any intervention by 
governments through the WTO that would effectively substitute the opinion of government for that of 
the owners of the brands in this respect.  G/SPS/GEN/802 
 Page 25 
 
 
  38. Fourthly, there is the argument that the effect of the imposition of stringent private 
requirements on producers is beneficial because it stimulates the acquisition of expertise and capital 
investment and raises product quality.  This may be  advantageous to the supplier not only in accessing 
the market for which compliance with  the private standards is a pre-requisite, but potentially also in 
making access easier to a much wider range of markets.  While this line of argument may be 
persuasive to some suppliers and some countries,  other potential suppliers may still be unhappy, 
because they have not benefitted as much, or they  may have experienced re duced market access for 
their products or reduced demand. 
4. Negative attributes 
39. There is a range of issues on the negative side of the issue.  One is whether there should be 
some means of government intervention where a priv ate sector initiative is blatantly trade distorting 
without adequate justification.  Another concer ns the openness and inclusiveness of the process by 
which standards are developed and implemented.  A third concerns whether PVS appliers have been 
diligent enough in ensuring that there requirements can be met for least cost – for example, by 
harmonizing their requirements with other standards as much as possible, by ensuring a high degree 
of competition in the supply of auditing and certification services, and so forth. 
5. Views of private organisations 
40. No private organisation spoken to by the author saw any justification for bringing private 
standard-setting under any kind of WT O-based discipline.  At the same time, however, it is clear that 
private interests are sensitive to criticism of their private voluntary standards, and they are willing to 
respond subject, of course, to the constraints of their competitive situation. 
6. Other considerations 
41. Under the model implicit in the SPS Agreem ent, governments of importing countries adopt 
measures to control food safety ri sks associated with imported food and these measures are to be just 
stringent enough to reduce risk to an acceptably low level, i.e. are sufficient to achieve the importing 
country's appropriate level of protection.  It follows  that, other things being equal, if new measures 
that significantly reduce food safety risks are introduced by the private sector it should be possible for 
the government to modify its measures commens urately so that the government measures are 
appropriate in the new circumstances created by the private initiative.  For example, if private 
importers for their own purposes introduce new require ments to conduct or require laboratory tests to 
ensure that products conform to th eir safety-related specifications, the incidence of official testing by 
or for government regulatory agencies could be reduced while still ensuring that the national 
appropriate level of protection is met.  Indeed, it could be argued that under the provisions of the SPS 
Agreement a government is obliged to make such an  adjustment to avoid applying measures that are 
more stringent than necessary to achieve its appr opriate level of protec tion.  Certainly a WTO 
Member must keep its SPS measures under revi ew and update them in response to changing 
circumstances.   
7. Use of codes of practice 
42. The International Social and Environmental Accreditation and Labelling (ISEAL) Alliance 
describes itself as "a formal collaboration of lead ing international standard -setting and conformity 
assessment organizations focused on social and e nvironmental issues [which] supports credible 
standards and conformity assessment by developing  capacity building tools to strengthen members' 
activities and by promoting credible voluntary soci al and environmental certification as a legitimate 
policy instrument in global trade and development." Its Code of Good Practice for Setting Social and 
Environmental Standards  is intended to provide a benchmark to  assist standard-setting organizations G/SPS/GEN/802 
Page 26  
 
  to improve how they develop social and environmen tal standards.  One objective is to avoid creating 
unnecessary hurdles to international trade.  The Code draws upon the ISO/IEC Guide 59 Code of good 
practice for standardization , and the TBT Agreement's Code of good practice, which it complements. 
43. The ISEAL Code requires that sta ndard-setting organisations should: 
• have documented procedures for the process under which each standard is developed, 
including "active involvement of a balance of interested parties"; 
• have a complaints resolution mechanism;  
• publish a work programme at least every six months; 
• publish a justification of the need for a sta ndard and clear objectives that a standard seeks 
to achieve; 
• ensure standards are relevant; are based on contemporary scientific and technical 
knowledge; include objective and verifiable criteria, indicators and benchmarks; are 
adaptable to local economic, social, environmental and regulatory conditions; are expressed in terms of a combination of process, management and performance criteria 
rather than design or descriptive characteristi cs; and are no more trade-restrictive than 
necessary to fulfil their legitimate objectives; 
• provide for at least two rounds of comment submissions by interested parties, take 
comments into account and explain the response made; 
• make decisions by consensus, so that "no gr oup of interested parties can dominate nor be 
dominated in the decision-making process" 
- with a fall-back mechanism in the even t that consensus is not achievable; 
• publish standards promptly and make them available at minimum cost; 
• review standards periodically; 
• actively pursue harmonization of standards and/or technical equivalence agreements 
between standards; 
• participate within its means in the preparation of relevant international standards that are 
in line with the vision and objectives of the standard-setting organization. 
 
44. The code is obviously consistent with the thru st of the TBT Code of Practice (outlined in 
para. 24 above) and is unexceptionable in its intent
18.  The question is whether the widespread 
observance of such a code would make a significan t difference to the circumstances that developing 
country exporters find themselves in.  A convincing response to this question would require analysis 
of a sample of the relevant environmental, labo ur and other standards, identification of their 
objectionable features from the exporters' point of  view, and judgment as to whether a better 
structured process for the formulation of the st andard might have produced a more mutually 
satisfactory outcome.  It is tempting to guess that  the conclusion of such a study would be along the 
lines that the better process for standard-setting woul d remove some or all of the complaints that 
concern procedure  (prior notice, consultation, etc.), but ultimately not make much difference to the 
burden of compliance borne by exporters.  One major point of difference betwee n the standard setters 
and the standard compliers would almost certainly be  the justification of the need for a standard and 
the clear specification of its objectives.  Very likel y the same conclusions would apply in relation to 
the application of the TBT Code to the making of private voluntary standards. 
                                                      
18 There are, nonetheless, various points of detail in  the ISEAL Code whose appr opriateness is at least 
arguable. Examples include: the absence of an obligation in Article 5.5 to provide an explanation why a deviation from relevant international standards is necessary ; the provision in Article 5.6 that procedures to guide 
decision-making in the absence of cons ensus shall ensure that no group of interested parties can dominate nor be 
dominated in the decision-making process; and the provision in Article 6.5 that standards shall be expressed in terms of a combination of process, management and performance criteria, rather than design or descriptive 
characteristics.    G/SPS/GEN/802 
 Page 27 
 
 
  45. A particular problem is the cost of assessment of conformity against PPM standards, which 
for small scale exporters may be very hi gh relative to export turnover and profits.19 Article 8 of the 
TBT Agreement requires Members to take reasonabl e measures to ensure that non-governmental 
bodies conform with Articles 5 and 6 (concerning assessment and recognition of conformity assessment).  If Article 8 were effectively implem ented, Article 5 would then provide guidance on 
procedures for assessment of conformity with privat e standards, and Article 6 would provide guidance 
on recognition of conformity assessment.  Article  6 encourages acceptance by a Member of the 
conformity assessment procedures of other Members if they assure conformity in the opinion of the (importing) Member.  By analogy, this would see m to require private bodies that are imposing a 
conformity assessment requirement on an exporte r to accept conformity assessment provided by a 
body nominated by the exporter provided that th e importer was satisfied of the "adequate and 
enduring technical competence of the relevant conformity assessment [body]"
20 Quite possibly the 
application of such a provision would make little or no difference to the current situation on the 
ground in developing exporting countries, where credible local conformity assessors charging local 
rates rather than international pa rity may be few and far between. 
I. IMPROVING THE SPS  AGREEMENT  
• conclusions on any possible process by whic h the SPS Agreement could be improved to 
enhance interactions with private standard setting bodies. 
 
46. The relevant term of reference asks for conc lusions on "any possible process by which the 
SPS Agreement could be improved to enhance interac tions with private standard setting bodies".  This 
report gives a rather broad interpretation to this text, canvassing not only the possibility of changing 
the Agreement itself but also the practicality and ut ility of developing working interpretations of the 
relevant provisions of the Agreement; and "enhance interactions with private standard setting bodies" 
is taken to include the possibilities to use the Agr eement to exercise suasion or even, in the extreme, 
discipline over the use of private standards.   
47. To facilitate discussion of the legal/procedur al options, as described in the following 
paragraphs, there is the question of what these opti ons should be used to ach ieve.  As discussed above 
and in the legal advice in Annex 5, the SPS Agreem ent was not drafted with application to private 
sector bodies in mind.  To fully incorporate in the principal provisions of the Agreement wording 
applicable to activities involving private voluntar y standards would require a substantial redraft 
which, from the earlier analysis does not appear to  be justified.  Therefore the issue around which 
discussion of improving the SPS Agreement is based is the clarification of Article 13, and within that 
provision the words quoted again here: 
… Members shall take such reasonable measures  as may be available  to them to ensure that 
non-governmental entities  within their territories … comply with the relevant provisions  of 
this Agreement.  … Members shall ensure that they rely on the services of non-governmental 
entities  for implementing sanitary or phytosanita ry measures only if these entities comply 
with the provisions of this Agreement.   
 
The words which appear in bold are the terms and phr ases whose meaning in particular would need to 
be made clear.  
                                                     
 
19 See for example the USAID study conducted by Development Alternatives, Inc., and the two 
references by Andrew Graffham and others. 
20 TBT Agreement Article 6.1.1. G/SPS/GEN/802 
Page 28  
 
  2. Amendment of the Agreement 
48. Article 12.7 of the SPS Agreement says: 
The [SPS] Committee shall review the operation and im plementation of this  Agreement three 
years after the date of entry into force of the WTO Agreement, and thereafter as the need 
arises.  Where appropriate, the Committee may submit to the Council for Trade in Goods 
proposals to amend the text of this Agreement having regard, inter alia, to the experience 
gained in its implementation.    
 
49. Under Article X of the Marrakesh Agreement Es tablishing the World Trade Organisation, the 
Council for Trade in Goods (or the General C ouncil, or any Member) may submit proposals for 
amendment of the Agreement to the Ministerial C onference.  Thereafter there are several possible 
pathways, but in broad terms: by two-thirds major ity of the Members the Ministerial Conference then 
submits an amendment to Members for acceptance.   The amendment comes into force for the 
Members that have accepted it when two-thirds of the Members have accepted, and thereafter for each other Member upon acceptance by it.  (Amendments th at do not alter the rights and obligations of 
Members come into force for all Member s upon acceptance by two-thirds of Members.)
21 
50. No such proposals have been submitted in the first twelve years of operation of the 
Agreement; several draft proposals, relating to special  and differential treatment, have been put before 
the SPS Committee, but there is no expectation th at these will go forward as formal proposals for 
amendment of the Agreement.   
51. The SPS Agreement was negotiated within the context of the Uruguay Round, when many 
other important agreements were also made.  The parties to the GATT negotiated on the basis that 
"nothing was agreed until everything was agreed"; the various agreements were regarded as a package 
which each country would see as having advantag es and disadvantages for its  national interest.  
Amendment of any of the WTO's covered agreements  therefore raises the question of whether to do 
so would disturb the overall balance of benefits to  costs as viewed by one or more WTO Members, 
and therefore might bring more than just one agreement into play. 
52. At the same time, "re-opening" the SPS Agre ement to allow negotiation of amendments 
relevant to the development and implementation of private standa rds would potentially allow other 
matters to be brought forward by Members aggrieve d for one reason or another by the operation of the 
Agreement since its inception in 1995.  Since the Ag reement is regarded by the great majority of 
WTO Members as robust and effective, many would likely oppose re-negotiation in case the 
disciplines of the SPS Agreement might be weakened.   
53. For these reasons alone it appears highly unlikel y that Article 13 of the SPS Agreement will 
be amended by WTO Members, and certainly not ou tside of the framework of a full round of trade 
negotiations.  Additionally there would be the pr oblem of obtaining the agreement of about 100 
countries22 to the wording of any proposed amendment. 
                                                      
21 For a more complete description of the amendment provisions, see the legal report at Annexes 5 and 
6. 
22 There are currently 150 Members of the WTO, so th at the two-thirds of Memb ers referenced in Para. 
49 above amount to 100 countries.  G/SPS/GEN/802 
 Page 29 
 
 
  3. Interpretation of the Agreement 
54. The SPS Agreement gives the SPS Committee no explicit authority to interpret the 
Agreement.23 Legal interpretation of one of the WTO's cove red agreements is available, in a formal 
sense, only from the Appellate Body established under the Understanding on Rules and Procedures 
Governing the Settlement of Disputes and the WTO's Dispute Settlement Body, and then only on the 
particular issues brought before those bodies by a Member appealing a decision by a dispute 
settlement panel.24 As noted in the legal report at Annex 5, 
"There is little WTO case law on the interpreta tion of Article 13 of the SPS Agreement and, 
specifically, no case law in relation to non-governmental entities  and Article 13 of the SPS 
Agreement." 
 
It is possible that one or more of the countries th at is aggrieved by the private voluntary standards 
issue could initiate a dispute against an importing c ountry, and that subsequent to a panel decision 
authoritative interpretation of the SPS or TBT Agreem ents as to their application to PVS might be 
sought from the Appellate Body.  It is possible, but  for a number of reasons very unlikely.  One key 
reason is that to date the WTO Members who are raising the issue in the SPS Committee are typically 
developing countries, for whom the technical di fficulties and costs of mounting a WTO dispute case 
are very large relative to their resources.  55. As an alternative to formal legal interpretati on, Article IX of the Marrakesh Agreement gives 
the Ministerial Conference and the General Council the (exclusive) authority to adopt, by a three-
fourths majority of the Members, interpretations  of the SPS Agreement recommended by the Council 
for Trade in Goods.  This provision cannot be us ed as an alternative to the formal amendment 
procedures.  Presumably it would be possible by  this procedure to adopt non-controversial 
interpretations of a provision such as Article 13 of the SPS Agreement, but a Member strongly 
opposed to such an interpretation would be likely to  claim that rights and/or obligations would be 
affected by the interpretation and therefore a formal amendment should be proposed instead. 
56. Guidance on implementation of a provision of the SPS Agreement does not have the same 
legal force as the provision itself.  Certainly th e endorsement of the guidance by WTO Members in 
the General Council accords a moral imperative to it; a nd such guidance would certainly be taken into 
account by a dispute settlement panel if the matter arose in the context of a dispute.  But a WTO 
Member is not obliged to follow the guidance.   
57. In recent years the SPS Committee has been successful in negotiating guidelines for the 
implementation of Article 4 of the Agreement, on equivalence (i.e. an exporting country using 
different measures than the ones sp ecified by an importing country pr ovided that th e exporter can 
demonstrate that its measures have the same effect  as the importer's).  In this case strong impetus 
came from developing countries for the development of guidance, but there were also some developed 
                                                     
 
23 Article 5.5 of the Agreement gives Members the ob ligation to cooperate in the Committee to develop 
guidelines to further the practical implementation of that provision, concerning consistent application of the 
concept of the appropriate level of protection. Of its own initiative the Committee has developed guidance on 
the implementation of Article 7 on transparency and Artic le 4 on equivalence (with, in the latter case, a belated 
mandate from the Doha Ministerial Conference "to develo p expeditiously the specific programme to further the 
implementation of Article 4"). The development by the Committee of guidance on the implementation of Article 6 on adaptation of measures to regional conditions has also been discussed. 
 24 The reports of the Appellate Body have no legal standing until they are adopted by the Dispute 
Settlement Body. They are not designed to stand alone but must be read in conjunction with the panel reports 
which they either uphold, modify or overturn.  Hence, formally speaking, legal interpretation is available only 
from the Dispute Settlement Body  in the context of its adoption of specific panel and Appellate Body reports. 
 G/SPS/GEN/802 
Page 30  
 
  countries that, for their own reasons, wanted to see a practical approach agreed for the implementation 
of Article 4.  Some years of preparatory effo rt by a small group of developed countries, both 
informally and under the auspices of the Codex Committee on Food Import and Export Inspection and 
Certification Systems, provided the basis for the agreement eventually reach ed in the SPS Committee. 
58. The feasibility of developing such guidance on the implementation of Article 13 of the 
Agreement is moot.  Both developed as well as deve loping countries would need to perceive a clear 
need for an initiative along these lines.  More importa ntly, there would have to be broad consensus as 
to what should be done.  Any proposition that WT O Members should morally commit themselves, via 
an agreed interpretation of the SPS Agreement, to shape or curb the implementation of private 
voluntary sanitary standards would almost certainly fa il.  It seems probable that in many developed 
countries the businesses that develop and apply private voluntary standards (because of the benefits 
that accrue to their commercial interest) would see no advantage and some significant disadvantages 
to their interests in such an initiative, and woul d therefore prevail upon their governments to oppose 
it.  As the legal advice at Annex 6 succinctly puts it: 
"While this approach is, theoretically possible and maybe even to be encouraged, in practice 
the discussion and adoption of such an ad hoc d ecision appears difficult to be achieved for the 
difficulty to trigger the necessary procedural  mechanisms within the WTO system, the 
complexity of the discussions and negotiati ons, the foreseeable disagreement among WTO 
Members as to the need for such step and the likely opposition of powerful lobbies to any 
such development." 
 4. Other options 
59. If all of the Members of the WTO could not agree on an interpretation of the SPS Agreement 
in this field, another option theo retically available would be for a subset of like-minded Members to 
voluntarily enter into an agreement amongst themselv es to behave in a certain way in relation to 
private voluntary standards.  Precedents for this approach are the GATT Standards Code, to which a 
number of GATT signatories adhered, and the four plurilateral agreements negotiated in the Uruguay 
Round (of which the Agreement on Trade in Civi l Aircraft and the Agreement on Government 
Procurement are still extant).  However, since th e practice has been that  such agreements are 
negotiated as part of a negotiati ng round, no new plurilateral agreemen t is likely to be achievable in 
the near future.   
60. An alternative, and more practical approach mi ght be available via the TBT Agreement.  The 
SPS Agreement covers only those measures defined in  Annex A of that Agreement; all other sanitary 
and phytosanitary technical regulations and st andards are covered by the TBT Agreement in 
accordance with the definitions in its Annex A.  It  is doubtful that the SPS Agreement was intended to 
apply to private voluntary standards, and an atte mpt to make it apply would encounter the various 
difficulties outlined above.  Therefore it would be better to accept that view and consider how the 
TBT disciplines, such as they are, could be used to address the concerns that have arisen in relation to 
private voluntary standards. 
J. G
OVERNMENT AND NON -GOVERNMENT BODIES IN THE TBT  AGREEMENT  
• analysis of the relationship between government and non-government bodies in the 
TBT Agreement with both legal and practical examples (based on discussions with key players and textual research); 
 
61. What implications do the provisions of the TBT Agreement have for private bodies that make 
and apply private voluntary standards? As summarized in paras. 23 and 24 above:  G/SPS/GEN/802 
 Page 31 
 
 
  • Article 3 says that Members are obliged to take such reasonable measures as may be 
available to them to ensure compliance by non-governmental organisations with the provisions of Article 2 of the Agreemen t (other than the notification aspect); 
• Article 8 says that Members are obliged to take such reasonable measures as may be 
available to them to ensure that non- governmental bodies operating conformity 
assessment procedures comply with the provisions of the Agreement concerning 
conformity assessment by government bodies; 
• Article 4 applies the same best endeavours ob ligation to compliance by non-governmental 
standardising bodies with the Code of Good Practice for the Preparation, Adoption and 
Application of Standards, such that they – 
- follow the principles of non-discrimination,  
- avoid unnecessary obstacles to international trade,  
- align with existing international standards,  
- engage with relevant interna tional standardising bodies,  
- avoid duplication of the work of other standardising bodies, 
- specify standards for product requirement s in terms of performance rather than 
design or descriptive characteristics, 
- ensure transparency and consultati on with interested parties.    
 
62. However it is not clear to what extent the Agre ement applies to private voluntary standards.  
An example is supplied by standards for labe lling of goods for environmental purposes ("eco-
labelling").  Under the heading trade and environment  the Doha Ministerial Declaration of November 
2001 instructed the Committee on Trade and Environment to give particular attention to the issue of 
labelling requirements for environmental purposes.   (The CTE had discussed related issues on 
previous occasions.) As well, over a period of some years the TBT Committee has had a series of discussions about PPMs, and in particular environm ental labelling.  It em erges from these various 
discussions that many developing countries believe that eco-labelling requirements that relate to 
matters other than attributes incorporated into pro ducts (e.g. pesticide residues) are proscribed under 
WTO rules.  At the same time it is said that most  Members believe that the TBT Agreement is the 
relevant regulatory instrument and that the balance of rights and obligations in this agreement remains 
an appropriate one for dealing with both vol untary and mandatory eco-labelling schemes.   
63. Meanwhile, according to the legal advice attached at Annex 5 (see 1.2.2): 
'The TBT Agreement defines "standard" in paragraph 2 of Annex 1 as a:  
 
"Document approved by a recognized body , that provides, for common and 
repeated use, rules, guidelines or char acteristics for products or related 
processes and production methods, with whic h compliance is not 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." 
 
Therefore the language of the TBT Agreement s eems to indicate that the Agreement is not 
applicable to processes and production methods (h ereinafter PPMs) which are "not related to 
the product".     
In this case, even if the TBT Agreement app lies to non-governmental bodies, it could not put 
restrictions on, for example, voluntary non-pr oduct related PPM standards (such as certain 
social and environmental standards), incl uding those based on existing international 
standards.   However, in that case these sta ndards might still fall within the scope of the 
GATT, particularly under Article III of the GA TT, which incorporates the national treatment G/SPS/GEN/802 
Page 32  
 
  obligation and imposes the principle of non-di scrimination between domestically produced 
goods and "like" imported goods.' 
 The legal advice goes on to say that there is no case law that assists understanding of the applicability 
of the TBT Agreement to voluntary standards that ar e not product-related.  Nor is the Secretariat's 
note on the relevant negotiations that led to th e Agreement of any positive assistance, although it does 
record a failed attempt late in the negotiations to  remove a perceived ambiguity in the Agreement on 
the point at issue.
25 
 
2. "Reasonable measures" to ensure NGO compliance with Article 2 
64. A reasonable measure  as the term is used in Articles 3, 4 and 8 of the Agreement might be 
along the following lines: 
"Standards Australia has a policy of basing Au stralian Standards on In ternational Standards 
'to the maximum extent feasible' and to use the WTO TBT Agreement as a benchmark.  A similar obligation is imposed upon accredited St andards Development Organisations by the 
Standards Accreditation Board of Standards Australia.  The expectation therefore is that 
Australian Standards should be  adoptions of International Standards, unless there are good 
reasons to the contrary.  This also ensures th at the Australian Government's WTO obligations 
would be met if any such standard were a dopted by a government agency as a technical 
regulation.    
In addition, Standards Australia has a commitm ent to comply with Annex 3 of the WTO TBT 
Agreement, the Code of Good Practice for the Preparation, Adoption and Application of 
Standards , which is applicable to non-government  standardizing bodies such as Standards 
Australia ….. Standards Australia has notified the WTO of its voluntary adherence to both the 
WTO TBT Agreement and the Code of Good Practice.  
 
Consistent with Standards Australia's polici es, the [Memorandum of Understanding] between 
Standards Australia and the Australian Governme nt (Article 3.3) requires Standards Australia 
to: 
 … ensure that its practices comply with the World Trade Organization Agreement on Technical Barriers to Trade and the Code of Good Practice at Annex 3 of that 
Agreement to which Standards Austra lia has declared its adherence."
26 
 
                                                      
 25 WTO, WT/CTE/W/10-G/TBT/W/11, 29 August 1995: "Note by the Secretariat on the Negotiating 
History of the Agreement on Technical Barriers to Trade with Regard to Labelling Requirements, Voluntary 
Standards, and Process and Production Methods unrelated to Product Characteristics."  The Note says, inter 
alia: 
"Standards that are based on processes and production methods (PPMs) related to the characteristics of 
a product are clearly accepted under the TBT Agreement,  subject to them being applied in conformity 
with its substantive disciplines. The negotiating histor y suggests that many participants were of the 
view that standards based inter alia on PPMs unrelated to a product's characteristics should not be 
considered eligible for being treated as be ing in conformity with the TBT Agreement. 
Towards the end of the negotiations, some delegations proposed changing the language contained in 
the "definitions" in Annex 1 of the Agreemen t to make it unambiguous that only PPMs 
related to product characteristics were to be  covered by the Agreement, but although no 
participant is on record as having opposed that obj ective, at that late stage of the negotiations 
it did not prove possible to find a consensus on the proposal." 
26 Australian Government Productivity Commission Research Report: Standard Setting and Laboratory 
Accreditation , 2 November 2006  G/SPS/GEN/802 
 Page 33 
 
 
  65. No doubt there have been comparable initiatives by many other WTO Members.  What is not 
clear is where the boundary lies between reasonable measure and measures that would be regarded as 
not reasonable – that is, measures that it would not be reasonable to expect a Member to undertake.  There is no relevant WTO case law on this point, at least in relation to the TBT Agreement, nor any 
consensus within the TBT Committee (which, to be fair, has not yet attempted to find it).  One 
obvious difficulty is that what is reasonable in one country, for example because the central 
government has legal authority to coerce private st andard setters, may not be reasonable in another 
country that has different legal and constitutional arrangements.  In any event views on what is 
reasonable are likely to be somewhat subjective. 
66. Then in relation specifically to private volunt ary standard setting and implementation, such as 
is carried out by supermarket chains, it is again possible to identify some initiatives that governments 
might take: 
- disseminating information about the TBT Agre ement and its provisions applicable to 
private standard-setting; 
- developing and circulating a national polic y, whether hortatory or for mandatory 
application, in relation to compliance with these provisions; 
- dialogue with the responsible private organi sations to encourage behaviour consistent 
with the provisions of the TBT Agreement; 
- entering into memoranda of understandi ng with the private organisations; 
- providing financial incentives to encourage compliance by private organisations; 
 
and so forth.  But does reasonable measure  extend so far as making a new law to require compliance 
by private organisations with the TBT Agreement, if it is in the legal competence of the Member 
government to do so? And what might individual Me mbers do about private organisations that are 
multi-national consortia? There w ould be considerable difficulty in defining the limit of the 
reasonable measures that national governments might take. 
 
67. As mentioned above, standardising bodies that accept the Code of Good Practice must notify 
the ISO/IEC Information Centre.  There were standardising bodies from 113 countries as well as 
Hong Kong China and European organisations on th e list published by ISO/IEC in January 2006.
27 
The majority of the bodies on the list are central gove rnment standards agencies, and most of the rest 
are broad-based national standards bodies whose ac tivities are not confined to a single sector of 
industry.  A few industry-specific bodies are listed, for example in Australia, Japan and Korea, and 
these are mainly concerned with electrical, electr onic and telecommunications standards.  No non-
governmental standard-setting bodies concerned with sanitary or phytosanitary standards, or with 
food standards specifically, were included in the Jan uary 2006 list (nor in the Secretariat's addendum 
listing additions during 2006)  although it is believed that there are some hundreds of different private 
bodies so engaged. 
 
 Canberra, April 2007  
 
    
                                                     
 
27 ISO/IEC 2006. G/SPS/GEN/802 
Page 34  
 
  Annex 1
 
 Terms of reference
 
 
 
Title: Proposal for consultancy project to study  the position of private standards within the 
World Trade Organisation's (WTO) multilateral framework 
 
Purpose  
• To learn lessons from the Technical Barriers to  Trade (TBT) Agreement about how to work 
with private standard-setters.  To clarify the position of private standard-setters within the 
SPS agreement (in light of comments by St Vincen t and the Grenadines and others at the June 
2005 and subsequent SPS Committee meeting).  The purpose is not to change the terms of the 
SPS Agreement but to inform DFID Policy Division and its partners.   
 
Objectives 
 
• To investigate the position of non-government bodies' standards within the WTO's Sanitary 
and Phytosanitary (SPS) and Technical Barriers to Trade (TBT) Agreements,  
• To ascertain how delegations to the TBT and SPS Committees include the views of industry 
or private standard-setting bodies in their positions  
• To examine the pros and cons of better  defining the position of non-government bodies' 
standards within the SPS Agreement and TBT Agreement (which may cover non-food safety 
aspects of these standards e.g.  product size)  
• To make suggestions on how the relati onship between the SPS Agreement and non-
government bodies' standards might be improved e.g. adopting a decision or guidance on how 
to implement Article 13  
 
This proposal takes forward the commitment in DFID's  Agricultural Policy paper to:  
• Focus on creating effective markets through encouraging private sector participation by 
putting in place effective standards fo r quantifying and grading  products,  
• Work in partnership with international standa rd-setting organisations to ensure that new 
product standards are based on assessments of risk and are not attempts to protect markets  
 
DFID acknowledges that there are both advantages a nd disadvantages of private-sector standards and 
have agreed to work together with private-sector standard setters, as we do with the public regulators, 
to increase opportunities for small-scale and poor farmers to meet their standards.  
 
Public SPS regulations are subject to certain disciplines under the WTO SPS Agreement e.g. they must be transparent, based on risk assessments and be notified.  The TBT Agreement has mechanisms 
which involve private standard-setters for example in many countries private standard-
setters/conformity bodies have sep arate enquiry points where potentia l importers can find out about 
standards.  The TBT also has a 'code of good pr actice' which is open to all standard-setters. 
 
Background 
 
Traditionally, government bodies regulated food safety.  However, since the 1990s private food safety 
standards such as the Global Food Safety Initiativ e and the Euro-Retailer Produce Working Group's 
Good Agricultural Practice standards (EurepGAP) have  been put in place and continue to evolve.  
These standards were developed to:   G/SPS/GEN/802 
 Page 35 
 
 
  • respond to a lack of consumer confidence in national regulations resulting from a number of 
high profile food safety incidences i.e. BSE, salmonella 
• respond to the increased liability of retailers for the safety of their products 
• give retailers scope for firm and product differentiation on the basis of food safety and quality 
• include other attributes that consumers may be  concerned about i.e. environment, that 
regulations do not / cannot include. 
 These standards are often based on public regulations, but go beyond them by being more stringent or 
including additional criteria i.e. sustainable use of  water / hygiene.  Private standards are voluntary; 
however, the fact that supermarkets control such large market shares has resulted in some standards 
becoming de facto  mandatory.  Private standards have been criticised by developing countries as 
being too stringent and confusing.  However, they  can have certain benefits such as providing 
assurances of quality, and agricultural extension services through outgrower support schemes.  Other 
important benefits include enhanced  occupational safety, environmenta l benefits, and reduced cost of 
agro-chemicals through better  management of inputs.   
 
The World Trade Organisation's Agreement on the Application of Sanitary and Phytosanitary 
Agreement Measures
28 regulates public food safety measures such as those of national governments.  
The Agreement seeks to ensure that SPS measures are based on sound science, are fair and transparent 
and do not act as unnecessary barriers to trade.  The SPS Agreement ensures that all new SPS 
regulations are notified and provides a forum fo r other WTO Members to comment on, and if 
necessary raise concerns about, SPS measures.    To date the SPS Agreement has not been thought to  include private food safety schemes.  In June 
2005 St Vincent and the Grenadines, Jamaica, Peru and Argentina di sputed this at the SPS Committee 
meeting.  They argued that Article 13
29 obligated Members to ensure that non-government bodies 
within their territory acted in a manner cons istent with the SPS Agreement.  The European 
Commission (EC) responded by stating that EurepGAP was a private body and therefore not subject to government controls.  Further analysis by th e EC argues that within the TBT Agreement the 
meaning of a non-governmental body is one that is entrusted with legal power to enforce a technical 
regulation.  Hence, in their view 'non-governme ntal bodies' do not refer to individual economic 
operators such as EurepGAP or other private standard  setting bodies.  However, this interpretation is 
not universally accepted and this project will look at this in further detail.    The text of the TBT Agreement
30 better defines the role of non-government bodies, for example, the 
TBT 'code of good practice' is open to any standardizi ng body within the territory of a member of the 
WTO31.  This better definition32 may be due to the historic close involvement of private industry in 
setting technical regulations e.g. BSI and ISO.  It  would therefore be telling to look at how the 
position of non-government bodies was formulated within the TBT Agreement, how this is 
implemented practically and how the TBT Comm ittee keeps up with rapidly changing private 
standards.  Lessons learnt from this analys is may be applicable to the SPS Agreement. 
                                                      
28 For more background to the SPS Agreement see http://www.wto.org/english/tratop_e/sps_e/  
sps_agreement_cb t_e/intro1_e.htm  
29 Extract from Article 13 of the SPS Agreement '… Members shall take such reasonable measures as 
may be available to them to ensure that non-government entities within their territories, as well as regional 
bodies in which relevant entities within their territories ar e members, comply with the relevant provisions of this 
Agreement. …' 
30 For more background to  the TBT Agreement see http://www.wto.org/english/tratop_e/tbt_e/  
tbt_e.htm  
31 The TBT code of good practice is about standard setting generally and may be applicable to standard 
setting in the food safety area 
32 From the 1979 GATT Agreement on Technical Barrier s to Trade (the so called "standards code"). G/SPS/GEN/802 
Page 36  
 
   
Some voluntary standard setting orga nisations have already drawn upon the TBT agreement's 'code of 
good practice'
33.  The International Social and Enviro nmental Accreditation and Labelling (ISEAL) 
Alliance, for example, has a 'code of good practice for setting social and environmental standards' 
which was formulated from the TB T Code and the ISO/IEC Guide 5934.  Should other private 
standard setting organisations, particularly those working on SPS issues, be taking similar steps and 
adhere to codes of good practice.  Could the SPS Committee endorse these codes?  As global integration shapes markets, private standards are becoming more international and are increasingly used by food importers  as evidence that their imports comply with public regulations.  
This presents both opportunities (e.g. co-regulation and wider use of good agricultural practices) and 
constraints (e.g. the increasing costs of certification).  One of the possible ways of addressing concerns about these is by improving the interac tion between the private standard-setters and the 
WTO Agreements without constraining the ability of private schemes to respond quickly to their 
markets.  Given the growth in the number and/or  scope of private food safety schemes DFID and its 
partners believe it is worthwhile investig ating the options and possible responses.   
 
Context 
 
This strand of work is part of a wider project on the role that public and private agricultural product 
regulations and standards play in helping a nd/or hindering developing countries' access to 
international markets. DFID is keen to develop a public-private process that results in supermarket 
procurement with an enhanced development imp act on poorer producers in Africa.  Other activities 
include project research into mapping fresh produ ce movements, encouraging dialog between public 
regulatory bodies and private standard setting bodies a nd working with private st andard-setters to help 
them consider the development impact  of new and revised standards.   
 Specific Tasks  
• Review of how the TBT and SPS and GATT Agr eements evolved to include and define 
the role of non-government bodies  
• Briefly review how other relevant relationships with private bodies
35 are considered 
within the WTO as well as Members pos itions and agreements on this issue  
• Analysis of the relationship between govern ment and non-government bodies in the TBT 
Agreement with both legal and practical examples (based on discussions with key players and textual research)  
• Based on initial review and analysis, draft terms of reference for an input from legal 
experts into this study, specifying particul ar areas where input will be required and 
deliverables.  These terms of reference must reflect proposal budget.   
• Brief analysis of how WTO Members represent the interests of private standard-setting 
bodies in the WTO TBT and SPS Committee's  
• To examine the use of the TBT 'code of good practice' by non-governmental bodies, and 
other relevant non-governmental schemes such  as the ISEAL Alliance, and consider the 
appropriateness of a similar system  for the SPS Agreement / private food safety schemes  
• Investigation of pros and cons of better de fining the role of non-government standard-
setting bodies within the SPS Agreement (b ased on discussions with key players 
including private standard setting bodies)  
                                                     
 
33 TBT Agreement Annex 3. 
34 'code of good practice for the preparation, adoption and application of standards' 
35 For example, there is a working group on the Interaction between Trade and Competition Policy in 
the WTO that looks at issues relating to private enterprise.  G/SPS/GEN/802 
 Page 37 
 
 
  o This should also consider some of the policy questions raised in the recent 
OECD36 report on this subject including;  
 What issues should be left for the private sector to determine and what 
needs oversight or intervention by governments?  
 In which areas is there a need for collaboration to meet the needs of food 
industry/retailers and government  responsibilities towards society?  
• Draw conclusions on any possible process by which the SPS Agreement could be 
improved37 to enhance interactions with private standard setting bodies.  
 
Deliverables  
1. Draft terms of reference for legal expert 
2. One draft report for comment by DFID  
3. One final report of no more than 25 pages 
 
Partners 
WTO SPS and TBT Secretaries (Gretchen Stanton and Vivien Liu) 
Defra and DTI lawyers European Commission UK TBT and SPS contact points  Private standard setting bodies i.e. EurepGAP, ISAEL and Supermarkets 
 
Resources SPS Agreement ( http://www.wto.org/english/docs_e/legal_e/15-sps.doc
) 
TBT Agreement ( http://www.wto.org/english/docs_e/legal_e/17-tbt.doc ) 
DG Trade's paper 'Private Food Standards and their Impacts on Developing Countries' 
(http://trade.ec.europa.eu/doclib/docs/2006/june/tradoc_127969.pdf ) 
WTO's World Trade Report 2005 ( http://www.wto.org/english/ news_e/pres05_e/pr411_e.htm  
UNCTAD Presentation on standards http://www.unctad.org/trade_env /test1/meetings/ctf3/TBT%20-
%20standards.pdf#search=%22UNCTAD%20W TO%20rules%20and%20transparency%22  
OECD paper 
http://www.regoverningmarkets.org/en/resources/polic y_makers/oecd_final_report_on_private_stand
ards_and_the_shaping_of _the_agro_food_system  
 
                                                      
36 OECD report on private standards and the shaping of the agro-food system – see resources for full 
reference 
37 The Committee cannot change the text of the Agreem ent. In the context of the next review of the 
SPS Agreement (in 2009), it could theoretically submit a proposal to amend the Ag reement to the Council for 
Trade in Goods (see Article 12.7). Otherwise, it would ad opt a decision similar to G/SPS/15 on consistence or 
G/SPS/19/Rev.2. on equivalence. G/SPS/GEN/802 
Page 38  
 
  Contacts 
 
PASS: Kate Nutt Programme Manager 
HTSPE Ltd 
Innovation House 39 Mark Road Hemel Hempstead HP2 7DN 
UK 
T : +44 (0)1442 202400 E: kate.nutt@passlivelihoods.org.uk
 
 DFID : 
Tim Leyland 
1 Palace Street London SW1E 5HE UK T: +44 (0)20 7023 0904 
E: t-leyland@dfid.gov.uk
 
   G/SPS/GEN/802 
 Page 39 
 
 
  Annex 2  
  
Terms of reference for legal aspects of the consultancy on non-government standards and 
standard-setting bodies within the context of the WTO  
 
 Objectives  
The specified objectives of the project are: 
a. to investigate the position of non-governmen t bodies' standards within the WTO's 
Sanitary and Phytosanitary (SPS) and Techni cal Barriers to Trade (TBT) Agreements; 
b. to ascertain how delegations to the TBT and SPS Committees include the views of 
industry or private standard-setting bodies in their positions; 
c. to examine the pros and cons of better defining the position of non-government bodies' 
standards within the SPS Agreement and TBT Agreement (which may cover non-food 
safety aspects of these standards e.g.  product size); 
d. to make suggestions on how the relati onship between the SPS Agreement and non-
government bodies' standards might be improve d e.g. adopting a decision or guidance on 
how to implement Article 13.
38 
 
Note that three of these objectives refer to non-govern ment bodies' standards, rather than to the bodies 
themselves.  This proposal takes forward the commitment  in DFID's Agricultural Policy paper to:  
• Focus on creating effective markets through encouraging private sector participation by 
putting in place effective standards fo r quantifying and grading  products,  
• Work in partnership with international standa rd-setting organisations to ensure that new 
product standards are based on assessments of risk and are not attempts to protect markets  
 
DFID acknowledges that there are both advantages a nd disadvantages of private-sector standards and 
have agreed to work together with private-sector standard setters, as we do with the public regulators, 
to increase opportunities for small-scale and poor farmers to meet their standards.   
 
Public SPS regulations are subject to certain disciplines under the WTO SPS Agreement e.g. they must be transparent, based on risk assessments and be notified.  The TBT Agreement has mechanisms 
which involve private standard-setters for example in many countries private standard-
setters/conformity bodies have sep arate enquiry points where potentia l importers can find out about 
standards.  The TBT also has a 'code of good pr actice' which is open to all standard-setters. 
 
                                                     
 
38 Article 13 of the SPS Agreement, on Implementation , says:  
 
Members are fully responsible under this Agreement for the observance of all obligations set forth 
herein.  Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of this Agreement by other than central government bodies.  Members shall take 
such reasonable measures as may be available to them to ensure that non-governmental entities within their 
territories, as well as regional bodies in which relevant entities within their territories are members, comply with 
the relevant provisions of this Agreement.  In addition, Members shall not take measures which have the effect 
of, directly or indirectly, requiring or encouraging such regional or non-governmental entities, or local 
governmental bodies, to act in a manner inconsistent with the provisions of this Agreement.  Members shall ensure that they rely on the services of non-governm ental entities for implementing sanitary or phytosanitary 
measures only if these entities comply w ith the provisions of this Agreement. G/SPS/GEN/802 
Page 40  
 
  Background 
 
Traditionally, government bodies regulated food safety.  However, since the 1990s private food safety 
standards such as the Global Food Safety Initiativ e and the Euro-Retailer Produce Working Group's 
Good Agricultural Practice standards (EurepGAP) have  been put in place and continue to evolve.  
These standards were developed to: 
 
• respond to a lack of consumer confidence in national regulations resulting from a number of 
high profile food safety incidences i.e. BSE, salmonella 
• respond to the increased liability of retailers for the safety of their products 
• give retailers scope for firm and product differentiation on the basis of food safety and quality 
• include other attributes that consumers may be  concerned about i.e. environment, that 
regulations do not / cannot include. 
 
These standards are often based on public regulations, but go beyond them by being more stringent or 
including additional criteria i.e. sustainable use of  water / hygiene.  Private standards are voluntary; 
however, the fact that supermarkets control such large market shares has resulted in some standards 
becoming de facto  mandatory.  Private standards have been criticised by developing countries as 
being too stringent and confusing.  However, they  can have certain benefits such as providing 
assurances of quality, and agricultural extension services through outgrower support schemes.  Other 
important benefits include enhanced  occupational safety, environmenta l benefits, and reduced cost of 
agro-chemicals through better  management of inputs.   
 
The World Trade Organisation's Agreement on the Application of Sanitary and Phytosanitary Agreement Measures
39 regulates public food safety measures such as those of national governments.  
The Agreement seeks to ensure that SPS measures are based on sound science, are fair and transparent 
and do not act as unnecessary barriers to trade.  The SPS Agreement ensures that all new SPS 
regulations are notified and provides a forum fo r other WTO Members to comment on, and if 
necessary raise concerns about, SPS measures.    
To date the SPS Agreement has not been thought to  include private food safety schemes.  In June 
2005 St Vincent and the Grenadines, Jamaica, Peru and Argentina di sputed this at the SPS Committee 
meeting.  They argued that Article 13
40 obligated Members to ensure that non-government bodies 
within their territory acted in a manner cons istent with the SPS Agreement.  The European 
Commission (EC) responded by stating that EurepGAP was a private body and therefore not subject 
to government controls.  Further analysis by th e EC argues that within the TBT Agreement the 
meaning of a non-governmental body is one that is entrusted with legal power to enforce a technical 
regulation.  Hence, in their view 'non-governme ntal bodies' do not refer to individual economic 
operators such as EurepGAP or other private standard  setting bodies.  However, this interpretation is 
not universally accepted and this project will look at this in further detail.    
The text of the TBT Agreement
41 better defines the role of non-government bodies, for example, the 
TBT 'code of good practice' is open to any standardizi ng body within the territory of a member of the 
                                                      
39 For more background to  the SPS Agreement see http://www.wto.org/english/tratop_e/  
sps_e/sps_agreement_cbt_e/intro1_e.htm  
40 Extract from Article 13 of the SPS Agreement '… Members shall take such reasonable measures as 
may be available to them to ensure that non-government entities within their territories, as well as regional 
bodies in which relevant entities within their territories ar e members, comply with the relevant provisions of this 
Agreement. …' 
41 For more background to  the TBT Agreement see http://www.wto.org/english/tratop_e/tbt_e/  
tbt_e.htm   G/SPS/GEN/802 
 Page 41 
 
 
  WTO42.  This better definition43 may be due to the historic close involvement of private industry in 
setting technical regulations e.g. BSI and ISO.  It  would therefore be telling to look at how the 
position of non-government bodies was formulated within the TBT Agreement, how this is 
implemented practically and how the TBT Comm ittee keeps up with rapidly changing private 
standards.  Lessons learnt from this analys is may be applicable to the SPS Agreement. 
 
Some voluntary standard setting orga nisations have already drawn upon the TBT agreement's 'code of 
good practice'44.  The International Social and Enviro nmental Accreditation and Labelling (ISEAL) 
Alliance, for example, has a 'code of good practice for setting social and environmental standards' 
which was formulated from the TB T Code and the ISO/IEC Guide 5945.  Should other private 
standard setting organisations, particularly those working on SPS issues, be taking similar steps and 
adhere to codes of good practice.  Could the SPS Committee endorse these codes?  As global integration shapes markets, private standards are becoming more international and are increasingly used by food importers  as evidence that their imports comply with public regulations.  
This presents both opportunities (e.g. co-regulation and wider use of good agricultural practices) and 
constraints (e.g. the increasing costs of certification).  One of the possible ways of addressing concerns about these is by improving the interac tion between the private standard-setters and the 
WTO Agreements without constraining the ability of private schemes to respond quickly to their 
markets.  Given the growth in the number and/or scope of private food safety schemes DFID  and its 
partners believe it is worthwhile investig ating the options and possible responses.   
 
 
Context  
This strand of work is part of a wider project on the role that public and private agricultural product 
regulations and standards play in helping a nd/or hindering developing countries' access to 
international markets.  DFID is keen to develop a public-private process that results in supermarket 
procurement with an enhanced development imp act on poorer producers in Africa.  Other activities 
include project research into mapping fresh produ ce movements, encouraging dialog between public 
regulatory bodies and private standard setting bodies a nd working with private st andard-setters to help 
them consider the development imp act of new and revised standards.  
  Specific Issues on which Legal Inputs are Required  
The key legal issue is the meaning of the releva nt texts of the WTO covered agreements, and in 
particular the SPS and TBT Agreements.  "Relevant" means as they relate: 
a. directly to the activities of non-government standard-setting and standard-applying 
organisations; 
b. directly to the obligations of WTO Members concerning activities of non-government 
standard-setting and standa rd-applying organisations; 
c. indirectly to the obligations of WTO Me mbers concerning activities of non-government 
standard-setting and standa rd-applying organisations. 
 Accordingly it will be necessary to id entify all potentially relevant te xts and to describe their meaning 
in both theory and (to the extent  possible) in a practical setting.  Authoritative interpretation of WTO 
                                                     
 
42 The TBT code of good practice is about standard setting generally and may be applicable to standard 
setting in the food safety area 
43 From the 1979 GATT Agreement on Technical Barrier s to Trade (the so called "standards code"). 
44 TBT Agreement Annex 3. 
45 'code of good practice for the preparation, adoption and application of standards' G/SPS/GEN/802 
Page 42  
 
  texts is available only from the rulings of the WTO' s Appellate Body, and so any relevant decisions 
will have to be found.  The WTO maintains a helpful compendium of such rulings.  In this examination of existing texts there wi ll have to be a special focus on the possible 
interpretations of Article 13 of the SPS Agreement and in particular of the sentence that reads in part: 
"Members shall take such reasonable measures as ma y be available to them to ensure that non-
governmental entities within their territories … co mply with the relevant provisions of this 
Agreement." One important consider ation here may be that measur es reasonably available may differ 
from one Member country to another.  
In the event that this analysis does not demonstr ate that there can be any effective discipline over 
potentially adverse consequences of the activities of  non-government standard -setting and standard-
applying organisations, there will be need for identi fication and analysis of options for remedying the 
situation within the framework of the WTO.  Desirably these options would be presented in a 
graduated way, from the least substantive (in legal te rms) up to formal amendment of one or more of 
the covered agreements. 
 
 
Deliverables for Legal Advisers  
The following reports will be prepared by the le gal advisors to reflect the research and analysis 
conducted on the issues above: 
 
(a) " Review and legal analysis of the relevant WTO prov isions, principally with in (but not limited 
to) the SPS and TBT Agreements ".  This report will review and analyse all WTO provisions 
dealing directly or indirectly with the issues outlined under paragraph 7.  The analysis will 
include the review and analysis mandated under paragraph 8 above, whic h may entail general, 
but nevertheless complex, considerations on countries' constitutional systems and the ability 
to "impose" guidelines or working criteria to private entities within their constituencies. 
 
(b) "Relevant WTO 'case law' and interpretative guidance in the form of ad hoc decisions, or 
preparatory works on the SPS and TBT Agreements ".  This report will review, consolidate 
and reference, as appropriate, a ll relevant interpretative inform ation, whether arising in the 
context of the negotiation and drafting of th e SPS and TBT Agreements, or subsequent to 
their entry into force in terms of WTO ' case law' and SPS or TBT Committee decisions (if 
any).  The review of applicable WTO 'case law' will not be limited to instances of WTO dispute settlement proceedings directly involving SPS or TBT issues. 
 
(c) "Legal options and possible suggestions for amendm ents to be brought to the provisions of 
the SPS and/or TBT Agreements ".  This report, which will build on the previous two legal 
assessments and on the work conducted by the lead consultant, will present and discuss any 
relevant legal options, possibl e suggestions, or courses of action (as the case may be) to 
address the issue of private standards and the position of non-governme ntal bodies' standards 
within the WTO system and, in particular, the SPS and TBT Agreements.   
 
 
Reporting Deadlines 
 The legal advisors must deliver draft reports on items (a) and (b) under 'Deliverables for Legal 
Advisers' above by 26 January 2007, subject to an  agreement with DFID on contractual terms and 
conditions by 22 December 2006.  Final repor ts, including the one mandated under item (c) of 
'Deliverables for Legal Advisers' above, must be de livered by the end of February on the basis of a  G/SPS/GEN/802 
 Page 43 
 
 
  timeframe for execution to be agreed with the lead  consultant following submission of the first two 
drafts.    In relation to the proposed deliverables, a to tal provision of 10 working days is allowed.  
 
The legal advisors will work in close consultation with the lead consultant, who will provide guidance 
as required.  
 
 
 
    
 G/SPS/GEN/802 
Page 44  
 
  Annex 3
 
 
Persons consulted  
 
 
Chris Anstey Product Integrity Manager, 
Trading Law and Technical, TESCO Welwyn Garden City, UK 
44 1 707 678 772 chris.anstey@uk.tesco.com
 
Ignacio Carreño O'Connor and Company Brussels 
32 2 2854685 
i.carreno@oconnor.be  
Sasha Courville Executive Director, ISEAL London 
44 20 3246 0066 sasha@isealalliance.org
 
Catherine François Senior Manager, Food Safety 
Programmes, CIES Paris 
33 1 44 69 99 21 
c.francois@ciesnet.com  
Nigel Garbutt Chairman, EurepGAP York, UK 
44 781 010 4168 garbutt@foodplus.org
 
Ulrich Hoffmann Chief, Trade and Sustainable 
Development Section, 
International Trade Division, UNCTAD Geneva 
41 22 907 5780 
ulrich.hoffmann@unctad.org
 
Steve Homer Flamingo Holdings Stevenage, UK 
44 1438 375107 
steve.homer@f-h.biz  
Pauline Jones Technical Programme 
Manager, International Organisation for Standardization  Geneva 
41 22 749 0111 jones@iso.org
 
Tim Leyland Department for International 
Development  United Kingdom 
44 20 7023 0000 
T-Leyland@dfid.gov.uk  
Brian Marchant European Commission Brussels 
brian.marchant@cec.eu.int  
Kevin McKinley Deputy Secretary-General, 
International Organisation for 
Standardization  Geneva 
41 22 749 0111 
mckinley@iso.org  
Mark Pickup Director Food Safety 
Programmes, CIES Paris 
33 1 44 69 99 21 m.pickup@ciesnet.com
 
Michael Roberts Secretariat WTO Geneva 
41 22 7395747 
michael.roberts@wto.org  
Michael Scannell Head of Unit, Multilateral 
food safety, veterinary and trade related issues, European 
Commission Brussels 
32 2 299 3364 michael.scannell@wto.org
 
Nadene Smith Business Manager, Quality, 
Woolworths Ltd., Australia Baulkham Hills, Australia 
612 8885 2306 nasmith@woolworths.com.au
  G/SPS/GEN/802 
 Page 45 
 
 
  Gretchen Stanton Secretary, Committee on 
Sanitary and Phytosanitary Measures, WTO  Geneva 
41 22 7395086 gretchen.stanton@wto.org
 
Guy Stinglhamber Director, COLEACP-PIP Brussels, 
32 2 5081090 
guy.stinglhamber@coleacp.org  
Kevin Swoffer consultant to British Retailers 
Consortium Larkfield, UK 
44 1732 849230  
Roland Vaxelaire Quality, Responsibility and 
Risk Management Director, 
Carrefour  Paris 
33 1 55 63 40 86 
roland_vaxelaire@carrefour.com
 
Paolo Vergano O'Connor and Company Brussels 
32 2 2854685 p.vergano@oconnor.be
 
Morag Webb Capacity building, 
COLEACP-PIP Brussels 
44 1490 430615 
Erik Wijkstrom Secretary, Committee on 
Technical Barriers to Trade, WTO Geneva 
41 22 739 5729 Erik.Wijkstrom@wto.org
 
 G/SPS/GEN/802 
Page 46  
 
  Annex 4
 
 
References  
  
Australian Government Productivity Commission Research Report: Standard Setting and Laboratory 
Accreditation , 2 November 2006 
 
Grace Chia-Hui Lee (2006): Private food standards and their impacts on developing countries , 
European Commission DG Trade Unit G2. 
 
Development Alternatives, Inc. (2005): The relationship of third-party certification to 
sanitary/phytosanitary measures and the international agri-food trade , USAID 
 Samir R. Gandhi: Regulating the use of voluntary environmental standards within the World Trade 
Organisation legal regime: making a case for developing countries , Journal of World Trade
, Vol. 39 
No. 5, October 2005.  Andrew Graffham and James MacGregor: Impact of EurepGap on small-scale growers of fruits and 
vegetables in Zambia , International Institute for Envir onment and Development, September 2006 
 
Andrew Graffham, Esther Karehu and James MacGregor: Impact of EurepGap on small-scale 
growers of fruits and vegetables in Kenya  (in draft), International Institute for Environment and 
Development, December 2006  Spencer Henson:  The Role of Public and Private Standar ds in Regulating International Food 
Markets, paper prepared for the IATRC Summer symposium "Food Regulation and Trade: 
Institutional Framework, Concepts of Analysis and Empirical Evidence", Bonn, Germany, May 28-
30, 2006.  Spencer Henson and Tom Reardon: Private agri-food standards: Implications for 
food policy and the agri-food system , (Food Policy
 30, 2005) 
 
Stephen Jaffee and Spencer Henson: Standards and Agri-Food Exports  from Developing Countries: 
Rebalancing the Debate , Policy Research Working Paper 3348, World Bank, Washington DC, 2004  
 ISO/IEC: WTO TBT Standards Code Directory , eleventh edition, January 2006, Geneva 
 
OECD Committee for Agriculture (2006): Final report on private standards and the shaping of the 
agro-food system , Directorate for Food, Agriculture and Fisheries, Paris 
 UNCTAD: Food Safety and Environmental Requirement s in Export Markets – Friend or Foe for 
Producers of Fruit and Vegetables in Asian Developing Countries?  (forthcoming) 
 
World Bank Report No. 31207 (January 2005): Food Safety and Agricultural Health Standards: 
Challenges and Opportunities for Developing Country Exports , Poverty Reduction & Economic 
Management Trade Unit and Agriculture  and Rural Development Department. 
 
WTO: Note by the Secretariat on the Negotiating Hist ory of the Agreement on Technical Barriers to 
Trade with Regard to Labelling Requirements, Voluntary Standards, and Process and Production 
Methods unrelated to Product Characteristics.  (WT/CTE/W/10-G/TBT/W/11), 29 August 1995 
  G/SPS/GEN/802 
 Page 47 
 
 
  WTO Committee on Sanitary and Phytosanitary Measures: Summary of the Meeting held on 29-30 
June 2005 , (G/SPS/R/37), June 2005 
 WTO: Private Standards and the SPS Agreement  (G/SPS/GEN/746), February 2007 
 
WTO: Private voluntary standards and developing country market access : preliminary results  
(communication from the OECD by Linda Fulponi)  (G/SPS/GEN/763), February 2007  
 WTO: Private sector standards and developing count ry exports of fresh fruit and vegetables  
(communication from UNCTAD)  (G/SPS/GEN/761), February 2007  
 
www.agrifoodstandards.net
 
 www.regoverningmarkets.org
 G/SPS/GEN/802 
Page 48  
 
   
Annex 5
 
 
 
O ' C O N N O R   A N D   C O M P A N Y 
E  U  R  O  P  E  A  N     L  A  W  Y  E  R  S 
 
    
   
Private Standards within the  
WTO Multilateral Framework 
Reports 1 and 2 
 
 
by 
  
 
Ignacio Carreño and Paolo R. Vergano 
    
 
    
 
 
O'CONNOR AND COMPANY 
European Lawyers 
 
Rue de Spa, 30 
B 1000 Brussels, Belgium 
Telephone: (32+2) 285 4685 
Facsimile: (32+2) 285 4690  G/SPS/GEN/802 
 Page 49 
 
 
   
 
Table of Contents Page 
 
Report 1: "Review and legal analysis of  the relevant WTO provisions, principally 
within (but not limited to) the SPS and TBT Agreements"  
 
1. WTO provisions…………………………………………..……..………….. 51 
1.1 SPS  Agreement…… ……………………………………….……………. 51 
1.1.1 Provisions of the SPS Agreement which relate directly to  
the activities of non-governmental standard-setting and  standard-applying organisations……………………………….……….  
 
52 
1.1.2 Provisions of the SPS Agreement which relate directly to  the obligations of WTO Members concerning activities of  non-governmental standard-se tting and standard-applying  
organisations – Article 13 SPS…………………………………………  
  
52 
1.1.2.1 Definition of "non-governmental entities" ……………… 52 
1.1.2.2 Literary interpretation of Article 13 SPS ……………….. 54 
1.1.3. Provisions of the SPS Agreem ent which relate indirectly to 
the obligations of WTO Members concerning activities of non- 
governmental standard-setting and standard-applying 
organisations….......................................................................................  
 
 
55 
1.1.3.1 Definition of SPS measure…………………………….… 55 
1.1.3.2 Basic rights and obligations under the SPS Agreement … 57 
1.1.3.3 Harmonisation…………………………………………… 58 
1.1.3.4 Equivalence……………………………………………… 59 
1.1.3.5 Risk assessment……………………….…………………. 59 
1.1.3.6 Regional conditions……………………………………… 60 
1.1.3.7 Transparency – notification of SPS measures…………… 60 
1.1.3.8 Control, inspection and approval procedures………….… 61 
1.1.3.9 Special and differential treatment……………………..… 61 
1.2. TBT Agreement………………………………………………………........ 61 
1.2.1 Provisions of the TBT Agreement which relate directly  to the obligations of WTO Members concerning activities of  non-governmental standard-se tting and standard-applying  
organisations…………………………………………………...……….  
  
62 
1.2.2 Applicability of the TBT Agreement to certain non-product related non-governmental  standards……………………………………  
65 
1.3 Other WTO Agreements………………………………………….…...…... 66 
1.3.1 General Agreement on Trade in Services…………..……………. 66 
1.3.2 Annex on Telecommunications………………………………….. 66 
1.3.3 Agreement on Subsidies a nd Countervailing Measures……….… 67 
1.3.4 Agreement on Preshipment Inspection………………………… 67 
1.4 Conclusions ……………….……………………………………………..… 68 
 
Report 2: "Relevant WTO 'case law' and interpretative guidance in the form of ad 
hoc decisions, or preparatory works on the SPS and TBT Agreements" 
 
1. Consideration of WTO case law………………………………………….…. 69 
1.1 Case law on Article 13 of the SPS Agreement…………………………..… 69 
1.2 Other case law………………………………………………………………. 70 G/SPS/GEN/802 
Page 50  
 
  1.2.1 Case law on the direction and entrustment provisions of 
SCM Agreement………………………………………………………………  
71 
1.3 Application of the case law to SPS measures……………………………… 72 
2. Interpretative information……………………………………………………. 74 
2.1 Interpretative information in the context of the negotiation  
and drafting of the SPS and TBT Agreements ……………..…………………..  
74 
2.1.1 Preparatory works on the TBT Agreement……………………….. 74 
2.1.1.1 Definitions………………………………………………… 74 
2.1.1.2 Disciplines for the preparation, adoption and application of 
standards…………………………………………………………………  
76 
2.1.2 Preparatory works on the SPS Agreement……………….……….. 78 
2.2 Interpretative information – expressed in WTO Committees……………….. 79 
2.2.1 SPS Committee…… …………………………………………….… 79 
2.2.2 TBT Committee…………………………………………………… 79 
2.2.3 Other Committees…………………..…………………………….. 80 
2.3 Interpretations expressed in the literature………………….……………… 81 
2.3.1 Interpretation of Article 13 of the SPS Agreement………………. 81 
2.3.2 Applicability of the WTO agre ements to private standards……… 82 
2.3.3 Definition of measure…………………………………………….. 83 
2.3.4 Application of the TBT Agreement…………………………….… 83 
2.4 Conclusions………………..……………………………………………….. 84 
 
  G/SPS/GEN/802 
 Page 51 
 
 
  Report 1 
 "Review and legal analysis of the relevant WTO pr ovisions, principally within (but not limited 
to) the SPS and TBT Agreements"   
 As mandated under the Terms of Reference, this report reviews and analyses WTO provisions dealing 
directly or indirectly with the issues outlined below:  
The key legal issue is the meaning of the rele vant texts of the WTO covered agreements, and 
in particular the SPS and TBT Agreements.  "Relevant" means that they relate: 
 
a. directly to the activities of non-governme ntal standard-setting and standard-applying 
organisations; b. directly to the obligations of WTO Members concerning activities of non-governmental standard-setting and standa rd-applying organisations; 
c. indirectly to the obligations of WTO Members concerning activities of non-governmental 
standard-setting and standa rd-applying organisations. 
 Accordingly, it is necessary to identify all pote ntially relevant texts and to describe their 
meaning in both theory and (to the exte nt possible) in a practical setting.  
 
In this examination of existing texts there is a special focus on the possible interpretations of 
Article 13 of the SPS Agreement and in particular of the sentence that reads in part: " Members 
shall take such reasonable measures as may be  available to them to ensure that non-
governmental entities within their territories … co mply with the relevant provisions of this 
Agreement."  One important consideration here is that measures reasonably available may 
differ from one WTO Member country to another. 
  
1. WTO provisions 
 
We have first looked at provisions of the Agreemen t on the Application of Sanitary and Phytosanitary 
Measures (hereinafter SPS Agreement) and the Agreem ent on Technical Barriers to Trade (hereinafter 
TBT Agreement) and finally at provisions of other WTO Agreements.  The TBT Agreement and the SPS Agreement repla ced the 1979 Standards Code formulated during 
the Tokyo Round which covered mandatory and voluntary technical specifications, mandatory 
technical regulations and voluntary standards fo r industrial and agricultural goods.  The TBT 
Agreement was introduced with the objective of en suring that mandatory "technical regulations" and 
voluntary "standards" (as well as testing and certification procedures), used by countries, do not create unnecessary obstacles to trade.  The SPS Agreement was established as a mu ltilateral framework of 
rules and disciplines to guide the developmen t, adoption and enforcement of sanitary and 
phytosanitary measures in order to minimize th eir negative effects on trade, using harmonized 
sanitary and phytosanitary measures between WTO Memb ers, on the basis of international standards, 
guidelines and recommendations developed by th e relevant international organizations. 
  
1.1 SPS Agreement 
 
The provisions of the SPS Agreement have been re viewed as to whether they may be relevant for 
activities of non-governmental standard-se tting and standard-applying organisations. 
  G/SPS/GEN/802 
Page 52  
 
  1.1.1 Provisions of the SPS Agreement which relate directly to the activities of non-
governmental standard-setting and standard-applying organisations: 
 
There are no provisions of the SPS Agreement that  are addressed to non-governmental standard-
setting and standard-applyi ng organisations.  The provisions are,  in general, addressed to the WTO 
Members. 
 
 1.1.2 Provisions of the SPS Agreement which relate directly to the obligations of WTO Members concerning activities of non-governmental standard-setting and standard-applying 
organisations – Article 13 of the SPS Agreement  
Article 13 of the SPS Agreement concerns, inter a lia, the relationship betw een national governments 
and non-governmental bodies in relation to SPS measures and potentially the obligations of WTO 
Members concerning activities of non-governmental standard-setting and standard-applying 
organisations. 
 Article 13 of the SPS Agreement provides the following:  
"Members are fully responsible under this  Agreement for the observance of all 
obligations set forth herein.  Members s hall formulate and implement positive measures 
and mechanisms in support of the observance of  the provisions of this Agreement by 
other than central government bodies.  Memb ers shall take such reasonable measures as 
may be available to them to ensure t hat non-governmental entities within their 
territories, as well as regional bodies in which relevant entities within territories are 
members, comply with the relevant provisions  of this Agreement.  In addition, Members 
shall not take measures which have the eff ect of, directly or indirectly, requiring or 
encouraging such regional or non-governmental entities, or local governmental bodies, to act in a manner inconsistent with the pr ovisions of this Agreement.  Members shall 
ensure that they rely on the services of  non-governmental entities for implementing 
sanitary or phytosanitary measures only if thes e entities comply with the provisions of 
this Agreement".   
 
 
1.1.2.1 Definition of "non-governmental entities" 
 
Article 13, sentence three of the SPS Agreement provides that "Members shall take such reasonable 
measures as may be available to them to en sure that non-governmental entities within their 
territories, (…), comply with the rel evant provisions of this Agreement."   
 
The term "non-governmental entities" is not defined in the SPS Agreement.   G/SPS/GEN/802 
 Page 53 
 
 
  The WTO Agreement is a single agreement and the individual parts of which it is composed – the 
agreements annexed to it – should be interpreted as an integrated whole.  The various provisions of 
the WTO Agreements apply cumulatively a nd should be interpre ted consistently.46 Therefore, 
provisions of other WTO Agreements may be used for interpretation purposes.  
Point 6 of Annex 1 ("Terms and their definitions for the purpose of this Agreement") of the TBT 
Agreement defines "non-governmental body" as follows:   
"Body other than a central government body or a local government body, including a 
nongovernmental body which has legal po wer to enforce a technical regulation." 
 
It has been suggested that the definition of n on-governmental body of the TBT Agreement may be 
used for purposes of the SPS Agreement:   
"The concept of "non-governmental entities" is not sufficiently defined in the SPS 
Agreement.  The TBT Agreement, which is al so applicable for agricultural products, 
renders a more precise definition of "non-govern mental entities." In Art. 4.1 of the TBT 
Agreement, in a similar spirit to Art. 13 in the SPS Agreement, speaks of "non-
governmental standardizing bodies".  Here, clearly, "non-governmental entity" means 
"non-governmental norm-setting organizations." 
 
In the same spirit, there is a definition of "non-governmental body" in point 8 of Annex 1 
to the TBT Agreement, which reads, "Body ot her than a central government body or a 
local government body, including a non-govern mental body which has legal power to 
enforce a technical regulation".  Although this  definition is rather vague and open-ended, 
it is possible to argue that, in the light of the context and purpose of the SPS and the TBT 
agreements, "non-governmental entities" are NOT individual economic operators (or 
their associations) but rather private entiti es which have been entrusted by government 
with the performance of certain tasks or whic h have otherwise a special legal status as 
regards the development and implementation of SPS/TBT rules (…)."
47 
 
Thus, through a restrictive interpretation of the de finition of the TBT Agreement, it is argued that 
only private entities which have been entrusted by government with the performance of certain tasks 
or which have otherwise a special legal status fall under the definition of non-governmental entity 
under the SPS Agreement.   However, it can also be argued that "non-gove rnmental bodies" do not necessarily need to be 
entrusted by government with the performance of ce rtain tasks in order to fall under the definition of 
non-governmental entity provided in the TBT Agreem ent.  Concerning the SPS Agreement, with the 
wording of its Article 13 (" within the territories"),  it can be argued that "non-governmental entity" 
under the SPS Agreement is wider and also incl udes other private bodies which have not been 
entrusted by government with certain tasks but which operate or are establis hed within the territories 
of a Member.  
                                                     
 
46 The Appellate Body stated in Korea – Dairy Safeguards : "It is now well established that the WTO 
Agreement is a "Single Undertaking" and therefore a ll WTO obligations are generally cumulative and Members 
must comply with all of them simultaneously.(…) Ar ticle II:2 of the WTO Agreement provides that: The 
agreements and associated legal instruments included in  Annexes 1, 2 and 3 (hereinafter referred to as 
"Multilateral Trade Agreements") are integral parts of this Agreement, binding on all Members…" (Appellate 
Body Report, Korea – Definitive Safeguard Measur e on Imports of Certain Dairy Products ("Dairy 
Safeguards"), WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3, para. 74). 
47 Grace Chia-Hui Lee, European  Commission, DG Trade Unit G2, Private Food Standards and their 
Impacts on Developing Countries , Part VIII. Legality of Private Food Schemes in the WTO, p. 34 and 35. G/SPS/GEN/802 
Page 54  
 
   
There is no definition of non-governmental entity in other WTO Agreements.  In conclusion, it is arguable that private st andard-setting bodies are non-governmental entities under 
Article 13 of the SPS Agreement.  However, priv ate standard-setting bodi es and non-governmental 
entities are not necessarily the same.  This study intends to develop ideas for a definition of "non-
governmental entity" under Article 13 of the SPS Agreement and for a possible distinction from 
"private bodies".   1.1.2.2 Literary interpretation of Article 13 of the SPS Agreement 
 
Even if non-governmental organisations are not directly addressed by the provisions of the SPS Agreement, WTO Members have a responsibility to ensu re that the Agreement is  complied with even 
to the extent of introducing positive measures and mech anisms in order to achieve its observance.    
 
Sentence one of Article 13 of the SPS Agreement provides an absolute obligation on WTO Members:  
"Members are fully responsible under this  Agreement for the observance of all 
obligations set forth herein. 
 Sentence two sets out a requirement to be proa ctive by positive measures in relation to non-
governmental bodies:   
"Members shall formulate and implement positive measures and mechanisms in support 
of the observance of the provisions of this  Agreement by other than central government 
bodies.   
 
The provision refers to " other than central government bodies ".  The question is whether " other than 
central government bodies" includes non-governmental bodies.  Article 13 of the SPS Agreement 
addresses three types of organisations:  
• Regional bodies; 
• Non-governmental entities; 
• Local governmental bodies. 
 It can be argued that " other than central government bodies"  include all three types of bodies, 
including non-governmental bodies.  Sentence three of Article 13 of the SPS Agreemen t provides for a slightly lesser but still positive 
obligation towards non-governmental bodies: 
 
"Members shall take such reasonable measures as  may be available to them to ensure 
that non-governmental entities within their territories, as well as regional bodies in which relevant entities within territories are members, comply with the relevant 
provisions of this Agreement".  
 
Sentence four provides for an obligation to WT O Members not to encourage non-governmental 
organisations to breach the SPS Agreement:  
"In addition, Members shall not take measures  which have the effect of, directly or 
indirectly, requiring or encouraging such regi onal or non-governmental entities, or local  G/SPS/GEN/802 
 Page 55 
 
 
  governmental bodies, to act in a manner inc onsistent with the provisions of this 
Agreement".  
 
Finally, sentence five provides again for a positive obligation on WTO Members to act: 
 
"Members shall ensure that they rely on th e services of non-governmental entities for 
implementing sanitary or phytosanitary measur es only if these entities comply with the 
provisions of this Agreement".  
 
The conclusion of this textual analysis of Artic le 13 of the SPS Agreement is that WTO Members 
appear to have positive obligations in relation to making sure that non-governmental actors do not act 
inconsistently with the SPS Agreement.    
 
1.1.3 Provisions of the SPS Agreement which relate indirectly to the obligations of WTO 
Members concerning activities of non-government al standard-setting and standard-applying 
organisations.  
There are a number of provisions in the SPS Agreemen t which may relate indirectly to the obligations 
of WTO Members concerning activities of non-gove rnmental standard-setting and standard-applying 
organisations.  
As stated above, even if non-governmental entities ar e not directly addressed by the provisions of the 
SPS Agreement, in the light of Article 13 , WTO Members have a responsibility to ensure that the 
activities of non-governmental entities comply with th e Agreement.  This obligation may thus extend 
to standard-setting and standard-a pplying organisations, provided that they fall under the definition of 
"non-governmental entities" under the SPS Agreement. 
 
 
1.1.3.1 Definition of SPS measure  
The SPS Agreement provides that no WTO Member s hould be prevented from adopting or enforcing 
measures necessary to protect human, animal or pl ant life or health.  At the same time, these 
measures should not be applied in a manner that cons titutes a means of arbitrary or unjustifiable trade 
discrimination.  The scope of the SPS Agreement is  stated in Article 1.1 of the SPS Agreement and 
reads as follows:   
"This Agreement applies to all sanitary and ph ytosanitary measures, which may, directly 
or indirectly, affect international trade.  Such measures shall be developed and applied 
in accordance with the provisions of this Agreement".   
 
Annex A point 1 to the SPS Agreement defines SPS measure as follows:  
"Any measure applied : 
(a) to protect animal or plant life or health  within the territory of the Member from 
risks arising from the entry, establishmen t or spread of pests, diseases, disease-
carrying organisms or disease-causing organisms; (b) to protect human or animal life or health  within the territory of the Member from 
risks arising from additives, contaminants, toxins or disease-causing organisms in 
foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising 
from diseases carried by animals, plants or  products thereof, or from the entry, 
establishment or spread of pests;  or G/SPS/GEN/802 
Page 56  
 
  (d) to prevent or limit other damage within th e territory of the Member from the entry, 
establishment or spread of pests.    Sanitary or phytosanitary measures includ e all relevant laws, decrees, regulations, 
requirements and procedures  including, inter alia, end product criteria;  processes 
and production methods; testing, inspecti on, certification and approval procedures; 
quarantine treatments including relevant requirem ents associated with the transport of 
animals or plants, or with the materials n ecessary for their survival during transport;  
provisions on relevant statis tical methods, sampling procedures and methods of risk 
assessment;  and packaging and labelling re quirements directly related to food 
safety.”  (emphasis added) 
 
One relevant part of the definition (for the purpose of this report) is that "sanitary or phytosanitary 
measures include all relevant laws, decrees,  regulations, requirements and procedures" . 
 
From a textual point of view, "laws", "decrees" a nd "regulations" are by nature "governmental".  It 
appears that "requirements" and "procedures" may also well be "non-governmental", however, in the 
Codex Alimentarius "Principles for food im port and export inspection and certification"
48 
requirements are defined as governmental ( "set by competent authorities "): 
 
"Requirements are the criteria set down by th e competent authorities relating to trade in 
foodstuffs covering the protection of public  health, the protection of consumers and 
conditions of fair trading." 
 
The General Agreement on Trade in Services (herei nafter, GATS) defines when a measure affecting 
the trade in services is considered to be a measu re taken by a WTO Member.  According to Article 
I.3, for the purposes of GATS: 
 
"(…) "measures by Members" means measures taken by: 
(i) central, regional or local governments and authorities; and 
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or 
local governments or authorities ; 
In fulfilling its obligations and commitments und er the Agreement, each  Member shall take 
such reasonable measures as may be availabl e to it to ensure their observance by regional 
and local governments and authorities and non-govern mental bodies within its territory " 
(emphasis added). 
 
Therefore, measures taken by non-governmental bod ies fall within the scope of application of the 
GATS only if they are taken "in the exercise of powers delegated by central, regional or local 
governments or authorities."  
 
In conclusion, from the textual analysis of bot h the SPS Agreement and the GATS, it can be argued 
either that an SPS measure needs, or that it does not need an involvement of a government (see further 
references to case law and interpretative docum ents in Report 2 of this study).   
 The second important matter within the definition of " measure"  is that it relates to "any measure 
applied ".  It could be argued that non-governme ntal standard-setting bodies usually do not apply  
measures, and to that extent at least they are not covered by the provisions of the SPS Agreement 
dealing with the application  of measures.  A supporting argument could be made along the lines that 
international standard-setting or ganisations as defined in the SPS Agreement are not in any way 
disciplined by the Agreement and the position of non-governmental standard-setting bodies ought to 
                                                     
 
48 Document CAC/GL 20–1995.  G/SPS/GEN/802 
 Page 57 
 
 
  be congruent with this.  Thus the focus of this  legal analysis is mainly on the non-governmental 
entities that are applying  private standards (as opposed to taking  measures) , on the basis that it is the 
application of standards that is subject  to discipline under the SPS Agreement. 
 Following this line of argumentation, sections 1.1.3. 2 to 1.1.3.9 below describe, for each provision of 
the SPS Agreement, what the obligation of a WT O Member would be under the assumption that the 
provision relates to non-governmental bodies that are applying  SPS measures.  This process of 
systematic interpretation leads, in general, to r ealize that it would result in a set of absurd and 
disproportionate requirements on non-governmental bodies (if these entities were to include private 
operators). 
 
 
1.1.3.2 Basic rights and obligations under the SPS Agreement 
 
Article 2 of the SPS Agreement sets out the "Basic Rights and Obligations".  In brief, WTO Members 
have the right to take SPS measures, provided that  the measures are based on scientific principles and 
are not arbitrary.  The measures must not di scriminate between WTO Members, nor constitute 
disguised restrictions of international trade:  
"1. Members have the right to take sanitary and phytosanitary measures necessary for the 
protection of human, animal or plant life or health, provided  that such measures are not 
inconsistent with the provisions of this Agreement. 
2. Members shall ensure that any s anitary or phytosanitary measure is applied  only to the 
extent necessary to protect human, animal or plant life or health, is based on scientific 
principles and is not maintained without sufficie nt scientific evidence, except as provided for 
in paragraph 7 of Article 5. 
3. Members shall ensure that their sanita ry and phytosanitary measures do not arbitrarily 
or unjustifiably discriminate between Members where identical or similar conditions 
prevail, including between their own territory and that of other Members.  Sanitary and 
phytosanitary measures shall not be applied  in a manner which would constitute a disguised 
restriction on internatio nal trade"(emphasis added).  
 In the light of Article 13 of the SPS Agreement,  these provisions may relate indirectly to the 
obligations of WTO Members concerning "measures"  of non-governmental standard-setting and 
standard-applying organisations.  Below we describe what the implied obligation of a WTO Member would be under each obligation of 
the SPS Agreement, provided that non-governme ntal bodies applying measures were covered by 
Article 13 of the SPS Agreement.  So, for example, the interpretation of Article 2.2 as it might apply 
to SPS measures of non-governmental bodies would be along these lines: 
 
 "Members shall formulate and implemen t positive measures and mechanisms and take 
such reasonable measures as may be avail able to them to ensure that within their 
territories any sanitary or phytosanitary me asure that is applied by non-governmental 
entities is applied only to the extent necessary to protect human, animal or plant life or 
health, is based on scientific principles and is  not maintained without sufficient scientific 
evidence, except as provided fo r in paragraph 7 of Article 5." 
 Similarly the implied extended interpretation of Article 2.3 of the SPS Agreement would be as 
follows:  
 "Members shall formulate and implemen t positive measures and mechanisms and take 
such reasonable measures as may be avail able to them to ensure that within their G/SPS/GEN/802 
Page 58  
 
  territories the sanitary and phytosanitary me asures that are applied by non-governmental 
entities do not arbitrarily or  unjustifiably discriminate betw een Members where identical 
or similar conditions prevail, including between their own territory and that of other Members.  Such sanitary and phytosanitary me asures shall not be applied in a manner 
which would constitute a disguised rest riction on international trade."  
 
 
1.1.3.3 Harmonisation 
 
Article 3 of the SPS Agreement provides for the principle of harmonization which means that 
measures must be based on international standards (where they exist), although WTO Members are at 
liberty to formulate measures of higher standards if there is scientific justification, or as a consequence of the level of sanitary or phytosanitary protection:  
"1. To harmonize sanitary and phytosanitary me asures on as wide a basis as possible, 
Members shall base their sanitary or phytos anitary measures on international standards, 
guidelines or recommendations, where they exist, ex cept as otherwise provided for in this 
Agreement, and in particular in paragraph 3. (…) 3. Members may introduce or maintain sanita ry or phytosanitary measures which result in a 
higher level of sanitary or phytosanitary prot ection than would be ac hieved by measures 
based on the relevant international standards , guidelines or recommendations, if there is a 
scientific justification, or as a consequence of the level of sanitary or phytosanitary 
protection a Member determines to be appr opriate in accordance with the relevant 
provisions of paragraphs 1 thr ough 8 of Article 5.  Notwithstanding the above, all measures 
which result in a level of sanitary or phytos anitary protection different from that which 
would be achieved by measures based on international standards, guidelines or 
recommendations shall not be in consistent with any other provision of this Agreement." 
 
In the light of Article 13 of the SPS Agreement, this  provision may relate indirectly to the obligations 
of WTO Members concerning compliance of measures applied by non-governme ntal standard-setting 
and standard-applying organisations.  The implied ex tended interpretation of Article 3.2, in the light 
of Article 13 of the SPS Agreement, would be as follows: 
 
"Members shall formulate and implement positive measures and mechanisms and take such 
reasonable measures as may be available to them  to ensure that within their territories the 
sanitary and phytosanitary measures that  are applied by non-governmental entities and 
which result in a higher level of sanitary or phytosanitary protection than would be 
achieved by measures based on the relevant  international standards, guidelines or 
recommendations, have a scientific justification" 
 
However, it appears uncertain how Article 3 of th e SPS Agreement can pertain in any way to private 
standards or their application unless – improbably – such standards have been recognised via the 
procedure set out in point (d) of the definiti on below.  The SPS Agreement defines the term 
international standards, guidelines or recommendations as follows: 
 
(a) for food safety, the standards, guidelines  and recommendations established by the Codex 
Alimentarius Commission relating to food additives, veterinary drug and pesticide 
residues, contaminants, methods of analysi s and sampling, and codes and guidelines of 
hygienic practice;  
 (b) for animal health and zoonoses, the standards, guidelines and recommendations 
developed under the auspices of the Int ernational Office of Epizootics;   G/SPS/GEN/802 
 Page 59 
 
 
   
(c) for plant health, the international st andards, guidelines and recommendations developed 
under the auspices of the Secretariat of the International Plant Protection Convention in cooperation with regional organizations operating within the framework of the International Plant Protection Convention;  and 
 
(d) for matters not covered by the above organi zations, appropriate standards, guidelines 
and recommendations promulgated by other  rel evant international organizations open 
for membership to all Members, as  identified by the Committee.   
 
 1.1.3.4 Equivalence  
Article 4 of the SPS Agreement relates to equivalence: 
 
"1. Members shall accept the sanitary or phytosanitary measures of other Members as 
equivalent, even if these measures differ from their own or from those used by other Members trading in the same product, if the exporting Member objectively demonstrates to the importing Member that its measures ac hieve the importing Member's appropriate level 
of sanitary or phytosanitary protection.  Fo r this purpose, reasonable access shall be given, 
upon request, to the importing Member for inspection, testing and other relevant 
procedures. 
2. Members shall, upon request, enter into cons ultations with the aim of achieving bilateral 
and multilateral agreements on recognition of the equivalence of specified sanitary or 
phytosanitary measures."  
The implied extended interpretation of Article 4, in the light of Article 13 of the SPS Agreement, 
would be along the following lines:  
"Members shall formulate and implement positive measures and mechanisms and take such 
reasonable measures as may be available to them to ensure that within their territories, in 
applying SPS measures, the non-governmental en tities accept the sanitary or phytosanitary 
measures of other Members as equivalent, even  if these measures differ from their own or 
from those used by other Members trading in  the same product, if the exporting Member 
objectively demonstrates that its measures ac hieve the importing Member's appropriate level 
of sanitary or phytosanitary protection. 
 
 
1.1.3.5 Risk assessment 
 
According to Article 5 of the SPS Agreement, measures shall be based  on a risk assessment: 
 
"1. Members shall ensure that their sanita ry or phytosanitary measures are based on 
an assessment, as appropriate to the circums tances, of the risks to human, animal or 
plant life or health, taking into account risk assessment techniques developed by the 
relevant international organizations." 
 
The obligation established by Article 5 of the SPS Agreement may apply towards non-governmental 
standard-setting and standard-applying organizations in the light of Article 13 of the SPS Agreement.  
If WTO members have obligations in relation to the application of SPS measures by non-
governmental entities then the implicit meaning of this provision would be the following: 
 G/SPS/GEN/802 
Page 60  
 
  "Members shall formulate and implement positive measures and mechanisms and take such 
reasonable measures as may be available to them  to ensure that within their territories the 
sanitary and phytosanitary measures that are applied by non-governmental entities are 
based on an assessment, as appropriate to the circumstances of the risks to human, animal 
or plant life or health, taking into acc ount risk assessment techniques developed by the 
relevant international organizations." 
 
 
1.1.3.6 Regional conditions 
 Article 6.1 of the SPS Agreement concerns the ad aptation to regional conditions including pest- or 
disease-free areas and areas of low pest or disease prevalence: 
 
"Members shall ensure that their sanitary or  phytosanitary measures are adapted to the 
sanitary or phytosanitary characteristics of th e area – whether all of a country, part of a 
country, or all or parts of several countries – from which the product originated and to 
which the product is destined.  In assessing the sanitary or phytosanitary characteristics of a 
region, Members shall take into account, inter alia, the level of prevalence of specific 
diseases or pests, the existence of eradication or control programmes, and appropriate criteria or guidelines which may be developed by  the relevant international organizations." 
 The implied extended interpretation of Article 6.1, in the light of Article 13 of the SPS Agreement, 
would be something like:  
"Members shall formulate and implement pos itive measures and mechanisms and take such 
reasonable measures as may be available to them to ensure that within their territories the 
sanitary and phytosanitary measures that are applied by non-governmental entities are 
adapted to the sanitary or phytosanitary characteri stics of the area – whether all of a country, 
part of a country, or all or parts of several countries – from which the product originated and 
to which the product is destined ." 
 
 1.1.3.7 Transparency – notification of SPS measures 
 
It appears that the transparency obligations (Ar ticle 7 and Annex B to the SPS Agreement) only apply 
to "sanitary and phytosanitary measure s such as laws, decrees or ordinances which are applicable 
generally  (see paragraph 1 and footnote 5, at A nnex B to the SPS Agreement), as follows: 
 
"Members shall ensure that all sanitary and phytosanitary regulations (footnote 5: Sanitary 
and phytosanitary measures such as  laws, decrees or ordinances which are applicable 
generally ) which have been adopted are published prom ptly in such a manner as to enable 
interested Members to become acquaint ed with them (emphasis added)." 
 Thus, it does not seem to apply to voluntary standa rds set by non-governmental entities.  On the other 
hand, as the footnote explicitly refers to measures which are applicable generally,  this provision also 
seems to indicate that there are other  SPS measures than those which are generally applicable .  This 
may refer to standards adopted by gove rnmental and non-governmental entities. 
 
  G/SPS/GEN/802 
 Page 61 
 
 
  1.1.3.8 Control, inspections and approval procedures 
 
Control, inspection and approval procedures are d ealt with in Article 8 of the SPS Agreement: 
 
"Members shall observe the provisions of Annex C in the operation of control, 
inspection and approval procedures, incl uding national systems for approving the use 
of additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the 
provisions of this Agreement." 
 The implied extended interpretation of Article 8, in the light of Article 13 of the SPS Agreement, 
would be along the following lines:  
"Members shall formulate and implemen t positive measures and mechanisms and 
take such reasonable measures as may be ava ilable to them to ensure that within 
their territories non-governmental entities observ e the provisions of Annex C in the 
operation of control, inspection and appr oval procedures, including national 
systems for approving the use of additi ves or for establishing tolerances for 
contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement." 
  
1.1.3.9 Special and differential treatment 
 
Article 10.1 of the SPS Agreement concerns special and differential treatment:  
"In the preparation and application of  sanitary or phytosanitary measures, 
Members shall take account of the spec ial needs of developing country Members, 
and in particular of the least-developed country Members." 
 
The implied extended interpretation of Article 10, in the light of Article 13 of the SPS Agreement, 
would be something like: 
 
"Members shall formulate and implemen t positive measures and mechanisms and 
take such reasonable measures as may be ava ilable to them to ensure that within 
their territories the sanitary and phytosan itary measures that are prepared and 
applied by non-governmental entities  take account of the special needs of 
developing country Members, and in particul ar of the least-developed country 
Members." 
 
 
1.2 TBT Agreement 
 
The main purpose of the TBT Agreement is to discip line the application of technical regulations by 
WTO Members so that they do not constitute an arb itrary or unjustified barrier to trade.  The TBT 
Agreement deals with the development of standards to  promote international trade as ancillary to this 
central objective.     G/SPS/GEN/802 
Page 62  
 
  1.2.1 Provisions of the TBT Agreement which relate directly to the obligations of WTO 
Members concerning activities of non-government al standard-setting and standard-applying 
organisations 
 
Article 2 is the key provision of the TBT Agreement and includes, inter alia , the following 
provisions: Article 2.1 of the TBT Agreement includes the Most-Favoured-Nation (MFN) and 
national treatment obligations and states that "in respect of their technical regulations, products 
imported from the territory of any Member be ac corded treatment no less favourable than that 
accorded to like products of national origin and to like products originating in any other country" .  
Under Article 2.2 of the TBT Agreement, WTO Members " shall ensure that technical regulations 
are not prepared, adopted or applied with a vi ew to or with the effect of creating unnecessary 
obstacles to international trade.  For this purpose,  technical regulations shall not be more trade-
restrictive than necessary to fulfil a legitimate objective (examples are listed in Article 2.2) , taking 
account of the risks non-fulfilment would create."  
 The TBT Agreement encourages WTO Members to u se existing international standards for their 
national regulations, or for parts of them, unless "their use would be ine ffective or inappropriate"  to 
fulfil a given policy objective.  This may be the case, for example, "because of fundamental climatic 
and geographical factors or fundam ental technological problems"  (Article 2.4).  The TBT 
Agreement encourages WTO Members " to participate, within the limits  of their resources, in the 
work of international bodies for the preparation of standards " (Article 2.6).  Under Article 2.7 of the 
TBT Agreement, WTO Members must give positiv e consideration to accepting as equivalent 
technical regulations of other WTO Members, ev en if these regulations differ from their own, 
provided they are satisfied that these regulations  adequately fulfil the objectives of their own 
regulations.  
Article 2 of the TBT Agreement is applied through the provisions of Article 3 to the preparation, 
adoption and application of technical regulations by local government bodies and non-governmental 
bodies:  
"With respect to their local government  and non-governmental bodies within their 
territories: 
3.1 Members shall take such reasonable measur es as may be available to them to 
ensure compliance by such bodies with the provis ions of Article 2, with the exception of 
the obligation to notify as referred to in  paragraphs 9.2 and 10.1 of Article 2. 
3.4 Members shall not take measures whic h require or encourage local government 
bodies or nongovernmental bodies within their territories to act in a manner 
inconsistent with the pr ovisions of Article 2. 
3.5 Members are fully responsible under this Agreement for the observance of all 
provisions of Article 2.  Members shall formulate and implement positive measures and 
mechanisms in support of the observance of the provisions of Article 2 by other than 
central government bodies."  
 
Article 4.1 of the TBT Agreement deals with the "Preparation, Adoptio n and Application of 
Standards" by central government standardizi ng bodies, local government and non-governmental 
standardizing bodies, as well as regional standardizing bodies:  
"Members shall ensure that their central  government standardizing bodies accept and 
comply with the Code of Good Practice for th e Preparation, Adoption and Application of 
Standards in Annex 3 to this Agreement (referr ed to in this Agreement as the "Code of 
Good Practice").  They shall take such reasonabl e measures as may be available to them 
to ensure that local government and nongo vernmental standardizing bodies within their 
territories, as well as regional standardizing bodies of which they or one or more bodies  G/SPS/GEN/802 
 Page 63 
 
 
  within their territories are members, accept and comply with this Code of Good Practice.  
In addition, Members shall not take measu res which have the effect of, directly or 
indirectly, requiring or encouraging such  standardizing bodies to act in a manner 
inconsistent with the Code of Good Practice.   The obligations of Members with respect to 
compliance of standardizing bodies with the pr ovisions of the C ode of Good Practice 
shall apply irrespective of whether or not a standardizing body has accepted the Code of 
Good Practice." 
 
In essence, WTO Members shall take such reasona ble measures as may be available to them to 
ensure that non-governmental standardizing bodies within their territories accept and comply with 
this Code of Good Practice.  Furthermore, WTO Members shall not take measures which have the 
effect of, directly or indirectly, requiring or enco uraging such standardizing bodies to act in a manner 
inconsistent with the Code of Good Practice. 
 
The Code of Good Practice for the preparation, adopt ion and application of standards is established in 
Annex 3 to the TBT Agreement.  In broad term s, the Code states that standards should be non-
discriminatory as between the products originating in different countries, and should not create 
unnecessary obstacles to trade; that national or othe r standards should, wherever appropriate, be 
based on relevant international standards; that st andardizing bodies should a void duplication of effort 
of other standardizing bodies; that standards s hould be performance-based rather than expressed in 
terms of design or product description; and that  standards should be developed in a transparent 
manner and standardizing bodies shoul d seek and be responsive to comments by interested parties 
during the development process.  According to point B of the General Provisions, th e Code is open to acceptance by non-governmental 
bodies as well: 
 
"This Code is open to acceptance by any st andardizing body within the territory of a 
Member of the WTO, whether a central go vernment body, a local government body, or a 
non-governmental body; to any governmental regional standardizing body one or more 
members of which are Members of the WTO; and to any non-governmental regional 
standardizing body one or more members of whic h are situated within the territory of a 
Member of the WTO (referred to in this Code collectively as "standardizing bodies" and 
individually as "the standardizing body")." 
 
As stated above, point 6 of Annex 1 ("Terms and thei r definitions for the purpose of this agreement") 
defines "non-governmental body" as follows:  
 
"Body other than a central government body  or a local government body, including a 
non-governmental body which has legal power to enforce a technical regulation." 
 
This definition seems to acknowledge by implic ation the existence of non-governmental bodies 
which do not have the legal power to enforce a technical regulation, as it defines "non-governmental 
body" as "body (…) including a non-governmental body which has
 legal power to enforce a technical 
regulation."  This definition seems to refer to two diffe rent types of non-governmental bodies.  It 
could be argued that if there are non-government al bodies which have legal power to enforce a 
technical regulation, there must be non-government al bodies who do not have legal power to enforce 
a technical regulation, thus whic h adopt or implement voluntary st andards.  The question remains 
open as to whether the TBT Agreement applies to both types of non-governmental bodies. 
 The basic rules in regard to the conduct a nd recognition of conformity assessment by central 
governmental bodies are set out in Article 5 and 6 of  the TBT Agreement.  Articles 8 applies these 
rules, somewhat modified, to non-governmental bodies. G/SPS/GEN/802 
Page 64  
 
   
Article 5.1 of the TBT Agreement (Procedures for Assessment of Conformity by Central Government 
Bodies) provides the following:  
"Members shall ensure that, in cases where a positive assurance of conformity with 
technical regulations or standards is requi red, their central government bodies apply the 
following provisions to produc ts originating in the territories of other Members: (…)" 
 
According to one WTO scholar, "the typical situation in which Article 5 applies is that where a 
central government body is required to assess the c onformity of a product with a regulation or 
standard.  However, it can happen that, even where th e rules are issued by the central government, 
the task of conformity assessment is allocated to a local government or non-governmental body.  Such 
action constitutes a form of accreditation, and theref ore falls within the TBT Agreement's definition of 
"conformity assessment".  Article 5 imposes obligat ions on central government s regarding conformity 
assessment, but the activities which it regulates suggest that its scope does not include accreditations.  
In any event, such a delegation of responsibility co nstitutes a good example of a central government 
"relying on" a non-governmental body, and consequently  would be covered by Article 8 of the TBT 
Agreement." 
49  
 
Article 8 of the TBT Agreement relates directly to the obligations of WTO Members concerning 
activities of non-governmental bodies that apply proc edures for assessment of conformity.  Paragraph 
1 therefore provides that: 
 
"Members shall take such reas onable measures as may be av ailable to them to ensure 
that nongovernmental bodies within their territories which operate conformity 
assessment procedures comply with the pr ovisions of Articles 5 and 6, with the 
exception of the obligation to notify proposed conformity assessment procedures.  In 
addition, Members shall not take measures wh ich have the effect of, directly or 
indirectly, requiring or encouraging such bodies to act in a manner inconsistent with 
the provisions of Articles 5 and 6."  
Article 8.2 of the TBT Agreement provides that: 
 
"Members shall ensure that their cent ral government bodies rely on conformity 
assessment procedures operated by non-go vernmental bodies only if these latter bodies 
comply with the provisions of Articles 5 and 6, with the exception of the obligation to 
notify proposed conformity  assessment procedures." 
 
Article 10 of the TBT Agreement sets out obligations of WTO Members concerning the "Information About Standards and Conformity Assessment Proced ures".  This includes for example information on 
standards adopted or proposed within their territo ries by non-governmental standardizing bodies: 
 
"10.3 Each Member shall take such reasonable measures as may be available to it to 
ensure that one or more enquiry points exist  which are able to answer all reasonable 
enquiries from other Members and interested parties in other Members as well as to provide the relevant documents or inform ation as to where they can be obtained 
regarding:  
                                                     
 
49 Edmond Mc Govern, International Trade Regulation , Globefield Press (loo se leaf, Issue 20 May 
2006), at paragraph 7.244.  G/SPS/GEN/802 
 Page 65 
 
 
  10.3.1 any standards adopted or propo sed within its territory by non-
governmental standardizing bodies, or by regional standardizing bodies of which such bodies are members or participants; and  10.3.2 any conformity assessm ent procedures, or proposed  conformity assessment 
procedures, which are operated within its territory by non-governmental bodies, 
or by regional bodies of which such bodies are members or participants;  10.3.3 the membership and participation of relevant non-governmental bodies within its territory in international and regional standardizing bodies and 
conformity assessment systems, as well as in bilateral and multilateral 
arrangements within the scope of this Agreement; they shall also be able to 
provide reasonable information on the provisions of such systems and arrangements." 
 Articles 10.1.1 and 10.1.3 of the TBT Agreemen t concern the obligations of WTO Members 
regarding certain activities of non-go vernmental bodies which have legal power to enforce a technical 
regulation.  Finally, Article 11.5 (Technical Assistance to Ot her Members) provides that WTO Members shall 
advise other WTO Members on conformity assessment  operated by non-governmental bodies within 
the territory of the Member.   
 
"11.5 Members shall, if requested, advise other Members, especially the developing 
country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the steps that  should be taken by their producers if 
they wish to have access to systems fo r conformity assessment operated by 
governmental or non-governmental bodies w ithin the territory of the Member 
receiving the request." 
 
There is no provision in the TBT Agreement on technical assistance to other WTO Members in 
relation to the adoption or preparation of (voluntary) standards.  
 
 
1.2.2 Applicability of the TBT Agreement to certain non-product related non-governmental 
standards  
The TBT Agreement defines "standard" in paragraph 2 of Annex 1 as a:  
 
"Document approved by a recognized body , that provides, for common and 
repeated use, rules, guidelines or charact eristics for products or related processes 
and production methods, with which complian ce is not 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." 
 
Therefore the language of the TBT Agreement seems to  indicate that the Agreement is not applicable 
to processes and production methods (hereinafter PPMs)  which are "not related to the product".    
 
In this case, even if the TBT Agreement app lies to non-governmental bodies, it could not put 
restrictions on, for example, voluntary non-product related PPM standards (such as certain social and 
environmental standards), including those based on ex isting international standa rds.   However, in 
that case these standards might still fall within the scope of the GATT, partic ularly under Article III G/SPS/GEN/802 
Page 66  
 
  of the GATT, which incorporates the national treatment obligation and imposes the principle of non-
discrimination between domestically produ ced goods and "like" imported goods.   
  
1.3 Other WTO agreements 
 For the purpose of the study we also analysed othe r WTO Agreements and looked particularly for any 
definitions or mentions of the following terms:  "non-governmental", "governmental" (as opposed to 
"non-governmental"), "bodies", "organizations", "e nterprises", "entities", "private", "public" (as 
opposed to "private"), "standards", "measures".   
 
No relevant reference to any of those term s was found in the following agreements: GATT, 
Agreement on Agriculture, Agreement On Trade-Re lated Aspects Of Intellectual Property Rights 
(TRIPS), Agreement On Import Licensing Pro cedures, Agreement on Textiles and Clothing, 
Agreement on Trade-Related Investment Measur es (TRIMs), Anti-dumping Agreement, Agreement 
on Safeguards. 
  
1.3.1 General Agreement on Trade in Services  
 
As stated above, Article I.3 ("Scope and Definitions")  of the General Agreement on Trade in Services 
(hereinafter, GATS) defines when a measure affecti ng the trade in services is considered to be a 
measure taken by a WTO Member.  According to Article I.3, for the purposes of GATS:  
"(…) "measures by Members" means measures taken by: 
(i) central, regional or local governments and authorities; and 
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or 
local governments or authorities ; 
In fulfilling its obligations and commitments und er the Agreement, each  Member shall take 
such reasonable measures as may be availabl e to it to ensure their observance by regional 
and local governments and authorities and non-govern mental bodies within its territory " 
(emphasis added). 
 
Therefore, measures taken by non-governmental bodi es are within the scope of application of the 
GATS but only if they are taken "in the exercise of powers delegated by central, regional or local 
governments or authorities."  
 Article VII.5 of the GATS also mentions "non-govern mental bodies" in relation to the recognition of 
certificates, licences, education, etc.  According to it  "…members shall work in cooperation with 
relevant intergovernmental and non-governmental organizations towards the establishment and 
adoption of common international standards and criteria for recognition and common international 
standards for the practice of relevant services trades and professions " (emphasis added).   
 
 
1.3.2 Annex on Telecommunications  
 
The Annex on Telecommunications in its paragra ph 7 states that WTO Members need to consult 
intergovernmental and non-governmental organizatio ns on matters arising from the implementation of 
the Annex:  
 
"Members recognize the role played by intergovernmental and non-governmental 
organizations and agreements in ensuring the e fficient operation of domestic and global 
telecommunications services, in particular th e International Telecommunication Union.   G/SPS/GEN/802 
 Page 67 
 
 
  Members shall make appropriate arra ngements, where relevant, for consultation  with such 
organizations on matters arising from the implem entation of this Annex" (emphasis added) 
 
 
1.3.3 Agreement on Subsidies and Countervailing Measures  
 
In the Agreement on Subsidies and Countervailing Measures (SCM Agreement) there are the entrustment and direction provisions (Article 1.1 (a) (iv) SCM) covering subsidies granted within the 
territory of a WTO Member by private parties but deemed to be governmental action:  
"Article 1 Definition of a Subsidy 1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if: 
(a)(1) there is a financial contribution by a government or any public body within the 
territory of a Member (referred to in this  Agreement as "government"), i.e. where: 
(i) a government practice involves a direct tr ansfer of funds (e.g. grants, loans, and 
equity infusion), potential direct transfers of  funds or liabilities (e.g. loan guarantees); 
(ii) government revenue that is otherwise due  is foregone or not collected (e.g. fiscal 
incentives such as tax credits); (iii) a government provides goods or services other than general infrastructure, or 
purchases goods; (iv) a government makes payments to a funding mechanism, or entrusts or directs a 
private body to carry out one or more of the type of functions illustrated in (i) to (iii) 
above which would normally be vested in th e government and the practice, in no real 
sense, differs from practices normally followed by governments; or (a)(2) there is any form of income or price support in the sense of Article XVI of GATT 
1994; 
and (b) a benefit is thereby conferred" (emphasis added). 
 
 
1.3.4 Agreement on Preshipment Inspection  
 
In its Article 1 (Coverage – Definitions), the WTO Agreement on Preshipment Inspection provides 
that preshipment activities may be carried out by (p rivate) preshipment inspection entities" contracted 
or mandated by the government, or any government body, of a WTO Member: 
 
"1. This Agreement shall apply to all preship ment inspection activities carried out on the 
territory of Members, whether such activ ities are contracted or mandated by the 
government, or any government body, of a Member. 2. The term "user Member" means a Member of  which the government or any government 
body contracts for or mandates the use of preshipment inspection activities. 3. Preshipment inspection activities are all activities relating to the verification of the 
quality, the quantity, the price, including currency exchange rate and financial terms, 
and/or the customs classification of goods to be exported to the territory of the user 
Member. 4. The term preshipment inspection entity" is  any entity contracted or mandated by a 
Member to carry out preshipment inspection activities. 
 Article 2 provides for obligations on user member s, to ensure matters such as non-discrimination 
(Article 2.1): "They shall ensure uniform performance of inspection by all the inspectors of the 
preshipment inspection entities cont racted or mandated by them" or transparency (Article 2.6) in 
inspection activities carried out by (pri vate) preshipment inspection entities: "User Members shall G/SPS/GEN/802 
Page 68  
 
  ensure that, when initially contacted by exporters,  preshipment inspection entities provide to the 
exporters a list of all the information which is n ecessary for the exporters to comply with inspection 
requirements.  The preshipment inspection entities s hall provide the actual information when so 
requested by exporters.  This information shall incl ude a reference to the laws and regulations of user 
Members relating to preshipment inspection activiti es, and shall also include the procedures and 
criteria used for inspection and for price and currency exchange-rate verification purposes, the 
exporters' rights vis-à-vis the inspection entiti es, and the appeals procedures set up under paragraph 
21.  (…)"    
1.4 Conclusions 
 
From the textual analysis of the SPS, TBT and other WTO agreements, the following can be 
concluded:  
Application of the provisions of the SPS Agr eement to non-governmental standard setting and 
standard applying entities  in the light of Article 13 of the SPS Agreement depends very much on the 
definition of "non-governmental body".  It may be argued that only private entities whic h have been entrusted by government with the 
performance of certain tasks or which have otherwis e a special legal status fall under the definition of 
non-governmental entity under the SPS Agreement.   
 On the other hand, it can also be argued that " non-governmental entity" under the SPS Agreement is 
broader and also includes other private bodies which have not been entrusted by government with 
certain tasks but which operate within the territories of a WTO Member.  
 
From the literary interpretation of Article 13 of th e SPS Agreement, the question of the definition of 
"non-governmental entity" remains open. 
 
Even if non-governmental entities are not directly addressed by the provisions of the SPS Agreement, 
in the light of Article 13 of the SPS Agreement , WTO Members have a responsibility to ensure that the 
activities of non-governmental entities comply with the Agreement.   
 
Under Article 4 of the TBT Agreement, WTO Memb ers shall take such reasonable measures as may 
be available to them to ensure that non-governme ntal standardizing bodies within their territories 
accept and comply with this Code of Good Practi ce.  Furthermore, WTO Members shall not take 
measures which have the effect of, directly or indi rectly, requiring or encouraging such standardizing 
bodies to act in a manner inconsistent with the Code of Good Practice.  Article 8 of the TBT Agreement relates directly  to the obligations of WTO Members concerning 
activities of non-governmental bodies that apply procedures for assessment of conformity.  
Other WTO Agreements, such as the General Ag reement on Trade in Services, the Annex on 
Telecommunications, the Agreement on Subsidies and Countervailing Measures and the Agreement 
on Preshipment Inspection are helpful in orde r to delimit non-governmental from governmental 
activities.   G/SPS/GEN/802 
 Page 69 
 
 
  Report 2 
 "Relevant WTO 'case law' and interpretative guid ance in the form of ad hoc decisions, or 
preparatory works on the SPS and TBT Agreements"  
 As requested under the Terms of Reference, this report reviews, consolidates and references, as 
appropriate, all relevant interpreta tive information, whether arising in the context of the negotiation 
and drafting of the SPS and TBT Agreements, or subse quent to their entry into force in terms of WTO 
"case law" and SPS or TBT Committee decisions (if an y).  The review of applicable WTO "case law" 
has not been limited to instances of WTO disput e settlement proceedings directly involving SPS or 
TBT issues. 
  
1. Consideration of WTO case law  
 
1.1 Case law on Article 13 of the SPS Agreement  
There is little WTO case law on the interpreta tion of Article 13 of the SPS Agreement and, 
specifically, no case law in relation to non-governmental entities  and Article 13 of the SPS 
Agreement.   
In the report of the Panel in Australia – Measures Affecting Importation Of Salmon – Recourse To 
Article 21.5 By Canada -  
50 Canada claimed that Australia was legally responsible for the Tasmanian 
ban (import prohibition on Canadian salmon) under Article 13 of the SPS Agreement and Article 27 
of the Vienna Convention on the Law of Treaties.  
The Panel stated as follows: 
 
68. "(…) we are of the view that the Tasm anian ban is to be regarded as a measure 
taken by Australia, in the sense that it is a measure for which Australia, under both general 
international law and relevant WT O provisions, is responsible.
51  We note also that the 
Tasmanian measure is a sanitary measure applie d within the territory of Australia that 
directly affects international trade and thus, pursuant to Annex A, paragraph 1, and Article 
1.1 of the SPS Agreement, is subject to the SPS Agreement. 
69. As recognized by Australia in its letter of 9 December 1999, the Tasmanian 
measures "could be characterized as … meas ures taken by 'other than a central government 
body' in the sense of Article 13 of the SPS Ag reement, and would constitute measures 'taken 
by a regional government' within  Australia's territory, in th e sense of Article 22.9 of the 
DSU".  Article 13 of the SPS Agreement prov ides unambiguously that:  (1) "Members are 
fully responsible under [the SPS] Agreement for the observance of all obligations set forth 
herein"; and (2) "Members shall formul ate and implement positive measures and 
mechanisms in support of the observance of the pr ovisions of this Agreement by other than 
                                                      
50 Panel Report, Australia – Measures Affecting Importation Of  Salmon - Recourse To Article 21.5 By 
Canada , WT/DS18/RW of 18 February 2000. 
51 In respect of general international law, see Ar ticle 27 of the Vienna Convention on the Law of 
Treaties ("A party may not invoke the provisions of its inte rnal law as justification for its failure to perform a 
treaty") and Article 6 of the Draft Articles on State Re sponsibility of the International Law Commission ("The 
conduct of an organ of the State shall be considered as an  act of that State under international law, whether that 
organ belongs to the constituent, legislative, executive, ju dicial or other power, whether its functions are of an 
international or an internal character, and whether it holds a superior or a subordinate position in the 
organization of the State", Yearbook of the ILC, 1996, Chapter III). G/SPS/GEN/802 
Page 70  
 
  central government bodies".  Reading these two obl igations together, in light of Article 1.1 
of the SPS Agreement referred to earlier, we consider that sanitary measures taken by the 
Government of Tasmania, being an "other t han central government" body as recognized by 
Australia, are subject to the SPS Agreement and fall under the responsibility of Australia as 
WTO Member when it comes to their observance of SPS obligations.  In addition, Article 
22.9 of the DSU states clearly that "[t]he dispute settlement provisions of the covered 
agreements [including the DSU itself] may be invoked in respect of measures affecting their 
observance taken by regional or local governme nts or authorities within the territory of a 
Member", including, as acknowledged by Australia, the measures taken by Tasmania at issue here.  As a Panel acting under these dis pute settlement provisions , we are thus entitled 
to consider whether the Tasmanian me asures observe the SPS Agreement."
52 
 
In summary, the Panel found that the Tasmanian me asure was inconsistent wi th Articles 5.1 and 2.2 
of the SPS Agreement and it did not further examine any other Canadian claim in this respect, in 
particular the Panel found that Canada had not substantiated a claim under Article 13 of the SPS 
Agreement obliging WTO Members to formulate and implement positive measures and mechanisms 
in support of the observance of the provisions of this Agreement by other than central government 
bodies.   Therefore, the Panel did not decide here whether Au stralia has met this obligation. However, this did 
not prevent the Panel from making reference to Article  13 in support of the finding that the Tasmanian 
measure is subject to the SPS Agreement a nd falls under the responsibility of Australia.
53 
 Although this report of the Panel did not concern non-governmental bodies, it permits to draw some 
indications on how a Panel could analyse a possible violation of the SPS Agreement by a non-governmental body. First, it would look at Article 13 to determine whether there is "responsibility" of 
a WTO Member and then, "reading in the light of Ar ticle 1.1 SPS," whether the measure at stake is an 
SPS measure and, finally, whether there is a violation of the SPS Agreement. 
  
1.2 Other case law 
 There is no relevant case law under the TBT Agreem ent in relation to non-governmental bodies. 
 The question of governmental versus private action h as been analysed in the Report of the Panel in 
Japan – Measures Affecting Consum er Photographic Film and Paper
54: 
 
"As the WTO Agreement is an internationa l agreement, in respect of which only 
national governments and separate customs territories are directly subject to obligations, it follows by implication that  the term measure in Article XXIII:1(b) and 
Article 26.1 of the DSU, as elsewhere in the WTO Agreement, refers only to policies or 
actions of governments, not those of private parties. But while this "truth" may not be open to question, there have been a number of trade disputes in relation to which 
panels have been faced with making sometimes difficult judgments as to the extent to 
which what appear on their face to be pr ivate actions may nonetheless be attributable 
                                                     
 
52 Panel Report, WT/DS18/RW, Paragraphs 7.12 and 7.13. 
53 Panel Report, WT/DS18/RW, Paragraph 7.162. 
54 Panel Report, Japan - Measures Affecting Consumer Photographic Film and Paper , WT/DS44/R of 
31 March 1998.  G/SPS/GEN/802 
 Page 71 
 
 
  to a government because of some governmen tal connection to or endorsement of those 
actions."55 
 
The Panel gave, as an example, a 1989 Panel Report on EEC – Restrictions on Imports of Dessert 
Apples56. This Panel noted the following: 
 
"The EEC internal regime for apples was a hy brid one, which combined elements of 
public and private responsib ility. Legally there were two possible systems, direct 
buying-in of apples by Member State aut horities and withdrawals by producer groups". 
 
That Panel found that both the buying-in and wit hdrawal systems established for apples under the 
EEC regulation could be considered  to be governmental measures for the purposes of Article XI:2I(i). 
 The Panel in Japan – Measures Affecting Consum er Photographic Film and Paper
57 concluded the 
following:  
 
"past GATT cases demonstrate that the fact that an action is taken by private parties 
does not rule out the possibility that it may be deemed to be governmental if there is 
sufficient government involvement with it. It is difficult to establish bright-line rules in 
this regard, however. Thus, that possibility will need to be examined on a case-by-case 
basis."  
  
Thus, it appears that a degree of government invol vement is required to put a measure under the 
scrutiny of the WTO Agreements. "A degree of g overnmental involvement" could be useful as a 
requirement to delimit "non-governmental bodies" from "private bodies".  
 
1.2.1 Case law on the direction and entrus tment provisions of the SCM Agreement 
 
The Panel in EC – DRAMS Countervailing Measures
58 stated that it "share[d] [the Export Restraints] 
panel's basic understanding of the terms 'entrust' or 'direct' as requiring a government action which 
obliges a private body to act in a particular way and generally refers to the situation in which 
government executes a particular policy by operating through a private body"; and said that "the 
investigating authority will need to ensure that the evidence of entrustment or direction is probative 
and compelling and this will obviously differ from case to case".   The Appellate Body in U.S. – DRAMS CVD Investigation
59 concluded that "'entrustment' occurs 
where a government gives responsibility to a private bod y, and 'direction' refers  to situations where 
the government exercises its authority over a pr ivate body," and thus modified the Panel's 
interpretation of Article 1.1(a)(1)(iv) "to the ex tent that it may be understood as limiting the terms 
'entrusts' and 'directs' to acts of 'delegation' and 'command'".  
                                                     
 
55 Panel Report, WT/DS44/R, Paragraph 10.52. 
56 Panel Report, EEC - Restrictions on Imports of Dessert Apples  (Complaint by Chile), adopted on 22 
June 1989, BISD 36S/93, 126. 
57 Panel Report, WT/DS44/R, Paragraph 10.56. 
58 Panel Report, European Communities - Countervaili ng Measures on Dynamic Random Access 
Memory Chips from Korea , WT/DS299/R of 3 August 2005, see paragraphs 7.18-146. 
59 Appellate Body Report, United States - Countervailing Duty Investigation on Dynamic Random 
Access Memory Semiconductors (DRAMS) from Korea , WT/DS296/AB/R, see paragraphs 102-197. G/SPS/GEN/802 
Page 72  
 
  The Panel in U.S. – DRAMS CVD Investigation
60 concluded that, "[a]s a matter of law, … we do not 
consider that the plain meaning of Article 1. 1(a)(1)(iv) of the SCM Agreement requires an 
investigating authority to demonstrate an explicit government action addressed to a particular entity, 
entrusting or directing a particular task or duty".  
The Panel in Korea – Vessels ("Shipbuilding Subsidies")
61 discussed in context of SCM Agreement 
Article 1 – Existence of Subsidies and noted that the words "entrust" and "direct" indicate that the 
action of the government must contain a notion of delegation (in the case of entrustment) or command (in the case of direction), but stated that the en trustment or direction need not be "explicit". 
 
The Panel in U.S. – Export Restraints
62 rejected the argument that an export restraint is "functionally 
equivalent" to an entrustment of, or direction to , a private body to provide goods domestically; and 
concluded that the ordinary meaning of the words "entrusts" and "directs" requires an "explicit and 
affirmative action of delegation or command."   
In line with this case law, the requirements of "entru sting" or "directing" could be useful to delimit 
"non-governmental bodies" from "private bodies".  
 
1.3 Application of case law to SPS measures 
 The question is whether the aforementioned case law applies to SPS measures. Article 13 of the SPS 
Agreement states that " Members shall take such reas onable measures as may be available to them to 
ensure that non-governmental entities within their territories (…) comp ly with the relevant provisions 
of this Agreement. "  
 Annex A to the SPS Agreement defines SPS measure as  
 
"Any measure applied: 
(a) to protect animal or plant life or health  within the territory of the Member from 
risks arising from the entry, establishmen t or spread of pests, diseases, disease-
carrying organisms or disease-causing organisms; 
(b) to protect human or animal life or health  within the territory of the Member from 
risks arising from additives, contaminants, toxins or disease-causing organisms in 
foods, beverages or feedstuffs; I to protect human life or health within th e territory of the Member from risks arising 
from diseases carried by animals, plants or  products thereof, or from the entry, 
establishment or spread of pests;  or 
(d) to prevent or limit other damage within th e territory of the Member from the entry, 
establishment or spread of pests.   Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, 
requirements and procedures including, inter alia, end product criteria;  processes and 
production methods;  testing, inspection,  certification and approval procedures;  
quarantine treatments including relevant requirem ents associated with the transport of 
animals or plants, or with the materials n ecessary for their survival during transport;  
                                                     
 
60 Panel Report, United States - Countervailing Duty In vestigation on Dynamic Random Access 
Memory Semiconductors (DRAMS) from Korea , WT/DS296/R of 20 July 2005, see paragraphs 7.10-178. 
61 Panel Report, Korea - Measures Affecting Trade in Commercial Vessels , WT/DS273/R of 7 March 
2005, see paragraphs 7.350-426. 
62 Panel Report, United States - Measures Treating Export Restraints as Subsidies , WT/DS194/R of 29 
June 2001, see paragraphs 8.15-75.  G/SPS/GEN/802 
 Page 73 
 
 
  provisions on relevant statis tical methods, sampling procedures and methods of risk 
assessment;  and packaging and labelling requirem ents directly related to food safety. 
" 
 
Again, the emphasis is on "measure applied within the territory of the Member" . Finally, concerning 
the type of measure, further to "all relevant laws , decrees and regulations", sanitary or phytosanitary 
measures under the SPS Agreement include "re quirements and procedures", which may not 
necessarily be governmental measures such as laws, decrees and regulations.  In determining the scope of measure, a look into other WTO agreements may provide interpretative 
guidance. 
 Article I:3 of the General Agreement on Trade in Services (GATS) defines measures by WTO Members as:  
"Measures taken by: (i) central, regional or local governments and authorities; and (ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities. In fulfilling its obligations and commitments  under the Agreement, each Member 
shall take such reasonable measures as ma y be available to it to ensure their 
observance by regional and local governments and authorities and non-
governmental bodies within its territory." 
 
Therefore, measures taken by non-governmental bodi es are within the scope of application of the 
GATS, however, only if they are taken "in the exercise of powers delegated by central, regional or 
local governments or authorities."  
 
The SPS Agreement does not explicitly refer to measures by non-governmental bodies " in the 
exercise of powers delegated by central, regi onal or local governments or authorities." It just states 
that " non-governmental entities within their territories"  shall comply with the relevant provisions of 
this Agreement"  and that sanitary or phytosanitary measures may include other measures than 
governmental legislation (for example in the form of " requirements" and "procedures"). 
 
In conclusion, there are also arguments which permit  the possibility of analyzing private standards, 
established by "non-governmental entities, under WTO rules, particularly under the SPS Agreement. 
 
However, the Panel in EC – Biotech Products
63 established that an "SPS measure" consists of three 
elements: the purpose of the measure, its legal form and its nature":  
"Annex A(1) indicates that for the purposes of determining wheth er a particular measure 
constitutes an "SPS measure" regard must be had to such elements as the purpose of the 
measure, its legal form and its nature.  Th e purpose element is add ressed in Annex A(1)(a) 
through (d) ("any measure applied to").  The form  element is referred to in the second 
paragraph of Annex A(1) ("laws, decrees, regul ations").  Finally, the nature of measures 
qualifying as SPS measures is also addressed in the second paragraph of Annex A(1) 
                                                     
 
63 Panel Report in European Communities – Measures affecting the approval and marketing of biotech 
products , adopted on 29 September 2006 [WT/DS291/R, WT/DS292/R, WT/DS293/R] at paragraph 7.149. 
Furthermore, in paragraph 7.162 the Panel gives an example and states : that a measure (…) " would qualify as 
an SPS measure, as it meets the form (law), nature (requirement) and purpose (one of the enumerated purposes) 
elements of the definition of the term "SPS measure" as provided in Annex A(1). "   G/SPS/GEN/802 
Page 74  
 
  ("requirements and procedures, including, int er alia, end product criteria; processes and 
production methods; testing, inspection, cer tification and approval procedures; [etc.]")." 
 
Thus, according to this very recent report of a Panel,  to comply with the second requirement (the form 
element) it appears that SPS measures can only be in  form of laws, decrees and regulations, while 
"requirements and procedures" are only an additional "nature element". 
 However, a recent Note of the Secretariat to th e Committee on Sanitary and Phytosanitary Measures 
on Private Standards and the SPS Agreement"
64 goes against the interpretation of the Panel. The 
Secretariat stated that "(…), the definition of an  SPS measure in Annex A (1) and the accompanying 
illustrative list of SPS measures does not explicitly limit these to governmental measures." 
 Therefore, a WTO Panel and the WTO Secretariat have expressed different opinions as to whether 
measures which have not been adopted by a government can be defined as SPS measures. 
 
 
2. Interpretative information 
 
2.1 Interpretative information in the context of the negotiation and drafting of the SPS and TBT 
Agreements   
2.1.1 Preparatory works on the TBT Agreement  
On 29 August 1995 the Committee on Trade and Envi ronment (Committee on Technical Barriers to 
Trade) drafted a document on the "Negotiating histor y of the coverage of the Agreement on Technical 
Barriers to Trade with regard to labelling requirements, voluntary standards, and processes and 
production methods unrelated to product characteristics".
65 The document focuses on these selected 
number of issues, and does not attempt to provide a comprehensive review of the negotiating history 
of all disciplines in the Tokyo Round and WTO Ag reements on Technical Barriers to Trade ("the 
TBT Agreement").   For the purpose of this study, considerations in rela tion to the negotiating history of the definitions of 
the terms "standard" and "standardizing body" and in  relation to disciplines for the preparation, 
adoption and application of standards by non-gove rnmental bodies were of particular interest. 
  
2.1.1.1 Definitions 
 
Initially, in the Tokyo Round nego tiations, the term standard was used to denote both mandatory and 
voluntary standards, and different obligations rega rding preparation, adoption and use of standards 
were considered for three categories: mandatory  central government standards, mandatory local 
government standards, and voluntary standards.   
For mandatory central government standards, the Draft Standards Code specified first level of 
obligations on the signatories (i.e., mandatory obligati ons). Second level of obligations were specified 
for the other two categories of standards (i.e., signato ries were to use all reasonable means within their 
power to ensure that the relevant obligations were met). One of the main concerns during the 
negotiations was the question of balance of ri ghts and obligations amongst the signatories, for 
instance, the alleged inequality of obligations which would apply between countries with a large 
                                                     
 
64 G/SPS/GEN/746 of 24 January 2007. 
65 WT/CTE/W/10; G/TBT/W/11 of 29 August 1995.  G/SPS/GEN/802 
 Page 75 
 
 
  proportion of standardization work carried-out by private sector bodies producing voluntary standards 
and those where all standards were mandatory.   After several years of negotiation, the final te xt of the Tokyo Round TBT Agreement, Annex 1 
(Terms and their Definitions for the Specific Pu rposes of the Agreement) contained the following 
definitions: 
 
Standard: 
 "A technical specification approved by a recognized body for repeated or 
continuous application with which compliance is not mandatory." 
 Explanatory Note to the definition of standard: "The corresponding ECE/ISO definition cont ains several normative elements which 
are not included in the above definition. Acco rdingly, technical specifications which 
are not based on consensus are covered by the Code. This definition does not cover 
technical specifications prepared by an individual company for its own production 
or consumption requirements. The wo rd "body" covers also a national 
standardizing system."  
 
Standardizing body: 
 
"A governmental or non-governmental body, one  of whose recognized activities is in the 
field of standardization." 
 
The definitions under the Tokyo Round TBT Agreem ent differed from those used by the Economic 
Commission for Europe and the International Or ganization for Standardization in the ECE/ISO 
standards.  The definition of "standard" that appeared in the final text of the WTO TBT Agreement, after the 
negotiations in the Uruguay Round, reads as follows:  
Standard: 
 
"Document approved by a recognized body , that provides, for common and 
repeated use, rules, guidelines or charac teristics for products or related processes 
and production methods, with which compli ance is not 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. 
 
Explanatory note: 
The terms as defined in ISO/IEC Guid e 2 cover products, processes and services. This 
agreement deals only with technical regula tions, standards and conformity assessment 
procedures related to products or processes and production methods. St andards as defined 
by ISO/IEC Guide 2 may be mandatory or vo luntary. For the purpose of this Agreement 
standards are defined as voluntary and tec hnical regulations as mandatory documents. 
Standards prepared by the international standardization community are based on consensus. This agreement covers also docum ents that are not based on consensus". 
 
No specific definition of "standardizing body" was given in the revised Annex 1 of the WTO TBT Agreement. However, Annex 1 contains the statemen t that "[t]he terms presented in the sixth edition 
of the ISO/IEC Guide 2: 1991, General Terms and their Definitions Concerning Standardization and 
Related Activities, shall, when used in this Ag reement, have the same meaning as given in the G/SPS/GEN/802 
Page 76  
 
  definitions in the said Guide taking into account th at services are excluded from the coverage of this 
Agreement". The definition of "standardizing body" in the ISO/IEC Guide 2: 1991 remains unchanged from the previous version of the Guid e (i.e. from the fifth edition of the Guide is as 
follows: "body that has recognized activities in standardization") . 
 
 
2.1.1.2 Disciplines for the preparation, adoption and application of standards 
 
In the Tokyo Round of negotiations, Section 4 of th e Draft Standards Code contained disciplines with 
regard to preparation, adoption and use of volunt ary standards. The focus was on preventing voluntary 
standards from becoming obstacles to international tr ade, cooperation in preparation of international 
standards, use of international standards, pr oviding notice and taking account of comments when 
voluntary standards are not substantially the same as international standards, exceptions to certain 
disciplines in case of urgent problems, and complian ce of regional standards bodies with the relevant 
disciplines. These disciplines were speci fied in terms of "best efforts"  or second level of obligations. 
For example, the first paragraph of Section 4 stated that: 
 
"Adherents shall use all reasonable means within their power to ensure that 
voluntary standards are not prepared, adopted  or applied with a view to creating 
obstacles to international trade. They shall likewise use all reasonable means 
within their power to ensure that neither  the voluntary standards themselves, nor 
their application have the effect of creating an unjustifiable obstacle to 
international trade." 
 
In the Uruguay Round, several delegations wanted  enhancement of the disciplines on preparation, 
adoption and application of standards in the Tokyo Round TBT Agreement. A number of proposals 
addressed increased transparency and participation in the standards-related activities of different types 
of standardizing bodies (i.e. central government, local, regional or non-governmental standardizing 
bodies).  India proposed
66 notification of voluntary draft (or proposed) standards, including those draft 
standards which were not national standards, but whose wide adoption by the local industry gave 
them a status similar to national standards; no tification of voluntary standards that were made 
mandatory by legislation or by statutory orders; and information to be provided on, and ensuring 
compatibility among, standards issued by recognized  national bodies and other standardization bodies 
within the territory of a party.   
India explained that many parties to the Agreemen t were not notifying voluntary draft standards even 
though they were national standards,  or were being widely applied by the local industry which gave 
them a status similar to that of national standa rds. Also, it was difficult to obtain information on 
standards that had been made mandatory by legisla tion or on standards being formulated by different 
bodies in the country. India suggested that the standa rds prepared by local bodies be notified and that 
a national body be made responsible for provid ing information on, and ensuring compatibility of, 
standards issued by other recognized bodies in the country. 
 The EEC proposed
67 that the Agreement's disciplines pert aining to non-governmental standards 
bodies be enhanced, both at the national level and at  the local level. For this purpose, it proposed a 
Code of Good Practice for Non-Governmental St andardizing Bodies as an annex to the Agreement.68 
                                                      
66 MTN.GNG/NG8/W/9, 45. 
67 MTN.GNG/NG8/W/8. 
 68 TBT/W/110 of 7 July 1988. The EEC considered improvement of the above provisions desirable for 
the following reasons:  G/SPS/GEN/802 
 Page 77 
 
 
  According to the EEC, the aim of this proposal incl uded making "the obligations already laid down in 
Articles 4, 6 and 8 of the Agreement more concre te, and to provide some yardstick by which the 
performance of both Parties and private bodies  could be measured" (emphasis added). The 
disciplines in the EEC's initial proposal for the Ag reement covered transparency, non-discriminatory 
treatment, possibility to comment in writing, effort s to rely on international standards for adopting 
technical regulations and standard s, determining conformity, and operating certification systems. 
 Subsequently, the EEC provided a mo re detailed proposal on the Code
69. It stated the following: "The 
TBT Agreement imposes direct legal obligatio ns only on central government bodies. The 
standardization, testing and certification activities of local government bodies and of non-
governmental bodies  are covered only indirectly, if at all, through the obligation of Parties to "take 
such reasonable measures as may be available to  them" to ensure that those other bodies follow 
certain provisions of the Agreement to which reference is made. This has been called a "best effort" or 
"second level" type of obligation for Parties. B odies other than central government bodies are, 
therefore, not addressed directly, and too few of th em know that they are already to some extent 
covered by the Agreement. Even if they are aware of this, it is difficult for them to deduce from the 
Agreement what precise operational rules they ar e supposed to follow" (emphasis added)  
 The EEC clarified that acceptance of the Code by non-governmental bodies would be voluntary, subject to the Parties taking all practicable measure s to ensure acceptance of and adherence to the 
Code by non-governmental standardization and cer tification bodies within their territory. However, 
while adherence to the Code would be voluntary, a stimulus would exist in the prestige attached to 
adherence. A code would also be self-enforcing, by denying certain benefits to non-parties. It would 
be self-policing, by granting other parties the right to comment and lodge complaints. The EEC also suggested that the following aspects of  transparency to be included in the Code of Good of Good 
Practice for Non-Governmental Standardizing Bodies:  
 
"(1) Annual information would have to be  available on a body's programme for the 
adoption of standards or technical regulations  in the coming year, and on its adoption of 
international standards during the previous year;  (2) at least sixty days in advance, information would have to be available on any particular standard or technical regulation to be  adopted, unless substantially the same as 
an international standard, as  well as on a certification system to be introduced;  
(3) whether this information should be made available at a national enquiry point, obtainable for interested Parties on request, or should be notified to other Parties via an 
international central point (such as ISONET) is to be investigated further;  
                                                                                                                                                                    
 
(a) "Standards drawn up by non-governmental bodies can, when used on a nation-wide basis, in practice 
create barriers to trade as serious as if they were technical regulations drawn up by central government 
bodies; 
(b) A world-wide shift appears to be occurring towards a greater use of standards drawn up by non-
governmental bodies and a lesser use of technical regulations drawn up by central government bodies. 
This includes the EEC. (…) 
(c) The current provisions of the Agreement have not su cceeded in ensuring transparency of, access to, and 
some degree of influence on the activities of non-governmental standardization or certification bodies. 
Likewise, they have not resulted in Parties achieving results regarding non-governmental bodies as if those bodies were Parties. 
(d) This lack of success could be due to three factors: 
a. There may be insufficient incen tives both for no-governmental bodies and Parties to fully 
abide by their substantive obligations; 
b. Those substantive obligations themselves ma y be insufficiently st rict or elaborate; 
c. The substantive obligations are those of parties, but then applied to non-governmental bodies. 
They are not necessarily very practical, operational or even relevant for non-governmental bodies." 
69 TBT/W/124 of 27 July 1989. G/SPS/GEN/802 
Page 78  
 
  (4) the full text of a proposed technical regulation, standard or certification system should 
be available upon request;  (5) Technical regulations and standards wh ich have been adopted should be published 
promptly in such a manner as to enable in terested Parties to become acquainted with 
them. They should be made available upon requ est subject to the usual commercial terms 
and conditions." 
 
The discussions in the TBT Committee showed diverse opinions on the proposals.
70 Based on the 
discussions, revised proposals were submitted by India71 with regard to voluntary draft standards and 
by the EEC72 with regard to the Code of Good Pr actice. The Code of Good Practice for non-
governmental standardizing bodies proposed by the delegation of the United States would, according 
to a statement of the representative of the EEC, only apply to nati onal bodies and did not foresee any 
real link with the Agreement. Private bodies woul d negotiate voluntary guidelines among themselves. 
Such voluntary guidelines might or might not have  any link with GATT objectives. Adherence of the 
bodies to such guidelines would be assumed. As a r esult, any transparency or surveillance would be 
missing.73 
 In its first revision of the proposal for a Code of  Good Practice for Non-Governmental Standardizing 
Bodies, the EEC covered non-governmental bodies at the regional, national and local levels. 
 By October 1990, the discussions resulted in agreemen t on the text of Article 4 and the Code of Good 
Practice, which was reflected in a draft of the Agreem ent. This text of Article 4 and the Code of Good 
Practice was the same as that in the final text of the WTO TBT Agreement.   
2.1.2 Preparatory works on the SPS Agreement 
 
We are not aware of any comprehensive document on the preparatory works on the SPS Agreement in 
general or on the negotiating histor y of Article 13 SPS in particular. 
 From interviews with first hand witnesses of th e negotiations in the Uruguay Round, extending over 
five years, it appears that there were no indicatio ns that, at any time, any individual or country 
proposed during the negotiations that the SPS Agreem ent would have application to the activities of 
private sector organisations that impose SPS-type re quirements for their own purposes. It appears that 
there was no substantive debate on any such proposition.
74  This appears to be confirmed by the lack 
of comments to this end in the preparatory works and minute of the negotiations which have been 
reviewed. 
 
Therefore, from the negotiating history, it seems th at it was not anticipated in any way that the SPS 
Agreement would be applied by WTO Member gove rnments to constrain the practices of business 
enterprises (it can be argued that had it been othe rwise there would have been huge opposition to the 
SPS Agreement from commercial interests in developed countries, and there was not). 
 
 
                                                      
70 MTN.GNG/NG8/W 4, 6, 8, 10, 12, 16, 17 and 18. 
71 MTN.GNG/NG8/W/45. 
72 MTN.GNG/NG8/W/49 and 71. 
73 TBT/M/39 of 13 November 1990, paragraph 13. 
74 Interviews with Gretchen Stanton, Secretary of the SPS Committee and Digby Gascoine, who led the 
Australian delegation in the negotiation of the SPS Agreement in the Uruguay Round.  G/SPS/GEN/802 
 Page 79 
 
 
  2.2 Interpretative information – expressed in WTO Committees 
 2.2.1 SPS Committee 
 
In the WTO SPS Committee meeting on 29 and 30 June 2005 Saint Vincent and the Grenadines 
complained about private standards for bananas and other agricultural products, set by supermarkets 
or private retailers in the EC. Saint Vincent a nd the Grenadines were supported by Jamaica, Peru, 
Ecuador and Argentina. We believe that this is the first time that  such a matter was raised in the 
Committee on Sanitary and Phytosanitary Measures.  
Saint Vincent and the Grenadines' concerns were based on private sector st andards or requirements 
for agricultural products required by European orga nizations such as EurepGAP. In particular, they 
challenged the so-called Good Agricultural Prac tices standard set by EurepGAP which exceeds 
whatever standards, if any, applied by the Eu ropean Community. The complainants called for a 
clarification of Article 13 of the SPS Agreement, which provides that governments should ensure that 
non-governmental entities within their territories shoul d comply with the relevant provisions of the 
agreement.  In response to the complaint, the European Community argued in the SPS Committee that those 
standard-setting organizations are private entities and reflect consumer demand. Furthermore, the 
European Community argued that EurepGAP is not the only body in setting standards. The European 
Community concluded that if there is any claim th at these standards are formal governmental or EC 
standards, then WTO Members should raise the ma tter with the European Community and if the 
complainants were not claiming that the standards we re official standards then any concerns should be 
raised with the non-governmental  organizations concerned.  
 
In response to the European Community 's position, it has been argued that: "private standards do not 
seem purely demand driven. This poses the question as  to the degree to which private standards are 
consistent with the principles of the SPS Agreem ent. There currently seems to be little willingness 
from the EC (and other developed countries) to scrutinise more closely the private standard-setting 
procedures and to question the motives of the marketers who dominate sectors such as fruit and 
vegetables."
75 
 
Private sector standards in the European Comm unity were also discussed in the SPS Committee's 
meeting of 1-2 February 2006. However, as far as we  are aware there has not been, to date, any other 
examination of this matter under WTO law within th e SPS Committee or in the WTO in general, apart 
from the Note of the Secretariat of January 200776. 
  2.2.2 TBT Committee  
In its Second Triennial Review  of the operation and implementati on of the Agreement on Technical 
Barriers to Trade
77 the TBT Committee noted that a diversity of bodies were involved in the 
preparation of international standards (i.e., intergovernmental or non-governmental bodies; 
specialized in standards development or involved al so in other related activities), and that different 
approaches and procedures were adopted by them in their standardization activities. The review 
focuses only international standard-setting bodies and does not make any reference to voluntary 
standards elaborated by non-governmental bodies.  
                                                      
75 Gideon Rabinowitz, SPS Standards and Developing Countries – The Skeleton in the Closet for the 
Doha Round , CUTS International Briefing Paper 1/2006. 
76 G/SPS/GEN/746 of 24 January 2007. 
77 G/TBT/9 of 13 November 2000, paragraphs 19 and 27. G/SPS/GEN/802 
Page 80  
 
  At the TBT Committee meeting held on 15 March 2002
78 the EC drew the WTO Members' attention 
on the issue of "voluntary labelling". The EC noted that a number of labelling schemes were 
developed and applied by non-gove rnmental bodies subjected to the Code of Good Practice (Annex 3 
of the TBT Agreement). The Code provided disci plines for the transparen cy of these schemes and 
according to the EC Representative keeping tho se labelling schemes under review was a very 
important issue. Under the Agreement, however, such obligation is provided only for mandatory 
labelling and no such provision is contained in the Code of Good Practice for voluntary labelling. The 
EC called on the TBT Committee to consider discussing these issues.   At the TBT Committee meeting held on 4 November 2004
79 a representative of OECD introduced 
relevant work on good regulatory practice and market openness in the OECD. He pointed out that 
there had been a general move away from mandat ory measures towards voluntary, industry-led 
standards and related conformity assessment procedur es. This tendency was based on the realization 
that voluntary standards, being market driven, were  more economically efficient, took less time to 
elaborate and offered more flexibility in implementa tion. He noted that an exception to this trend 
could be seen for certain consumer products which presented health and safety risks, or which might 
be characterized by information asymmetries. He al so stressed the need for regulatory coordination 
between central and sub-central authorities, and w ith non-governmental parties, in order to strengthen 
the regulatory quality by involving technical expertise.  At the TBT Committee meeting held on 22-23 March 2005
80 the representative of Grenada reiterated 
the difficulties faced by developing countries regardi ng their participation in the work of international 
standard-setting organizations, due to the high cost of such participation which played as a potential 
barrier to international trade in that it made th e recognition of conformity assessment more difficult. 
The representative called on the TBT Committee to fi nd a way of addressing this issue because, in 
fact, in order to benefit from the system one had to be a member of it. The representative of Antigua 
and Barbuda added that ISO/IEC Standard on Supp lier's Declaration of Conformity seemed to be 
proceeding the same way as ISO 9000: although purported to be voluntary, market forces were making it de facto mandatory.   At the TBT Committee meeting held on 2 November 2005
81, the United States Representative noted 
that in the WTO 2005 World Trade Report the term standards was used broadly to cover market-
driven voluntary requirements as well as government regulations. The US raised its concern on the 
fact that the Report gave the impression that the standards developed by the ISO and IEC were 
recognized by the WTO, and given primary importa nce. She stressed that while the SPS Agreement 
recognized three specific standards-setting bodies, there was no similar identification in the TBT 
Agreement.   2.2.3 Other committees 
 
The issue of voluntary environmental labels has also been discussed in the Committee on Trade and 
Environment, see for example document from Colombia of 9 March 1998 to the CTE and the TBT 
Committee
82 in which Colombia expresses the view that  certain elements of voluntary eco-labelling 
schemes/programmes and criteria are covered by provi sions of the TBT Agreement and the Code of 
Good Practice, including those on transparency. Furt hermore, Colombia reiterated the importance of 
applying Article 4 of the TBT Agreement which states that the WTO Members shall take such 
                                                      
78 G/TBT/M/26 of 6 May 2002, paragraph 127. 
79 G/TBT/M/34 of 5 January 2005, paragraphs 124-127. 
80 G/TBT/M/35 of 24 May 2005, paragraphs 49-52. 
81 G/TBT/M/37 of 22 December 2005, paragraph 148. 
82 WT/CTE/W/76 of 9 March 1998.  G/SPS/GEN/802 
 Page 81 
 
 
  reasonable measures as may be available to them to ensure that non-governmental standardizing 
bodies within their territories accept and comply with the Code of Good Practice. In this particular 
case, no further action was taken in respon se to the issue raised by Colombia. 
  2.3 Interpretations expressed in the literature  2.3.1 Interpretation of Article 13 of the SPS Agreement 
 
Further to the text of Article 13, Luff states th at the SPS Agreement adds to the requirements of 
Article XXIV:12 GATT that that "members ha ve transferred specific responsibilities to non-
governmental entities":  
 
"En vertu de l'article 13 de l'Accord SPS, les mesures SPS visées sont celles que sont 
adoptées aussi bien par les gouvernements centr aux des Membres que par les institutions 
régionales ou locales et les entités non-go uvernementales auxquelles les Membres ont 
confie des taches de mise en  œuvre d'une politique SPS. 
Cette disposition reprend partiellement les term es de l'Article XXIV :12 du GATT. Pour 
rappel, cet article engage les Membres de  l'OMC a prendre "toutes les mesures 
raisonnables en [leur] pouvoir pour que su r [leur] territoire, les gouvernements et 
administrations régionaux et lo caux observant le dispositions » [du GATT]. L'Accord SPS 
y ajoute la responsabilité du fait des entités non-gouvernementales auxquelles les 
Membres ont confié des responsabilités particulières." 
83 
  
Article XXIV (Territorial Application – Frontier Traffic – Customs Unions and Free-trade Areas):12 
of the GATT 1947 provides the following: 
 
"Each contracting party shall take such reasonable measures as may be available 
to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories." 
 
Therefore Article XXIV:12 GATT seems to be the origin of Article 13 SPS.  
 
In the chapter "Impact of the Agreement on Fede ral-State relations" Marsha A. Echols expresses the 
following:  
"Exporters to a federal system may be  faced with several layers of differing 
requirements, for example with the internatio nal standards being the least stringent, 
the federal standard being a middle ground and the subfederal standard being most 
stringent, While the Standards Code app lied only to federal governments, the 
obligations of the SPS Agreement (e.g . scientific basis, lim ited harmonisation, 
definition of necessity, use of the appropria te level of protection, transparency) 
apply at the subfederal level when a local measure affects international trade. 
                                                     
 
83 David Luff, Le droit de l'OMC - Analyse critique , Bruylant, 2004, p. 269. English translation: 
"Under Article 13 of the SPS Agreement, the SPS measures which are envisaged are those which are adopted by 
the central governments of the Members and by regional  or local institutions or by non-governmental entities 
which have been entrusted by the Members with tasks to put in place an SPS policy. This provision partially uses the terms of Article XXIV:12 of the GATT. To remind, this article engages the WTO Members to take "such 
reasonable measures as may be available to then to ensure observance of the provisions of this Agreement by 
the regional and local governments and authorities within its territories." The SPS Agreement adds to those requirements the responsibility for the non-governmen tal entities to which the Members have given specific 
competences."  G/SPS/GEN/802 
Page 82  
 
  While state and local governments – like national governments – remain free to 
protect at the level they consider appropri ate, the Agreement does apply to them (As 
stated in the SPS Agreement "national governments are fully responsible for the 
observance of the Agreement by sub-nationa l governments. This is a change from 
the GATT itself, which requires only "rea sonable measures" to ensure observance 
of the GATT by subfederal governments, at least within the context of customs 
unions. Article XXIV:12. The Standards Code  used the same "reasonable measures" 
language. See for example Article 3.1 (relating to the preparation, adoption and application of technical regulations and standards by local governments)). However 
the SPS Agreement does not require a federal government to impose an 
international standard on a subfederal governmental body and nothing in the 
Agreement requires a state or local government  to meet or comply with a federal 
SPS measure. A measure must "support" the observance of the SPS Agreement by 
state and local governments.   
In addition it must take measures reasonably available to it to ensure that non-
governmental entities within its territo ry and regional bodies comply with the 
Agreement and must not take measures which support non-compliance by these 
entities. Only when a non-governmental en tity complies with the Agreement may a 
Member rely on its services in implementing SPS measures.
84  
 
 
2.3.2 Applicability of the WTO agreements to private standards 
 
It has been argued that "while the process of notification under the SPS Agreement has contributed to 
increased transparency of official food safety and agr icultural health measures, this has been 
accompanied by the proliferation of private standards  that fall outside of the purview of the WTO."85 
 
In terms of their legal character, the national ru les covered by the SPS Agreement include technical 
regulations and their conformity assessment proce dures, but probably not standards produced by non-
governmental bodies. 86 
 
Whereas much of the concerns about the impact  of SPS standards on trade has concentrated on 
mandatory government requirements, there is grow ing awareness that voluntary standards can also 
impede trade. Firstly, compliance with establis hed voluntary standards may be essential because 
consumers require compatibility with complement ary products or services (for example plastic 
containers and microwave ovens). Secondly, voluntar y standards may be closely related to consumer 
preferences (for example safety marks that are seen by consumers as an essential guarantee of 
minimum product quality). Thirdly, voluntary stan dards may be considered crucial for compliance 
with mandatory standards (for example ISO 9000 as a means of satisfying the requirements of food 
safety regulations). If such standards are so widely applied that they become de facto  mandatory, there 
may in practice be little choice but for foreign suppliers to comply. 87 
 
                                                      
84 Terence P. Stewart (editor), The World Trade Organisation, The multilateral trade framework for the 
21st century and U.S. implementing legislation , Marsha A. Echols, Sanitary and Phytosanitary measures , p. 
208. 
85 Steven M. Jaffee and Spencer Henson, Standards and Agro-Food Exports from Developing 
Countries: Rebalancing the Debate , World Bank Policy Research Working Paper 3348, June 2004, p. 9. 
86 Mc Govern, International Trade regulation , Paragraph 14.41. 
87 Spencer Henson, Sanitary and phytosanitary measures in a global context: trade liberalization 
versus domestic protection , in: Negotiating the future of agricultural policies – Agricultural trade and the 
millennium WTO round  [2000], edited by Sanoussi Bilal and Pavlos Pezaros.  G/SPS/GEN/802 
 Page 83 
 
 
  In a recent paper, the World Bank addressed the possible adverse impact that both "public" and 
"private" standards may have on f ood exports from developing countries.88 The WTO World Trade 
Report 2005 states that "even if these standards are not protectionist in intent, they can have highly 
discriminatory consequences for trade partners"89. 
 
 
2.3.3 Definition of measure 
 
Under the heading "Measures", Mc Govern90 states the following:  
 
"WTO Agreements frequently use the word  measure to refer to behaviour which 
Members may be held responsible in di spute proceedings. This practice gives 
support to a notion that seems to be implicit in the jurisprudence of panels and the 
Appellate Body: that common principl es of responsibility apply throughout the 
WTO system of rules. The Appellate Body has said that " a measure may be any act 
of a Member, whether or not legally binding, and can include even non-binding 
administrative guidance by a government", and can also be an omission or failure 
to act on the part of a Member. In fact, any act or omission attributable to a 
Member can be a "measure"91. The term includes not only normative rules (i.e. 
those measures of general application) , but also executive acts, such as the 
imposition of tariffs, as well as the applic ation of laws in a Member's practice." 
 
The WTO Dictionary of Trade Policy Terms defines measure as follows:  
"Normally any law, rule, regulation, policy, practice or action carried out by government 
or on behalf of a government".92 
 
 
2.3.4 Application of the TBT Agreement 
 
WTO Members must ensure that their central-government standardizing bodies93 accept and comply 
with the Code of Good Practice. They must take reasonable measures to ensure the same response by 
their local governments and non-governmental standa rdizing bodies, as well as regional standardizing 
bodies of which they or bodies within their territori es are members. In addition, they must not take 
measures which have the effect, directly or indir ectly, of requiring or encouraging such bodies to act 
                                                      
88 Steven Jaffee et al. (2005), Food Safety and Agricultural Health Standards: Challenges and 
Opportunities for Develop ing Country Exports , Report no. 31207 of 10 January 2005, Poverty Reduction & 
Economic Management Trade Unit and Agriculture and Rural Development Department, World Bank. 
89 Patrick Low et al (2005), Worl d Trade Report, 2005, Part II, Trade Standards and the WTO ". 
Available at: 
http://www.wto.org/english/res_e/booksp_ e/anrep_e/world_trade_report05_e.pdf  
90 Mc Govern,  International Trade Regulation , paragraph 1.1332; Appellate Body Report Guatemala 
Cement , paragraph 69, footnote 47. 
91 Mc Govern, International Trade Regulation, Para. 1.1332, quoting the Appellate Body Report US-
Corrosion-Resistant Steel Sunset Review , paragraph 81. 
92 WTO Dictionary of Trade Policy Terms , fourth edition, Walter Goode [2003] 
93 There is no definition of "standardizing body". Ho wever, the terms presented in the sixth edition of 
the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning Standardization and Related 
Activities, shall, when used in this Agreement, have th e same meaning as given in the definitions in the said 
Guide taking into account that servi ces are excluded from the coverage of  this Agreement (Annex 1 to the TBT 
Agreement). G/SPS/GEN/802 
Page 84  
 
  in a manner inconsistent with the Code. These oblig ations apply whether or not a standardizing body 
has accepted the Code.  The legal consequences of acceptance are indirect. The WTO provides no means of bringing proceedings against bodies which have  behaved inconsistently with th e Code, and the only obligations 
of WTO Members are those mentioned above. 
 The position of non-governmental bodies in regard to conformity assessment procedures is governed 
by Article 8. The obligation on WTO Members is essentially to take reasonable measures to ensure 
compliance with the basic rules (except for notific ations and proposed procedures). Furthermore they 
must not require or encourage inconsistent behaviour.
94 
  
2.4 Conclusions 
 In conclusion, there is no WTO case law in relati on to non-governmental entiti es and Article 13 of the 
SPS Agreement.  However, a Panel report which di d not concern non-governme ntal bodies, permits to 
draw some indications on how a Panel could analys e a possible violation of the SPS Agreement by a 
non-governmental body. First, it w ould look at Article 13 of the SPS Agreement to determine whether 
there is "responsibility" of a WTO Member; then, "reading in the light of Article 1.1 of the SPS 
Agreement" it would establish whether the measure at  stake is an SPS measure; finally, it would 
decide whether there is a violation of the SPS Agreement. 
 According to other WTO case law, a degree of government involvement is required to put a measure under the scrutiny of the WTO Agreements.  Furthe rmore, case law on the entrustment and direction 
provisions of the SCM Agreement concluded that th e ordinary meaning of the words "entrusts" and 
"directs" requires an "explicit and affirma tive action of delegation or command."  
 Other interpretative information, such as the prep aratory works to the TBT and SPS Agreements or 
the work in the respective WTO Committees, does not add much inte rpretation in relation to the 
activities of non-governmental standard-setting a nd standard-applying organi sations. Distinguishing 
between private bodies and non-governmental entities appear s to be a crucial step that may need to be 
taken at WTO level. In this context, the negotia tion history of the TBT Agreement shows that the 
European Community switched in its  terminology in its proposals from the term "private entities" to 
"non-governmental bodies.
95 
 From the negotiating history of the SPS Agreement, it appears that there were no propositions by any 
individual or country that the SPS Agreement would ha ve application to the activities of private sector 
organisations.  In addition, as far as we are aware, there has not been, to date, any other examination of this matter 
under WTO law within the SPS Committee or in the WT O in general, apart from the recent Note of 
the Secretariat of 24 January 2007.
96 
                                                      
94 Mc Govern, International Trade Regulation , Paragraph 7.243. 
95 See the EEC's proposals of 7 July 1988 (TBT/W/110) and of 27 July 1989 (TBT/W/124). 
96 G/SPS/GEN/746 of 24 January 2007.  G/SPS/GEN/802 
 Page 85 
 
 
  Annex 6  
 
O ' C O N N O R   A N D   C O M P A N Y 
E  U  R  O  P  E  A  N     L  A  W  Y  E  R  S 
 
  
 
    
   
Private Standards within the  
WTO Multilateral Framework 
Report 3 
 
 
by 
  
 
Ignacio Carreño and Paolo R. Vergano 
    
 
    
 
  
O'CONNOR AND COMPANY 
European Lawyers 
 
Rue de Spa, 30 
B 1000 Brussels, Belgium 
Telephone: (32+2) 285 4685 
Facsimile: (32+2) 285 4690 G/SPS/GEN/802 
Page 86  
 
   
 
Report 3: Legal options and possible suggestions, or courses of action to address the issue of 
private standards and the position of non-gov ernmental bodies' standards within the WTO 
system 
 
Table of contents Page 
Introduction ……………………………………………………………… 87 
1. How can governments impose standards on NGOs? ………………….. 88 
1.1 Considerations on the WTO Members' constitutional  
systems and the direct effect of WTO law …..……………………  
88 
1.2.Competition law as domestic tool ……………………………. 91 
2. Interpretative guidance …………………………………………………. 92 
3. Other possible solutions ……………………………………………….. 93 
4. Dispute settlement 94 
5. Creation of an ad hoc Committee ……………………………………… 94 
6. Formal amendment of the Agreements…………………………………. 95 
   G/SPS/GEN/802 
 Page 87 
 
 
  Report 3 
 
"Legal options and possible suggestions, or cou rses of action, to address the issue of private 
standards and the position of non-government al bodies' standards within the WTO system"    
  
Introduction 
 
The general conclusion of Reports 1 and 2 is that the SPS Agreement does not provide interpreters 
with a definition of non-governmental bodies. Th ere is also no case law on the term under the SPS 
Agreement. 
 Two lines of arguments are available. The first argue s that, for a non-governmental body to be subject 
of the SPS Agreement, a certain degree of gove rnment involvement is necessary.  Under the second 
line of argumentation, a non-governmental body does not need to have governmental involvement to 
fall under the SPS Agreement.  Under both argumentativ e approaches, it needs to be considered that a 
non-governmental body is not necessarily the same as a private body.  In order to define a non-governmental body, it might  be helpful to oppose the term to "governmental 
body". A governmental body would be any entity granted the power by law to enforce regulations (i.e., laws, decrees or ordinances). The essential aspect  here is that the power of the entity derives 
from the law. The form and nature of the enforc ing measures (adoption of secondary legislation, 
application of legal procedures, etc.) are not of re levance as to the issue of whether the measure is 
taken by a governmental body, as long as in the sp ecific case the body at stake is acting within the 
limits of the delegated powers.   
A non-governmental body would, under normal circ umstances, not have the power to enforce 
regulations, unless it has been granted that power explicitly by a governmental body. Therefore, a 
non-governmental body appears to be any legal entit y, which is recognised by the national law of a 
WTO Member as such.   It may be argued that a non-governmental body un der the SPS Agreement is only a body which has 
legal power to enforce a technical regulation. This  conclusion is drawn on the basis of the definition 
of non-governmental body contained in point 8 of  Annex 1 to the TBT Agreement, which provides 
that a non-governmental body is a "body, other than a central government body or a local government body, including a non-governmental body which has legal power to enforce a technical regulation".   
Two main questions derive from this provision: 
1) What is the coverage of the term non -governmental body under the TBT Agreement? 
2) Can the definition provided in the TBT Agreemen t be applied analogically to the SPS Agreement?  
 From the literary reading of the provision, the conclusion may be reached that a non-governmental 
body is any entity other than a central governmental body or a local government body. The provision 
includes the entities which are empowered by law to enforce regulations. All the other bodies, which 
are not empowered by the law, also appear to fall with in the scope of the definition. There is no doubt 
as to whether the definition of non-government al body covers as well bodies which are legally 
empowered to enforce regulations (by a central or  regional governmental body, not by law), since the 
provision expressly determines that those fall under the scope of the definition ("including a non-
governmental body which has legal power to enforce a technical regulation").  
 A different approach may be argued following the GATS, even if this agreement does not provide a 
definition of non-governmental body.  However, wh en determining the scope of the Agreement, the 
GATS states that a measure is considered to be a measure taken by a WTO Member when it is taken G/SPS/GEN/802 
Page 88  
 
  by central, regional or local governments and aut horities (i.e., bodies empowered by law to enforce 
regulations), or by non-governmental bodies in the exercise of powers delegated by central, regional 
or local governments or authorities. Therefore, not any measure taken by any non-governmental body would fall under the scope of the GATS. It needs to  have been taken by a body to which specific 
powers have been delegated.  
 
The question is whether the approach under the GA TS can be applied analogically to the other WTO 
agreements (and, specifically, to the TBT and SPS Ag reements)? Or should an argument "a contrario" 
be applied to get to the conclusion that the TBT and the SPS Agreements cover a wider definition of 
the term "non-governmental body" and do not limit it to the bodies acting in the exercise of delegated 
powers?  
 It appears that there are good arguments for the second approach ("a contrario"). Had the parties 
wanted to "narrow" the scope of the term, they woul d have explicitly done that. As already stated, the 
TBT Agreement contains a very broad definitio n of non-governmental body. The SPS Agreement 
does not provide a definition and it can be concluded that the term should be defined according to its 
common meaning which would cover any legal ent ity, other than governmental bodies.  However, 
from the negotiating history of the SPS Agreement, it  appears that it was not intended in any way that 
the SPS Agreement would be applied by WTO Memb er governments to constrain the practices of 
private bodies.  
Therefore, after analysing the literary meaning of the provisions, look ing at the case law and 
considering the negotiating history, the question on how to define a non-governmental entity under 
the SPS Agreement appears to remain open.  This th ird Report, which builds on the previous two legal 
assessments and on the work conducted by the lead  consultant (as discussed during the coordination 
meeting held in Brussels, Belgium on 5 Februa ry 2007), presents and discusses any relevant legal 
option, possible suggestions, or courses of action (a s the case may be) to address the issue of private 
standards and the position of non-governmental bodies'  standards within the WTO system and, in 
particular, the SPS and TBT Agreements.    The first part of the report discusses how govern ments can impose standards on non-governmental 
organisations. It gives considerations on the WT O Members' constitutional systems and the direct 
effect of WTO law and suggests whether competitio n law could serve as domestic tool addressing the 
issue. Part 2 discusses the option of an interpre tative guidance and part 3 of the report suggests 
plurilateral ways forward to address the issue. Finally , part 4 deals with dispute settlement, part 5 with 
the creation of an ad hoc committee dealing with NGO issues and part 6 with the formal amendment 
of the Agreements. 
 
 
1. How can governments impose standards on NGOs? 
 1.1 Considerations on WTO Members' constitution al systems and the direct effect of WTO law 
 The idea that WTO agreements may "impose" guidelines or working criteria on private entities 
appears to be a significant and controversial assumpti on.  The question here is  how this would relate 
to the WTO Members' constitutional systems? Under the constitutional systems of most WTO 
Members, WTO agreements do not produce direct effects.   
Certain WTO norms (especially the TRIPs Agre ement and the SPS and TBT Agreements) define 
detailed individual rights and public obligations, although this does not necessarily mean that WTO  G/SPS/GEN/802 
 Page 89 
 
 
  norms are directly applicable.97  Imposing provisions of WTO law to private entities without 
public/governmental intervention by the individual WTO Member having jurisdiction on those private 
entities would require the direct effect of WTO law.  What does direct effect mean? In the European Community, direct effect or direct applicability means 
that a European Community law provision "not only imposes obligations on individuals but is also 
intended to confer upon them rights which become part of their legal heritage."  This is usually the 
case if a provision contains a "clear and unconditional obligation" .
98 
 WTO agreements have remained neutral on the issu e of whether their rules should produce direct 
effect and it is for EACH WTO Member to decide how to incorporate WTO law into its national legal 
order.
99 WTO Panels and the Appellate Body have c onsistently maintained this position in their 
reports, stating that "[n]either the GATT nor the WTO has so  far been interpreted by GATT/WTO 
institutions as a legal order producing direct effect ."100 Under such circumstances, directly effective 
law takes precedence over national law, meaning that  such provisions "not only render automatically 
inapplicable any conflicting provision of current national law but… also preclude the adoption of new 
national legislative measures.101 
 In United States - Sections 301-310 of the Trade Act , the Panel remarked that the GATT/WTO did not 
create a new legal order the subjects of which co mprise both contracting parties or WTO Members 
and their national: 
 
"Under the doctrine of direct effect, which has been found to exist most notably in the legal 
order of the EC but also in certain free tr ade area agreements, obligations addressed to 
States are construed as creating legally enforceable rights and obligations for individuals. Neither the GATT nor the WTO has so far been interpreted by  GATT/WTO institutions as a 
legal order producing direct effect.(661) Follo wing this approach, the GATT/WTO did not 
create a new legal order the subjects of which comprise both contracting parties or 
Members and their nationals.
102 
 
Footnote 661:  We make this statement as a matter of fact, without implying any judgment on 
the issue. We note that whether there are ci rcumstances where obligations in any of the 
WTO agreements addressed to Members would create rights for individuals which national 
courts must protect, remains an open question,  in particular in respect of obligations 
following the exhaustion of DSU procedures in a specific dispute.103 The fact that WTO 
institutions have not to date construed any obli gations as producing direct effect does not 
necessarily preclude that in the legal system  of any given Member, following internal 
constitutional principles, some obligations will be found to give rights to individuals. Our 
statement of fact does not prejudge any decisions by national courts on this issue." 
                                                      
97 See for example: Markus Krajew ski, Democratic Legitimacy a nd Constitutional Perspectives of 
WTO law, Journal of World Trade 35(1), p. 167-186 [2001]. 
98 The citation is taken from ECJ Case 26/62, van Gend & Loos [1963] ECR, 1 (11-12). 
99 Alberto Alemanno, Judicial enforcement of the WTO hormones ruling within the European 
Community: toward EC liability for the non-implementation of WTO dispute settlement decisions?, Harvard 
International Law Journal, Volume 45, Number 2, Summer 2004.. 
100 Panel Report, United States - Sections 301-310 of the Trade Act of 1974 , WT/DS152/R of 22 
December 1999, paragraph 7.72. 
101 ECJ Case 106/77, Simmenthal [1978], ECR [629], paragraph 17. 
102 Panel Report, United States - Sections 301-310 of the Trade Act of 1974 , WT/DS152/R of 22 
December 1999, paragraph 7.72. 
103 See Eeckhout, P., The Domestic Legal Status  of the WTO Agreement: Interconnecting Legal 
Systems, Common Market Law Review, 1997, p. 11; Berk ey, J., The European Cour t of Justice and Direct 
Effect for the GATT: A Question Worth Revisiting, European Journal of International Law, 1998, p. 626). G/SPS/GEN/802 
Page 90  
 
   
Thus, in principle, WTO Members are free to deci de whether WTO Agreements may produce direct 
effect within their jurisdiction. Accordingly, as a result of the Uruguay Round, the EC and the US 
prevented the invocation of WTO rules before domestic  courts by expressly denying any direct effect 
in their respective ratification acts. 
 
In the European Community, Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the 
agreements reached in the Ur uguay Round multilateral negotiations
104 provides the following: 
 
"Whereas, by its nature, the Agreement establishing the World Trade Organization, 
including the Annexes thereto, is not susceptible to being directly invoked in Community or 
Member State courts." 
 
The European Court of Justice has historically show n a more assertive attitude by debating whether to 
recognise the direct effect of such rules within the EC legal order. Early ECJ case law denying the 
direct effect of GATT rules was mainly based on two arguments (1) the GATT had to be conceived as a trade/diplomatic tool, rather than a judicial one ; and (2) the flexible and imprecise agreement is 
incapable of conferring community rights th at citizens can invoke in domestic courts.
105 After the 
WTO was established, the ECJ revaluated its prio r arguments in light of the newer, more rule-
orientated organisation. However, the ECJ relied on concerns over the lack of reciprocity and upheld 
its prior case law denying direct effect.106  
 Under the "reciprocity argument" the EC courts find that none of the EC major trading partners gave 
direct effect to the WTO rules. This was a reason for the courts to deny direct effect to the WTO rules. 
In the Judgment of 23 November 1999, Portuguese Republic v Council of the European Union
107, the 
ECJ ruled as follows: 
 
"As regards, more particularly, the application of the WTO agreements in the Community 
legal order, it must be noted that, according to its preamble, the agreement establishing the 
WTO, including the annexes, is still founded, like GATT 1947, on the principle of negotiations with a view to `entering into reciprocal and mutually advantageous 
arrangements' and is thus distinguished, from  the viewpoint of the Community, from the 
agreements concluded between the Commun ity and non-member countries which introduce 
a certain asymmetry of obligations, or create special relations of integration with the 
Community, such as the agreement which th e Court was required to interpret in 
Kupferberg.
108" 
 
                                                      
104 Official Journal of the Euroepan Union, L 336 , 23/12/1994, p. 1. 
105 ECJ Case C-21/72 International Fruit Co. v. Produktschap voor Groenten en Fruit, [1972] ECR 
[1219], 1224. 
106 ECJ Case C-149/96, Portuguese Republic v. Council, ECR [1999] I-8395. 
107 ECJ Case C-149/96.  ECR [1999] Page I-8395. 
108 Judgment of the Court of 26 October 1982. Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A.. 
Reference for a preliminary ruling: Bundesfinanzhof – Germany, Case C-104/81, ECR [1982], p. 3641.  G/SPS/GEN/802 
 Page 91 
 
 
  Recognising direct effect or the existence of rights for private parties is generally believed to hamper 
the ability of WTO Members to defend domestic interests by undermining the flexibility that underpins the whole multilateral trade system.
109 
 It is common ground, moreover, that some of the contracting parties, which are among the most 
important commercial partners of the Community , have concluded from the subject-matter and 
purpose of the WTO agreements that they are not am ong the rules applicable by their judicial organs 
when reviewing the legality of their rules of domestic law.   Admittedly, the fact that the courts of one of the pa rties consider that some of the provisions of the 
agreement concluded by the Community are of direct application, whereas the courts of the other 
party do not recognise such direct application, is not in itself an element constituting a lack of reciprocity in the implementation of the agreement.
110 
 However, the lack of reciprocity in that regard on the part of the Community's trading partners, in 
relation to the WTO agreements which are base d on `reciprocal and mutually advantageous 
arrangements' and which must ipso facto be di stinguished from agreements concluded by the 
Community, referred to in paragraph 42 of the pr esent judgment, may lead to disuniform [sic]
 
application of the WTO rules."111 
 There are discussions on whether WTO law is directly  applicable in certain Asian countries such as 
China.
112 
 
 
1.2. Competition law as domestic tool  
The question here is whether the matter at stake must  be seen and debated exclusively in light of the 
WTO framework or whether there ar e other international or domestic legal instruments available to 
address the issue of private standards and the posi tion of non-governmental bodies' standards.  We 
believe that competition law (antitrust law) may re present one such domestic tool and it has already 
been mentioned as a possible avenue.  
The European Commission consultation documen t of 18 May 2006 "Towards a reform of the 
common market organisation for the fresh and processed fruit and vegetable sectors"
 113 states the 
following:   
"The move towards concentration in the agr i-food industry is growing, especially 
in large-scale retailing. The number of s upermarket chains is falling, with the 
result that their purchasing power on the market is growing stronger, along with their capacity to influence the supply chai n. Able to buy huge quantities at very 
competitive rates, they are now in the po sition to impose specifications, the cost 
of which often falls to the producer."  
 
                                                     
 
109 Alberto Alemanno, Judicial enforcement of the WTO hormones ruling within the European 
Community: toward EC liability for the non-implementation of WTO dispute settlement decisions? Harvard 
International Law Journal, Volume 45, Number 2, Summer 2004.. 
110 Kupferberg, paragraph 18. 
111 ECJ Case C-149/96.  ECR [1999], p. I-8395, paragraphs 42 – 45. 
112 See Article of Qinggjiang Kong, Enforcement of WT O Agreements in China – Illusion or Reality?, 
Journal of World Trade (2001) p. 1181-1214. 
113 European Commission's consultation document for impact assessment of 18 May 2006 "Towards a 
reform of the common market organisation for the fresh and processed fruit and vegetable sectors". G/SPS/GEN/802 
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  In relation to the question on "why food safety and quality standards are implemented?" the World 
Bank Report on "Food Safety and Agricultural Health Standards" 
114concludes the following:  
 
"Private standards are implemented by bus inesses and other entities, individually or 
collectively. Such standards evolve for very d ifferent reasons. Often they are devised to 
enhance economic efficiency, by facilitati ng communication between buyers and sellers 
or by ensuring the compatibility of product components or products that are consumed 
jointly. Or they can be the basis of the co mpetitive strategies of firms-  a means to 
communicate with consumers and enhance reput ation. Market signals are sufficient to 
induce the development of private standards. Th e role of the government is to ensure 
that such standards do not constitute or conceal anti-competitive practices." 
 
Also the WTO Secretariat has emph asised in its note of January 2007 on "Private standards and the 
SPS Agreement"115 that consolidation in food retailing is a key factor to consider and that where a 
small number of food retailers account for a high proportion of food sales, the options for suppliers 
who do not participate in either an individual or collective retailer standard scheme can be 
considerably reduced:  
"Private standards are not mandatory. Sup pliers are not required by law to meet 
private standards. Compliance with private standards is a choice on the part of the 
supplier. Where private standards become the industry norm, however, choice is 
limited. Consolidation in food retailing may be a key factor to consider in this context. 
Where a small number of food retailers account for a high proportion of food sales, the options for suppliers who do not participate in  either an individual or collective retailer 
standard scheme can be considerably reduced. Furthermore, the retailer scheme may 
be de facto applied as the industry norm by all actors in the supply chain. Thus the 
choice of whether or not to comply with a voluntary standard becomes a choice between 
compliance or exit from the market. In this  way, the distinction between private 
voluntary standards and mandatory "officia l" or "public" requirements can blur." 
 
In combination with the concentration of certain re tailer markets, such as in the Member States of the 
European Community, there seems to be a domestic  competition issue with private standards (i.e., 
maybe the abuse of a dominant position or collusion of  retailers) that could be worth looking at and 
studying further as a possible way forward.   
2. Interpretative guidance 
 
The issue of private or non-governmental bod y standards could also be addressed by seeking 
interpretative guidance, for example in the form of an ad hoc  decision within the WTO system and, in 
particular, the SPS and TBT Agreements.    Such a decision by the SPS Committee, for example,  could give guidance on how to interpret Article 
13 of the SPS Agreement. It could also define te rms such as "measures", "measures applied" and 
"non-governmental entity" in the sense of the SPS Agreement.  This decision could also give 
                                                     
 
114 S. Jaffee et al. (2005), "Food Safety and Ag ricultural Health Standards: Challenges and 
Opportunities for Developing Country Exports," Report no. 31207 of 10 January 2005, Poverty Reduction & 
Economic Management Trade Unit and Agriculture and Rural Development Department, World Bank, Chapter 
1, page 9. Available at http://www-wds.worldbank.org/servlet/WDSContentServer/  
WDSP/IB/2005/01/25/000160016_20050125093841/Rendered/PDF/31207.pdf  . 
115 G/SPS/GEN/746 of 24 January 2007.  G/SPS/GEN/802 
 Page 93 
 
 
  guidance as to what degree of governmental involveme nt is necessary, or which parameters are to be 
used so that a measure under the SPS Ag reement can be defined as governmental. 
 While this approach is, theoretically possible an d maybe even to be encouraged, in practice the 
discussion and adoption of such an ad hoc  decision appears difficult to be achieved for the difficulty 
to trigger the necessary procedural mechanisms within the WTO system, the complexity of the 
discussions and negotiations, the foreseeable disag reement among WTO Members as to the need for 
such step and the likely opposition of pow erful lobbies to any such development. 
  3. Other possible solutions  
There may be other avenues available under the WTO syst em in order to deal with the issue of private 
or non-governmental body standards.  Within th e WTO system, useful examples are provided by 
references found in the language of the GATS,  the Annex on Telecommunications, and the 
Agreement on Pre-shipment Inspections. 
 
Article VII.5 of the GATS provides that: 
 
"…members shall work in cooperation  with relevant intergovernmental and non-
governmental organizations towards th e establishment and adoption of common 
international standards and criteria for recognition and common international standards 
for the practice of relevant services trades and professions" (emphasis added).  
 
The Annex on Telecommunications, in its paragraph 7, states that WTO Members need to consult 
intergovernmental and non-governmental organizatio ns on matters arising from the implementation of 
the Annex:  
 
"Members recognize the role played by  intergovernmental and non-governmental 
organizations and agreements in ensuring the efficient operation of domestic and global telecommunications services, in particular the International Telecommunication Union. Members shall make appropriate arrangements, where relevant, for consultation with 
such organizations  on matters arising from the implementation of this Annex." 
 
The Agreement on Pre-shipment Inspection also prov ides for an NGO role and calls in Article 4 for 
the establishment of an "Independent Entity" to oversee binding arbitration between exporters and 
inspection entities. In 1995, the WTO established this  Independent Entity through an agreement with 
the International Chamber of Commerce (ICC) a nd the International Federation of Inspection 
Agencies (IFIA). Furthermore, these two NGOs have  assisted the WTO in its operational work on 
pre-shipment inspection. For example during 1998, the WTO Working Party on Pre-shipment Inspection held informal meetings with interested  international organisations, the IFIA and the ICC.
116 
 The previous examples indicate steps that could be ta ken in order to provide an institutionalised forum 
for discussion within the WTO on the issue of private or non-governmental body standards and their 
relation to trade.  For this to happen, obviously, th e WTO would have to agree on relevant language to 
be added to the SPS and/or TBT Agreements (b y means of amendment or a stand-alone legal 
instrument).  As seen in the previous section, th is appears to be a possible but likely unrealistic 
avenue. 
 
                                                     
 
116 Steve Charnovitz,, Trade Law and Governance, Cameron May [2002], Chapter 16, Opening the 
WTO to nongovernmental interests, p. 495, 503. G/SPS/GEN/802 
Page 94  
 
  A similar option could be the one of seeking agreem ent, on the issue of private or non-governmental 
body standards and their relation to trade, betw een a selected group of WTO Members that would 
draft, adopt and commit to certain ad hoc  obligations by means of a "p lurilateral instrument".  An 
example of such plurilateral effort in the WTO system is provided by the Reference Paper on 
Telecommunications Services .  This legal instrument would offer the opportunity to regulate certain 
key aspects of private or non-governmental body standards while not imposing them on the WTO 
Membership as a whole, but allowing WTO Members to voluntarily adopt such additional commitments.  Again, the practical feasibility of such approach appears somewhat remote. 
  4. Dispute settlement 
 
Dispute settlement at the WTO could also be imag ined as a possible legal avenue through which to 
address the matter of private standards.  Although not  very likely, a developing country could initiate 
dispute settlement proceedings against another WTO Member in relation to a private standard which 
is presumably not based on science, which is widely used by a number of retailers, and which is de 
facto  required for accessing that WTO Member's market. 
 This legal avenue does not appear to be an easy and effective solution.  WTO dispute settlement is 
expensive, politically sensitive, and often incapable of  delivering the expected results.  In any event, 
one of interesting questions that would face a possible complainant is how a WTO panel would 
interpret the obligation to base measures on science in the light of  Article 13 of the SPS Agreement. 
 In Australia – Salmon, the Panel made reference to Article 13 in support of the finding that the 
Tasmanian measure was subject to the SPS Ag reement and fell under the responsibility of 
Australia.
117  Although this report of the Panel did not concern non-governmental bodies, it permits to 
draw some indications on how a Panel would analys e a possible violation of the SPS Agreement by a 
non-governmental body.  First, it would look at Article 13 of the SPS Agreem ent to determine whether there is "responsibility" 
of a WTO Member; then, "reading in the light of Article 1.1 of the SPS Agreement," it would decide whether the measure at stake is an SPS measure; fina lly, it would rule on whether there is a specific 
violation of the SPS Agreement, for example of th e obligation to base measures on science.  For the 
reasons described in Reports 1 a nd 2, this legal process appears to be a very complex and difficult 
path that a complainant would struggle to take in relation to the issue of private or non-governmental 
body standards and their relation to trade.   5. Creation of an ad hoc  Committee 
 
To address the issue of standards of non-governme ntal bodies (and other issues relating to NGOs), a 
specific Committee could be established within the WTO system.  
Article V (Relations with Other Organizations), pa ragraph 2 of the Agreement Establishing the World 
Trade Organization ("WTO Charter") suggests certain relationships for NGOs:  
"The General Council may make appropriate  arrangements for consultation and 
cooperation with non-governmental organizations concerned with matters related to those 
of the WTO." 
 
                                                     
 
117 WT/DS18/RW of 18 February 2000, paragraph 7.162.  G/SPS/GEN/802 
 Page 95 
 
 
  The idea of creation of a "Steering group" or an "Advisory Economic and Social Committee"118 has 
also been suggested in the literature:  
"The WTO is believed to be an organisation that is "government to government". This 
implies that NGOs have no role here: "A steering group, some kind of small group in the 
organisation, which may help the Director-General.  The WTO is far behind to most of the 
international organisations with regard to how it handles NGOs. Others have very 
elaborate methodologies of accreditation of NGOs, such as the UN or the ILO and the WIPO".
119 
 
In relation to this avenue, it appears difficult to  imagine that an NGO co uld be identified and 
organized to capture the discontent of developing count ries' traders in relation to the issue of private 
or non-governmental body standards.  In addition, the lobbies that ha ve opposite interests and agendas 
would likely be operating to set-up similar NGOs in order to have their contrasting voices heard in the 
debate. 
 
 
6. Formal amendment of Agreements 
 
A formal amendment of one or more of the cove red Agreements (SPS, TBT Agreement) could be 
another way forward to address the issue of priv ate standards and the position of non-governmental 
bodies' standards within the WTO system. 
 
Article X of the Agreement Establishing the Worl d Trade Organization ("WTO Charter") concerns 
the procedure for amendments of, for example, th e SPS and TBT Agreements, contained in Annex 1A 
to the Agreement Establishing the WTO: 
 
"1. Any Member of the WTO may initiate a prop osal to amend the provisions of this 
Agreement or the Multilateral Tr ade Agreements in Annex 1 by submitting such proposal 
to the Ministerial Conference. The Councils lis ted in paragraph 5 of Article IV may also 
submit to the Ministerial Conference proposals to amend the provisions of the corresponding Multilateral Trade Agreements in  Annex 1 the functioning of which they 
oversee. Unless the Ministerial Conference decides on a longer period, for a period of 90 
days after the proposal has been tabled fo rmally at the Ministerial Conference any 
decision by the Ministerial Conference to s ubmit the proposed amendment to the Members 
for acceptance shall be taken by  consensus. Unless the provisi ons of paragraphs 2, 5 or 6 
apply, that decision shall specify whether the provisions of paragraphs  3 or 4 shall apply. 
If consensus is reached, the Ministerial C onference shall forthwith submit the proposed 
amendment to the Members for acceptance. If c onsensus is not reached at a meeting of the 
Ministerial Conference within the establishe d period, the Ministerial Conference shall 
decide by a two-thirds majority of th e Members whether to submit the proposed 
amendment to the Members for acceptance. Except as provided in paragraphs 2, 5 and 6, 
the provisions of paragr aph 3 shall apply to the proposed amendment, unless the 
Ministerial Conference decides by a three-four ths majority of the Members that the 
provisions of paragraph 4 shall apply.  
                                                     
 
118 Julio A. Lacarte, Transparency, Public Debate a nd Participation by NGOs in the WTO, Journal of 
International Economic Law 7(3), 683-686 [2003]. 
119 John H. Jackson, The WTO "Constitution" and Proposed Reforms, Journal of international 
economic  law 2001,67 (75-77). G/SPS/GEN/802 
Page 96  
 
  2. Amendments to the provisions of this Ar ticle and to the provisions of the following 
Articles shall take effect only upon acceptance by all Members: 
Article IX of this Agreement; 
Articles I and II of GATT 1994; 
Article II:1 of GATS; 
Article 4 of the Agreement on TRIPS. 
 3. Amendments to provisions of this Agreem ent, or of the Multilateral Trade Agreements in 
Annexes 1A and 1C, other than those listed in par agraphs 2 and 6, of a nature that would 
alter the rights and obligations of the Members, shall take effect for the Members that have 
accepted them upon acceptance by two thir ds of the Members and thereafter for each 
other Member upon acceptance by it. The Mi nisterial Conference may decide by a three-
fourths majority of the Members that any am endment made effective under this paragraph 
is of such a nature that any Member which has  not accepted it within a period specified by 
the Ministerial Conference in each case shall be free to withdraw from the WTO or to 
remain a Member with the consent of the Ministerial Conference. 
 4. Amendments to provisions of this Agreem ent or of the Multilateral Trade Agreements in 
Annexes 1A and 1C, other than those listed in par agraphs 2 and 6, of a nature that would 
not alter the rights and obligations of the Me mbers, shall take effect for all Members upon 
acceptance by two thirds of the Members. 
 
 (…)  7. Any Member accepting an amendment to this Agreement or to a Multilateral Trade 
Agreement in Annex 1 shall deposit an instrume nt of acceptance with the Director-General 
of the WTO within the period of acceptan ce specified by the Ministerial Conference. 
 (…) 
 
In essence, a proposal to amend WTO agreements su ch as the SPS or the TBT Agreement would need 
to be submitted to the WTO Ministerial Conf erence, which would then submit the proposed 
amendment to the WTO Membership for discussion and possible acceptance. Article X of the WTO 
Charter describes which majorities are needed for a formal amendment. In practice, the procedure to 
follow and the majorities to be reached clearly i ndicate that amendments to the WTO Agreements 
would be particularly difficult to achieve.  
__________