Comparing EU free trade agreements: Sanitary and Phytosanitary Standards
Comparing EU free trade agreements: Sanitary and Phytosanitary Standards
Rudloff, B., Simons, J., Institute of Agricultural Policy, University of Bonn, ECDPM InBrief 6B, Maastricht, ECDPM with CTA, 2004.
Full text with boxes here
Sanitary and phytosanitary standards (SPS) are receiving increasing attention within the framework of international trade. SPS measures are meant to ensure that imports do not undermine national health and safety. However, restrictions designed to uphold domestic safety standards can be misused as disguised protectionism. This risk has gained importance because tariffs as traditional measures of protection are covered by World Trade Organization (WTO) reduction commitments.1 Against this background, international agreements on SPS aim to balance the targets of granting nations free choice of their national level of safety protection and facilitating fair market access.
SPS measures are qualitative in character. Their aim is to provide a certain level of food safety or health based on strict scientific reasoning. Therefore, no preferences can be granted in the form of easier or softer requirements for free trade agreement (FTA) partners. This absence of any possible concessions is a feature which sets SPS provisions apart from the quantitative agricultural provisions.
SPS in the WTO
The WTO SPS Agreement adopted in the 1994 Uruguay Round lays down a common basis with respect to SPS measures for all countries that are members of the WTO, independent of whether they are additionally a member of an FTA. This agreement defines SPS measures as ’all types of trade rules aiming at the protection of human, animal and plant life or health’. To prevent an arbitrary interpretation of the protection level, quasi-binding international standards have been introduced. Any deviation towards stricter national standards must be justified by a risk assessment.
[Box 1 Main Provisions of the WTO SPS Agreement]
A number of principle provisions make up the core of the WTO SPS Agreement. First, member states are free to choose the level of protection they deem necessary and to establish measures to implement the targeted protection level. Harmonisation requires national standards to be based on standards developed by accepted and recommended international organisations.2 Any stricter protection must be justified by a scientific risk assessment. Further, equivalence is recommended in the acceptance of different measures that achieve similar protection levels. The exporting country must demonstrate equivalency of measures to the importing country. Bilateral and multilateral agreements (so-called "equivalence agreements" or in case of mutual acceptance "mutual recognition agreements") provide the institutional framework for implementation of equivalence. Such agreements establish a basis for the exchange of information on standards, recognition of certification, provisions for retests and appeal, and the return of rejected consignments. Provisional protection measures may be implemented if scientific evidence is insufficient to provide a reliable risk assessment (Art. 5.7).
Other main provisions relate to the regionalised concept wherein the definition of risk-free areas should consider regional circumstances such as diseases of special regional relevance or the existence of control programmes for certain regions.
Finally, procedural provisions address issues of transparency such as the requirement to establish enquiry and notification points for information exchange. Developing countries often face capacity constraints in these areas. Special and differential treatment provides for the encouragement and facilitation of developing countries’ participation in relevant organisations, as well as for longer implementation periods (Box 2).
[Box 2 Technical support for developing countries]
SPS in EU free trade agreements
As the definition of norms and standards is predetermined by the superior WTO rules, bilateral arrangements mainly focus on procedural issues. In this respect, a common characteristic of all EU FTAs reviewed here is their emphasis on facilitating the application of the WTO SPS provisions. This is done in two main ways:
– fostering consistent application of WTO SPS measures by pursuing a common understanding of the existing WTO provisions; and
– harmonisation, through consistency with WTO standards and mutual recognition provisions.
The FTAs differ in four main respects (Table 1):
– the extent to which they reaffirm WTO rules;
– the emphasis on cooperation on SPS measures;
– the adoption of a general exception clause similar to GATT Art. XX; and
– the specification of technical assistance in SPS issues.
Only very rarely do the agreements contain individual provisions that go beyond WTO SPS commitments (Table 1). These concern a limited number of product-specific supplements, procedural provisions on fixed time schedules or decision procedures, equivalence provisions, and some specifically emphasised objectives.
The explicit confirmation of the WTO commitments regarding SPS measures is not only a formal element. It also increases the flexibility of the parties in case of disagreements. The parties have the opportunity to settle disputes either according to the dispute procedures of the specific FTA3 or according to the WTO dispute settlement procedures.
[Box 3 Where to find articles on SPS in EU trade agreements]
The Euro-Mediterranean Association Agreements and the TDCA
The Trade, Development and Cooperation Agreement (TDCA) concluded with South Africa in 1999 and the Association (or MED) Agreements concluded with Israel (1995), Tunisia (1995), Morocco (1996), Jordan (1997), the Palestinian Authority (1997), Algeria (2001) and Lebanon (2002) contain mostly similar and relatively shallow provisions on SPS.
All MED agreements emphasise the necessity of cooperation on SPS issues. Some agreements explicitly mention the aim of harmonising SPS standards (e.g. Art. 46 for Israel, Art. 51f for Lebanon, Art. 58 for Algeria, Art. 44 for the Palestinian Authority). Technical assistance is provided for in general provisions on agriculture-related assistance (e.g. Art. 46 for Israel, Art. 71 for Jordan, Art. 58 for Algeria). Protocol 3 of the agreement with Israel is dedicated to phytosanitary issues integrating some product-specific exceptions. Thereby, certification is required only for certain defined cut flowers and fruit species. With respect to other plants, permission for import can be granted even if in general the import into one of the partners is prohibited. The granting of such a permission must be based on a pest risk analysis. Hereby, the parties assume conformity with plant protection measures for all other products than the defined cut flowers and fruit species. When new SPS measures are being planned, specific consultations with the partner are required (Protocol 3c).
The TDCA does not differ substantially from the MED agreements. Within the overall objective of promoting ’integrated, harmonious and sustainable rural development in South Africa’ (Art. 61), the TDCA mentions cooperation in animal health, plant health and agricultural production techniques. It further states that cooperation will be geared to examining measures to harmonise standards and rules in the SPS field, in conformity with WTO rules.
Except for the agreement with Israel, the MED agreements and the TDCA include very general and shallow provisions on SPS, with an overall emphasis on cooperation.
The EU-Mexico Global Agreement
The Economic Partnership, Political Coordination and Cooperation Agreement, also called the "Global Agreement", between the EU and Mexico was signed in December 1997 and came into force in October 2000. The most important provisions regarding SPS can be found in Article 20 of the supplemental EC/Mexico Joint Council Decision 2/2000 of March 2000.
Reaffirming the overall commitment to WTO provisions, the agreement covers SPS legislation and the mutual recognition of conformity assessment (Art. 5j of the main agreement). The general exceptions of the Global Agreement are similar to those within GATT Art. XX (Art 5k of the main agreement and Art. 22 of Decision 2/2000). Decision 2/2000 of the Joint Council emphasises and defines specific procedural rules, of which the Special Committee is of outstanding importance. This committee is made up of two representatives of both trading partners and has a three-fold mandate:
– to provide a forum to identify and address problems that may arise from the application of specific measures, with a view to reaching mutually acceptable solutions;
– to consider the development of specific provisions for the application of regionalisation, or for assessments of equivalence; and
– to consider the development of specific arrangements for information exchange (Art. 20 of Decision 2/2000).
Additionally, the committee may establish contact points for the information exchange.
The Mexico agreement differs from those previously discussed in the procedural aspect of establishing a Special Committee on SPS measures. By creating a committee mandated to consider regional criteria and transparency (by facilitating information exchange), the Global Agreement strengthens bilateral cooperation on SPS issues.
The EU-Chile Association Agreement
The latest FTA concluded by the EU is the one signed with Chile in November 2002. Though this Association Agreement goes beyond trade to cover political dialogue and cooperation, its trade provisions stand out as the most advanced in EU bilateral agreements to date.
The Association Agreement contains comprehensive annexes, of which Annex IV covers SPS measures applicable to trade in animals and animal products, plants, plant products and other goods, along with animal welfare. Annex V covers trade in wine. Both annexes reaffirm an overall commitment to WTO rules (Annex IV, Art. 42k and Annex V, Art. 26).
The substantive provisions on norms and standards follow those of the WTO. However, several procedural rules make this agreement different and more detailed than the other FTAs (see also Table 1). Technical assistance is specified for SPS-related matters and is included within the provisions on support for the agricultural and rural sectors (Art. 24.2g).
Another aspect that makes the agreement unique compared with the others is the comprehensive provisions on equivalence integrated into Annex IV.4 These provisions require strong cooperation between the responsible institutions of both partners.
As in the Global Agreement, a joint committee, called the Joint Management Committee, is responsible for monitoring and control of the implementation of the agreement (Art. 16). Flexibility is provided by additional ad hoc groups that deliberate on SPS-related issues. These groups are made up of expert representatives of the parties or external experts.
As for information exchange, the agreement details specific information requirements for verification procedures, import checks and relevant scientific opinions (Art. 12). Further, detailed provisions ensure transparency by defining strict time schedules (Art. 8) and deadlines for the submission of required information. The agreement also foresees concrete steps for consultation when a party fails to comply with notification requirements (Art. 8.3).
A safeguard clause reiterates WTO rules on implementing transitional SPS measures when scientifc evidence is insufficient (Art. 14).
A comprehensive article in Annex IV covers the determination and suspension of equivalence and considers time schedules for the consultation process between the parties (Art. 7). The provisions are supplemented by appendices with procedural details on the consultation process, the priority sectors concerned, and conditions for provisional approval of establishments (e.g. slaughter houses or processing establishments) without prior inspection by the importing party (appendices V and VI).
Other appendices of procedural relevance provide guidelines for conducting verifications, for import checks and inspection fees and for certification (appendices VII-IX). Also, the competent authorities are defined with regard to the implementation of the agreement (Appendix II).
Besides these institutional provisions, the scope of SPS objectives is extended by a special focus on animal welfare standards, concerning the stunning and slaughter of animals (Art. 2 and 3 and Appendix 1c). This follows the current policy of the World Organisation for Animal Health (OIE) which has recently integrated animal welfare into its strategic priorities. Though no significant standards have yet been established at the international level, development of an international animal welfare standard is nonetheless an aim set out in the Association Agreement with Chile (preamble of Annex IV).
A comprehensive and detailed institutional design characterises the SPS-related provisions in the Chile Association Agreement. The agreement targets strong cooperation between the respective authorities. SPS provisions are more directly operational than those in the other agreements. Being an integral part of the FTA, they provide more legal security for exporters5.
Overall conclusions
SPS measures are becoming increasingly important in international trade arrangements. SPS measures aim to balance targets of national health and safety with fair market access. To avoid arbitrary trade barriers, food safety and animal health policies should be based on objective and neutral grounds. To that end, the WTO SPS Agreement and the associated provisions of various international organisations provide a common and reliable basis.
The FTAs recently concluded by the EU do not grant SPS concessions analogous to quantitative tariff reductions. All SPS standard-related provisions in the agreements are bound to the WTO framework. Their main aim is to mitigate the costs of complying with SPS regulations and provide more security for exporters. In some agreements, exceptional rules go beyond WTO provisions, such as the limited product-specific provisions in the agreement with Israel and the inclusion of animal welfare as an objective in the agreement with Chile. Of all the FTAs, only those with Mexico and Chile contain individual procedural or institutional specifics that have the potential to strengthen mutual cooperation. However, in current and future renegotiations of the other FTAs, the relevance of institutional provisions in the other agreements could be enhanced as well.
[Box 4 Selected publications and information sources on SPS]
Notes
1. See the ECDPM-CTA FTA InBrief on agriculture.
2. Such as the World Organisation for Animal Health (OIE), the International Plant Protection Convention (IPPC) and the Codex Alimentarius Commission (CAC) for food safety. The latter, for instance, provides comprehensive and detailed guidelines on food hygiene, risk assessment procedures, maximum residue levels of several substances and additives and standards for labelling and packaging.
3. See the ECDPM FTA InBrief on dispute settlement.
4. Therefore, Annex IV is often referred to as the "equivalence agreement".
5. For some of the other FTAs, the approach of the EU-Chile Association Agreement to define procedural issues as integral part has recently been initiated to achieve a similar level of procedural security. The administrative details are part of technical arrangements supplementing the respective FTAs. See for instance Decision 1/2003 of the EU-Morocco Association Council, 24 February 2003, setting up subcommittees of the Association Committee (2003/208/EC).
