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TBT-Art.2.7, 6.3 and 8 and SPS Art.4; and applications in South East Asia and Vietnam by Thi Thanh Huyen Tran

From Various (Susan Kaplan)

  • Processed on 27-Feb-2017 10:05 CET
  • ID: 776620252
  • Word Count: 1491
 
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FOREIGN TRADE UNIVERSITY --------***-------- ARGICULTURE TRADE NEGOTIATION AND SPS/TBT FINAL EXAM Group 4: Please discuss TBT-Art.2.7, 6.3 and 8 and SPS Art.4; and applications in South East Asia and Vietnam. Same for EVFTA. No Full name ID number 1 Tran Thi Thanh Huyen 1606060018 2 Nguyen Duy Khanh 1606060019 3 Mai Thi Kim Lien 1606060020 4 Le Thi Huyen Linh 1606060021 5 Nguyen Thi Tuyet Mai 1606060022 6 Pham Thi Quynh Mai 1606060023 Word count: 1436 Hanoi, 22th February, 2017 i Table of Contents 1. Equivalence .................................................................................................................... 1 1.1 Equivalence under SPS and TBT................................................................................ 1 1.2. Equivalence under EVFTA ........................................................................................ 2 2. Mutual Recognition Agreement (MRA) ........................................................................ 2 2.1. MRA under TBT......................................................................................................... 2 2.2. MRA under EVFTA.................................................................................................... 3 3. Application of Equivalence and MRA in South East Asia and Vietnam ...................... 4 4. Recommendation and Conclusion ................................................................................. 5 ii 6The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and The WTO Agreement on Technical Barriers to Trade (TBT) are the most relevant agreements with regard to the 14use of equivalence and mutual recognition agreement. While the 1SPS Agreement covers sanitary measures and associated food control and inspection systems; the TBT Agreement covers technical measures, standards and conformity assessment. In this paper, we would like to analyze TBT-Art.2.7, 6.3 and 8 and SPS Art.4, EVFTA; their application inVietnam as well as make comments and recommendations in this regard. 1. Equivalence 1.1 Equivalence under SPS and TBT 1Equivalence assessment and acceptance is one way of facilitating trade which are mentioned in both SPS and TBT agreements. Article 4 of the SPS agreements sets out certain obligations for Members with regard to the recognition of equivalence. Accordingly, the 1importing country should provide the information necessary to aid the exporting country in demonstrating5that “its measures achieving the importing Member’s approriate level of sanitary or phytosanitary protection”. Besides, “the reasonable assess shall be given upon request, to the importing Member for inspection, testing and other relevant procedures” in relation to the equivalence assessment. The equivalence rule is alsoprovided in the 3Article 2.7 of the TBT Agreement: “Members shall give positive consideration to accepting as equivalent technical regulations of other Members, even if these regulations differ from their own, provided they are satisfied that these regulations adequately fulfill the objectives of their regulations”. In comparison on equivalence assessment between SPS and TBT, it can be seen that: Contents SPS agreement TBT agreement Compulsory Member shall accept… 13Members shall give positive consideration to.. Legitimate For health protection To fulfill a wide range of objectives objectives only legitimate objectives Equivalence assessment purposes To determine 1whether two different SPS measures are both capable of achieving the same level of protection1To find the criteria for comparing TBT measues with regard to equivalence. 1.2. Equivalence under EVFTA Regarding the equivalence in technical regulations under EVFTA, we found Article 4.2 of Chapter 6 has the similar substance of Article 2.7 TBT Agreement. Regarding equivalence in sanitary and phytosanitary measures under EVFTA, Article 10 of Chapter 7 EVFTA, however, sets up more detailed and transparent ways of how to perform equivalence and enhances the issue of “undue delay” after request of one Party. In other words, equivalence under EVFTA increases transparency with strict deadlines for communicating relevant information and it also mentions about technical assistance (Article 10.5, Chapter 7, EVFTA). This shall obviously help Vietnam with its needs while respecting its status as a developing country. 2. Mutual Recognition Agreement (MRA) 2.1. MRA under TBT Mutual recognition is the way 1two or more parties mutually accept the each other‘s regulation through agreements based on procedures for Assessment of Conformity. According to 4article 6.3 of the TBT agreement: “Members are encouraged, at the request of other Members, to be willing to enter into negotiations for the conclusion of agreements for the mutual recognition of result of each other’s conformity assessment procedures”.10Article 4 of SPS agreement, required members shall accept the equivalent measures of other Members, while article 6.3 of TBT only encourages both parties. A classic case of mutual recognition is 1“Cassis de Dijon doctrine”: the European Court of Justice struck down a German import prohibition, which banned the import, sale and/or marketing of liqueur that didn’t meet minimum 2 German Alcohol standards.1Mutual recognition in this sense means that producers that comply with the regulatory requirements of an exporting country automatically should be allowed into an importing country. According to article 8 TBT agreement 2“1.Members shall take such reasonable measures as may be available to them to ensure that non- governmental bodies 1 within their territories which operate conformity assessment procedures 2 comply with the provisions of Articles 5 and 6, with the exception of the obligation to notify proposed conformity assessment procedures” To maintain objectivity and equality in trading, Article 8 of TBT agreement emphasis the equal position of government and non-government bodies in operating assessment of conformity procedures. 2.2. MRA under EVFTA EVFTA contains provisions to address technical barriers, going beyond the obligations of the TBT Agreement. To be more specific, we found MRA relating to conformity assessment procedures in Article 6.3 and Article 6.4 of EVFTA (Annex 2) with more specific instructions. MRA in EVFTA is more detailed than TBT’s providing, it points out many mechanisms of mutual recognition 8to facilitate the acceptance of the results of conformity assessment procedures conducted in the territory of the other Party while Article 6.3 TBT just mention “negotiation” with 2 criteria to follow in Article 6.1 (Annex 1). It helps both Vietnam and EU have clearer paths to comply with MRA under EVFTA. Vietnam and EU are members of WTO, thus, they have been bound by the general principles and regulations of TBT Agreement before EVFTA take effect. EVFTA builds on TBT/WTO’s foundation (Article 1.1 EVFTA, Annex 2) plus some deeper commitments. The only difference of MRA between TBT 1Body 2other than a central government body or a local government body, including a non- governmental body which has legal power to enforce a technical regulation.2-Central government, its ministries and departments or anybody subject to the control of the central government in respect of the activity in question. 2 9Any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled 3& EVFTA we mentioned above, the clarity, however, is not considerable so the application of MRA could not change much after EVFTA’s validity. 3. Application of Equivalence and MRA in South East Asia and Vietnam3 Vietnam is presently permitted to export fishery and aquaculture products (FAP) to the EU (Commission Decision 2006/766/EC; Commission Decision 2011/163/EU). The main export products are pangasius fillet and bivalve molluscs (BM). Vietnam has face the high rate of border rejection during period 2009-2012 because of residues veterinary medicinal products. Also, Vietnam got some technical issue in fishing vessels, landing sites, and ice factories and that export takes place from cold stores, which was EU technical requirement for FAP. As a result, Vietnam has made great progress in term of institutional framework and legislation framework to be equivalent with EU regulation to penetrate into this significant market. The numerous circulars, decisions and standards concerning FAP are issued to be equivalent with the SPS, TBT and EVFTA. An outstanding example is the circular No.55/2011/TT-BNNPTNT on food safety 1inspection and certification of fish and fishery products and obligations and powers of the Competent Authority (CA) at different levels. 12The National Agro-Forestry- Fisheries Quality Assurance Department - NAFIQAD (under MARD) has been designated as the central CA for FAP export. Since January 2013, NAFIQAD has sent the staffs to train the local CA on food safety assurance (HACCP, GMP) and will carry out intensive inspection and audit on the food safety control. NAFIQAD has been ensuring that establishments only purchase raw materials from sites which meet sanitary requirements. Furthermore, only ice manufactured by producers that meet Vietnamese regulations on hygiene conditions has been used for the manufacture FAP for EU export. 3http 11://ec.europa.eu/food/audits-analysis/audit_reports/details.cfm?rep_id=36547http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/513968/IPOL- PECH_ET(2013)513968_EN.pdf In 2014, Food and Veterinary Office (of DG SANCO) audit report required the certification system of Vietnam to be in line with EU requirement, and in particular with Article 3 and 4 of Directive 96/93/EC and with Article 14.2 of Regulation No 854/2004. In response, NAFIQAD sent the official letter No. 1813/QLCL-CLI to its branches to conduct the certification of export only for BM from class B product area undergone heat treatment complying with EU requirement ( together with verification of heat treatment method and inspection, sampling for the export consignment). NAFIQAD also sent the official letter No. 2527/QLCL-CLI and 2857/QLCL-CLI requesting the establishments which exported BM to EU must come from the EU’s approved list, BM must have origin from production areas in EU’s approved list. In conclusion, Vietnam has been, periodically or when necessary, reviewed and amended its legal and regulatory framework to to be equivalent with the changing import market requirements from EU and other trade partners. 4. Recommendation and Conclusion The 1process of negotiating equivalence and mutual recognition between regulatory systems is difficult for many developing countries because of, inter alia, insufficient administrative resources and weak technical facilities. However, as mentioned in section 3 above, the legal system of Vietnam isreviewed and amended to comply with requirements from SPS/TBT Agreement as well as EVFTA, the equivalence and MRA shall 1actually have a potential of being accommodated by some developed countries and thus could be important for developing countries in Sout East Asia and Vietnam. 1 4 5