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According to Article 2.2 of the Agreement on Technical Barriers to Trade (TBT Agreement), “Members shall ensure that technical regulations are not prepared, adopted or applied with a view 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 fulfill a legitimate objective, taking account of the risks non-fulfillment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are scientific and technical information, related processing technology or intended end-uses of products.” It is clear from this article the objectives for which a specific technical barrier could be imposed by the member states of the World Trade Organization (WTO). As such, it is important when deciding to impose a particular technical measure to not hide protectionism purposes that would harm international trade. Hence, the TBT agreement made clear the cases in which such barriers could be imposed and which were clearly mentioned in the agreement. These situations include for example “national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment”. Yet, the legislator did not limit the reasons for which technical barriers could be imposed under the agreement and kept it open for the different member states to decide in case they perceive additional reasons for which they need to impose such barriers. Still, the legislator, as reflected in Article 2.2, provides some sort of guarantees that would somehow protect the countries looking to export their products from being discriminated against in order to encourage domestic industries. As such factors such as available scientific and technical information or related processing technology must be taken into consideration when imposing a particular barrier. Again, the legislator did not limit the factors that must be taken into consideration when deciding whether a technical barrier must be imposed or not on a specific product. In the Chapter “Product Safety in the Framework of the WTO Agreement on Technical Barriers to Trade,” the authors Lukasz Gruszczynski, Tivadar Otvoes and Paolo Davide Farah have examined this specific article. The authors were mainly concerned with the different legal interpretations that were given to this provision through the different case laws that were decided by the Appellate Body (AB) or the panel. Among the many cases that were decided, one could mention for instance the cases of Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef; US – Clove Cigarettes; Brazil – Measures Affecting Imports of Retreaded Tyres; EC – Seal Products and so on. Hence, through these cases, the Dispute Settlement Body (DSB) had the opportunity to further develop the legal reasoning revolving around the application of Article 2.2 of the SPS agreement. One would only wonder about the potential future interpretations that could be given to this Article as a result of new cases.
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