Reach Revisited: A Framework for Evaluating Whether a Non-Tariff Measure Has Matured into an Actionable Non-Tariff Barrier to Trade

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I. INTRODUCTION

This article outlines a possible analytical framework employing recent and relevant World Trade Organization ("WTO") jurisprudence for evaluating whether technical regulations such as the European Union's ("EU's")/European Community's ("EC's")1 regulatory regime for the Registration, Evaluation, Authorisation and Restriction of Chemicals ("REACH"),2 as adopted and/or as applied, are WTO-consistent. The focus of this legal review is limited3 to two "covered"4 agreements: the Agreement on Technical Barriers to Trade ("TBT Agreement")5 and General Agreement on Tariffs and Trade 1994 ("GATT 1994").6 Both the GATT 1994 and the TBT Agreement are multilateral treaties7 that "form part of Annex 1A to the [Marrakesh Agreement establishing the World Trade Organization]"8 and may potentially apply to REACH. Whereas the GATT 1994 is concerned generally with trade in goods, the TBT Agreement is more specialized and establishes rules and procedures regarding the development, adoption, and application of mandatory technical regulations and voluntary standards for products and the procedures (such as testing or certification) for determining whether a particular product meets such regulations or standards ("conformity assessment procedures").9 WTO jurisprudence holds that "when the GATT 1994 and another Agreement in Annex 1A appear a priori to apply to the measure in question, the latter should be examined on the basis of the Agreement that deals 'specifically, and in detail,' with such measures."10 Consequently, if REACH is determined to constitute "a 'technical regulation' within the meaning of the TBT Agreement, then the latter [the TBT Agreement] would deal with the measure [REACH] in the most specific and most detailed manner."11

The TBT Agreement applies to all technical measures addressing industrial and agricultural products, except those properly characterized as sanitary and phytosanitary ("SPS") measures,12 or as specifications for government procurement,13 which are instead covered under separate WTO agreements.14 "[T]he object and purpose of the TBT Agreement is to strike a balance between, on the one hand, the objective of trade liberalization and, on the other hand, Members' right to regulate."15 One of the TBT Agreement's primary objectives is to prevent WTO Members from using regulations as unnecessary barriers to trade while ensuring that they retain their sovereign right to regulate "for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels [they] consider appropriate."16

The EU REACH regulation can be described as a behind-the- border17 technical measure intended to address regional health and environmental concerns and impacts. It can be appropriately classified18 as a type of non-tariff measure ("NTM")19 that falls within the scope of the TBT Agreement because it arguably distorts and creates uncertainty surrounding international trade flows of chemical substance-based products.20 As the WTO itself acknowledges, "While the application of NTMs does not always restrict trade, they often result in unnecessary restrictions or undue barriers, which explains" why they are frequently and interchangeably referred to as non-tariff barriers ("NTBs").21 NTBs are "barriers to trade that are not tariffs," which may, in certain instances, include health and consumer safety technical regulations to the extent they are misused.22

The WTO Committee on Technical Barriers to Trade (the "TBT Committee")23 regularly compiles statistics24 about GATT 1994/WTO Member NTB notifications submitted pursuant to TBT Article 2.9.25 "Transparency" is one of the core obligations imposed generally on all GATT 1994/WTO Members, and specifically for TBT Agreement Parties. Article 2.9 requires that "[wjhenever a relevant international standard does not exist or the technical content of a proposed technical regulation is not in accordance with the technical content of relevant international standards,"26 Members must:

promptly] publi[sh proposed] laws, regulations, judicial decisions and administrative rulings affecting trade in such a manner as to enable governments and traders to become acquainted with them. …