EPA Review Annex Documents - DFID

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 nongovernmental
entities for implementing sanitary or phytosanitary measures
only if these entities comply with the provisions of this Agreement.’
The SPS measures of non-government bodies has been a major concern within the SPS
Agreement over the last three or four years, sparked by concerns about the potential impact
of private food safety standards on developing countries (Henson and Humphrey, 2009).
There has been much debate over whether the standards developed and/or adopted by
private firms, individually or collectively, fall under the purview of the SPS Agreement. Legal
advice provided to DfID on this issue suggest that private standards of this type are not
covered by the SPS Agreement, 161 although a number of WTO Members evidently remain
unconvinced on this point. 162
The relevance of the above points for the EPA negotiations is whether the attendant
provisions on SPS measures are indeed restricted to those measures implemented by
government. There are two relevant issues in this regard. First private standards are
evidently of major concern to developing countries, including to a number of the ACP states
engaged in EPA negotiations. Through a strict reading of the SPS Agreement, at least as it
is currently interpreted, private standards fall outside of the purview of the EPA negotiations.
Second, the provisions of the EPAs as they pertain to SPS measures must be seen as ‘fluid’.
Presumably, as legal interpretation of the SPS Agreement evolves and as the SPS
Committee lays down guidelines and other documents that clarify and/or elaborate attendant
procedures, the scope of the EPAs will also change.
While the EPA negotiation in broad terms appears to be restricted to the SPS measures of
government, the final agreement between the EC and CARIFORUM does widen the scope
of this particular EPA in the area of cooperation (see below). Thus, Point C of Article 59
states that the parties agree to cooperate in the area of:
‘Development of the capacity of enterprises, in particular CARIFORUM
enterprises, to meet regulatory and market requirements.’
This suggests a focus not only on government SPS measures but also private standards.
This is perhaps a useful model for the other ongoing EPA negotiations? On the one hand, it
does not open up a ‘can of worms’ by including private standards under the broader rights
and obligations defined by the agreements. On the other hand, it does recognise and
address the legitimate capacity-building needs of the ACP countries in the area of private
standards compliance.
Objectives
All of the final and interim agreements have a broadly common statement outlining the
objectives as facilitating trade between the parties through overcoming restrictions due to
SPS measures while not compromising the ability to protect animal, plant and/or public
health. For example, Article 37 of the interim agreements between the EC and Ghana and
the EC and Cote d’Ivoire states:
“The objectives of this Chapter are to facilitate trade in goods between the
Parties, to increase the capacity of the Parties to identify, prevent and
161 Document G/SPS/GEN/802.
162 Documents G/SPS/W/245 and G/SPS/W/246.
236