This publication should be cited as: Doherty, M. 2005. Negotiating Economic Partnership Agreements. Sanitary and Phytosanitary Measures. (ECDPM InBrief 13A). Maastricht : ECDPM with CTA -the Technical Centre for Agriculture and Rural Cooperation ACP-EU

The aim of this InBrief series is to identify the key issues at stake within the various chapters of the Economic Partnership Agreements (EPAs) being negotiated between the European Union and six African, Caribbean and Pacific (ACP) regional groupings. Each InBrief addresses one chapter, offering an overview of the trade or trade-related provisions, highlighting their relevance for the ACP and identifying a range of policy options for the negotiations.

Introduction

The scope and requirements of food safety (SPS) measures is increasingly replacing tariff barriers as the main concern of African, Caribbean and Pacific (ACP) countries seeking to export to the European Union (EU). The ACP countries are beneficiaries of preferential access to the EU market under the Cotonou Agreement and the Generalised System of Preferences (GSP), in particular the Everything-But-Arms (EBA) initiative for least developed countries (LDCs). However, they find the increasing coverage and sophistication of many of these SPS measures are preventing them from gaining maximum advantage from such arrangements. The primary reason for this is the inadequate level of human, financial and technical resources that ACP countries can provide to satisfy EU importers that all food exported meets the level of safety required by these SPS measures.

The increased presence of SPS on the international trade scene has been driven by the increasing awareness and concern for food safety among European consumers about the presence of chemicals and various food additives in their food. This has been exacerbated by several food alarms (e.g. BSE, Avian flu, etc.) and to a certain extent by the resultant European Commission (EC) action to tighten up and harmonise an EU food safety regime that had developed in a piecemeal fashion over 40 years.

SPS is consequently not a passing issue but one that needs to be recognised as presenting new 21st Century challenges for the 20th century regulatory mechanism of the World Trade Organization (WTO) generally and its related SPS Agreement specifically. SPS is a fundamental element of the negotiations on economic partnership agreements (EPAs) foreseen under the Cotonou Agreement between the ACP groupings and the EU, as it directly affects ACP exporters' ability to avail themselves of any opportunities that may arise.

This paper looks at the challenges to be faced in changing the parameters within which SPS measures are introduced and managed, in the context of the EPA negotiations and suggests several strategies that might be useful in achieving mutually beneficial EPAs between the ACP regions and the EU. Maintenance of the status quo in relation to SPS and the current trading environment runs the risk that ACP-EU trade may not be able to benefit as intended from any new arrangements.


International trade negotiations on SPS

WTO and Doha Issues

SPS measures deal with food safety and animal and plant health standards. The WTO does not set the standards. The WTO SPS Agreement encourages member countries to use standards set by international organisations (e.g. Codex Alimentarius; International Office of Epizooties - OIE; and International Plant Protection Convention - IPPC), but also allows members to set their own standards. These standards can be higher than the scientifically agreed ones, but the Agreement says that they should be based on scientific evidence, should not discriminate between countries and should not be a disguised restriction to trade.

The provisions strike a balance between two equally important objectives: helping governments protect consumers and animal and plant health against known dangers and potential hazards; and avoiding the use of health and safety as protectionism in disguise. Considerable discussion has taken place over the years as to whether the SPS Agreement is in practice comprehensive enough in its coverage to achieve its stated objectives and the extent to which its wording allows the major issuers of SPS standards, such as the EU, to exceed internationally accepted norms.

The following issues are among those raised in the lead up to the 2001 Ministerial Conference in Doha. Most were raised in the preparations for the Seattle Conference in 1999 but not necessarily under the same recognisable headings. Broadly they come under a heading of "Implementation of the Uruguay Round Agreement" and represent SPS issues that need to be tackled if a successful Doha Round is to be achieved.

Equivalence
The basic premise of this is that countries accept that the object of SPS measures is to ensure that the risk presented by the ultimate product presented for consumption by consumers is at an acceptable level. Coupled with this is the recognition that different measures could be equivalent in providing the same level of health protection against risks of disease or contamination. The SPS Agreement (Art 4) requires governments, under certain conditions, to recognise other governments' equivalent measures. The problem that faces developing countries (DCs) in particular is how to establish to importing countries' satisfaction that their domestic systems do deliver the same level of safety as the importing countries' own arrangements.

Much of the problem lays not so much in the reality of whether the health protection levels are the same, but in the inability of DCs to provide sufficient scientific evidence to support the contention and convince the importing countries' authorities. The question of just how much evidence is required and its precise nature and level of sophistication is not specified in the SPS Agreement and forms a formidable barrier to the achievement of equivalence recognition in the area of SPS.

Regionalisation
Article 6 of the SPS Agreement requires governments to recognise regions within other countries as being safe sources for imports for food and animal and plant products, instead of basing their measures entirely in national boundaries. The regions concerned can extend beyond a single country's borders (straddle) as well as be contained within a country.

The adaptation to regional conditions is key relevance to DCs, especially large countries where geographical, environmental and epidemiologic conditions may vary considerably between regions. The cost of eradicating pest/diseases from particular areas and of obtaining acceptable scientific proof of achievement presents a formidable barrier to countries benefiting from Art. 6.

The Committee has so far failed to agree on whether it would be useful to develop guidelines that would define what is required, with the consequence that there is no work programme on implementing "regionalisation".

Special and Differential Treatment¹
The WTO SPS Agreement includes provisions relating to SDT in respect of SPS measures. Art. 10 state that "where the appropriate level of SPS protection allows for the phased introduction of new SPS measures, longer time frames for compliance should be accorded on the products of interest to developing country members so as to maintain opportunities for their exports." It further indicates that, "with a view to ensuring that developing country members are able to comply with the provisions of this Agreement the Committee is enabled to grant such countries , upon request, specified, time limited exceptions in whole or in part form the obligations under this Agreement, taking into account their financial, trade and development needs." Art 9.1 and 9.2 supplement these provisions by providing that members must facilitate the provisions of technical assistance to developing countries and must consider providing technical assistance where this is necessary.

These provisions should in theory ease the problems which DCs face in meeting EU SPS measures. However, there exists generally dissatisfaction relating to the degree to which SPS issuers such as the EU have in practice complied with the spirit as well as the wording of these provisions. The obligation 'must consider providing' has been regarded as being ineffective and a later slightly stronger amendment (at the Doha WTO Ministerial Conference) to "should provide" is generally regarded as unlikely to change the situation.

Box 1: Sources of SPS-related assistance The International standard setting bodies have substantial programmes related to SPS capacity building. For instance: The IPPC have developed a diagnostic tool, the Phytosanitary Capacity Evaluation, to help identify countries' capacity and identify needs for assistance available (see www.ippc.int); The OIE provides financial support for the participation of the Chief Veterinary Officer of its member countries in OIE standard setting bodies. The WTO, FAO, OIE and WHO have also been involved in the establishment of trust funds by Codex, IPPC and OIE to assist in the more effective participation of developing countries in their standard setting activities. Other organisations such as the World Bank, OIRSA, IICA, UNIDO and UNCTAD also have substantial programmes related to SPS. The Standards and Trade Development Facility (STDF) was established following the commitment made by the Heads of the WHO, FAO, WTO and OIE and the World Bank at the Doha WTO Ministerial Conference to explore new technical and financial mechanisms to promote the efficient use of resources in SPS related activities. The STDF is administered by the WTO with the stated aim of promoting capacity building projects related to SPS. There is also a database (see http://stdfdb.wto.org) The EU has a range of technical assistance programmes targeted at helping ACP countries, notably the Fish Support Programme and the Pesticides Initiative Programme. In addition, EU member states contribute widely to bilateral projects. See also http://agritrade.cta.int/infosources/sps.htm

The latest decision on special treatment² strengthens importing countries' commitments to provide an opportunity for exporting DCs to seek revisions or ask for technical assistance when new or revised measures affecting imports are proposed or introduced. Whatever additional "special and differential treatment" is then agreed will be publicised as a supplement (or "addendum") to the document that originally announced the new measure.


SPS and the Cotonou Agreement

The Cotonou Agreement (Art 48) reaffirmed the parties' commitment to the SPS Agreement annexed to the WTO Agreement, taking account of their respective levels of development. Furthermore, the parties undertook to reinforce coordination, consultation and information as regards notification and application of proposed SPS measures, in accordance with the WTO SPS Agreement, whenever these measures might affect interests of either party.

A very important element of the Cotonou Agreement is that it foresees the replacement of the non reciprocal trade preferences regime of the Lomé Conventions with a new WTO-compatible trade regime between the EU and ACP countries, the economic partnership agreements (EPAs).

EPAs are free trade agreements (FTAs) which will among other things involve the acceptance of the principle of reciprocity of trade between the EU and ACP producers of agricultural produce. The actual level of reciprocity and its timetable for implementation are, however, issues for negotiation although the remaining time available to reach an agreement (until the end of 2007) raises problems of its own. It is unlikely that any waiver of this date can be obtained. Consequently, what is to be achieved has to be achieved within this relatively narrow window. This indicates a need for an element of prioritisation and targeting of the issues to be discussed.

The issue of SPS is highly relevant to the discussions on reciprocity as a level playing field will not exist between EU and ACP producers if the latter are either unable to meet the SPS requirements or the cost of so doing renders their production uncompetitive. This has implications not just for exports to the EU, but also for competition and market share in the domestic market, be it national or regional.

A report by PriceWaterhouseCoopers (2004) on the Sustainable Impact Assessment of the EPAs reinforces these concerns, not only for the present situation, but also for the future development of ACP economies into participants in the global trading environment. The report notes that, with regard to the reciprocal obligations of EPAs, "the ACP countries maintain relatively high tariffs on food products, the removal of which could increase the imports of EU products". It further points out that "where these products compete with domestic production, they could further discourage the development of processing and manufacturing capacity in ACP countries in export oriented and other industries".

It seems clear that unless local industries and support infrastructure are allowed and/or assisted to become SPS compliant, the prospects for countries to benefit from domestically owned secondary processing and diversification of export profile will be small. Whilst it is arguable that EU based firms may buy up local firms having such potential and therefore expansion/diversification will occur, this will have the effect of simply turning ACP countries into supply bases for the EU consumer.

In this context, it is worth noting the power of the EU supply chains. These not only exert increasing control over suppliers operations (SPS and others), but they have traditionally relied on EU sources for SPS compliance evidence such as certification, codes of practice, standards, etc. A continuation of this situation will possibly prevent the development of the local market supply potential and customers for such services. In particular, these activities are likely to restrict the development of local codes of practice and standards, which when benchmarked to international counterparts can substantially lower the costs of SPS compliance to local producers.

Many would contend that this runs contrary to the development aspects of the Cotonou Agreement. Liberalisation is of course necessary in today's market and investment is a desirable side effect of such action. However, the liberalisation (reciprocity) of the ACP markets should avoid eliminating the potential for locally owned and governed sectoral development. SPS is a central consideration in this respect because the cost of meeting SPS increases significantly when moving up the value chain. This relates not only to finance and equipment, but also to the SPS related technical and human resources, supportive infrastructure (such as accredited laboratories) and conducive legislation which are required.

ACP capacity is generally regarded as being inadequate to accommodate the increasing level of EU food safety measures, particularly as regards to local certification, testing, inspection, etc. The Cotonou Agreement recognises that ACP countries may need assistance to overcome their capacity deficiencies. However, the time scale that is left before EPAs are to become a reality (1 January 2008) leaves insufficient time for any significant capacity building to be achieved. The issue of how long a period can be negotiated before it is desirable from the ACP viewpoint for reciprocity to be fully in effect consequently becomes closely attached to the question of how long it will take for individual ACP countries to become as SPS compliant/sufficient as their EU competitors. As the ACP are unable to achieve this by themselves, this in turn becomes related to the question of how much assistance the EU is willing to make available and within what timescale.


Relevance of SPS Issues to ACP countries

Key issues

Whilst much discussion centres around the impact of individual SPS measures (such as traceability, pesticide, maximum residual levels - MRLs, etc.), the core issue relates to the operation of the umbrella under which all SPS measures take place - the WTO SPS Agreement. Considerable concern exists that, in its present form, the SPS Agreement is unclear in certain areas and consequently does not provide a reliable foundation stone on which a successful EPA can be established. Unless the ACP countries can be certain of the SPS objectives they are expected to achieve and be sure that these cannot be arbitrarily moved and/or interpreted by standard setters such as the EU, it becomes difficult for them to agree.

Ambiguities within the SPS Agreement
Although at first glance it may appear that the provisions in the SPS Agreement are well specified, leaving little room for controversy; there are several important sources of ambiguity which are at the heart of many problems DCs have relating to SPS and trade with the EU.

Ambiguity 1 While the non-discrimination provisions limit the focus of trade rule to 'like products', it is obvious that some SPS related risks may, in fact, be associated not with the end-use characteristics of a product, but rather with the processes and production methods (PPMs) employed.

Ambiguity 2 According to the Agreement's Art. 5:7, members may adopt temporary, precautionary bans to prevent the introduction of risks when sufficient scientific evidence is absent. The problem here does not lie with this provision, but rather with how to remove the provision once it is triggered. The SPS Agreement is silent on the steps that need to be taken by a member country that has lost international market access because trading partners have invoked this provision. Greater clarification is required in the SPS Agreement on how long is 'temporary' and on the quantity and type of scientific evidence that is deemed sufficient.

Ambiguity 3 The SPS Agreement sets a regulatory floor but not a ceiling. Members are committed to both the international harmonisation of SPS measures and the mutual recognition of measures employed by other members. The problem is that the Agreement is silent on the limits for countries to have their regulations substantially above those of other member countries. Therefore, while there is a minimum level of SPS measures that must be met, is there a maximum defining the point that importing member countries cannot legitimately expect potential exporting members to achieve?

Ambiguity 4 This is associated with the role of socio-economic consideration in risk assessment. The SPS Agreement permits members to establish SPS measures based on scientific risk, as well as on broader assessments of risk such as relevant economic factors, including (Art. 5:3):

• the potential damage in terms of loss of production or sales in the event of entry, establishment or spread of the disease or pest;
• the costs of control or eradication in the territory of the importing Member; and
• the relative cost-effectiveness of alternative approaches to limiting risks.

Trade agreements traditionally avoid such socio-economic assessments because of the subjectivity complications associated with them. However, the SPS Agreement recognises that imported risks to human, animal and plant safety and health are likely to have socio-economic impacts that can be significant. The inclusion of this article raises ambiguity about how socio-economic assessments may be worked into the legitimate justifications based on sufficient scientific evidence.

Inadequate capacity building
A second major issue relates to the capacity building necessary to meet the EU SPS requirements. The increase in the technical level of requirements and the nature of the mechanisms needed to meet them now constitute a significant barrier to exporters. In many instances large importing chains are using their influence to insist on compliance with SPS measures that are strictly only required by EU law within its own geographical boundaries (e.g., traceability). This imposes an additional burden on the small producers who make up a large proportion of ACP suppliers.

Despite the assistance that is available from the EU and other organisations (see Box 1), there remains an inadequate knowledge about how to easily access what is available. Concern also exists that what is available is in itself basically inadequate to the size of the task. This situation exists alongside a limited ability of some countries to actually obtain and absorb the assistance in the time frame that the EPA negotiators have available. Also in some instances it is not purely SPS related assistance that is needed, but indirectly related infrastructural upgrading such as transport infrastructure that allows samples to be sent to laboratories for testing within a specific and reliable time frame.

The above indicates that the EPA playing field on which negotiations are taking place includes some obstacles whose exact nature and role require clarification. This requires:

(a) Clarification of precisely what the SPS Agreement allows the EU to do and the limitations and obligations that may be cited by ACP countries where specific measures are considered to exceed what is necessary for the adequate protection of health.

(b) Identification and quantification of what ACP countries need at national and regional level, to meet EU SPS requirements and as a result be in a position to participate fully in a reciprocal trade agreement as envisaged under Cotonou.


Impact

The requirement to meet SPS legislation is a horizontal barrier to all exports to the EU and is not subject to negotiation from any category of exporter irrespective of their status (LDCs, etc.). Any negotiation that takes place can relate only to the mechanisms (e.g. timing/phasing, assistance, etc.) of the introduction of the measure, not the principle.

The impact of these requirements necessarily reflects the ability of individual countries to comply and the importance of the agricultural sector exports to the whole economy. In some instances exports might not be large in volume/value terms, but represent an important element of domestic employment - particularly in relation to small producers.

The impact also varies according to the export profile of countries/regions. Some countries' exports are more heavily oriented towards fruit and vegetable exports whilst others have a different dependency on meat and fish exports. For instance, in the first case the current review of acceptable pesticides (MRLs) by the EU and consequent withdrawal of many which are traditionally used by small ACP farmers/producers will impact severely on this sector. In the second case, the animal/meat/fish sectors have been highly regulated for many years and whilst the requirements are undoubtedly being increasingly enforced, the principal problem lies more with the increasing height of the entry barrier for any firm considering selling to the EU for the first time.

The impact of SPS measures generally, however, are a reflection of the extent to which they are enforced in practice. This enforcement has traditionally originated more at the EU end of the supply chain than at the point of origin, although there are notable exceptions among some ACP countries where exporters have taken a lead in compliance measures.

This situation is now changing significantly with the introduction of the Feed and Food control Regulation 882/04. This Regulation is not in itself an SPS measure but by its nature requires that all EU SPS legislation be enforced (with respect to feed and food produce exported to the EU) to a particular standard by the national authorities of all exporting countries.

The Regulation also effectively forces the private sector exporting plant product into much closer collaboration with the public sector Competent Authority in much the same way that already exists in the animal related sector. The direct result of this is to raise the profile of the capacity building needs of ACP countries to ensure their exports are SPS compliant.

The cost of such capacity building encompasses the entire food control system and will require action at national and regional level, as well as involving greater support for non-state actors. Box 2 illustrates the coverage of what is generally recognised as the elements required of an effective Food Control System.

Box 2: Requirements to meet Regulation 882/04 1. Modern Food Law and Regulation 2. Co-ordinated Food Control Management 3. Well trained and effective Inspection services 4. Accredited Laboratory Services 5. Effective Information, Education and Training Schemes 6. Institutionalised public and private sector co-operation

Possible areas of consensus

At the broad level, all ACP countries already share an interest in obtaining agreement on SDT as regards the phasing in SPS measures ( where this does not result in a risk to health ) and on the necessity to obtain sufficient assistance to enable them to meet the capacity requirements of SPS (e.g. laboratories, modern legislation, certifiers, etc.).

At a more specific level, there is less awareness and discussion than is merited on two important areas where a broad consensus should be possible:

(a) that the WTO SPS Agreement be reviewed in relation to several areas of ambiguity and clarification included in the terms of any EPA to be signed;

(b) the concept of equivalence provides a basis for the achievement of Mutual Recognition Agreements between trading partners. It is therefore in the general interest of the ACP to identify specific sectors where recognition of equivalence in relation to Standards, Codes of Practice, etc., are likely to be successful.


Possible areas of divergence

In general, the divergences of opinion within the ACP relate to the overall conduct of EPA negotiations and matters not specific to SPS. Where divergence does occur, it usually is between sectoral interest groups and the regional organisation. Sectoral interests often attempt to argue for unachievable positions to be adopted, such as SDT requiring a lower standard for LDCs to meet because they are the most vulnerable in the export chain.

Other divergent areas tend to relate to issues such as the type of SPS functions which could be transferred to the regional level and the associated question of perceived reduction in sovereignty.

In short.... - The wording of the SPS Agreement is ambiguous and needs to be revised. - ACP countries need capacity building especially in their Institutional Food Control Systems. - Specific sectors could form the basis for equivalency agreements

Relevance to the EU and its likely position

Key issues

The EU seems primarily concerned that the issue of the capacity of ACP countries to meet SPS requirements is not allowed to delay the signing of EPAs beyond the timetable agreed to in the Cotonou Agreement.

The EC is also concerned that requests for additional resources to upgrade the capacity to meet SPS requirements generally and the Feed and Food Control Regulation specifically do not result in the allocation of funds that are not already agreed within the framework of Cotonou Agreement under the European Development Fund (EDF).

The EU wishes to avoid the discussion on trade reciprocity under EPA being linked to the provision of the capacity building which is required to ensure ACP exporters are not barred by their inability to meet SPS requirements.

With regard to equivalency agreements, the EU has indicated that it would, for the time being, have difficulties in entering into such agreements with ACP countries. This attitude is based on the EU's assessment that ACP states do not have the capacity to effectively test and certify products and thus do not have systems equivalent to those of the EU. The EU, however, does not exclude the possible conclusion of such agreements in the longer term.


Feed and food regulation

Over recent years, the FVO has developed its working methods and procedures in several important respects. It has moved away from the focus on standards in individual production establishments towards evaluating the performance of the relevant competent authority in the overall operation of national control system, especially its ability to transpose, implement and enforce EU legislative standards effectively.

The Feed and Food Controls Regulation 882/04 is a reflection of this policy and has been introduced to complement the umbrella Regulation 178/2002 which sets out the basic principles of food safety within the EU. Regulation 882/04 establishes how these basic principles will be interpreted, implemented and enforced in a harmonised manner by the EU and Member States' authorities through official controls of both EU produced and imported feed and foods. Box 4 outlines the Regulation's provision.

Box 3 Scope of Impact of Feed and Food Control Regulation 882/04 Regulation 882/04 specifically addresses Official Control systems and their operation by Competent Authorities to ensure that EU standards are met for all foods and feed exported to the EU. It applies to all third country exports of any food or animal feedstuffs, whether derived from animals, fish or plant, to the EU. Current controls on the import of products of animal origin remain in place. A more harmonised approach to controls on imports of food and feed on non-animal origin will be introduced. The role of FVO is extended into non-animal product sector. Third countries' authorities will have to provide detailed information about the structure and management of their Official Control systems. "Guarantees" that products meet EU safety standards or those considered "equivalent" will be required. Products of non-animal origin known to pose increased risks will be defined and be subject to increased controls prior to release into the EU market. The Regulation does not introduce new technical, safety or quality standards and must be considered in parallel with all existing EU legislation. Transitional measures will enable existing approvals to remain in force and for listed countries to retain access to the EU market pending their assessment under the new system. The Regulation provides a framework to help developing countries meet EU import requirements and enable the European Commission to fund activities that enhance food and feed safety. It does not directly address business operators; however, changes to Official Control regimes will impact indirectly on private operators, particularly in the non-animal product sectors, in respect of record-keeping and documentation.

Regulation 882/04 is highly relevant to the ACP as those countries' National authorities will be required to provide detailed information to the European Commission about their feed and food control systems and related guarantees that products destined for the EU meet EU safety standards or those considered to be equivalent. In many instances the existing elements of ACP countries institutional control system may not be considered adequate to provide the required level of confidence in their system. Box 2 indicates some of the principal areas where countries may require assistance to upgrade the performance of their national control systems.

It will be a key aspect of the application of the new Food and Feed Control Regulation that "equivalence" does not become interpreted in practice as "sameness". The European Commission has stated clearly that "there is a need to take special account of the needs of developing countries" and, indeed, the Regulation itself provides (Article 47.2) that the information requested by the EC from third countries must be "proportionate to the nature of the goods and may take account of the specific situation and structure of the third country and the nature of the products exported to the Community".

Overall, the EC considers that the new system should help third countries to meet EU standards by clarifying the requirements and improving the transparency of the approval system.

However, it is accepted that there are a number of areas where problems for third countries can be envisaged and the Regulation therefore contains framework provisions to enable the EC to provide mechanisms and to fund activities that will assist DCs. These include: phasing in of certain requirements, technical assistance and training.

The EC has emphasised transitional measures will enable approvals to remain in force and for listed countries to retain access to the EU market pending their assessment under the new system.


Review of EU Free Trade Agreements³

The EU FTAs differ in four main respects:

• the extent to which they reaffirm WTO rules;
• the emphasis on co-operation on SPS measures;
• the adoption of general exception clause similar to GATT Art.XX; and
• the specification of technical assistance in SPS issues.

The Chile Agreement and SPS
The trade provisions of the Association Agreement with Chile, to date the most recent FTA concluded by the EU in November 2002, stand out as the most advanced in EU bilateral agreements and are potentially the ones from which ACP negotiators can learn most. The Agreement recognises the importance of SPS in trade between the two signatories and contains comprehensive annexes, which specifically cover SPS measures applicable to trade in animals and animal products, plants, plant products and other goods, along with animal welfare. These set out procedures for dealing with problems raised by either party. These procedures, together with definitions of what is required in relation to equivalence and competency with respect to testing/certification standards, etc., were agreed by the negotiators and enshrined in the annexes.

Consequently a much clearer and formulated understanding of what is required exists and neither party can arbitrarily introduce SPS-related measures which may be regarded as unfair or unsubstantiated by the other. Of particular importance is the inclusion of specific SPS related technical assistance commitments.


European Commission strategy

Although the European Commission accepts the principle that the required level of food safety can be achieved by regulatory mechanisms that are not the same as exist within the EU, in practice it is likely that what is being sought is the establishment of food control systems that are a reflection of the EU's own arrangements. This has some logic as it is easier for the EU to deal with a number of FTAs that have similar food control systems to its own. This also assists in any further integration that the EU would like to see between regions themselves at some time in the future.

The EC would therefore like to be able to control or at least steer ACP countries in the way that they upgrade their food safety systems. Because of resource constraints, the Commission is limited in its ability to tackle this task at the same time as the EPA negotiations and would prefer to see full discussion take place once the various regions have signed the Agreements. In the meantime, the EC is content to see and encourage some capacity building, but to deter widespread and possibly diverse spending on systems which may not be compatible with its own. Among the tactics to achieve this, are:

• To argue that adequate sources of funds for capacity building already exist and there is no need to provide any extra at this time.

• To argue that the EDF funds provided under the Cotonou Agreement are at the disposal of the recipients and it is for them to establish their priorities for their use.

• To argue that there is no need to link the capacity building needs to the discussion on the timeframe for reciprocity in trade between the EU and the EPA regions. This can all be sorted out later once the EPAs have been signed.

In relation to the removal of ambiguities with the WTO SPS Agreement, the EC's overall aim is to preserve its right to introduce whatever SPS measures that it deems necessary. It is therefore likely to prevaricate over any suggestions for reviews that might lead to measures that could restrict its current less restricted remit under the SPS Agreement. Nevertheless, it may be open to clarification of its attitude to some of the ambiguities in the SPS agreement within the context of an EPA, given the precedent of how SPS was tackled in the EU-Chile Agreement.

In short.... - The Feed and Food Regulation poses formidable capacity building requirements. - The EU-Chile FTA has lessons for treatment of SPS in EPAs. - The EC appear unwilling to provide additional finance outside that already committed in the EDF under the Cotonou Agreement.

Options for the ACP countries

The EU cannot be challenged on its right to protect its citizens from potentially harmful food. This is irrespective of whether countries which supply the food lack the capacity to meet the standard being established.

The primary focus of attention must therefore be on the mechanics of the measure being required rather than on the basic principle. This involves looking at what the EU is doing and identifying whether it is in accordance with the WTO SPS Agreement. The SPS Agreement contains areas of ambiguity that allow the EU to introduce measures that, whilst not at variance with the wording of the Agreement, nevertheless can arguably be viewed as being contrary to the underlying intention, i.e. not to interfere unnecessarily with international trade.

The second focus must be on identifying and costing what the ACP countries need to do to actually comply with the EU SPS legislation. This requires a move away from the broad generalisations that obscure the real requirements. It is clear that not all countries need the same degree of help, particularly in product areas such as animal exports where considerable compliance has already been achieved. Some element of prioritisation must be introduced to permit the principal blockages in the supply system to be tackled on a timely and cost effective basis.

The third focus should be on identifying how to ensure that:

• assistance for the selected capacity building is forthcoming,

• the assistance is commensurate with the actual needs,

• the assistance should not divert resources from the previously allocated priority targets such as poverty relief. In view of the size of th task, it is difficult to imagine how this could not include additional funds beyond those already committed by the EDF.

To achieve the above it may be necessary to establish strong linkages between the actual upgrading of compliance capacity and the timetable for implementation of reciprocity.


Preparatory strategies

Although the option of negotiating a lower level of compliance for ACP countries is not available, some related areas do exist which would contribute to finding solutions to the underlying problems created by SPS measures. These are:

• Identifying what capacity building is needed at the national level and what might be transposed to the regional level (e.g. reference laboratory).
• Preparing a cost breakdown in respect of what is needed and incorporating this into the negotiations.
• Identifying existing SPS related standards, Codes of practice, etc., which could form the basis for the negotiation of Mutual Recognition Agreements with the EU.
• Identifying what time scale is required to meet the requirements of the Feed and Food Regulation 882/04 and negotiating appropriate phasing in periods. This possibility of "phasing" in of SPS and related requirements is an important element to be actively pursued in negotiations. Provision specifically exists for such phasing in under the Regulation and for account to be taken of the ability of countries to comply.

In addition, it must be recognised that the EU is in a powerful position as a member of the WTO and representing a bloc of 25 countries. It should be strongly encouraged to use its influence to have the ambiguities which exist in the SPS Agreement examined and clarification obtained. Such clarification would help ACP countries in respect of:

• What needs to be done to have a precautionary action lifted and a clear time limit established for such " temporary " action to last without further and more substantive scientific evidence being provided of the actions validity. The level and content of the additional evidence should also be specified.
• Whether a ceiling can be established which limits the extent to which EU SPS legislation can exceed international norms in any specific area.

However, such clarification will take time and whilst this is being sought in the wider forum of the WTO, it will be beneficial for ACP negotiators to request clarification of the EU interpretation of particular issues which cause problems in the context of the EPAs. Such clarification and any related commitments could be annexed to the EPA as in the precedent of the EU-Chile Agreement.

Given the limited time frame available, however, care should be taken to select issues where agreement might reasonably be expected to be achieved before the entry into force of EPAs on 1 January 2008.

Among candidates for such consideration might be

• Consultation procedures which include a requirement for the provision of a high level of scientific justification where SPS measures exceed international norms. It should be made clear when the drivers of the measure is genuine risk to health and where it relates to a socio economic consideration such as the cost of eradication and/or production losses in the importing country.
• The right to suggest alternate approaches to limit risk, particularly where socio- economic reasons are the driver of SPS+ measures rather than any real increase in the level of risk to consumers.
• When precautionary action is taken without adequate scientific evidence, a time limit for the production of such evidence to be established together with stipulations as to the level and nature of such evidence.
• The right to receive technical and/or financial assistance to meet the requirements of specific SPS compliance measures. An action timetable could be agreed which might differ according to a regions needs.

Recommendations for an "Ideal" Agreement on SPS in EPAs

The problems to be overcome

The EPA negotiations have a fundamental problem to overcome in relation to SPS: EPAs require reciprocity but this is only achievable in practice if both parties are in a position to trade.

The Cotonou Agreement clearly states that no country should be worse off under its provisions than previously. At present many ACP countries are not in a position to fully meet the SPS requirements of the EU either with regard to the Feed and Food Regulations institutional needs or to the increasingly stringent and technical nature of control measures such as traceability, HACCP, etc. on the private sector. The root of this problem is considered by the author to lie in two areas:

(a) The SPS Agreement is flawed in that among other aspects, it allows individual countries to introduce measures that go beyond what the rest of the world regard as "safe". Thus, traders have to contend with constantly moving/diminishing sized goals. It is perhaps understandable why some ACP observers query whether the policies underlying some of these measures are a type of disguised protectionism which the SPS Agreement forbids.

(b) The SPS measures being introduced are based on the ability of developed countries of the EU to meet them. Where a problem exists assistance is made available to enable the new measures to be met. The ability of exporting countries in the developing world to meet these same requirements is seldom taken into account to any significant degree. Whilst some assistance is available to the ACP to help meet SPS measures generally, it is not anywhere near commensurate with what is made available to the ACPs competitors within the EU-25.

Views and recommendations of the author
Given that the ACP countries lack the human, financial and technical resources to equalise this position, then a continuation of the present practice must inevitably lead to a diminution of ACP-EU trade.

Alternatively, trade may continue but only under the auspices of EU-based supply chains which have acquired the producers who can no longer afford to remain independent.⁴ At best the practices will ensure that export trade for ACP is limited to the basic commodity level and raise even higher the existing hurdle to firms developing up the value chain.

The previous sections indicated some of the changes that need to take place to enable the negotiators to achieve a level playing field and where the rules of the game do not provide an opportunity for advantage to the strongest player. Having said that, however, it is necessary to recognise that such changes take time and a strategy must be developed that both recognises and uses this. The example of how the negotiators in the EU-Chile Agreement tackled the
problems of SPS through enshrining procedural agreements and definitions together with commitments to specific technical assistance in annexes is considered to be highly relevant.

Within this context the following are some thoughts that are intended to help focus minds on what the author sees as useful core issues.

(1) It is necessary for the negotiating parties to recognise that the issue of SPS has the potential to deny them what they each want, i.e. the EU to have EPAs signed on time and ACP that sufficient assistance is obtained to enable them to compete on level terms.

(2) It must also be recognised that the time scale left for negotiation is now insufficient to allow the necessary level of capacity building to take place even if the funding be made available immediately. Consequently, it must be a fundamental aim of the ACP negotiators to obtain written agreement to very specific capacity building to be provided over a specific time scale that is itself linked to the opening up of particular market segments (reciprocity).

(3) These negotiations are the ideal time to press for the inclusion of equivalency arrangements for particular sectors (see the EU-Chile FTA). These sectors should be selected with care and be responsive to any short term upgrading that might be needed. Such equivalency acceptance would confer considerable competitive advantage vis-à-vis non ACP competitors on the EU market.

(4) Each EPA should include a consultation structure that inter alia enables its members to have an early input into any new SPS measures likely to affect them. This membership must include representatives of the non state actors likely to be affected and who in the past have not had adequate channels to put forward their views.

(5) Where the precautionary principle is invoked by the EU, technical or other assistance must be made available to those countries affected on a scale that is adequate to prove or disprove the perceived risk on a very short time scale. The obligations of the imposing country should also be made clear in respect of time limits for appropriate scientific validation of the action and the scope and nature of such evidence. This would limit the sometimes prolonged disruption of trade that currently follows an exporting countries inability to challenge adequately EU precautionary action.

Finally, it is worth taking note that EPAs are intended to be more than just FTAs and to have the capacity to deal with wider trade-related issues. The Lomé Conventions regime was widely seen to have failed to live up to expectation because of the lack of capacity of DCs to take advantage of its provisions. This situation has not changed and failure to adequately address the root problems relating to SPS issues in the context of the run up to EPAs must effectively nullify a major intended advantage of the new Agreement over its predecessor.


Implications for international trade discussions

Given the significant unilateral power it confers and the ambiguity associated with how this unilateral power is appropriately wielded, it is clear that many of the problems in agricultural trade negotiations in future years will increasingly relate in some way to the WTO SPS Agreement. The agricultural trade policy issue arising from this and which needs urgent attention is that the agricultural trade liberalisation efforts - stalled by traditional issues of domestic subsidies, export subsidies and market access disciplines - may be unable to take on the complex challenge of SPS trade disputes unless modifications are made.

Clarifying what constitutes a legitimate justification for an SPS-related market entry barrier will also ensure that such barriers are not simply being used as disguised protectionism. Bringing the SPS Agreement fully into the negotiating agenda of the WTO Committee on Agriculture would begin to deal explicitly with the SPS market entry issues that are so relevant to the ACP countries.

In short.... - Capacity constraint to tackle SPS issues can prevent EPAs functioning as intended. - Insufficient time exists for sufficient capacity building prior to the EPA timetable for signing. - Watertight conditions need to be written into the EPAs linking the implementation of reciprocity to the provision of appropriate Sectoral assistance. - The WTO SPS Agreement will continue to create problems in global agricultural trade and should be referred to the Committee on Agriculture as this sector is of fundamental importance to the ACP. - Clarification of how the EU interprets some of the ambiguous areas of the WTO SPS Agreement should also be sought within the EPA negotiations and this together with negotiated procedural safeguards, to be enshrined within the EPAs.

Possible options for negotiators

It is worth emphasising a point that is sometimes overlooked. That is that the EPAs represent an entirely different playing field for ACP countries than has existed in relation to EBA and GSP. EPAs present an opportunity to actually negotiate with the EU rather than purely accept what the EU considers to be appropriate either in respect of tackling trade problems generally or allocations from the EDF in respect of SPS capacity building specifically. Negotiators should make the most of the leverage this provides to ensure that the problems raised for ACP countries by the EU food safety concerns and remedial measures (SPS) are accorded full consideration and not allowed to be sidelined as peripheral issues to be dealt with at a later date.

The options open to negotiators vary between ignoring SPS issues, leaving them to be discussed outside EPAs, to attempting to obtain firm commitment and clarifications in respect of all SPS problems and having these enshrined in EPAs.

In deciding what should be the most useful stance, it is important to recognise what is achievable within the time that is available. It is unrealistic to believe that agreement can be reached on all the SPS issues referred to in this paper. The reluctance of the EC itself to become formally committed to broad ranging programmes of assistance within the terms of the EPAs is an important element, but more overriding is the fact that sufficient time does not exist for the luxury of trying for the perfect solution.

Focus must therefore be on what is achievable. This must inevitably involve prioritisation and identification of those target issues which may be easier to achieve than others.

To assist this process a few possible options are suggested in Table 1. These outline several possible approaches but basically indicate that it may be preferable to set an objective of having some SPS issues dealt with within an EPA whilst attempting to obtain additional commitment to have the remaining issues (in particular capacity building for particular sectors) dealt with under the Cotonou development pillar. This approach places the focus on deciding what could and should be covered in the EPAs and recognises that some issues must inevitably have to be dealt with elsewhere.

These options are not intended to be definitive nor mutually exclusive, but to present an indicative menu from which different regions may select and/or adapt components which may be appropriate for their particular circumstances. The advantages and disadvantages of different options are similarly only presented as illustrations, as an in depth examination of each is not practical in the context of the table.




Acronyms

ACP African, Caribbean and Pacific
BSE Bovine Spongiform Encephalopathy
DCs Developing countries
EBA Everything-But-Arms initiative
EC European Commission
EDF European Development Fund
EPA Economic Partnership Agreement
EU European Union
FAO Food and Agriculture Organization of the United Nations
FTA Free trade agreement
FVO Food and Veterinary Office
GATT General Agreement on Tariffs and Trade
GSP Generalised System of Preferences
HACCP Hazard Analysis Critical Control Points
IICA Inter-American Institute for Cooperation on Agriculture
IPPC International Plant Protection Convention
MRLs Maximum Residual Levels
OIE International Office of Epizooties
OIRSA Regional International Organisation for Plant protection and Animal Health
SDT Special and Differential Treatment
STDF Standards and Trade Development Facility
SPS Sanitary and phytosanitary
UNCTAD United Nations Conference on Trade and Development
UNIDO United Nations Industrial Development Organization
WHO World Health Organization
WTO World Trade Organization


Selected publications and information sources on Sanitary and Phytosanitary Measures

Publications

Cerrex (2003), Study of the Consequences of the Application of Sanitary and Phytosanitary (SPS) Measures on ACP Countries, CTA.
http://agritrade.cta.int/CTA_SPS%20Study_EN.pdf

Doherty, Martin (2005), Traceability - A Step too Far?, Trade Hot Topics, issue 42, Commonwealth Secretariat, July 2005.
www.thecommonwealth.org/Templates/Internal.asp?NodeID=36519

Doherty, Martin (2005), Economic Partnership Agreements Sanitary and Phytosanitary Measures, ECDPM Discussion Paper 68 with CTA, Maastricht: ECDPM. www.ecdpm.org/dp68

Isaac, Grant E. (2004), The Interaction Between Levels of Rule Making in International Trade and Investment: The Case of Sanitary and Phytosanitary Measures, discussion paper presented at the Workshop on the Interaction Between Levels of Rule Making in International Trade and Investment, UNU CRIS/LSE ITPU Project, Brussels, Belgium, 17 December 2004. www.lse.ac.uk/collections/internationalTradePolicyUnit/Events/December2004/SPS.doc

Isaac, Grant E. and William A. Kerr (2003a), Genetically Modified Organisms and Trade Rules, Identifying Important Challenges for the WTO. The World Economy, vol 26, issue, pp. 29-42.

O'Connor (2003), The EU Traceability and Equivalence rules in the light of the SPS Agreement, CTA. http://agritrade.cta.int/Agritrade_Report_O%27Connor.pdf

PriceWaterhouseCoopers (2004), Sustainable Impact Assessment of the EPAs. www.sia-acp.org/acp/uk/news.php

Rudolff, Bettina and Johannes Simons (2004), Comparing EU Free Trade Agreements: Sanitary and Phytosanitary Standards, ECDPM InBrief 6B, July 2004, ECPM-CTA. www.ecdpm.org/inbrief6b

Information sources

www.acp-eu-trade.org/library

AGRITRADE
http://agritrade.cta.int
http://agritrade.cta.int/food_safety/executive_brief.htm
http://agritrade.cta.int/infosources/sps.htm

CAC - Codex Alimentarius Commission
www.codexalimentarius.net/standard_list.asp

EU Expanding Exports Helpdesk: advice for developing countries exporting to the EU
http://export-help.cec.eu.int/

EU food and veterinary inspections reports
http://europa.eu.int/comm/food/fs/inspections/index_en.html

EU guidelines for importing from third countries
http://ec.europa.eu/food/fvo/pdf/guide_thirdcountries_en.pdf

FAO
http://www.fao.org

FAO International Portal on Food Safety, Animal & Plant Health:
www.ipfsaph.org

IPFSAPH ( International Portal on Food Safety ,Animal and Plant Health)
http://www.ipfsaph.org

IPPC (International Plant Protection Convention)
http://ippc.int

IPPC - International Plant Protection Convention
www.ippc.int/IPP/En/default.htm

OIE - World Organisation for Animal Health
http://www.oie.int/

Standards and Trade Development Facility (Technical Assistance)
www.standardsfacility.org


Notes

1 See WTO document G/SPS/GEN/543, www.wto.org

2 See WTO document G/SPS/33 of 2 November 2004, www.wto.org

3 This section summarises Rudolff and Simons (2004), Comparing EU free trade agreements : Sanitary and Phytosanitary Standards . ECDPM InBrief 6B. Maastricht : ECDPM with CTA, www.ecdpm.org/ftainbriefs.

4 However, as mentioned earlier, the new EU Food and Feed regulation puts the emphasis on the Competent Authorities and no more on the individual export companies. This means that even companies that meet the food safety requirements could be in a situation where they would not be able to export, due to the possible inability of the Competent Authority to ensure that EU standards are met.

EPA InBrief series for 2006-2007 The InBrief series on EPAs is providing trade negotiators, policy makers, officials, experts and other relevant non-state actors with key insights into the main issues faced by the African, Caribbean and Pacific (ACP) countries and regions in their trade negotiations with the European Union (EU).Each EPA InBrief, focuses on a specific topic and identifies a range of options that could be considered during the EPA negotiations. The EPA InBriefs are usefully complemented by the InBrief series Comparing EU free trade agreements, which provide a synthesis of the relevant chapters of ten free trade agreements (FTAs) recently concluded by the EU with developing countries. Topics included in the ECDPM InBrief series on trade for 2006 include: • Agriculture • Fisheries • Rules of Origin • Sanitary and Phytosanitary Standards (SPS) • Services • Trade Facilitation • ... The InBriefs are available online at www.acp-eu-trade.org and www.ecdpm.org/epainbriefs This InBrief on Sanitary and Phytosanitary Measures is an initiative by the European Centre for Development Policy Management (ECDPM) and the Technical Centre for Agricultural and Rural Cooperation (CTA), under the editorial supervision of Sanoussi Bilal (sb@ecdpm.org) and Vincent Fautrel (fautrel@cta.int). CTA Postal address Postbus 380 NL-6700 Wageningen The Netherlands CTA visiting address Agro Business Park 2 Wageningen The Netherlands Tel +31 (0)317 46 71 00 Fax +31 (0)317 46 00 67 E-mail cta@cta.int Website www.cta.int