The REACH Regulation and the TBT Agreement: The role of the TBT Committee in regulatory processes*

Abstract

The REACH Regulation is one of the most complex regulatory frameworks ever designed by the EU. The Regulation intends to comprehensively address, for the first time in history, the health and environmental risks posed by chemicals. It imposes certain registration, evaluation and authorization requirements for both imported and domestically produced chemical substances. On international level, the Regulation has been met with strong criticism coming from many of the EU’s trading partners. Although countries in general have acknowledged the legitimacy of the objectives sought by the EU, they have expressed numerous concerns regarding the necessity and proportionality of the new system. The World Trade Organization is one of the forums where those concerns have been voiced and discussed. Since REACH is a technical regulation, the Agreement on Technical Barriers to Trade (“TBT Agreement”) has proven to be of particular importance, with the TBT Committee serving as a platform for the discussion among WTO Members. This last mechanism is also a subject of this article. Some scholars have identified the system of WTO committees as an important element in the global governance of trade relations. The case study of the REACH Regulation provides therefore a good opportunity to test some of their hypotheses against the practice of the TBT Committee. In this context, one may enquiry into the exact role played by the TBT Committee in the process of shaping REACH. A related question concerns the extent to which the Committee was helpful in making the new EU chemical regulatory framework more acceptable for other WTO Members and, as a consequence, in reducing the potential for future trade disputes. To this end, the article looks at the role that has been played by the TBT Committee in the process of adoption and subsequent implementation of the REACH provisions. In this context, it critically assesses different functions that were performed by the Committee and identifies the limits of its involvement.