WTO 회원은 TBT협정상 상품과 PPMs에 적용되는 표시, 포장, 라벨링 요건 등만을 다루거나 이들을 포함하여 상품의 특성을 규정하며 법적 강제력을 가진 ‘기술규정’을 채택할 자유가 있다. 또한, ‘기술규정’이 다른 회원과의 무역을 제한하거나 차별적으로 대우하는 경우, 관련 회원은 자유롭게 WTO 분쟁해결제도를 이용해 오고 있다. WTO 설립 이후 패널 및/또는 상소기구가 TBT협정의 ‘기술규정’과 관련하여 판정한 사례는 총 8건으로 그 수가 많지는 않지만, ‘기술규정’을 어떻게 정의하고 있는지 나름 판례법을 확립하였다. 상소기구는 WTO 회원의 조치가 ‘기술규정’에 해당하기 위해서는 식별가능한 상품에 적용되어야 하며, 상품의 특성을 규정하여야 하고, 상품의 특성을 규정한 문서가 강제력을 가져야 한다는 3가지 요건을 ‘기술규정’ 결정에 적용하였다. 그러나 필자는 이론 및 실제적 근거에 비추어 반드시 3가지 요건 심사가 필요한 것인지 의문을 제기하였고, TBT협정 부속서 1.1의 제1문과 제2문의 문언에 기초하여 PPMs를 포함하는 정의조항의 새로운 해석을 시도하였다.
또한, ‘기술규정’의 개념과 관련하여 US-Tuna II (Mexico), EC-Seal Products 사건을 포함한 8개의 WTO 판정을 분석하고, 필자가 제시한 정의조항의 해석을 바탕으로 이를 비판적으로 고찰하였다. 특히, 환경 보전, 생물다양성의 보호 및 기후변화에 대비하기 위해 WTO 회원이 국가정책의 하나로 NPR-PPMs에 기반하여 무역제한적인 조치를 채택할 가능성이 커지고 있는데, 이러한 조치는 GATT 제3조가 적용되지 않을 수 있는 등 GATT에 규정된 의무만으로 해결하기 어려운 부분이 있다. 따라서 필자가 제시한 바와 같이, “관련 PPMs”의 개념을 확대해석하고 적용함으로써 해당 조치가 TBT협정상 의무에 종속되도록 할 필요가 있다. 이처럼 필자가 NPR-PPMs를 포함하여 ‘기술규정’을 정의하고자 하는 이유는 WTO 회원이 무역에 불필요한 장벽을 형성하거나 회원간 및 다른 회원을 차별하지 않는 등의 한도에서 관련 조치를 채택하게 하여 무역자유화와 공익달성을 모두 이루도록 바라기 때문이다.
한편, 우리나라의 WTO 제소 및 피제소 사건 중 아직 TBT협정과 관련한 판정은 존재하지 않는다. 향후 다른 WTO 회원의 ‘기술규정’ 적용의 위반으로 인하여 우리의 무역 및 경제적 이익이 침해당하는 경우 해당 조치가 NPR-PPMs에 기반한 것일지라도 적극적으로 TBT협정의 적용을 주장할 필요가 있다. 또한, 우리가 무역제한적인 ‘기술규정’을 채택하는 경우 TBT협정에 위반되지 않도록 주의하여야 할 것이다.
WTO Members are free to adopt a ‘technical regulation’ that regulates product characteristics, including marking, packaging and labelling requirements as they apply to a product and PPMs, or deals exclusively with those requirements, with which compliance is mandatory. In addition, if a ‘technical regulation’ restricts trade with other Members or discriminates against them, the Member concerned has resorted to the WTO dispute settlement system. Since the establishment of the WTO, a total of 8 cases have been decided by Panels and/or Appellate Body with respect to a ‘technical regulation’ of the TBT Agreement. In order for a WTO Member’s measure to fall within a ‘technical regulation’, the Appellate Body has determined: the measure at issue must apply to an identifiable product, it must lay down product characteristics, and the document which regulates product characteristics must be compulsory. However, the author raised the question of whether the three criteria must be necessarily reviewed based on theoretical and practical grounds, and tried a new interpretation of the definition clause, including PPMs on the basis upon the wording of the first and second sentences of Annex 1.1 of the TBT Agreement. When it comes to the concept of a ‘technical regulation’, 8 WTO decisions including the US-Tuna II (Mexico) and EC-Seal Products cases were analyzed, and these cases were critically reviewed in light of the interpretation of the definition clause presented by the author. In particular, WTO Members are increasingly likely to impose trade-restrictive measures based on NPR-PPMs as part of their national policies for the purpose of preserving the environment, protecting biodiversity, and preparing for climate change. However, there are some matters which are difficult to solve only with the obligations set out in GATT, because the measures in question are not subject to Article 3 of GATT. Therefore, as suggested by the author, it is necessary to expand and apply the concept of “their related PPMs” to make the measures subordinate to the obligations under the TBT Agreement. In fact, the reason why the author wants to define a ‘technical regulation’ including NPR-PPMs is to make WTO Members achieve both trade liberalization and public interest by adopting relevant measures to the extent that they do not create unnecessary barriers to trade or discriminate between Members and between themselves and other Members. Until now, there is no ruling which Korea has been involved as a complaint or a respondent when the TBT Agreement is concerned. In the future, if our trade and economic interests are impaired due to the violation of a ‘technical regulation’ by other WTO Members, it is necessary to actively insist on the application of the TBT Agreement, even if the measures are based on NPR-PPMs. Moreover, when Korea adopts a trade-restrictive ‘technical regulation’, our government has to be careful not to be inconsistent with the TBT Agreement.
WTO Members are free to adopt a ‘technical regulation’ that regulates product characteristics, including marking, packaging and labelling requirements as they apply to a product and PPMs, or deals exclusively with those requirements, with which compliance is mandatory. In addition, if a ‘technical regulation’ restricts trade with other Members or discriminates against them, the Member concerned has resorted to the WTO dispute settlement system. Since the establishment of the WTO, a total of 8 cases have been decided by Panels and/or Appellate Body with respect to a ‘technical regulation’ of the TBT Agreement. In order for a WTO Member’s measure to fall within a ‘technical regulation’, the Appellate Body has determined: the measure at issue must apply to an identifiable product, it must lay down product characteristics, and the document which regulates product characteristics must be compulsory. However, the author raised the question of whether the three criteria must be necessarily reviewed based on theoretical and practical grounds, and tried a new interpretation of the definition clause, including PPMs on the basis upon the wording of the first and second sentences of Annex 1.1 of the TBT Agreement. When it comes to the concept of a ‘technical regulation’, 8 WTO decisions including the US-Tuna II (Mexico) and EC-Seal Products cases were analyzed, and these cases were critically reviewed in light of the interpretation of the definition clause presented by the author. In particular, WTO Members are increasingly likely to impose trade-restrictive measures based on NPR-PPMs as part of their national policies for the purpose of preserving the environment, protecting biodiversity, and preparing for climate change. However, there are some matters which are difficult to solve only with the obligations set out in GATT, because the measures in question are not subject to Article 3 of GATT. Therefore, as suggested by the author, it is necessary to expand and apply the concept of “their related PPMs” to make the measures subordinate to the obligations under the TBT Agreement. In fact, the reason why the author wants to define a ‘technical regulation’ including NPR-PPMs is to make WTO Members achieve both trade liberalization and public interest by adopting relevant measures to the extent that they do not create unnecessary barriers to trade or discriminate between Members and between themselves and other Members. Until now, there is no ruling which Korea has been involved as a complaint or a respondent when the TBT Agreement is concerned. In the future, if our trade and economic interests are impaired due to the violation of a ‘technical regulation’ by other WTO Members, it is necessary to actively insist on the application of the TBT Agreement, even if the measures are based on NPR-PPMs. Moreover, when Korea adopts a trade-restrictive ‘technical regulation’, our government has to be careful not to be inconsistent with the TBT Agreement.