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

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”) regulatory regime for the Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”), as adopted and/or as applied, are WTO-consistent. The EU REACH regulation was adopted in December 2006 and went into force on June 1, 2007. It encompasses over 140 different articles, 17 distinct annexes, almost 300 pages of text, and hundreds of pages of guidance which are expected to grow considerably as more guidance is issued. As of November 10, 2011, thirty-four WTO Members had expressed specific trade concerns about the EU REACH regulation, a record twenty-seven times since the EC's initial REACH notification to the TBT Committee. The focus of this legal review is limited to two covered agreements: the Agreement on Technical Barriers to Trade (“TBT Agreement”) and General Agreement on Tariffs and Trade 1994 (“GATT 1994”). Both the GATT 1994 and the TBT Agreements are multilateral treaties that comprise part of Annex 1A to the [Marrakesh Agreement establishing the World Trade Organization] and may potentially apply to REACH