More importantly, we do not believe that the concept of “similar products” in Article 2.1 of the OBT agreement lends itself to distinctions between products based on the regulatory objectives of a measure. We believe that the term “similar products” is used to define the volume of products that should be compared in order to determine whether imported products are treated less favourably. If, on the basis of the regulatory purposes of a measure, products of the same type are excluded from the group of products of the same nature, products that are sufficiently competitive to be considered as such would not be compared to determine whether the imported products received less favourable treatment. This would inevitably distort the less favourable treatment comparison, since it would refer to a “marketplace” that would include some similar products, but not others. As we see below with respect to the U.S. attractiveness for less favourable panel treatment, the differences between products that have proven identical are best drawn if we consider later whether less favourable treatment was granted rather than determining parable, as this approach would alter the magnitude and outcome of the less favourable comparison of treatment. … the existence of adverse effects on the competition opportunities in the market at issue for the import group in relation to the group of similar domestic products is not sufficient to prove that the obligation to initiate the obligation of initiative under Article 2.1 of the OBT agreement is contrary. If the technical settlement at issue is not discriminated against, a proceeding must carefully consider the particular circumstances of the case, i.e. the design, architecture, detection of the structure, operation and application of the technical regulation at issue, including the question of the impartiality of that technical regulation, in order to determine whether the negative effects on imports are solely due to a legitimate regulatory distinction and not to discrimination against the group of imported products. We have interpreted this definition in the EC – asbestos [in paragraphs 66-70]. In doing so, we define three criteria that a document must meet in order to be covered by the definition of “technical regulation” of the OBT agreement. First, the document must apply to an identifiable product or group of products.
However, the product or group of identifiable products should not be explicitly mentioned in the document. Second, the document must contain one or more features of the product. These product characteristics may be intrinsic or product-related. They can be prescribed or taxed in a positive or negative form. Third, compliance with product characteristics must be mandatory. … What should be considered a “necessity” is the trade restraint measure. We recall that the appellate body understood the word “restriction” as something that limits someone or something, a limitation of action, a restrictive condition or a regulation.