Andean Tribunal of Justice issues proposals concerning Community-level legislation

The Andean Community (formerly the Andean Pact) is a regional integration initiative set up to promote economic growth and intra-regional trade. There have been membership changes since the original pact was created in 1969; Chile was a founder member but withdrew in 1976, while Venezuela joined in 1973 but then left in 2006. The current member countries are Bolivia, Colombia, Ecuador and Peru. Although the membership has changed, the objectives of the community have not altered: economic growth achieved through integration and cooperation.

Andean legislation comes into force through various 'decisions', which have direct effect in the member states. Where Community law exists, this prevails over the relevant national laws. The Tribunal de Justicia de la Comunidad Andina (Andean Tribunal of Justice) is responsible for the interpretation of the law, following ‘preliminary references’ from member countries. The Andean Tribunal of Justice is therefore the ‘judiciary’ according to the separation of powers model, with the other branches being the Andean Parliament (legislature) and the Andean Community General Secretariat (executive). As such, the Andean Tribunal of Justice is not responsible for initiating legislation itself, but having overseen the development of Community jurisprudence for around 30 years, it is well placed to assess the legislative gaps that ultimately are considered to impede integration and therefore economic growth.

In this regard, the Andean Tribunal of Justice is currently consulting through INTA in all member countries, and the authors were present at the corresponding discussion that took place recently in Quito. The proposals demonstrate that the Andean Tribunal of Justice considers Community-level legislation necessary if harmonisation is to be achieved. Essentially, the understanding is that conformity of national laws alone is insufficient; the system whereby references are made to the Andean Tribunal of Justice is essential for a more uniform interpretation of the law, which does not come into play when only national laws are applied and no corresponding Community provisions exist.

Below is an outline of the proposed reforms:

1. The Andean Tribunal of Justice is calling for better protection for consumers, in the sense of more information and more transparency with regard to product information, which it envisages would help to promote cross-border transactions. There are currently national rules relating to such areas as weights and measures, labelling, quality and expiry dates, but these rules vary as to their application, which can lead to non-tariff barriers and impede the free movement of goods and consolidate monopolies.

2. IP-specific Decision 486 contains provisions relating to unfair competition. However, these provisions are limited in scope, applying only to industrial property and acts of confusion and, as such, exclude all those acts that do not necessarily include a trademark or invention. Andean Decision No 608 is the general legal framework for protecting and promoting libre competencia or ‘free competition’ in the Andean Community, which includes provisions for prohibiting agreements that limit competition and abuse a dominant position. However, Decision No 608 contains structural flaws and lacks mechanisms in order to be able to identify such practices. A complete revision of Decision No 608 is proposed.

3. Andean Decision No 486 provides general rules in relation to geographical indications, whereas the European Union has three separate schemes: protected designations of origin, protected geographical indications and traditional speciality guaranteed. The Andean Tribunal of Justice is proposing developing more extensive legislation in this area along the same lines. As in the European Union, the benefits of such systems are seen to be increased revenue for producers, generating agricultural and rural development, and encouraging better quality products and more product information for consumers. In addition, the quality and information controls help to promote the products internationally.

4. Each Andean country has its own country trademark that serves to promote the identity and image of the country; country trademarks are particularly prominent in the fields of tourism and investment promotion. These types of marks are not just exclusive to the Andean Community, as they are also becoming popular in many other countries. However, protecting such marks from misuse throughout the world is problematic; trademark registrations may be obtained, but to register in every class and then to protect against non-use is onerous. In the absence of any such suitable international agreement regarding country marks, the Andean Tribunal of Justice is proposing at least a regional agreement through the adoption of a new decision, which would recognise country trademarks and establish mechanisms for their protection against unauthorised use and registration.

María Cecilia Romoleroux and Ian Wall, Corral Rosales Carmigniani Pérez, Quito