Decision 399
International Transportation of Merchandise by Road, Replacing Decision 257

THE BOARD OF THE CARTAGENA AGREEMENT,

HAVING SEEN: Chapter XI of the Cartagena Agreement, Commission Decision 257, and Board Proposal 293;

WHEREAS: The international transportation of merchandise by road is an effective instrument for consolidating the subregional economic space and achieving the objectives of the Cartagena Agreement;

It is also a valuable integration instrument that provides decisive support for international trade, the competitive expansion of the productive base and the boosting of foreign trade;

As of the entry into effect of Decision 257, the international transportation of merchandise by road has become developed and specialized, undergoing changes in patterns of organization and operation that make it worthwhile to modernize its regulatory framework;

The increasingly demanding international market calls for legislation that will ensure the efficiency of the service by clearly and precisely determining the contract conditions and the responsibilities of both the carrier and the user and the addressee;

DECIDES:

CHAPTER I

DEFINITIONS

Article 1.- The following definitions shall be used for the implementation of this Decision and other Community provisions regulating the international transportation of merchandise by road between countries of the Cartagena Agreement:

Loading Customhouse is that where certain preliminary customs measures are adopted and under whose control the goods are loaded into appropriate vehicles or cargo units that are duly registered, in order to facilitate the beginning of an international transportation or customs traffic operation at a customhouse of departure.

Destination Customhouse is that which is involved in an international transportation operation by road, by assigning the merchandise to a particular customs regime at the request of the interested party, or where an international customs traffic operation concludes.

Customhouse of Departure is that which, in an international transportation operation by road, is involved in the inspection and clearance through customs of the merchandise, or where an international customs traffic operation begins. The customhouse of departure may, at the same time, be the loading customhouse.

Border Crossing Customhouse is that located at the border crossings authorized by the Member Countries, which, while neither the customhouse of departure nor that of destination, is involved in the inspection of the goods transported, the authorized vehicles and the cargo units included in an international transportation or customs traffic operation.

Sphere of Operation is the territory of the Member Countries through which the carrier has been authorized to carry out the international transportation of merchandise by road.

International Road Waybill (IRB) is the document certifying that the authorized carrier has taken custody of the merchandise and has bound itself to transport and deliver the goods in keeping with the conditions established in that document or in the pertinent contract.

National Border Service Center (CENAF) or Binational Border Service Center (CEBAF) located next to the authorized border crossings, is the facilities with their necessary installations and equipment that house the national authorities involved in controlling the transportation, traffic, customs, immigration, health and other operations relating to the access of persons, vehicles and merchandise when they enter or leave the territory of a Member Country and where complementary facilitation services for those operations and user services are also offered.

Certificate of Approval is the document that certifies that a truck or tractor truck is approved to provide the service of international transportation of merchandise by road.

Qualification Certificate is the document that certifies that a carrier has been authorized by the competent national authority of its country of origin to provide the service of international transportation of merchandise by road once it has obtained the corresponding service permit.

Consignee is the individual or company that is empowered to receive the merchandise and that is designated as such on the international road waybill or in an order subsequent to the issue of that waybill. The consignee may also be the addressee.

Container is the transportation element or equipment (portable crate, movable tank or other similar element, together with its accessories, including refrigeration equipment, tarpaulins, etc.) that has the following characteristics:
  • It is fully or partially closed and is intended to contain merchandise;
  • It is built of durable and resistant material that permits its repeated use;
  • It is designed to facilitate the transportation of merchandise by one or several modes of transportation, without any need for manipulation during the transfer process;
  • It possesses devices that facilitate its handling and permit its safe transportation, particularly during the loading, transfer and unloading operations;
  • It is manufactured in such a way that it can be easily filled and emptied;
  • Its interior may be easily accessed for purposes of customs inspections and it has no compartments where merchandise may be concealed;
  • It is equipped with doors or other openings outfitted with safety devices that guarantee its inviolability during transportation or storage, and that allow for the placement of stamps, customs seals, inspection seals or other elements of customs security;
  • It is identifiable by means of engraved marks or numbers that cannot be easily changed or altered and which are painted for easy recognition;
  • It possesses an interior capacity of at least one cubic meter (1 m3).

Contract for the International Transportation of Merchandise by Road, hereinafter the "transportation contract", is the legal act or transaction whereby the authorized carrier makes a commitment to the shipper, upon payment of a freight charge, to transport merchandise by road, from a place where it picks up or receives the goods, to another of destination indicated for their delivery, located in different Member Countries.

Border Crossing is the crossing over their common borders authorized by the Member Countries for the movement of persons, merchandise and vehicles.

Declarant is the person who, pursuant to the national legislation of each Member Country, signs an international customs traffic declaration and, accordingly, assumes responsibility before the customhouse for the information it contains and for the correct execution of the international customs traffic operation.

Addressee is the individual or company in whose name the merchandise is declared or to which it is sent and which is designated as such in the international road waybill or in the transportation contract, or to which the goods correspond as the result of an order subsequent to the issuing of those documents, or by endorsement.

Equipment is the spare parts, tools, replacements, implements and accessories needed for the normal operation of the approved vehicles and cargo units in the international transportation of merchandise by road.

Fleet is the group of approved and duly registered vehicles and cargo units available to the authorized carrier for providing the service of international transportation of merchandise by road.

Approval is the administrative act through which the competent national authority rates a truck or tractor truck as being fit to provide the service of international transportation of merchandise by road.

Land Crew Card is the document issued by the national immigration authority of the Member Country of which the crew member is a national or which granted him/her a resident’s visa. It is issued in the name of an individual at the request of an authorized carrier and permits its holder to enter, pass through, stay in and leave the territory of the Member Countries as part of the crew of an approved vehicle in an operation of international transportation of merchandise by road.

International Cargo Manifest (ICM) is the customs inspection document that covers the merchandise being transported internationally by road from the place where the goods are loaded onto an authorized vehicle or cargo unit, to the place where they are unloaded for delivery to the addressee.

Operation of International Transportation of Merchandise by Road, hereinafter "Transportation Operation", is the series of services performed by the authorized carrier in order to transport the merchandise, from the moment it receives the goods until their delivery to the addressee.

Competent National Authority is the authority responsible for road transportation in each of the Member Countries, as well as for the comprehensive implementation of this Decision and its complementary provisions. The competent national authority in the different Member Countries is as follows:

Bolivia: Dirección General de Transporte Terrestre (General Bureau of Land Transportation)

Colombia: Dirección General de Transporte y Tránsito Terrestre Automotor (General Bureau of Automotive Land Transportation and Traffic)

Ecuador: Consejo Nacional de Tránsito y Transporte Terrestres (National Council of Land Traffic and Transportation)

Peru: Dirección General de Circulación Terrestre (General Bureau of Land Traffic)

Venezuela: Servicio Autónomo de Transporte y Tránsito Terrestre (Autonomous Land Transportation and Traffic Service)

The national customs and immigration authorities are:

Bolivia: - Dirección General de Aduanas (General Customs Bureau)

- Dirección General de Migración y Extranjería (General Immigration Bureau)

Colombia: - Dirección de Impuestos y Aduanas Nacionales (Bureau of National Taxes and Customhouses)

- Subsecretaría de Asuntos Consulares y Migración (Under Secretariat for Consular and Immigration Affairs), for the issue of the Land Crew Card; and Departamento Administrativo de Seguridad (DAS) (Administrative Security Department) for immigration control

Ecuador: - Dirección Nacional del Servicio de Aduanas (National Bureau of Customs Service)

- Dirección Nacional de Migración (National Immigration Bureau)

Peru: - Superintendencia Nacional de Aduanas (National Customs Superintendency)

- Dirección de Migraciones y Naturalización (National Bureau of Immigration and Naturalization)

Venezuela: - Servicio Nacional Integrado de Administración Tributaria (SENIAT) – Gerencia de Aduanas (Integrated National Tax Administration Service – Customs Office)

- Dirección Sectorial de Extranjería – (Sectorial Immigration Bureau)

Country of Origin is the Member Country where the carrier was established as a business enterprise and has its headquarters.

Service Permit is the document issued to a carrier that possesses a qualification certificate, certifying that the competent national authority of a Member Country other than its country of origin has authorized the carrier to carry out the international transportation of merchandise by road to or from its territory or through it.

Registration is the inscription by the competent national transportation authority or the annotation by the national customs authority, of each of the approved vehicles and cargo units to be used in the international transportation, for the purpose of exercising the corresponding control.

Shipper is the person who on his/its own or through another acting on his/its behalf delivers the merchandise to the authorized carrier and signs the international road waybill.

Andean Road System is the main, interregional and complementary roads defined and identified as such through a Decision of the Cartagena Agreement.

Passage is the vehicular movement through the territory of the Member Countries by the approved vehicle and the cargo unit, as well as their crew, while providing the international transportation or as a result of it.

International Transportation of Merchandise by Road, hereinafter "international transportation", is the transportation of merchandize which, in reliance on an international road waybill and an international cargo manifest, the authorized carrier provides in approved and duly registered vehicles and cargo units, from the place where it takes or receives the goods into its custody to another designated for their delivery, located in different Member Countries.

International Self-Transportation of Merchandise by Road, hereinafter "international self-transportation", is the transportation of merchandise carried out, in reliance on this Decision, by companies whose commercial business is not transportation for pay, in approved vehicles of its own which are used exclusively for the transportation between Member Countries of goods it uses for its own benefit.

Authorized Carrier is the juridical person whose corporate purpose is to transport merchandise by road, established in one of the Member Countries in accordance with the pertinent national provisions for business associations or cooperatives, and which possesses a qualification certificate and one or more service permits.

Crew are the persons employed by the authorized carrier for the international transportation and who are needed to drive the approved vehicle and take care of the merchandise transported.

Cargo Unit is the trailer or semitrailer (van, pallet, bin, fixed tank), registered with the national transportation and customs authorities.

Approved Vehicle is the truck or tractor truck to which the competent national authority has issued a certificate of approval.

Associated Vehicle is the truck or tractor truck and the trailer or semitrailer belonging to a third party, which the authorized carrier incorporates into its fleet for use in the international transportation of merchandise by road. 

CHAPTER II

BASIC PRINCIPLES

Article 2.- This Decision establishes the conditions for providing the service of international transportation of merchandise by road among the Member Countries of the Cartagena Agreement, in order to liberalize the offer of that service.

Article 3.- The offer and provision of the international transportation service is grounded in the following basic principles: freedom of operation; access to the market; national treatment; transparency; non-discrimination; equality of legal treatment; free competition and most-favored-nation.

Article 4.- The Member Countries agree to homologize the authorizations and transportation documents and to eliminate all restrictive measures that affect or that may affect international transportation operations. 

CHAPTER III

ON THE SCOPE OF APPLICATION

Article 5.- The international transportation of merchandise by road that is carried out between Member Countries of the Cartagena Agreement or in passage through their territory, shall be governed by this Decision and its complementary provisions.

This legislation is also applicable if the approved vehicle and the cargo unit must be transported over a given segment and without unloading the merchandise, through another mode of transportation, whose use is necessary in order to be able to continue the international transportation, whether such be by sea, river, lake or land.

Article 6.- The provisions of this Decision, as well as the complementary regulations, are also applicable when the crew, with the approved vehicles and cargo units, containers and tanks, travel without merchandise from one Member Country to another in order to start or to continue an international transportation operation, or to return to their country of origin after having concluded such.

Article 7.- The established trips for international transportation of merchandise by road are the following:
    1. Between two bordering Member Countries;

       

    2. Between two Member Countries, with passage through one or more Member Countries;

       

    3. From a Member Country to a third country, with passage through one or more Member Countries other than the country where the transportation started;

       

    4. From a third country to a Member Country, with passage through one or more Member Countries other than the country where the transportation will conclude; and

       

    5. To and from third countries, with passage through two or more Member Countries.

For the trips indicated in items c), d) and e), the provisions of this Decision and its complementary regulations shall be applicable only during the journey through the Member Countries.

Article 8.- The international transportation provided by carriers from third countries through the territory of one or more Member Countries, shall be regulated by the national legislation of each of the Member Countries through which they pass or by the provisions of international agreements in force.

Article 9.- The international transportation shall be provided along the routes that make up the Andean Road System and over the authorized border crossings, as well along such other routes and over such crossings as the Member Countries may authorize.

Article 10.- When two or more Member Countries agree to authorize new routes or border crossings for the international transportation among them, those routes or border crossings shall be utilized by the authorized carriers of the other Member Countries.

Article 11.- The qualification certificate and the service permit, as well as the certificate of approval, do not give the authorized carrier the right to provide local transportation of merchandise by road in the Member Countries.

Article 12.- The provisions of this Decision are not applicable to border transportation, which shall be governed by such regulations as the bordering Member Countries may agree upon.

Article 13.- The Member Countries, in their respective territory, shall grant the authorized carriers to which they have issued service permits, the right to offer and provide international transportation service, as well as to open offices and branches.

Article 14.- The Member Countries, in their respective territory, shall grant approved vehicles and cargo units that are duly registered, freedom of passage for purposes of international transportation.

Article 15.- An authorized carrier having obtained a service permit shall enjoy, in the Member Country that issued that permit, treatment that is no less favorable than that which is given to authorized carriers from that country.

Article 16.- The Member Countries shall give authorized carriers to which they have issued service permits, treatment that is no less favorable than that which, in similar circumstances, they grant to carriers from a third country.

Without prejudice to the stipulation of the previous paragraph, bordering Member Countries may grant each other’s carriers special conditions in order to facilitate passage and transportation operations locally, so long as these are limited to the demarcated contiguous border zone.

Article 17.- Any Member Country that adopts a measure affecting international transportation in terms of the circulation of approved vehicles and cargo units, as well as of their crews, shall immediately report it to the other Member Countries and to the Board of the Cartagena Agreement.

This same procedure shall be followed for the signing, adherence to or ratification, as well as the denunciation, of bilateral or multilateral agreements or conventions with regard to international transportation of merchandise by road, signed with another Member Country or third countries.

CHAPTER IV

ON THE CONDITIONS FOR

THE TRANSPORTATION

Article 18.- Only a carrier that possesses the authorizations established in this Decision may carry out international transportation of merchandise by road.

Furthermore, that carrier, in providing the service, may not receive treatment that differs according to its form of business organization.

Article 19.- A carrier interested in providing international transportation must obtain a qualification certificate and a service permit.

It must also secure a certificate of approval for each of the trucks or tractor trucks belonging to its fleet, and register them, together with the cargo units to be used.

The international transportation service shall be provided only upon fulfillment of the requirements set out in this chapter.

Article 20.- In order to be able to apply for a qualification certificate and a service permit, the carrier must be legally established in any of the Member Countries of the Cartagena Agreement as a business enterprise.

The organization of the business enterprise shall be governed by the legislation of the Member Country where it was founded and by the Community provisions for Andean multinational enterprises.

The establishment of offices or branches shall be regulated by the legislation of the Member Country where they are set up.

Article 21.- The international transportation of merchandise by road will be carried out under the following modes of operation:
    1. Directly, without any change in truck or tractor truck and trailer or semitrailer; or

       

    2. Directly, with a change in the tractor truck, but without any transfer of merchandise.

Merchandise shall be transferred only when expressly agreed upon by the authorized carrier and the shipper and this fact shall be recorded in the IRW.

Article 22.- Any merchandise that is transported internationally by road shall be covered by an IRW and an ICM. Those documents shall be presented for their respective processing, to the customs authorities involved in controlling the operation, a formality that may be accomplished before the arrival of the approved vehicle carrying the merchandise.

Merchandise subject to the international customs traffic regime should be covered by an international customs traffic declaration (ICTD).

Article 23.- The documents cited in the previous article shall be issued by the authorized carrier only for the international transportation operations it carries out.

A carrier holding only a qualification certificate may not issue those documents until it has obtained a service permit allowing it to provide transportation and has fulfilled the other conditions stipulated in this Decision.

Article 24.- The international transportation shall be considered finished when the authorized carrier delivers the merchandise to the consignee or addressee at the place designated for that purpose according to the terms of the IRW, as established in the transportation contract or as provided for in this Decision.

In no case may that transportation be considered interrupted by the fact that merchandise subject to the international customs traffic regime is cleared through customs for consumption in the customhouse of the country of destination authorized for this regime, located in a place other than that indicated in the ICTD.

Article 25.- Drivers’ licenses issued by a Member Country and used by the drivers in the international transportation shall be recognized as valid in the other Member Countries through which they pass.

The license category shall correspond to the classification of the approved vehicle being driven.

Article 26.- Licenses belonging to the drivers of approved vehicles, when these persons are providing international transportation service, may not be retained in the case of traffic violations that are punishable only by a fine.

Article 27.- The authorized carrier and its legal representative in each of the Member Countries within its sphere of operation are jointly and severally liable for the payment of any fines imposed on the drivers of the enterprise’s approved vehicles for traffic violations committed during the international transportation service.

Article 28.- The circulation of approved vehicles and cargo units shall be regulated by the automotive vehicle traffic rules in effect in the Member Country where they circulate.

Article 29.- The identification used by a Member Country for vehicles registered in that country (license plates or other specific means of identification), which is employed on the approved vehicles and on the cargo units, shall be recognized as valid in the other Member Countries through which those vehicles pass.

The Member Countries shall not demand that the approved vehicles and cargo units that pass through their territory while providing international transportation service or as a result of it, use special or additional identification to that indicated in the previous paragraph.

Article 30.- The insurance policy referred to in articles 39d) and 40d) of this Decision shall be submitted to the respective competent national authorities before the service may be started.

The authorized carrier may not provide international transportation service if its civil liability insurance policy has expired.

Article 36.- The international transportation service may be suspended by:
    1. Court order;

       

    2. Order of the competent national authority as a result of an administrative proceeding; or

       

    3. Decision of the authorized carrier.

In the case of item c), the competent national authority shall be notified at least fifteen calendar days before its implementation.

Article 32.- For tax purposes, the pertinent provisions for avoiding double taxation among the Member Countries, provided for in the legislation of the Cartagena Agreement, shall be applied to the international transportation.

CHAPTER V

ON THE TRANSPORTATION AUTHORIZATIONS

Article 33.- The national authority of each country that is responsible for road transportation is the competent entity for issuing to the carriers the qualification certificate, the service permit and the certificate of approval for the vehicles comprising their fleets.

Article 34.- The qualification certificate and the service permit shall be granted by administrative resolution of the competent national authority, and shall be issued in keeping with the legal procedures and provisions of the respective Member Country.

Article 35.- The qualification certificate shall be granted by the competent national authority of the carrier’s country of origin.

The service permit shall be issued by the competent national authority of each of the Member Countries within the carrier’s sphere of operation where it intends to operate.

Article 36.- The qualification certificate and service permit shall each have two annexes containing information about the approved vehicles and cargo units that are registered and the sphere of operation.

Article 37.- The qualification certificate shall be accepted by the Member Countries where the service permits are requested, as proof that the carrier is qualified to provide the international transportation service.

Article 38.- The qualification certificate and the service permit are nontransferable. As a result, the international transportation service may not be provided by a person other than that cited in those permits.

Article 39.- The carrier shall submit a written application for the qualification certificate, attaching the following documents and information:
    1. Copy of the enterprise’s incorporation papers and amended by-laws if they exist, with the respective record of their registration; in their absence, the incorporation certificate issued by the competent authority, stating the corporate purpose, reforms, owner’s equity, and duration;

       

    2. Copy of the appointment of the enterprise’s legal representative or, in its absence, a certificate of that appointment issued by the competent authority;

       

    3. City and street address of the enterprise’s headquarters;

       

    4. Letter of commitment to take out the Andean Civil Liability Insurance Policy for the International Road Carrier and Additional Crew Injury policy. If the crew carries another kind of insurance that covers personal injury, the carrier is not obliged to take out an additional policy, provided that the risk coverage and insured sums are equal to or larger than those established by the Andean Policy;

       

    5. Sphere of operation, with an indication of the Member Countries in whose territory it intends to operate, including its country of origin;

       

    6. List and identification of the vehicles whose approval and registration it requests. It shall indicate which vehicles belong to the enterprise and which have been leased. The documents and information requested in article 63 shall be attached thereto.

       

    7. List and identification of the cargo units whose registration it requests. It shall indicate which have been leased. The documents and information requested in article 69 shall be attached thereto.

Article 40.- The carrier shall submit a written application for the service permit, to which it shall attach the following documents and information:
    1. Copy of the qualification certificate and its annexes;

       

    2. Copy of the notarial power of attorney indicating the appointment of the legal representative, with full power to represent the enterprise in all administrative, commercial and legal acts in which it shall be involved in the Member Country where it is applying for the permit;

       

    3. City and street address of the enterprise’s legal representative in that Member Country;

       

    4. Letter of commitment to take out the Andean Civil Liability Insurance Policy for the International Road Carrier and Additional Crew Injury policy;

       

    5. List and identification of the approved vehicles and cargo units with which it shall operate in that Member Country and for whose registration it is applying. It shall indicate which belong to the enterprise and which have been leased.

In the case of item e), the carrier is not obliged to present the documents or provide the information stipulated in articles 63 and 69.

Article 41.- The application referred to in articles 39 and 40 shall be signed by the enterprise’s legal representative in the Member Country where the certificate or permit is being requested.

Article 42.- The competent national authority of the respective Member Country shall evaluate the carrier’s work record and capacity before granting the qualification certificate.

Article 43.- The competent national authority shall have a period of thirty calendar days, in each case, in which to issue and deliver the qualification certificate or the service permit to the carrier.

The period indicated in the previous paragraph shall run as of the date of presentation of the application, together with all of the documents and information required in articles 39 and 40, as applicable.

If the documents and information presented are incomplete or faulty, the company shall be asked to complete or rectify them; in that case, the period shall begin on the day the requirements are fulfilled.

Article 44.- The carrier, within ninety calendar days after the date of issue of the qualification certificate, shall request the service permit or permits that will enable it to start the international transportation operations; if it fails to do so, the competent national authority that granted that certificate shall annul it.

Article 45.- The qualification certificate is valid for five years. The period of validity of the service permit is subject to that of the qualification certificate.

The validity of both authorizations shall be extended automatically for like periods of time upon expiration, provided that there is no final Resolution by the competent national authority that granted them, suspending or annulling them.

Article 46.- The extension of the validity of the qualification certificate and of the service permit