The
Governments of Bolivia, Colombia, Ecuador,
Peru and Venezuela, bearing in mind the
changes introduced by the Protocol Amending
the Andean Subregional Integration Agreement
(Cartagena Agreement), approved in Trujillo,
Peru on March 10, 1996,
AGREE to
sign the following Protocol Amending the
Treaty Creating the Court of Justice of the
Cartagena Agreement:
FIRST.-
The Treaty Creating
the Court of Justice of the Cartagena
Agreement is hereby amended in accordance with
the following text:
"TREATY
CREATING THE COURT OF JUSTICE OF THE ANDEAN
COMMUNITY
CHAPTER I
ON THE LEGAL SYSTEM OF THE CARTAGENA AGREEMENT
Article 1.-
The legal system of the Cartagena Agreement
consists of:
-
The
Cartagena Agreement, its Protocols and
additional instruments;
-
This
Treaty and its Amending Protocols;
-
The
Decisions of the Andean Council of Foreign
Ministers and of the Commission of the
Andean Community;
-
The
Resolutions of the General Secretariat of
the Andean Community; and
-
The
Industrial Complementarity Agreements and
any such other agreements as the Member
Countries may adopt among themselves within
the context of the Andean subregional
integration process.
Article 2.-
Decisions become binding for Member Countries
as of the date they are approved by the Andean
Council of Foreign Ministers or the Commission
of the Andean Community.
Article 3.-
Decisions of the Andean Council of Foreign
Ministers or of the Commission and Resolutions
of the General Secretariat shall be directly
applicable in Member Countries as of the date
they are published in the Official Gazette of
the Agreement, unless they indicate a later
date.
When their
text so stipulates, Decisions must be
incorporated into national law through an
express act stipulating the date they will
enter into effect in each Member Country.
Article 4.-
Member Countries are under the obligation to
take such measures as may be necessary to
ensure compliance with the provisions
comprising the legal system of the Andean
Community.
They further
agree to refrain from adopting or employing
any such measure as may be contrary to those
provisions or that may in any way restrict
their application.
CHAPTER II
ON THE CREATION AND ORGANIZATION OF THE COURT
Article 5.-
The Court of Justice of the Andean Community
is hereby created as its jurisdictional body,
with the organization and jurisdiction
established in this Treaty and its Amending
Protocols.
The Court
shall have its headquarters in the city of
Quito, Ecuador.
Article 6.-
The Court shall consist of five judges who
must be nationals of the Member Countries,
enjoy a good moral reputation, and fulfill the
necessary conditions for exercising the
highest judicial functions in their respective
countries or be highly competent jurists.
The judges
shall enjoy full independence in the exercise
of their duties. They may not perform other
professional activities, either paid or free
of charge, except for teaching; they shall
also refrain from any act that is incompatible
with the nature of their position.
The Andean
Council of Foreign Ministers, in consultation
with the Court, may alter the number of judges
and create the position of Advocate General,
to such number and with such powers as may be
established for that purpose in the
Organization Law referred to in Article 13.
Article 7.-
The judges shall be appointed by unanimous
decision of the Plenipotentiary
Representatives accredited for that purpose,
from slates of three candidates each submitted
by each Member Country. The government of the
host country shall summon the Plenipotentiary
Representatives.
Article 8.-
Judges shall be appointed for a six-year term;
they shall be renewed in part every three
years and may be re-elected only once.
Article 9.-
Judges shall each have a first and second
alternate to replace them, in that order, in
the event of their definitive or temporary
absence or their impediment or recusal, as
provided for in the Court’s Organization Law.
Alternates
must fulfill the same qualifications as the
principals. They shall be appointed on the
same date, in the same manner and for the same
period as the principal.
Article 10.-
Judges may be removed from office at the
request of the Government of a Member Country,
in accordance with the procedure established
in the Court’s Organization Law, only if in
the exercise of their duties they commit a
serious violation provided for in that
Organization Law. To this end, the Governments
of Member Countries shall appoint
Plenipotentiary representatives who, upon
being summoned by the host country, shall
decide the case by unanimous vote, at a
special meeting.
Article 11.-
At the conclusion of their term of office,
judges shall continue to perform their duties
until such time as the person replacing them
takes office.
Article 12.-
Member Countries shall give the Court all of
the necessary facilities for the proper
fulfillment of its functions.
Within the
territory of the Member Countries, the Court
and its judges shall enjoy all of the
immunities acknowledged by international
Agreements, particularly the Vienna Convention
on Diplomatic Relations, with respect to the
immunity of their records and their official
correspondence and in all matters concerning
civil and criminal jurisdiction, with the
exceptions established in Article 31 of the
cited Vienna Convention.
The Court’s
premises are inviolable and its property and
assets are immune from all judicial procedures,
unless it expressly waives that immunity. That
waiver, however, shall not be applicable to
any executory measure.
The judges,
the Court Secretary and the officials
appointed by the latter as international civil
servants, shall enjoy the immunities and
privileges corresponding to their status in
the territory of the host country. Accordingly,
judges shall enjoy a category equivalent to
that of chief of mission, while the categories
of other officials shall be established by
mutual agreement between the Court and the
government of the host country.
Article 13.-
The Andean Council of Foreign Ministers shall
adopt any amendments to the Organization Law
of the Court of Justice of the Cartagena
Agreement, approved through Decision 184, at
the proposal of the Commission and in
consultation with the Court.
The Court
shall be responsible for issuing its Internal
Rules.
Article 14.-
The Court shall appoint its Secretary and the
necessary personnel to perform its duties.
Article 15.-
The Court shall
submit annual reports to the Andean
Presidential Council, the Andean Council of
Foreign Ministers, and the Commission.
Article 16.-
Each year, the Commission of the Andean
Community shall approve the Court’s Annual
Budget. To this end, the Court’s President
shall promptly submit the corresponding draft
Annual Budget.
CHAPTER III
ON THE COURT’S SPHERES OF JURISDICTION
Section One
On the Nullity Action
Article 17.-
It is the responsibility of the Court to
declare the nullity of Decisions of the Andean
Council of Foreign Ministers and the Andean
Community Commission, Resolutions of the
General Secretariat, and the Agreements
referred to in Article 1, paragraph e), if
enacted or agreed upon in violation of the
provisions comprising the legal system of the
Andean Community, and even for the deviation
of power, when requested by a Member Country,
the Andean Council of Foreign Ministers, the
Commission of the Andean Community, the
General Secretariat, or natural or artificial
persons whose rights or interests are affected
as provided for in Article 19 of this Treaty.
Article 18.-
Member Countries may bring a nullity action
only in cases of Decisions or Agreements that
were approved without their affirmative vote.
Article 19.-
Natural or artificial persons may bring a
nullity action against the Decisions taken by
the Andean Council of Foreign Ministers or the
Andean Community Commission, General
Secretariat Resolutions, or Agreements that
affect their subjective rights or their
legitimate interests.
Article 20.-
Any nullity action must be brought before the
Court within a period of two years following
the date of the Decision of the Andean Council
of Foreign Ministers or of the Andean
Community Commission, the General Secretariat’s
Resolution, or the Agreement in question
becomes effective.
Even if the
period provided for in the previous paragraph
has expired, either of the parties to a
litigation brought before national judges or
courts could petition those judges or courts
to declare that the Decision or Resolution is
inapplicable to the specific case, provided
that the said case is related to the
application of that provision and that its
validity is open to question, in accordance
with the stipulation of article 17.
Upon the
filing of the petition to declare
inapplicability, the national judge shall
submit an inquiry to the Court of Justice of
the Andean Community regarding the legality of
the Decision, Resolution, or Agreement; it
shall then suspend the process until receipt
of the Court’s decision, which the national
judge must apply in his/her sentence.
Article 21.-
The filing of a nullity action shall not
affect the effectiveness or validity of the
provision or the Agreement being challenged.
The Court
may, however, at the request of the
petitioning party and after guaranteeing that
obligation should it deem this necessary,
through its final verdict, order the temporary
suspension of the execution of the Decision,
Resolution or Agreement being challenged or
other cautionary measures, if such were to
cause or could cause the petitioner damage
that is irreparable or difficult to repair.
Article 22.-
When the Court declares the total or partial
nullity of the challenged Decision, Resolution,
or Agreement, it shall indicate the effects of
the judgement over time.
The body of
the Andean Community whose act was annulled
shall adopt the required provisions in order
to ensure that the judgement is effectively
fulfilled within the period set by the Court.
Section Two
On the Action to declare Noncompliance
Article 23.-
If the General Secretariat considers that a
Member Country has failed to comply with its
obligations under the provisions or
Conventions comprising the legal system of the
Andean Community, it shall submit its
observations to that Member Country in writing.
The Member Country must respond to those
observations within a period set by the
General Secretariat in keeping with the
urgency of the case, which shall not exceed
sixty days. Once the reply has been received
or the term has expired, the General
Secretariat shall issue an administrative
ruling, which must include its reasoning,
regarding the state of compliance with those
obligations.
If the
General Secretariat decides that the Member
Country has failed to comply with its
obligations and it continues with the behavior
that was the subject of the observations, the
former shall request a decision from the Court
as soon as possible. The Member Country
affected by that noncompliance can join the
General Secretariat in the action.
Article 24.-
If a Member Country considers that another
Member Country has failed to comply with its
obligations under the provisions comprising
the legal system of the Andean Community, it
may take its claim to the General Secretariat,
together with the respective background of the
case. The latter may then take the necessary
action to rectify the noncompliance within the
period stipulated in the first paragraph of
the previous article. If the response is
received or the period elapses without any
positive results, the General Secretariat
shall, in keeping with its internal rules and
within the following fifteen days, issue a
ruling on the state of compliance with those
obligations, which must include its reasoning.
If the
General Secretariat decides that the Member
Country has failed to comply with its
obligations and the country continues with the
behavior that gave rise to the claim, the
General Secretariat shall request a decision
from the Court. Should the General Secretariat
fail to bring that action within sixty days
after the date of its administrative ruling,
the claimant country may appeal directly to
the Court.
If the
General Secretariat fails to issue an
administrative ruling within sixty-five days
after the date the claim was filed, or if its
decision is that no noncompliance exists, then
the claimant country may appeal directly to
the Court.
Article 25.-
Natural or
artificial persons whose rights have been
affected by the failure of a Member Country to
fulfill its obligations may appeal to the
General Secretariat and to the Court,
following the procedure provided for in
Article 24.
An action
brought as stipulated in the foregoing
paragraph excludes the possibility of
simultaneous recourse for the same purpose to
the procedure provided for in Article 31.
Article 26.-
If a Resolution has
been issued to verify the existence of a duty
or a restriction or in the event of flagrant
noncompliance, the General Secretariat shall,
in keeping with its internal rules, issue an
administrative ruling including its reasoning
as rapidly as possible, after which the
General Secretariat or the Member Country
affected may appeal directly to the Court.
Article 27.-
Were the Court to decide that the Member
Country has not complied with its obligations,
the country at fault would be compelled to
take the necessary steps to execute the
judgment within a period of no more than
ninety days after notification.
If that
Member Country fails to fulfil the obligation
stated in the previous paragraph, the Court,
summarily and after hearing the opinion of the
General Secretariat, shall establish the
limits within which the claimant country or
any other Member Country may restrict or
suspend, in whole or in part, the benefits
obtained by the Member Country at fault under
the Cartagena Agreement.
In any case,
the Court may order the adoption of other
measures, should the restriction or suspension
of the benefits of the Cartagena Agreement
worsen the situation to be resolved or fail to
be effective in that regard. The Court’s
Organization Law shall stipulate the
conditions and limitations on the exercise of
this function.
The Court
shall communicate its decision to the Member
Countries via the General Secretariat.
Article 28.-
Before handing down
its final judgment, the Court may, at the
petition of the claimant party and after
bonding should it deem this necessary, order
the temporary suspension of the allegedly
violating measure if this were to or could
cause the claimant country or the subregion
irreparable damage or damage difficult to
repair.
Article 29.-
Judgements handed down in actions to declare
noncompliance may be reviewed by the same
Court at the request of one of the parties,
based on a fact that may have decisively
influenced the result of the proceeding,
providing that the party requesting the review
was not aware of that fact on the date of
sentencing.
The petition
for a review must be submitted within ninety
days after the date of discovery of the fact
and, in any case, within a year after the
judgement date.
Article 30.-
A verdict of
noncompliance issued by the Court, in the
cases envisaged in Article 25, shall
constitute legal and sufficient grounds for
the party to ask the national judge for
compensation for any damages or loss that may
be due.
Article 31.-
Natural or artificial persons shall have the
right to appeal to the competent national
courts, as provided for by domestic law,
should Member Countries fail to comply with
Article 4 of this Treaty in the event that the
rights of those persons are affected by that
noncompliance.
Section Three
On Prejudgment Interpretation
Article 32.-
It shall be the Court’s responsibility to make
a prejudgment interpretation of the provisions
comprising the legal system of the Andean
Community, in order to ensure their uniform
application in the territory of the Member
Countries.
Article 33.-
National judges hearing a case in which one of
the provisions comprising the legal system of
the Andean Community should be applied or is
litigated, may directly request the Court’s
interpretation of such provisions, providing
that the verdict is susceptible to appeal
under national law. If the time comes to pass
judgement without having received the Court’s
interpretation, the judge must decide the
case.
In all
proceedings in which the verdict is not
susceptible to appeal under national law, the
judge, either at his/her own initiative or at
the request of one of the parties, shall
suspend the proceeding and directly request
the Court’s interpretation.
Article 34.-
The Court’s interpretation must be limited to
specifying the contents and scope of the
provisions comprising the legal system of the
Andean Community, which refer to the specific
case. The Court may neither interpret the
contents and scope of national law, nor judge
the facts in dispute. Even so, it may refer to
those facts when essential for the requested
interpretation.
Article 35.-
The judge trying the case must adopt the Court’s
interpretation in his/her sentencing.
Article 36.-
The Andean Community
Member Countries shall ensure the fulfillment
of the provisions of this Treaty and
particularly the observance by national judges
of the stipulations in this section.
Section Four
On an Action due to Omission or Inactivity
Article 37.-
Should the Andean
Council of Foreign Ministers, the Andean
Community Commission or the General
Secretariat abstain from carrying out an
activity for which it is expressly responsible
under the legal system of the Andean Community,
those bodies, Member Countries or natural or
artificial persons whose rights and interests
are affected as stipulated in Article 19 of
this Treaty, may demand the fulfillment of
those obligations.
If that
request fails to be acted upon within the
thirty following days, the petitioner may
appeal to the Court of Justice of the Andean
Community to hand down a ruling on the case.
Within
thirty days after the appeal has been admitted,
the Court shall issue the corresponding ruling
based on the existing technical documentation,
background of the case, and explanations by
the body whose behavior is the subject matter
of the action. That ruling, which shall be
published in the Official Gazette of the
Cartagena Agreement, should stipulate the form,
way and period in which the body in question
shall fulfill its obligation.
Section Five
On the Arbitration Function
Article 38.-
The Court is
competent to settle such disputes as may arise
as a result of the application or
interpretation of contracts, conventions or
agreements signed between bodies and
institutions of the Andean Integration System
or between the latter and third parties, via
arbitration, should the parties so agree.
Private
parties may agree to submit to the Court’s
arbitration any disputes that may arise as a
result of the application or interpretation of
aspects contained in private contracts that
are governed by the Andean Community’s legal
system.
The Court
shall issue its arbitration award, either in
law or in equity, as the parties choose, and
this decision shall be binding and
unappealable and shall constitute legal and
sufficient grounds for demanding its execution
in accordance with the national legislation of
each Member Country.
Article 39.-
The General
Secretariat is competent to settle via
arbitration such disputes as private parties
may submit to it with respect to the
application or interpretation of aspects
contained in private contracts that are
governed by the Andean Community’s legal
system.
The General
Secretariat shall issue its arbitration award
in equity according to criteria of fairness
and technical elements that conform to the
Andean Community’s legal system. Its decision
shall be binding and unappealable, unless the
parties decide otherwise, and shall constitute
legal and sufficient grounds for demanding its
execution in keeping with the national
legislation of each Member Country.
Section Six
On Labor Jurisdiction
Article 40.-
The Court is
competent to hear such labor disputes as may
arise within the bodies and institutions of
the Andean Integration System.
CHAPTER IV
GENERAL PROVISIONS
Article 41.-
In order to be carried out, the Court’s
rulings and arbitration awards and the
arbitration awards of the General Secretariat
shall not require official approval or
exequatur in any Member Country.
Article 42.-
Member Countries shall not submit any dispute
that may arise from the application of
provisions comprising the legal system of the
Andean Community to any court, arbitration
system or proceeding whatsoever except for
those stipulated in this Treaty.
The Member
Countries or bodies and institutions of the
Andean Integration System may submit to the
stipulations of this Treaty in regard to their
relations with third countries or groups of
countries.
Article 43.-
The General Secretariat shall publish the
Official Gazette of the Cartagena Agreement,
in which the Decisions of the Andean Council
of Foreign Ministers and of the Andean
Community Commission, the Agreements, the
Resolutions and administrative rulings of the
General Secretariat, and the Court’s judgments
shall be printed.
The
Secretary General may, as an exception, order
the publication of other legal acts, provided
that they are of a general nature and that
their contents are of interest to the Andean
Community.
Article 44.-
Should the Court consider it necessary for
fulfilling its functions, it may communicate
directly with the authorities of Member
Countries.
Article 45.-
The President of the
Court shall coordinate meetings and actions
with the highest-level judicial authorities of
the Member Countries, in order to promote the
dissemination and the perfecting of Community
law, as well as its uniform application."
EFFECTIVENESS
SECOND.-
This Amending
Protocol shall become effective when all of
the Member Countries signing it have deposited
the respective instrument of ratification with
the General Secretariat of the Andean
Community and when the Amending Protocol to
the Andean Subregional Integration Agreement
(Cartagena Agreement), approved in Trujillo,
Peru on March 10, 1996, has taken effect.
TRANSITORY
PROVISIONS
THIRD.-
The Andean Community
Commission shall adopt the Decision containing
the new codification of the Treaty Creating
the Court of Justice of the Andean Community,
whose draft shall be submitted to it by the
Court.
FOURTH.-
Such proceedings as
may be underway before the Court and the
General Secretariat on the date this Amending
Protocol becomes effective shall be adjusted
to its provisions..
IN WITNESS
WHEREOF, this Amending Protocol to the Treaty
Creating the Court of Justice of the Andean
Community is signed in the city of Cochabamba,
Bolivia on May 28, 1996.
SIGNED BY:
ANTONIO
ARANIBAR QUIROGA
Minister of Foreign Affairs and Worship of
Bolivia
RODRIGO
PARDO GARCÍA-PEÑA
Minister of Foreign Affairs of Colombia
GALO LEORO
FRANCO
Minister of Foreign Affairs of Ecuador
FRANCISCO
TUDELA
Minister of Foreign Affairs of Peru
MIGUEL ANGEL
BURELLI RIVAS
Minister of Foreign Affairs of Venezuela
