Abstract: |
Summary of Facts:
• The Government of Colombia presented a claim to the General Secretariat about Resolution 274 from COMEXI (Ecuadorian Council of Foreign Trade and Investment) by which were suspended the imports of salt into Ecuador.
• The General Secretariat started an investigation to determine if the suspension of imports of salt is an unjustified trade restriction.
• Ecuador’s argument is that the measures adopted are general and not only directed to salt imports from the Andean Community.
• The General Secretariat issued Resolution 897 qualifying Ecuador’s salt imports suspension as a restriction of intrasubregional trade and required this country to lift the suspension.
• Ecuador, following on this resolution, issued Resolution 368 from COMEXI by which this Council suspended, conditionally and for 2 years, the salt imports. During this time was required the elaboration of a control procedure to guarantee the safety of salt imports for human consumption, as well as the products from national production.
• Based on the complaints from other countries (Peru and Colombia) and from information obtained by the General Secretariat, the latter issued the Opinion 05-2007 on which is considered that Ecuador is violating Andean legislation.
• The General Secretariat argues that Ecuador is in flagrant and continued failure to comply with Andean legislation because of the measures it has adopted and has refused to suspend.
• Ecuador argues in its answer that the decisions adopted by COMEXI are founded on Andean legislation and on the rules of the Agreement on Sanitary and Phytosanitary Measures from the WTO and the Codex Alimentarius because they privilege the right to health above any commercial interest. Moreover, Ecuador argues the measures adopted have been effective for reducing the consumption of salt without iodine, and comply with the principles of proportionality, causality and irreplaceably. It should be considered that there is no discrimination because there is not any other control measure that the country could have adopted for protecting public health. The measures are aimed at controlling the entrance of salt products that can be harmful for the health of Ecuadorians.
• Ecuador asserts that the deficiencies for the lack of iodine are a health problem known as iodine deficiency disorders which are a national concern.
• In its closing arguments, Ecuador affirmed the measures adopted are aimed at protecting public health, while respecting Andean legislation. That Ecuador does not have technical or economic capacity to adopt control measures at the border, therefore by the moment there is any other reasonable, alternative measure. The measures adopted are proportional, necessary, non-discriminatory and non-protectionists. They are appropriate to the end sought, to defend the health of the population. There are no ordinary mechanisms available to do it, and they are not intended at protecting or safeguarding the rights of national producers.
• The General Secretariat insisted that the measures adopted are neither irreplaceable nor proportional. They are discriminatory by banning all imports without giving the foreign producers the opportunity to demonstrate the appropriate iodization of their products. The measures adopted are a flagrant and continued failure.
Issues:
- Specific Issues for Attention
• Ecuador rose as its strongest argument that the measures were adopted to protect public health. Even though, the Court decided those argument were irrelevant for the procedure because it is aimed at deciding if Ecuador complied with Resolution 897 in which was decided Ecuador’s failure to comply with Andean legislation.
- Procedural Practice Issues
Jurisdiction: Court of Justice of the Andean Community
Standing: According to articles 23 to 27 of the Treaty Creating the Court of Justice of the Andean Community, the action for non-compliance can be started by the General Secretariat, the member States or affected individuals, prior compliance of the requirements established. The requirement is to complete the preliminary administrative procedure before the General Secretariat. The Court acknowledged the fulfillment of the requirements for starting the action for non-compliance before the Court of Justice of the Andean Community.
Evidence: Both parties presented several documents before the Court for their analysis. They are aimed at proving the existence of the measures restricting salt trade by Ecuador, the health problems that Ecuador has been experiencing regarding iodine deficiency disorders and therefore the necessity for the measures adopted.
• To declare that Ecuador has breached articles 77 of the Cartagena Agreement, 4 of the Agreement establishing the Court of Justice of the Andean Community, and the Resolution 897 from February 4, 2005 of the General Secretariat of the Andean Community by not lifting the restrictive measures imposed over the imports of table salt.
• To declare that Ecuador has temporarily breached articles 77 of the Cartagena Agreement, 4 of the Agreement establishing the Court of Justice of the Andean Community, and the Resolution 897 from February 4, 2005 of the General Secretariat of the Andean Community, by maintaining restrictions to salt imports since the issuance of the Resolution 897 of the General Secretariat until the issuance of Resolution 380 of the COMEXI, by which the restrictions were lifted and trade was restored for this product.
• Ecuador shall adopt within a period not exceeding 90 days from notification of this decision, the necessary measures in order to bring to an end the infringement of Community rules identified and, consequently, reverse the restrictions on the importation of salt.
• To decide if Ecuador’s actions can be considered as continued and repeated, the Court made a chronological list of the administrative acts issued by COMEXI. Subsequently, the Court concluded the three national acts constitute one same conduct, which are the object of the failure, they have the same objective with the same purpose: to suspend the imports of table salt. Therefore, the failure behavior is continued and repeated.
• The Court concluded that Ecuador failed Resolution 897 repeatedly and continuously. Also concluded that Ecuador has violated articles 77 of the Cartagena Agreement and 4 of the Agreement establishing the Court of Justice of the Andean Community by not lifting the restrictive measures against the imports of table salt.
• Regarding the argument about the measures being adopted to protect public health and that there are no other mechanisms to do it, the Court concluded that the evidence and arguments presented during the proceeding have showed that Ecuador is breaching Andean legislation repetitively and continuously and that Ecuador failed to adopt the appropriate measures to solve the underlying problem, therefore omitting its obligations to the Andean Community.
• According to media reports, Ecuador decided to comply with the decision from the Court by adopting diverse measures to lift the restrictions on salt imports and some others aimed at controlling and supervising the quality of the product.
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