Title: |
Action for non-compliance filed by the societies Farmagro S.A., Bayer S.A., Basf Peruana S.A., Productos Químicos Peruanos S.A., Farmex, S.A., San Miguel Industrial S.A., Tecnología Química y Comercio, S.A., Servicios y Formulaciones Industriales S.A. and SYNGENTA CROP Protección S.A., against the Republic of Peru, for the alleged breach of articles 2, 3 and 4 of the agreement establishing the Court of Justice of the Andean Community; articles 1, 3, 4, 5, 8, 10, 11, 16, 17, 18, 19 and 22 of Decision 436 of the Commission of the Andean Community, and generalities and Section 2 of the Technical Handbook for the Register and Control of Chemical Pesticides for Agricultural Use, adopted by Resolution 630 of the General Secretariat. |
Abstract: |
Summary of Facts:
• Peru created the form: Farmer-Importer-User (FIU – AIU (Spanish)) by issuing two resolutions and two decrees by which it created the Farmer-Importer-User Register. These rules establish a mechanism for the import of pesticides for agricultural use; it consists of a special register for those farmers who want to import those kinds of pesticides for their personal use, provided that it is done within the strictly necessary parameters.
• The Commission of the Andean Community issued Decision 436 (1998) by which was established the Andean Rule for the Register and Control of Chemical Pesticides for Agricultural Use which came into effect when the Andean Technical Handbook for the Register and Control of Chemical Pesticides for Agricultural Use was published (2002). The latter established by Resolution 630 of the General Secretariat. Both documents establish the requirements for the register of these products.
• The Republic of Peru had not adapted its national legislation to Decision 346 and Resolution 630.
• The plaintiffs argued the measures adopted by Peru are establishing a different treatment for the FIUs. Those measures are providing a more favorable regime for the register and control of chemical pesticides of agricultural use, and as a consequence are allowing them to import pesticides without fulfilling the requirements established by Communitarian rules. The claimants argued this special regime may cause several consequences like:
o Presence of impurities, which affect human health for the lack of purifying processes during the synthesis of the active ingredient of the product.
o Use of forbidden solvents, harmful for human health.
o Poor quality of packaging.
o Poor stability of the formulations.
o Illegal waste in fruits and vegetables not acceptable in importing countries.
o Generation of obsolete stocks, since there could not exist representation in the country of the pesticides producer.
o Lack of national representation to assume responsibilities of technical advice and appropriate use of the products.
• Peru argued is applying the principle of indispensable compliment to legislate on the issue. Peru argued that according to an interpretation of Decision 436, the National Register of Pesticides is only for people who commercialize those products. Therefore the Decision does not apply to FIUs because they acquire the pesticides for their own use and in quantities needed to satisfy their requirements. Additionally, argued that the pesticides imported under FIU, meet the security measures for their use and handling.
• Third party interveners asserted that the rules for FIUs were issued prior to Decision 436, therefore cannot affect it. They argue Decision 436 is aimed at people that import pesticides for commercial purposes. They support Peru’s arguments.
• The General Secretariat of the Andean Community, as part of the preliminary procedure, issued its Opinion no. 03-2007 determining the failure from the Republic of Peru, regarding the FIU program.
Issues:
- Specific Issues for Attention
• The Court in several arguments emphasizes the idea that human rights have to be looked after over trade rights.
• For the Court, when the right of competitive agricultural development is faced against life, health and access to a safe environment, the former has to yield to the latter.
- 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:
• The parties presented documentary evidence before the Court for their analysis.
• To declare that Peru has committed a breach of the articles demanded of the Agreement Creating the Court of Justice of the Andean Community, of Decision 436 of the Commission of the Andean Community, and Resolution 630 of the General Secretariat, since the entry into force of Decision 436, since June 26, 2002, by keeping the figure of Farmer-Importer-User (FIU) developed in the national rules: Supreme Decree no. 016-2000-AG, ‘Jefatural’ Decision no. 039-2002-AG-SENASA, ‘Directive’ Resolution no. 084-202-AG.
• The Republic of Peru shall rescind the rules that govern the figure of the FIU and all the registers given according to it since the entry into force of Decision 436, within the 90 days following the notification of this decision. Peru will also refrain from adopting other measures that contravene again Andean Community Law.
• Regarding the requirements for those importers under the FIU program, the Court concluded they are different and more flexible than those required in Decision 436. For the FIUs the requirements of Decision 436 are not applied and for those no-FIUs is clear the application of the Community rules.
• The Court explained the protection of rights of first order like life, health, and to enjoy a healthy environment are the guidelines followed by Decision 436. The second objective mentioned in the rule, clearly reflects the specific intention of Community legislator: to protect life, health and the environment; and to achieve food safety in the sub-region, increase the levels of agricultural productivity, substitute agricultural imports and increase exports. The Court called attention to the wording of the Decision where it mentions a harmonized system for the register and control of pesticides for agricultural use contributes to improve production, commercialization, use and final disposition of waste in the country members, improving quality, efficiency and security for human health and the environment. For the Court, these arguments, and the whole Decision evidence that the basis for having a harmonized system for the register and control of pesticides is the protection of life, health and the environment; beyond the regulation of trade and the formal harmonization of the control and register of pesticides.
• The Court referred to a Preliminary Interpretation (137-IP-2003) it did on Decision 436, nevertheless it did a literal and systematic analysis of this decision in the judgment at hand. In this analysis the Court emphasized the idea that Decision 436 regulates all kinds of chemical pesticides for agricultural use, and affirmed the objective of the rule is not only to control the imports for commercial purposes, but also to ensure that those imports are not potentially harmful for public health and the environment.
• For the Court, in order to achieve an adequate standard of living it is imperative to respect human rights, among which is life and health. The Court made reference to other decisions where it has taken the protection of human rights as the foundation for an appropriate interpretation of Community rules. Consequently, the Court rejected the argument from Peru that the pesticides register is only applicable for the imports with commercial purposes.
• Regarding the relation between the use of chemical pesticides for agricultural use and the damage to public health and the environment, the Court, taking into consideration some reports from a study made in Colombia, argued that the use, handle and application of pesticides for agricultural purposes has a great impact on the health of the population and for that reason these actions should be properly controlled by the competent national authority. The measured and controlled use of these pesticides is of vital importance for maintaining a healthy ecosystem and a sustainable development.
• The Court concluded that Peruvian legislation is establishing an independent register for the FIUs to import pesticides for their own use applying a procedure with different requirements and more flexible than those considered in Decision 436. To allow the existence of groups with preferential treatment in this matter, would be to deny in practice the realization of the fundamental values that Community normative tries to protect; beyond the intentions of competitiveness and productivity on which the Peruvian government grounds its rules, health and environment should be protected primarily. When the right to competitive agricultural development is faced with the rights of life, health and access to a safe environment, it is clear for the Court that the former has to yield to the latter. The Court concluded the FIU program goes against Decision 436; it is clearly discriminatory and contrary to the fundamental right of equality because there is not sufficient reason to establish a more favorable and flexible treatment for FIUs.
• It was emphasized the importance for all pesticides, without exceptions, to comply with all the requirements, because life, health and the equilibrium of the ecosystem are at stake. To allow exceptions, further than violating Andean legislation, is to put in grave danger those rights.
• Because Peru did not comply with Decision 436 and Resolution 630 of the General Secretariat, both valid rules of immediate application and direct effect, and according to the principle of immediate application, Peru violated articles 2, 3 and 4 of the Agreement for the Creation of the Court of Justice of the Andean Community.
• According to media reports, Peruvian government did not welcome the decision. Actually the Minister of Agriculture declared at an event with agricultural exporters, that the government was going to put on hold the decision of the Court . The president and vice-president complained the Court decided in favor of 8 laboratories and against over 400 exporters that generate over 140 thousand jobs.
|