The Acte clair in the Andean Community

May 31, 2023 | Intellectual Property

In the pronouncements corresponding to Cases 1-IP-87 (VOLVO), 7-IP-89 (CIBA-GEIGY AG), 3-IP-93 (SOCIEDAD ALUMINIO NACIONAL S.A.), and 11-IP-96 (BELMONT), The Court of Justice of the Andean Community (TJCA) established the foundations for the application of mandatory preliminary rulings under the following 4 criteria:

  1. Preliminary rulings are only applicable to the specific case in which a consultation was made.
  2. The issuance of a prior preliminary ruling does not exempt national judges from making new requests in analogous or similar cases.
  3. Mandatory preliminary consultation is a sine qua non requirement that national judges must observe before rendering a judgment.
  4. Failure to fulfill the obligation to make a preliminary consultation may lead to the community liability of the Member Countries.

Since 1987, the TJCA has issued over 6300 preliminary rulings, among which, on numerous occasions, it has been obliged to interpret the same rules and provide the same answers to queries raised by national judges. Likewise, many judicial proceedings have been suspended or remain suspended until the TJCA issues the respective pronouncement on previously interpreted rules.

Due to the aforementioned situation, on March 13, 2023, Sentences 391-IP-2022, 350-IP-2022, 261-IP-2022, and 145-IP-2022 were published in the Official Gazette of the Cartagena Agreement. In these sentences, the TJCA, applying the doctrine of the Acte clair(1) stated that in cases where the national judge of sole or final instance has to resolve a dispute involving the application or discussion of one or more norms of the Andean Community legal system, they are not obliged to request a preliminary ruling if such norms have already been interpreted in the past. 

Therefore, the obligation to request a preliminary ruling from the TJCA remains in the following cases: 

  1. When the Court of Justice of the Andean Community has not issued a preliminary ruling regarding the norm of the Andean Community legal system that the national judge of sole or final instance must apply (or that is under discussion) to resolve the dispute in the national jurisdictional process.
  2. When the Court of Justice of the Andean Community has issued a preliminary ruling published in the Official Gazette of the Cartagena Agreement regarding a specific norm of the Andean Community legal system that the national judge of sole or final instance must apply (or that is under discussion) to resolve the dispute in the national jurisdictional process, but not regarding other norms of the same legal system that are applicable to the same dispute. In this case, the Court of Justice of the Andean Community will issue the preliminary ruling regarding those norms that have not been previously interpreted and will reaffirm the interpretive legal criteria for those that have been interpreted, if applicable.  
  3. When the Court of Justice of the Andean Community has issued a preliminary ruling published in the Official Gazette of the Cartagena Agreement regarding the norm of the Andean Community legal system that the national judge of sole or final instance must apply (or that is under discussion) to resolve the dispute in the national jurisdictional process, but the judge considers it imperative for the TJCA to clarify, expand, or modify the interpretive legal criteria contained in the aforementioned preliminary ruling. 
  4. When the Court of Justice of the Andean Community has issued a preliminary ruling published in the Official Gazette of the Cartagena Agreement regarding the norm of the Andean Community legal system that the national judge of sole or final instance must apply (or that is under discussion) to resolve the dispute in the national jurisdictional process, but the judge has unavoidable questions about hypothetical situations that, in the abstract, arise from or are related to the said Andean norm, and that must be clarified.

Here is the link to the index of interpretative legal criteria that constitute Acte clair on Decision 486, Common Regime on Industrial Property: https://www.tribunalandino.org.ec/index.php/indice-de-criterios-juridicos-interpretativos-que-constituyen-acto-aclarado/ 

1 As mentioned by the Court, Alejandro D. Perotti explains that the theory of the Acte clair is based on the idea that the community norm that the national judge obliged to raise the preliminary question or interpretation to the community court has already been interpreted by it in a similar case, and therefore, there is no reason to consult it again on its meaning and scope.

 

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