Free Movement of Goods in the Andean Community: How far can Dassonville go?

Abstract

The case law of the Andean Court of Justice (ACJ) and rthe Resolutions of the General Secretariat regarding restrictions on imports, suggest that these institutions have tried to ensure the fulfillment of state obligations in favor of the principle of free movement of goods as an essential and important avenue to attain the common market in the Andean Community. Since the early 1990s, through the jurisprudence on the free movement of goods, the ACJ has adopted a broad interpretation of the provisions of the Cartagena Agreement. The need to interpret the Cartagena Agreement based on the need to establish a common market triggers the application of a broad definition of restriction on trade, such as the European Court of Justice (ECJ) Dassonville doctrine. The Dassonville formula helped not only to understand the meaning of “restrictions of all kinds” provided for in Article 73 of the Cartagena Agreement but also to delimit the competence of community institutions as regards the assessment of restrictive national measures.The Treaty on the Functioning of the European Union (TFEU) and the ECJ case law are a source of inspiration for the General Secretariat and the ACJ when determining the existence of a restriction on trade. Both community institutions cite the ECJ case law, Article 34 TFEU, and the European doctrine. Some aspects of the ACJ case law need to be further clarified. In light of the ACJ case law, Article 34 TFEU has acquired the status of supplementary source of law in the Andean Community. Nevertheless, the ACJ needs to develop or explain the implications of this position adopted in the 1990s. As yet, the ACJ has not done this work. A special challenge for the ACJ follows from the fact that the Cartagena Agreement has adopted a different approach to restrictions on trade to that found in the text of the TFEU and it does not contain a clause for MEQRs. Additionally, the Cartagena Agreement clearly takes a position concerning the concept of restrictions of all kinds.