“Peru v. Ecuador”
摘要
The international transportation of passengers and goods by road is a fundamental factor in making viable the free movement of goods and people, a characteristic of physical integration and the gradual formation of a common market. This service must be provided in the community area as smoothly, dynamically and freely as possible, so that trade in and movements of factors of production inside the Andean Community take place as if they were similar to those between regions within the territory of the Member Countries. This aim is only achieved if the offer and provision of international transportation services (of passengers and goods) by road are based on the principles of freedom of operation, market access, national treatment, transparency, non-discrimination, equal treatment, free competition, and most-favoured nation. For both types of economic operators (here: domestic carriers and carriers from other Member Countries) the requirements, expectations and conditions must be the same as regards: the regulation of transportation services (incl. both the authorisation to provide the service and the provision of the authorised service); and any other regulation that impacts upon the provision of the transportation service. The costs and extra charges – resulting from regulations other than those that directly apply to the service of international transportation of passengers and goods by road – must be the same for both types of operators. Such includes the price for fuel. The Ecuadorian regulation of the hydrocarbons sector which established differential pricing in the sale of fuel insofar as carriers with a foreign (e.g. Bolivian, Columbian or Peruvian) licence plate pay more than carriers with a domestic (Ecuadorian) licence plate breaches the principles of national treatment, equal legal treatment, non-discrimination and free competition, which in turn, breaches Arts. 3, 18 and 157 of Decision 398 and Arts. 3, 15 and 178 of Decision 837, and also infringes Art. 36 of Decision 608. By their very nature, the principles of national treatment, non-discrimination, equal treatment and free competition may not be subject to defences and restrictions that distort the intended purpose, which is to ensure an environment of free and “equitable” competition in which domestic carriers and carriers from the other Member Countries compete on “equal” conditions. Legislative or administrative (regulatory) steps intended to protect morality, public order or national security may be taken by Member Countries, but such measures must apply equally (equitably) to domestic carriers and carriers from other member Countries. Article 11 of Decision 439 is not subsidiarily applicable, nor does it complement Arts. 3, 18 and 157 of Decision 398 and Arts. 3, 15 and 178 of Decision 837.