{"id":9849,"date":"2018-12-16T15:02:13","date_gmt":"2018-12-16T20:02:13","guid":{"rendered":"https:\/\/omcabogados.com.pe\/?p=9849"},"modified":"2024-09-12T18:01:51","modified_gmt":"2024-09-12T23:01:51","slug":"la-interpretacion-prejudicial-de-la-comunidad-andina","status":"publish","type":"post","link":"https:\/\/omcabogados.com.pe\/en\/the-prejudicial-interpretation-of-the-andean-community\/","title":{"rendered":"The prejudicial interpretation of the Andean Community"},"content":{"rendered":"
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According to the passage of time and based on the constant struggles of man for the recognition of his rights which have been obtained as a result of the French Revolution, he has been creating rules and laws that allow the regulation of his obligations, in order to achieve harmony that allows the improvement of society in all its aspects.<\/p>

Thus international treaties arise that will allow not only the improvement of man as an individual being, but also the improvement of society as a whole. It is in this way that in Latin America and based on the precedents left by the European Community the creation of the Andean Community arises as a result of the signing of the Cartagena Agreement.<\/p>

In this sense, the Andean Community has been integrating over the years countries that have joined voluntarily with the objective of achieving an integral, more balanced and autonomous development through Andean, South American and Latin American integration[1]<\/span><\/a>; which currently has a supranational body whose function is to verify the legality of Community law and which in turn has been carrying out prejudicial interpretations that allow a better application of Community legislation to ensure the effectiveness of the legal system. Said body is called the Court of Justice of the Andean Community.<\/p>

In this way and as indicated by the same Court on the first prejudicial interpretation judgment in Process 01-IP-87:<\/p>

\u00abEs funci\u00f3n b\u00e1sica de este tribunal, indispensable para tutelar la vigencia del principio de legalidad en el proceso de integraci\u00f3n andina y para adaptar funcionalmente su complejo ordenamiento jur\u00eddico, la de interpretar sus normas a fin de asegurar su aplicaci\u00f3n uniforme en el territorio de los pa\u00edses miembros (…) objetivo fundamental que est\u00e1 l\u00f3gicamente fuera de las competencias de los jueces nacionales (…)<\/em>[2]\u00ab<\/em><\/p>

From what is indicated by the Court it is possible to see that it is only for the body to carry out the prejudicial interpretations of the community norm and that they will be of uniform application in the territory of the member countries.<\/p>

Therefore the purposes of the prejudicial interpretation, following the European model are diverse:<\/p>

I. Collaboration between the judge who knows a process involving a rule of community law and the community court, in order that the latter clarifies their doubts about the interpretation to be given.<\/p>

II. Guarantee the uniformity and stability of community law, favor its development, speed up its decentralized application, serve as a means of protecting people. In turn, the prejudicial interpretation is intended to standardize the interpretation of Andean Community Law and provide a fair solution to the controversial case, where any of the actionable people (or in certain cases the government) of one of the member countries invoke in their favor in a judicial process a regulation of Andean Community Law[3]<\/span><\/p>

Now, with regard to this last figure, it is necessary to point out that this will be carried out only when the local judges (understood as both the local judges or courts, the arbitrators in law and the administrative authorities that exercise a quasi-jurisdictional function), request the prejudicial interpretation of a community regulation, but not when an individual requests it. Since the Creation Treaty of TJCA (Court of Justice of the Andean Community) does not contain the possibility for a private individual to go directly and freely to the Court to obtain interpretations or concepts; but rather legitimizes only the local judges to request it[4]<\/span>.<\/p>

However, such action should not confuse with the fact that the parties request the local judge to consider the prejudicial interpretation, which may be granted provided that the local judge determines whether the request is appropriate in accordance with the need or not to apply Community regulations to resolve the specific case. With regard to the figure of the local judge, it is appropriate to point out that, since it is an authority that exercises a quasi-jurisdictional function that requests a prejudicial interpretation from the Court of Justice of the Andean Community, it must evidence as indicated in the Process 121-IP-2014 the following requirements<\/p>

  1. It has been constituted by legal mandate.<\/li>
  2. It is a permanent body.<\/li>
  3. The mandatory character of their competences.<\/li>
  4. The obligation to apply Andean community regulations in the exercise of their faculties.<\/li>
  5. The contradictory nature of the procedures under its responsibility and respect for due process and<\/li>
  6. The impartiality of their acts.<\/li><\/ol>

    If the aforementioned faculties are not evidenced, said authority may not request the prejudicial interpretation, and in doing so, it shall be declared inadmissible.<\/p>

    On the other hand, it is important to point out that prejudicial interpretations must be requested provided that:<\/p>