WT/REG380/2  
 
27 March 2019 
(19-1942) Page: 1/6 
Committee on Regional Trade Agreements  Original: English  
 
ACCESSION OF ECUADOR  TO THE TRADE AGREEM ENT BETWEEN  
THE EUROPEAN UNION AND COLOMBIA AND PERU  
(GOODS AND SERVICES)  
QUESTIONS AND REPLIE S 
 The following communication, dated 27 March 2019 , is being circulated at the request of the 
delegations of  Ecuador, the European Union, Colombia and Peru . 
 
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Question s from the delegation of Canada  
 
General provisions of the agreement  
Government procurement  
 
1.1.  "Paragraph 5.22 : <…> Title VI contains disciplines on <…> cooperation between the 
Parties to achieving a better understanding of their respective government procurement 
systems (Article 193)."  
a. What are the key priorities and projects that the Parties plan to undertake to 
fulfil their commitments in paragraph 2 of Article 193?  
Response from the delegation s of the European Union and Ecuador  
 
 The key priority identified by the Parties is the strengthening of the participation of small and 
medium sized enterprises ( SMEs ) in Government Procurement notably by applying the benefits 
derived from the European Code of best practices facilitating access by SMEs to public procurement 
contracts. Projects will include exchanges of good practices on how to reduce the administrative 
burden on SMEs.   
 
b. Could the Parties share examples of assistance that the EU provides to tenderers 
from the signatory Andean Countries as stipulated in paragraph 3 of Article 193?  
Response from the delegation s of the European Union and Ecuador  
 
 The EU and Andean Community countries are elaborating joint projects to implement 
paragraph 3 of Article 193. The EU will provide assistance to Andean countries regarding the use 
and operation of Tender Electronic Daily (TED) and Information System for European Publi c 
Procurement (SIMAP), which are the EU public procurement portal and platform. Making the best 
use of TED and SIMAP will help Andean countries economic operator identifying business 
opportunities in the EU procurement market.  Specific events , such as semi nars, may include practical 
information on how to register, create an account, express interest, apply for procurements and 
therefore how to participate in the procurements by submitting tenders and electronic auctions.  
 
 
 
 
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  Question from the delegation of  the Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu  
 
General provisions of the agreement  
Intellectual property rights  
 
1.2.  "Paragraph  5.24: <…>  They also add provisions on the exhaustion of IPRs, on 
biodiversity, and traditional knowledge, not  specifically covered by the TRIPS 
Agreement ".  
 Regarding the exhaustion of IPRs, is there a dispute settlement mechanism in place 
among the parties to resolve any trade conflicts caused by the different regimes for 
exhaustion of IPRs?  
 
Response from the delegation s of the European Union and Ecuador   
 
The EU - Colombia/Peru /Ecuador  Trade Agreement  provides in Article 200 that "each Party 
shall be free to establish its own regime for exhaustion of intellectual property rights , subject to the 
provisions of the TRIPS Agreement ".  
 
This provision gives Parties freedom to choose individually its exhaustion regime; therefore, 
it cannot be brought to dispute s ettlement, as long as it fulfils  the provisions of TRIPS.  
 
Question s from the delegation of Thailand  
 
Provisions on trade in services  
Scope and definitions   
1.3.  "Paragraph 4.2: Chapter 2 on establishment also covers investment -related matters 
for services and non -services. […] The disputes arising under Chapter 2 of the Agreement 
are covered by the dispute res olution mechanism of the Agreement, except disputes 
encountered between the signatory Andean Countries."  
 What kind of dispute resolution mechanism will be used when there is a dispute 
under Chapter 2 arising between the signatory Andean Countries?  
Response from the delegations of Ecuador, Colombia and Peru  
 
 As provided in paragraph 2 of article 7 of the EU - Colombia/Peru/Ecuador Agreement, related 
to Trade and Economic Relations covered by the Agreement, the Parties agree that:  
 
 "The rights and o bligations established by the Parties in this Agreement shall not affect to the 
rights and obligations between signatory Andean Countries as Member Countries of the Andean 
Community. " 
 
 In this sense, the Parties recognize the obligations that the Andean C ountries have among 
themselves, as well as the specific regulations that apply to their relation s. In accordance with this, 
in paragraph 4 of article 10 of the Agreement, the parties recognize that:  
 
 "[…] the signatory Andean Countries must preserve the A ndean Legal System in the relations 
between them, in accordance with Decision 598 of the Andean Community. " 
 
 The competent Authority to solve the dispute settlement processes arising from the trade 
relationship between the Andean Countries, is the Court o f Justice of the Andean Community, which 
has this jurisdiction and competence, in accordance with Articles 4 and 5 of Decision 500 of the 
Andean Community.  
 
 Therefore, in case of a dispute arising between the Andean countries on the application of the 
provisions of Chapter 2 of the EU -Colombia/Peru/Ecuador Agreement, the Court of Justice of the 
Andean Community shall be the competent authority to hear and decide the case.  
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  Denial of benefits  
1.4.  "Paragraph 4.6: The Agreement does not contain a "denial of benef its" provision per 
se. However, only companies of a Party can access the benefits of the Agreement where 
"companies of a Party" are defined as companies that have been set up in accordance 
with the Party's legislation, have their main office registered in the territory of that Party 
and possess a "real and continuous link" with the economy of that Party (Article 108)."  
What are the criteria for determining "real and continuous link" for the purpose of 
this Article?  
Response from the delegations  of the Euro pean Union and Ecuador  
 
 In line with its notification of the Treaty establishing the European Community to the WTO 
(WT/REG39/1), the European Union understands that the concept of "effective and continuous link " 
with the economy of a Member State of the European Union enshrined in Article 54 of the T reaty on 
the Functioning of the EU  is equivalent to the concept of "substantive business operations ". 
 
General provisions on trade in services  
National treatment and MFN 
1.5.  "Paragraph 4.10: The Agreement does not make reference to MFN treatment."  
Does the cited paragraph mean that this Agreement does not contain any specific 
provision on MFN?  
Response from the delegations  of the European Union and Ecuador  
 
 It means that TITLE IV TRADE IN SERVICES, ESTABLISHMENT AND ELECTRONIC COMMERCE 
does not include any specific provision on MFN.  
 
Senior Management and boa rds of directors  
1.6.  "Paragraph 4.14: The Agreement does not contain any specific provision regarding 
the composition of  senior/executive management of companies."  
If a Party adopts or maintains any measure regarding nationality of 
senior/executive management of a company, will it be considered a violation of any 
provisions under this Agreement?  
Response from the delegation s of the European Union and Ecuador  
 
 Any such measure would be considered as a violation of the National Treatment obligation, 
for establishment.  
 
General provisions of the agreement  
Accession and withdrawal  
1.7.  "Paragraph 5.10 : Any member country  of the Andean Community which is not a Party 
to the Agreement may accede to the Agreement subject to the subject to the terms and 
conditions agreed between the Parties.[…] "  
On the second line, there may be a typo (duplication) "…subject to the subject to …" 
Dispute settlement  
1.8.  "Paragraph 5.15 : In case of a dispute, the Parties will endeavour  to resolve it through 
consultations (Article 301). If consultations fail, the complaining Party can request the 
establishment of an arbitration panel (Article 302). The arbitration panel must notify its 
ruling to the Parties and to the Trade Committee wit hin 120 days from the date the 
arbitration panel was established (Article 307). The Parties to the disputes may request WT/REG380/2  
 
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  clarifications of the ruling (Article 312). If the Party fails to comply with the panel's ruling, 
the complaining may request compensati on from the Party complained against; or, upon 
prior notification, suspend concessions to a level equivalent to the nullification or 
impairment caused by the violation.  […]" 
There may be a missing word "…the complaining Party  may…"  
Response from the delegation s of the European Union and Ecuador  
 
 Question s 5 and 6 are the WTO Secretariat 's competence. We agree with the corrections . 
 
Questions from the delegation of the United States  
 
Characteristic elements of the agreement  
 
1.9.  "Paragraph 2.2 : The texts of the Agreement and the Accession Protocol, along with 
its schedules and annexes, are available on the Parties' websites. The provisions of the 
Agreement apply to bilateral trade relations between, the EU, and, Colombia, Peru and 
Ecuador and do  not apply to trade relations between Colombia, Peru and Ecuador, which 
are regulated by the Andean Community. The Accession Protocol applies exclusively to 
the trade relationship between the EU and Ecuador, and amends inter alia, the title of the 
Agreemen t to include Ecuador as a signatory, as well as a number of articles and annexes 
of the Agreement. For instance, Annex III of the Accession Protocol on tariff elimination 
by the EU and Ecuador, is incorporated into Annex I of the Agreement. The Agreement i s 
composed of 14 Titles and Annexes, while the Accession Protocol consists of 11 Sections 
and 19 Annexes. "  
 Paragraph  2.2 states that the provisions of the Agreement "do not apply to trade 
relations between Colombia, Peru and Ecuador, which are regulated by the Andean 
Community." According to Table 5.1 (pp.42 -43), the agreement covering goods in the 
Andean Community (1988) was notified to the WTO in 1990, but the agreement covering 
services in the Andean Community (2006) was not notified. Why has the agree ment 
covering services in the Andean Community not been notified? When do the Parties intend 
to notify this agreement?  
 
Response from the delegation s of Ecuador, Colombia and Peru  
 
 Trade in services within the Andean Community continues in a process of d eepening its 
liberalization. Although the Andean Decisions 439 and 510 constitute the principal framework for 
analysing the Andean liberalization in trade in services, no decision has been taken regarding the 
coverage of trade in services that substantiall y changes the provisions of the Cartagena Agreement 
notified to the WTO.  
 
Provisions on trade in goods  
Regulatory provisions on trade in goods  
Standards  
Technical barriers to trade  
 
1.10.   "Paragraph 3.34 : In Chapter 4 (Articles 71 -84) on technical barriers to trade (TBT), 
the Parties reaffirm their rights and obligations under the WTO TBT Agreement 
(Article  73), which is incorporated into the Agreement (article 73). In addition, they 
include provisions on cooperation and trade facilitation (Article 75), technical regulations 
(Article 76), standards (Article 77), conformity assessment (78), and transparency and 
notification procedures (Article 79). In general, these provisions are more detailed and 
go beyond  the WTO TBT Agreement. " 
 Under Article 73 of the Trade Agreement, the rights and obligations of the WTO TBT 
Agreement have been "incorporated into and made an integral part of [the] Agreement, 
mutatis mutandis ." Article 76 on the use of international stan dards in technical 
regulations is different from Article 2.4 of the WTO TBT Agreement by omitting language 
on parts of international standards, standards that are imminent, and on fulfilling a 
legitimate objective. Please explain why these elements were no t included.  WT/REG380/2  
 
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  Response from the delegation s of the European Union and Ecuador  
 
 The WTO TBT Agreement is the basis for the commitments in the agreement since all parties 
are bound by its WTO commitments. However, other articles in the agreement may reinforce these 
commitments or go beyond (so called WTO+), but the latter should not be seen as contradictory to 
the WTO TBT Agreement.  
 
1.11.   Please explain why the Parties included language to "ensure, to the extent possible, 
that standards are not mandatory" in Article 77.1.(d). Do Ecuador, EU or one of the other 
Parties have mandatory standards?  
Response from the delegations of the European Union, Ecuador, Colombia and Peru  
 
Standa rds are not mandatory in the EU neither in the signatory Andean countries.   
 
1.12.   "Paragraph 3.36 : Other novelties are also found in the provisions on TBT measures 
and transparency. For instance, the Parties shall, upon request, provide any information 
regarding a technical regulation (except for confidential information) in case the oth er 
Party would like to develop a similar one to avoid duplication of work. They commit to 
apply the WTO TBT Committee decision on the principles for developing international 
standards. They also recognize that there a number of mechanisms to facilitate the  
acceptance of the results of conformity assessment procedures conducted by another 
Party, such as self -declaration, unilateral recognition, voluntary recognition agreements 
between conformity assessment bodies, and accreditation. Regarding self -declaratio n as 
a form of recognition, Ecuador committed under the Accession Protocol to recognise a 
self-declaration from the supplier that the product conforms to the EU technical 
regulations as a sufficient proof of conformity with Ecuadorian technical regulations  
(Article 2 and Annex I of the Accession Protocol). This is the only modification brought by 
the Accession Protocol to the Agreement in the area of TBT. In the area of transparency, 
all proposed or new technical regulations and conformity assessment proced ures must be 
transmitted electronically directly to the other Party or via the WTO Secretariat. The 
Parties will allow at least 60 days (from the date of the notification) for the other Party 
to provide comments, and when possible 90 days; and provide, upo n request, written 
answers to the comments received, and publish its answers to significant comments. They 
also specify that the period between the publication and the entry into force of a technical 
regulation and conformity assessment procedures must be at least six months 
(Articles  76-79)." 
Please clarify the impact of Ecuador's recognition of declarations of conformity from 
suppliers that products that confirm to EU technical regulations are sufficient proof of 
conformity with Ecuadorian technical regul ations. Given the provisions under Article 105 
on the Movement of Goods, does that mean that where regulations are harmonized with 
Colombia and Peru that those declarations are also recognized in those countries? If so, 
why has only Ecuador taken on that o bligation? Furthermore, does Ecuador's recognition 
of suppliers declaration of conformity only apply to companies from the EU or does it apply 
to any self declaration made to EU regulations?  
Response from the delegations of Ecuador, Colombia and Peru  
 
 The recognition granted by Ecuador is based on article 78 of the Multiparty Trade Agreement 
with the EU, which states that there is a wide range of mechanisms to facilitate accepting the results 
of the conformity assessment procedures, including accepting a s upplier declaration of conformity.  
That provision is temporary, until the EU and Ecuador agree on an alternative to replace it, within 
the framework of the Trade Committee.  
 
 Currently, many of Ecuador 's technical regulations accept the presentation of a s upplier 
declaration of conformity as an option to demonstrate compliance with a technical regulation.  
 
 Within the framework of the Andean Community, there are several working groups focused 
on developing and issuing Community legislation, which harmonize the requirements for different 
sectors of interest to the Member countries.  This legislation is of supranational nature and must be 
implemented in the national legislation of each Member country.  Each Andean Technical Regulation WT/REG380/2  
 
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  determines the different co nformity assessment procedures that are allowed to verify their 
compliance.  
 
1.13.   "Paragraph 3.37 : The Parties also include provisions on border control and market 
surveillance, marking and labelling, technical assistance and capacity building and the 
exchange of information (Articles  80-82 and 84), and on the creation of a Sub -committee 
on Technical Barriers to Trade. The Sub-committee will meet at least once a year, and be 
responsible inter alia for monitoring and evaluating the implementation of chapter 4 
(Article 83). " 
Under Article 84.2, the Parties have agreed to apply the recommendations of the 
WTO Committee on Technical Barriers to Trade adopted on 4 October 1995 regarding 
answering and processing requests to enquiry points. Why did the Parties choose to single 
out this specific Committee recommendation and not refer the full range of Committee 
decisions and recommendations captured in G/TBT/1/Rev.13? Are there specific 
recommendations or decisions that the Parties wanted to avoid applying?  
Response fro m the delegations of the European Union and Ecuador  
 
This article goes beyond the WTO TBT agreement since that particular recommendation or 
decision by the WTO committee on TBT is made obligatory between the parties in order to reinforce 
the transparency.  
 
1.14.   "Paragraph 3.38 : Finally, Ecuador (like Colombia and Peru) will allow goods 
originating in the EU to benefit from the harmonised TBT measures applicable between 
the signatory Andean countries. The latter will also try to foster the harmonization of their 
TBT measures (Article 105). " 
 Please explain in more detail the impact of Article  105.2(b). Does this provision 
mean that EU goods entering into one of the Parties can move freely to all the other 
countries without further controls? Why was it necessary to  include such a provision? Is 
it because goods are normally subject to controls when moving from one country to 
another within the Andean countries?  
Response from the delegations of Ecuador, Colombia and Peru  
 
 Within the Andean Community, the Member coun tries have the possibility of initiating 
negotiation processes in sectors of interest to the Member countries for the issuance of Andean 
technical regulations that allow to harmonize the requirements for the importation and circulation of 
products. Each co untry must implement the necessary controls and mechanisms to guarantee that 
the products entering its territory comply with the Andean regulations or national technical 
regulations.  
 
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