(Ouro Preto - December 17, 1994)
Preamble
Chapter I: Structure of
Mercosul
Chapter II: Legal Personality
Chapter III: Decision-Making
System
Chapter IV: Internal
Applications of the Decisions Adopted by Mercosul Organs
Chapter V: Legal Sources of
Mercosul
Chapter VI: Dispute Settlement
System
Chapter VII: Budget
Chapter VIII: Languages
Chapter IX: Review
Chapter X: Entry Into Force
Chapter XI: Transitional
Provision
Chapter XII: General Provisions
Annex:: General Procedure for
Complaints to the Mercosul Trade Commission
The Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, hereinafter referred to as the "States Parties",
In compliance with the provisions of Article 18 of the Treaty of Asuncion of 26 March 1991,
Aware of the importance of the progress made and of the introduction of the customs union as a stage in the establishment of a common market,
Reaffirming the principles and objectives of the Treaty of Asuncion and mindful of the need to give special consideration to the less developed countries and regions of Mercosul,
Mindful of the forces for change inherent in any integration process and the consequent need to adapt the institutional structure of Mercosul to the transformations that have taken place,
Recognising the outstanding achievements of the existing bodies during the transition period,
Hereby agree as follows:
Chapter I: Structure of Mercosul
Article 1
The institutional structure of Mercosul shall comprise the following organs:
I.The Council of the Common Market (CCM);
II. The Common Market Group (CMG);
III. The Mercosul Trade Commission (MTC);
IV. The Joint Parliamentary Commission (JPC);
V. The Economic-Social Consultative Forum (ESCF);
VI. The Mercosul Administrative Secretariat (MAS).
Sole paragraph - Auxiliary organs necessary to attain the objectives of the integration process may be established, under the terms of this Protocol.
Article 2
The following are inter-governmental organs with decision-making powers: the Council of the Common Market, the Common Market Group and the Mercosul Trade Commission.
Section I: Council of the Common Market
Article 3
The Council of the Common Market is the highest organ of Mercosul, with responsibility for the political leadership of the integration process and for making the decisions necessary to ensure the achievement of the objectives defined by the Treaty of Asuncion and the final establishment of the common market.
Article 4
The Council of the Common Market shall consist of the Ministers for Foreign Affairs and the Ministers of the Economy of the States Parties, or their equivalents.
Article 5
The Presidency of the Council of the Common Market shall be rotated among the States Parties, in alphabetical order, for periods of six months.
Article 6
The Council of the Common Market shall meet whenever it deems appropriate, and at least once every six months, with the participation of the Presidents of the States Parties.
Article 7
The meetings of the Council of the Common Market shall be co-ordinated by the Ministers for Foreign Affairs, and other ministers or ministerial authorities may be invited to participate.
Article 8
The following are duties and functions of the Council of the Common Market:
I. To supervise the implementation of the Treaty of Asuncion, its protocols, and agreements signed within its context;
II. To formulate policies and promote the measures necessary to build the common market;
III. To assume the legal personality of Mercosul;
IV. To negotiate and sign agreements, on behalf of Mercosul, with third countries, groups of countries and international organisations. These functions may be delegated, by express mandate, to the Common Market Group under the conditions laid down in paragraph VII of Article 14;
V. To rule on proposals submitted to it by the Common Market Group;
VI. To arrange meetings of ministers and rule on agreements which those meetings refer to it;
VII. To establish the organs it considers appropriate, and to modify or abolish them;
VIII. To clarify, when it considers necessary, the substance and scope of its decisions;
IX. To appoint the Director of the Mercosul Administrative Secretariat;
X. To adopt financial and budgetary decisions;
XI. To approve the rules of procedure of the Common Market Group.
Article 9
The rulings of the Council of the Common Market shall take the form of Decisions which shall be binding upon the States Parties.
Section II: The Common Market Group
Article 10
The Common Market Group is the executive organ of Mercosul.
Article 11
The Common Market Group shall consist of four members and four alternates for each country, appointed by their respective governments, who must include representatives of the Ministries of Foreign Affairs, the Ministries of the Economy (or their equivalents) and the Central Banks. The Common Market Group shall be co-ordinated by the Ministries of Foreign Affairs.
Article 12
When drafting and proposing specific measures in the course of doing its work, the Common Market Group may, whenever it deems appropriate, call on representatives of other organs of government or of the institutional structure of Mercosul.
Article 13
The Common Market Group shall hold ordinary or extraordinary meetings, as often as necessary, in accordance with the terms of its rules of procedure.
Article 14
The following are duties and functions of the Common Market Group:
I. To monitor, within the limits of its competence, compliance with the Treaty of Asuncion, its Protocols, and agreements signed within its framework;
II. To propose draft Decisions to the Council of the Common Market;
III. To take the measures necessary to enforce the Decisions adopted by the Council of the Common Market;
IV. To draw up programmes of work to ensure progress towards the establishment of the common market;
V. To establish, modify or abolish organs such as working groups and special meetings for the purpose of achieving its objectives;
VI. To express its views on any proposals or recommendations submitted to it by other Mercosul organs within their sphere of competence;
VII. To negotiate, with the participation of representatives of all the States Parties, when expressly so delegated by the Council of the Common Market and within the limits laid down in special mandates granted for that purpose, agreements on behalf of Mercosul with third countries, groups of countries and international organisations. When so mandated, the Common Market Group shall sign the aforementioned agreements. When so authorised by the Council of the Common Market, the Common Market Group may delegate these powers to the Mercosul Trade Commission;
VIII. To approve the budget and the annual statement of accounts presented by the Mercosul Administrative Secretariat;
IX. To adopt financial and budgetary Resolutions based on the guidelines laid down by the Council;
X. To submit its rules of procedure to the Council of the Common Market;
XI. To organise the meetings of the Council of the Common Market and to prepare the reports and studies requested by the latter;
XII. To choose the Director of the Mercosul Administrative Secretariat;
XIII. To supervise the activities of the Mercosul Administrative Secretariat;
XIV. To approve the rules of procedure of the Trade Commission and the Economic-Social Consultative Forum.
Article 15
The decisions of the Common Market Group shall take the form of Resolutions which shall be binding upon the States Parties.
Section III: The Mercosul Trade Commission
Article 16
It shall be the task of the Mercosul Trade Commission, a body responsible for assisting the Common Market Group, to monitor the application of the common trade policy instruments agreed by the States Parties in connection with the operation of the customs union, as well as to follow up and review questions and issues relating to common trade policies, intra-Mercosul trade and third countries.
Article 17
The Mercosul Trade Commission shall consist of four members and four alternates for each State Party and shall be co-ordinated by the Ministries of Foreign Affairs.
Article 18
The Mercosul Trade Commission shall meet at least once a month, or whenever requested to do so by the Common Market Group or any of the States Parties.
Article 19
The following are duties and functions of the Mercosul Trade Commission:
I. To monitor the application of the common trade policy instruments both within Mercosul and with respect to third countries, international organisations and trade agreements;
II. To consider and rule upon the requests submitted by the States Parties in connection with the application of and compliance with the common external tariff and other instruments of common trade policy;
III. To follow up the application of the common trade policy instruments in the States Parties;
IV. To analyse the development of the common trade policy instruments relating to the operation of the customs union and to submit Proposals in this respect to the Common Market Group;
V. To take decisions connected with the administration and application of the common external tariff and the common trade policy instruments agreed by the States Parties;
VI. To report to the Common Market Group on the development and application of the common trade policy instruments, on the consideration of requests received and on the decisions taken with respect to such requests;
VII. To propose to the Common Market Group new Mercosul trade and customs regulations or changes in the existing regulations;
VIII. To propose the revision of the tariff rates for specific items of the common external tariff, inter alia, in order to deal with cases relating to new production activities within Mercosul;
IX. To set up the technical committees needed for it to perform its duties properly, and to direct and supervise their activities;
X. To perform tasks connected with the common trade policy requested by the Common Market Group;
XI. To adopt rules of procedure to be submitted to the Common Market Group for approval.
Article 20
The decisions of the Mercosul Trade Commission shall take the form of Directives or Proposals. The Directives shall be binding upon the States Parties.
Article 21
In addition to the duties and functions described in Articles 16 and 19 of this Protocol, the Mercosul Trade Commission shall be responsible for considering complaints referred to it by the National Sections of the Mercosul Trade Commission and originated by States Parties or individuals, whether natural or legal persons, relating to the situations provided for in Article 1 or 25 of the Brasilia Protocol, when they fall within its sphere of competence.
Paragraph 1. The examination of the aforesaid complaints within the Mercosul Trade Commission shall not prevent the complainant State Party taking action under the Brasilia Protocol for the Settlement of Disputes.
Paragraph 2. Complaints arising in the circumstances described in this Article shall be dealt with in accordance with the procedure laid down in the Annex to this Protocol.
Section IV: The Joint Parliamentary Commission
Article 22
The Joint Parliamentary Commission is the organ representing the parliaments of the States Parties within Mercosul.
Article 23
The Joint Parliamentary Commission shall consist of equal numbers of members of parliament representing the States Parties.
Article 24
The members of the Joint Parliamentary Commission shall be appointed by the respective national parliaments, in accordance with their internal procedures.
Article 25
The Joint Parliamentary Commission shall endeavour to speed up the corresponding internal procedures in the States Parties in order to ensure the prompt entry into force of the decisions taken by the Mercosul organs provided for in Article 2 of this Protocol. Similarly, it shall assist with the harmonisation of legislations, as required to advance the integration process. When necessary, the Council shall request the Joint Parliamentary Commission to examine priority issues.
Article 26
The Joint Parliamentary Commission shall submit Recommendations to the Council of the Common Market through the Common Market Group.
Article 27
The Joint Parliamentary Commission shall adopt its rules of procedure.
Section V: The Economic-Social Consultative Forum
Article 28
The Economic-Social Consultative Forum is the organ representing the economic and social sectors and shall consist of equal numbers of representatives from each State Party.
Article 29
The Economic-Social Consultative Forum shall have a consultative function and shall express its views in the form of Recommendations to the Common Market Group.
Article 30
The Economic-Social Consultative Forum shall submit its rules of procedure to the Common Market Group, for approval.
Section VI: The Mercosul Administrative Secretariat
Article 31
Mercosul shall have an Administrative Secretariat to provide operational support. The Mercosul Administrative Secretariat shall be responsible for providing services to the other Mercosul organs and shall be headquartered in the city of Montevideo.
Article 32
The Mercosul Administrative Secretariat shall carry out the following activities:
I. Serve as the official archive for Mercosul documentation;
II. Publish and circulate the decisions adopted within the framework of Mercosul. In this context, it shall;
III. Organise the logistical aspects of the meetings of the Council of the Common Market, the Common Market Group and the Mercosul Trade Commission and, as far as possible, the other Mercosul organs, when those meetings are held at its headquarters. In the case of meetings held outside its headquarters, the Mercosul Administrative Secretariat shall provide support for the State in which the meeting is held;
IV. Regularly inform the States Parties about the measures taken by each country to incorporate in its legal system the decisions adopted by the Mercosul organs provided for in Article 2 of this Protocol;
V. Compile national lists of arbitrators and experts, and perform other tasks defined in the Brasilia Protocol of 17 December 1991;
VI. Perform tasks requested by the Council of the Common Market, the Common Market Group and the Mercosul Trade Commission;
VII. Draw up its draft budget and, once this has been approved by the Common Market Group, do everything necessary to ensure its proper implementation;
VIII. Submit its statement of accounts annually to the Common Market Group, together with a report on its activities.
Article 33
The Mercosul Administrative Secretariat shall be headed by a Director who shall be a national of one of the States Parties. He shall be chosen by the Common Market Group, on a rotating basis, after consultation with the States Parties and shall be appointed by the Council of the Common Market. His term of office shall be two years and he may not be re-elected.
Chapter II: Legal Personality
Article 34
Mercosul shall possess legal personality of international law.
Article 35
In the exercise of its functions, Mercosul may take whatever action may be necessary to achieve its objectives, in particular sign contracts, buy and sell personal and real property, appear in court, hold funds and make transfers.
Article 36
Mercosul shall make headquarters agreements.
Chapter III: Decision-Making System
Article 37
The decisions of the Mercosul organs shall be taken by consensus and in the presence of all the States Parties.
Chapter IV: Internal Applications of the Decisions Adopted by Mercosul Organs
Article 38
The States Parties undertake to take all the measures necessary to ensure, in their respective territories, compliance with the decisions adopted by the Mercosul organs provided for in Article 2 of this Protocol. Sole paragraph. The States Parties shall inform the Mercosul Administrative Secretariat of the measures taken to this end.
Article 39
The content of the Decisions of the Council of the Common Market, the Resolutions of the Common Market Group, the Directives of the Mercosul Trade Commission and the Dispute Settlement Arbitration Rulings shall be published in full, in Spanish and Portuguese, in the Mercosul official journal, together with any instrument which, in the view of the Council of the Common Market or the Common Market Group requires official publicity.
Article 40
In order to ensure the simultaneous entry into force in the States Parties of the decisions adopted by the Mercosul organs provided for in Article 2 of this Protocol, the following procedure must be followed:
I. Once the decision has been adopted, the States Parties shall take the necessary measures to incorporate it in their domestic legal system and inform the Mercosul Administrative Secretariat.
II. When all the States Parties have reported incorporation in their respective domestic legal systems, the Mercosul Administrative Secretariat shall inform each State Party accordingly.
III. The decisions shall enter into force simultaneously in the States Parties 30 days after the date of the communication made by the Mercosul Administrative Secretariat, under the terms of the preceding subparagraph. To this end, the States Parties shall, within the time-limit mentioned, publish the entry into force of the decisions in question in their respective official journals.
Chapter V: Legal Sources of Mercosul
Article 41
The legal sources of Mercosul are:
I. The Treaty of Asuncion, its protocols and the additional or supplementary instruments;
II. The agreements concluded within the framework of the Treaty of Asuncion and its protocols;
III. The Decisions of the Council of the Common Market, the Resolutions of the Common Market Group and the Directives of the Mercosul Trade Commission adopted since the entry into force of the Treaty of Asuncion.
Article 42
The decisions adopted by the Mercosul organs provided for in Article 2 of this Protocol shall be binding and, when necessary, must be incorporated in the domestic legal systems in accordance with the procedures provided for in each country's legislation.
Chapter VI: Dispute Settlement System
Article 43
Disputes which arise between the States Parties concerning the interpretation, application or non-fulfilment of the provisions of the Treaty of Asuncion and the agreements concluded within its framework or of Decisions of the Council of the Common Market, Resolutions of the Common Market Group and Directives of the Mercosul Trade Commission shall be subject to the settlement procedures laid down in the Brasilia Protocol of 17 December 1991.
Sole paragraph. The Directives of the Mercosul Trade Commission are also incorporated in Articles 19 and 25 of the Brasilia Protocol.
Article 44
Before the Common External Tariff convergence process is complete, the States Parties shall review the present Mercosul dispute settlement system with a view to adopting the permanent system referred to in paragraph 3 of Annex III to the Treaty of Asuncion and Article 34 of the Brasilia Protocol.
Chapter VII: Budget
Article 45
The Mercosul Administrative Secretariat shall have a budget to cover its operating expenses and the expenses authorised by the Common Market Group. This budget shall be funded by equal contributions from the State Parties.
Chapter VIII: Languages
Article 46
The official languages of Mercosul are Spanish and Portuguese. The official version of the working documents shall be that in the language of the country hosting the meeting.
Chapter IX: Review
Article 47
When they consider it opportune, the States Parties shall convene a diplomatic conference for the purpose of reviewing the institutional structure of Mercosul established by the present Protocol and the specific functions of each of its organs.
Chapter X: Entry Into Force
Article 48
This Protocol, which forms an integral part of the Treaty of Asuncion, shall be of unlimited duration and shall enter into force 30 days after the date of deposit of the third instrument of ratification. The Protocol and its instruments of ratification shall be deposited with the Government of the Republic of Paraguay.
Article 49
The Government of the Republic of Paraguay shall notify the Governments of the other States Parties of the date of deposit of the instruments of ratification and of entry into force of this Protocol.
Article 50
With regard to accession and denunciation, the rules established by the Treaty of Asuncion shall apply to this Protocol in their entirety. Accession to or denunciation of the Treaty of Asuncion or this Protocol shall imply, ipso jure, accession to or denunciation of this Protocol and the Treaty of Asuncion.
Chapter XI: Transitional Provision
Article 51
The institutional structure provided for in the Treaty of Asuncion of 26 March 1991 and the organs it created shall be maintained until this Protocol enters into force.
Chapter XII: General Provisions
Article 52
This Protocol shall be called the "Ouro Preto Protocol".
Article 53
All the provisions of the Treaty of Asuncion of 26 March 1991 which conflict with the terms of this Protocol or with the content of the Decisions adopted by the Council of the Common Market during the transition period are hereby repealed.
Done at the city of Ouro Preto, Federative Republic of Brazil, on 17 December 1994, in one original in the Portuguese and Spanish languages, both texts being equally authentic. The Government of Paraguay shall send an authenticated copy of this Protocol to the Governments of the other States Parties.
Argentine RepublicFederative Republic of Brazil
Republic of Paraguay
Eastern Republic of Uruguay
Carlos Saul Menem Guido Di TellaItamar Franco Celso L. N. Amorin
Juan Carlos Wasmosy Luis Ramirez Boettner
Luis Alberto Lacalle Herrera Sergio Abreu
Annex to the
Protocol of Ouro Preto
General Procedure for Complaints to the Mercosul Trade Commission
Article 1
Complaints submitted by the National Sections of the Mercosul Trade Commission and originated by States Parties or individuals, whether natural or legal persons, in accordance with the provisions of Article 21 of the Protocol of Ouro Preto shall be subject to the procedure laid down in this Annex.
Article 2
The complainant State Party shall submit its complaint to the Pro-Tempore Chairman of the Mercosul Trade Commission who shall take the necessary steps to include the question on the Agenda of the next meeting of the Mercosul Trade Commission at least one week beforehand. If no decision is taken at that meeting, the Mercosul Trade Commission shall, without taking further action, pass on the dossier to a Technical Committee.
Article 3
Within a maximum of thirty (30) calendar days, the Technical Committee shall prepare and submit to the Mercosul Trade Commission a joint opinion on the question. This opinion or the conclusions of the experts making up the Technical Committee, if there is no joint opinion, shall be taken into consideration by the Mercosul Trade Commission when it rules on the complaint.
Article 4
The Mercosul Trade Commission shall rule on the complaint at its first ordinary meeting following receipt of the joint opinion or, should there be none, the conclusions of the experts, although an extraordinary meeting may also be convened for the purpose.
Article 5
If a consensus cannot be reached at the first meeting mentioned in Article 4, the Mercosul Trade Commission shall submit to the Common Market Group the various alternatives proposed, together with the joint opinion or the conclusions of the experts on the Technical Committee, in order that an appropriate decision may be taken. The Common Market Group shall give a ruling within thirty (30) calendar days of the receipt by the Pro-Tempore Chairman of the proposals submitted by the Mercosul Trade Commission.
Article 6
If there is agreement that the complaint is justified, the State Party against which it is made shall adopt the measures approved in the Mercosul Trade Commission or the Common Market Group. In each case, the Mercosul Trade Commission or, subsequently, the Common Market Group shall fix a reasonable period for the implementation of these measures. If this period expires without the State against which the complaint is made having complied with the provisions of the decision adopted, whether by the Mercosul Trade Commission or the Common Market Group, the complainant State may resort directly to the procedure provided for in Chapter IV of the Brasilia Protocol.
Article 7
If a consensus cannot be reached in the Mercosul Trade Commission, or subsequently, in the Common Market Group or if the State against which the complaint is made does not comply within the period provided for in Article 6 with the provisions of the decision adopted, the complainant State may resort directly to the procedure established in Chapter IV of the Brasilia Protocol and shall inform the Mercosul Administrative Secretariat accordingly.
Before giving a ruling, within fifteen (15) days of its being set up, the Arbitration Tribunal must announce the interim measures it considers appropriate under the conditions laid down in Article 18 of the Brasilia Protocol.