The CaribbeanCourt of Justice (CCJ) is the Caribbean regional judicial tribunal servingcountries of CARICOM. The CCJ has two jurisdictions, an original jurisdictionand an appellate jurisdiction. In its original jurisdiction the CCJ is a courtof first instance which applies rules of international law in respect of theinterpretation and application of the Revised Treaty of Chaguaramas (RTC). Inits appellate jurisdiction, the CCJ serves as the final court of appeal incivil and criminal matters for those countries of CARICOM which are parties tothe Agreement and have acceded to the appellate jurisdiction.
At present the CCJreceives cases in its appellate jurisdiction from Barbados, Belize and Guyana.In the original jurisdiction, the CCJ may receive cases from the twelveContracting Parties to the Agreement Establishing the Court. Decisions of the CCJin both its original jurisdiction and its appellate jurisdiction are final.Jamaica, being apart of CARICOM having signed the Revised Treaty of Chaguramas, thereforebenefits from the judicial services of the CCJ under the original jurisdiction.However, Jamaica did not accede to the appellate jurisdiction, and as such any appealspursued beyond the decisions of the Court of Appeal is made to the PrivyCouncil of UK and not CCJ. Should Jamaicaaccede to the appellate jurisdiction of the CCJ, the following benefits areattainable: · fulfilment of “real”independence, as the replacement of the Privy Council by the CCJ as the finalappellate jurisdiction will complete the cycle of independence of theCommonwealth Caribbean;· reduced legal and associatedfees such accommodation and travelling as the hire of UK Council will no longerbe a necessity; · the intellectual capacity ofthe regional council is as competent as the privy council to conduct hearings;· greater access to justice asregional matters are handled by regional legal councils thereby avoidingunfamiliarity and ambiguities by the British council; · e-filing which allows for timeand documentation (storage) efficiencies;Unfortunately,the CCJ:· is yet to receive high public trustand confidence;· may not be free from politicalconsiderations, pressure and prejudicesWith regards tothe GM’s desire to use the CCJ to challenge the environmental tax charged byGuyana on the imports of Jamaican snacks in non-returnable containers by CSL,judgements have been made by the CCJ.
On suchjudgement was in the case of Rudisa Beverages & Juices N.V. CaribbeanInternational Distributors Inc V. The State of Guyana. Rudisa Beverages is acompany based in Suriname which produces beverages packaged in non-returnablecontainers imported into Guyana and distributed through CIDI Distributor. Bysection 7 of the Customs Act of Guyana, an environmental levy is imposed on theimportation of non-returnable beverage containers. The legislation does notcontain any exemption in relation to CARICOM goods. This environmental taxwhich has been imposed on the beverages has the effect of raising the costprice on each imported container by GUY$10.
No similar tax is imposed on localproducers of non-returnable beverage containers and, by the definition of”Import Duties” laid down in the Revised Treaty of Chaguaramas, the levy mustbe regarded as an import duty. The issue wasfirst appealed with the Council on Economic Trade and Development (COTED) bythe Government of Suriname in a series of meetings and it was concluded thelevy on CARICOM goods is in fact a breach of the RTC. An application was thenfiled by Rudisa and CIDI with the CCJ arguing that the tax is inconsistent withCARICOM trade policy set out in Articles 78, 79, 87 and 90 of the RTC whichprovide for the free movement of goods and prohibitions on the imposition ofimport duties on CARICOM goods. They sought a declaration that the Guyanese CustomsAct violates either Article 87 or 90 of the RTC; an order compelling the Stateto amend or repeal the legislation to eliminate its discriminatory effect; anorder restraining the imposition and collection of the tax and damages. Guyanaadmitted that the tax was inconsistent with their obligations under the RTC butcontended that the Government has proposed legislation to rectify thediscriminatory effect of the environmental tax but the proposed amendment wasrejected by the National Assembly. The Government also submits that the aim ofthe legislation is environmental protection which is a fundamental right underthe Constitution of Guyana. The CCJ ultimately declared that the tax wasinconsistent with the RTC and ordered Guyana to take necessary action to ensurethat it was not applied to goods of CARICOM.
The CCJ also ordered that the Rudisaand CIDI were entitled to a repayment of the tax which had been paid by themand collected by Guyana. The CCJ required that if CIDI did not notify them thatGuyana had complied with the judgement passed, the State of Guyana shall filewith the Court a report on its compliance with those orders. Upon the filing ofthe said report the parties were granted liberty to apply in respect of anymatter contained in the said report.The CCJ’sjudgement of re-imbursement was informed by Société Comateb v Directeur Généralde Douanes et Droits Indirects, ruling that where a tax has been improperlycollected in breach of a treaty obligation, it must be repaid unless it can beshown that the tax was passed onto to the consumer or a third party. There wasno evidence to suggest that the tax was passed on.
The documentary evidence aswell as the testimony of the Claimants’ witnesses demonstrated that the tax wasabsorbed by the Claimants in order to maintain their competitive edge in theGuyana market. A similar case -SM Jaleel & Co Ltd & Guyana Beverages Inc V. The Co-Operative Republicof Guyana – was brought before the CCJ. SMJ and GBI sought full reimbursementfrom Guyana for environmental tax levied and collected from GBI on the importsof non-returnable beverage containers as per Guyana’s Amended Customs Act. Itwas decided that the collection of the environmental tax under section 7A ofthe Customs Act in relation to CARICOM goods had been incompatible with Article87 of the RTC. Guyana debated that to order reimbursement to the SMJ and GBIwould unjustly enrich them to the extent that they had passed on the tax burdento their customers. Guyana also argued that the Claimants were barred by lachesas they failed to challenge the collection of the tax at the earliest possibletime.
Guyana filed two Applications in October 2016 to assist it in advancingthe passing on defence. The first was an application for disclosure andproduction by the Claimants of a vast number of documents to prove that theypassed on the tax. The second was for Guyana to adduce expert evidence and toput before the Court a report from two named persons. Having considered rulingsfrom the European Court of Justice (ECJ) to define unjust enrichment, the CCJmaintained that it has a duty to uphold the terms of the CARICOM treaty. Guyanawas thereby ordered to pay to the SMJ and GBI the aggregate sum paid by them inenvironmental tax for the period disputed, together with interest from the dateof judgment. Guyana was also ordered to pay a significant percentage of thecosts of the legal proceedings. It was finally ordered that Guyana file withthe Court a report on its compliance with these orders unless the Claimantsfiled a notice of compliance before.
The parties were given liberty to apply.Based on these judgements made by the CCJ with respect to the unjustlevy of environmental taxes on the import non-returnable containers packagingCARICOM goods, in addition to the pros of CCJ, I would strongly encourage theBoard of Directors to proceed with the CCJ in making an appeal. Sources:http://caribbeancourtofjustice.org/judgments-proceedings/original-jurisdiction-judgmentshttp://caribbeancourtofjustice.org/about-the-ccj/court-registryhttps://francisobiter.wordpress.com/2015/01/30/the-caribbean-court-of-justice-or-the-judicial-committee-of-the-privy-council/http://www.denbowlawoffice.com/atts/2015-04-29-The%20Privy%20Council%20-%20CCJ%20Debate%20-%20A%20different%20analysis.pdf