Introduction
In light of the importance of international trade for the world, the implementation of “Advance Resolutions” has been developed, which allow operators to safely handle the processing of their operations, choosing this path in direct consultation with the Customs Service. This secure environment provides the interested party with the possibility of having clearer information for the clearance of the merchandise, regarding the valuation, as well as technical aspects related to the merchandise in question.
Let us first clarify that this is not something new, as the issue of trade facilitation has been dragging on for almost three decades, at a ministerial conference held in Singapore. There, the idea of implementing measures to simplify processes begins to gain importance, without this implying ignoring control; rather, the trend is to move towards intelligent, more selective and efficient control.
With this approach, it is planned to stop having cumbersome procedures, with an excessive use of paper, in some cases very bureaucratic, also in other cases with excessive arbitrariness and the lack of adequate communication between the different State agencies, which causes the well-known route of operators through different offices for their procedures. And all this not only generates unnecessary delays in operations, which due to their commercial nature require a certain speed, but also implies a significant degree of legal instability. Both issues are fundamental for development.
Customs control should not be so skewed that it becomes nothing more than a formality, but mechanisms should be sought to make it more efficient, less bureaucratic and less arbitrary. Of course, fluid communication between Customs is a very important step for selective controls based on significant risks.
For all this, the International Trade Facilitation Agreements have been cornerstones for conceiving control tools harmonized with the desired facilitation, together with the internal regulations of the States, thus arriving at the so-called "Advance Resolutions"; which are administrative decisions issued by the Customs Service, in response to a direct query on a specific subject made by the applicant (Importer or Exporter). In response to said specific query, Customs issues its Resolution granting certainty about its operation to the interested party.
Regulatory analysis
Specifically addressing this type of resolutions and their regulations, a rule that determines the importance of Advance Resolutions, also issued at a specific time, has been the Decree of Necessity and Urgency 70/2023. Through said DNU, the Advance Resolution was incorporated into the text of the Customs Code, both for imports and exports, in arts. 226 and 323 of the Code. Note that for this purpose, in section 4 of both articles, it is determined: “The regulations will determine the formal requirements and the information that the (Importer/exporter) must present, the procedure for the advance resolution and the period within which it must be issued, which may not exceed THIRTY (30) days.”
The very idea of facilitation considered through this legal instrument, highlights the speed of its processing, despite granting the Customs Service the power to regulate and comply with formal requirements. To this end, Resolutions have been issued to regulate these procedures, such as Res. 5477/2023 on valuation and Res. 5484/2024 on technical issues, for example.
Regarding the text of one of them, 5477/2023 on customs valuation criteria, we find in the text published in the Official Gazette in the first paragraph of the Recitals, which says: “That Article 3 of the Trade Facilitation Agreement (TFA) encourages each Member country of the World Trade Organization (WTO) to issue, at the request of the interested party and within a reasonable and determined period of time, advance resolutions on customs valuation of merchandise, with the purpose of determining, prior to its importation, the treatment that will be given to it.
The relevant Annex deals with the regulations for the stated objective. To this end, it is appropriate to take into account Point 4.2 “If the application does not meet the requirements necessary for the issuance of the advance resolution, the areas dependent on the Valuation and Document Verification Directorate that are in charge of preparing the technical reports will grant the applicant a period of up to FIFTEEN (15) administrative business days to correct the deficiencies or omissions detected, suspending during said period the period established in point 5.1. of this Annex.
The period referred to in Point 5.1 is as follows: . “The advance resolution will be issued within the maximum period of THIRTY (30) administrative business days, counted from the date on which the File is ready for resolution.”
If section 4 of the regulations determines the submission procedure, a period of up to 15 business days is mentioned for the applicant to “correct deficiencies or omissions”, without determining a maximum period of analysis by the Customs Service and, Point 5.1 mentions the response as long as the file is in a condition to resolve, in the practice of these procedures it is very likely that, with a criterion of analogy, the same thing will happen as happened with the processing of non-automatic licenses, since some questions arise, namely: 1) What criteria is used to determine that there may be deficiencies or omissions in the submissions? 2) What is the period of time that the Administration takes to evaluate the new submissions correcting deficiencies or omissions? 3) When, then, would it be appropriate to consider that the file is in a condition to resolve? 4) Are the arbitrariness in the previous considerations impediments to the reasonable period of issuance of the Resolution? 5) Could it be considered that the guarantee of a reasonable period is affected? 6) Is the provisions of DNU 70/2023 and its consequent Resolution 5477/2023 with the Annexed Regulations distorted?
Conclusion
There is no doubt about the importance of compliance with facilitation agreements, as well as with customs controls; that is, the complementation and harmonization in both matters. What was determined by DNU 70/2023 has been a very important advance in the matter, without entering into the analysis of its constitutionality in this note; since the truth is that said norm is in force and is of a higher hierarchy than an Administrative Resolution that regulates a procedure, since such regulation cannot distort what the higher norm had in mind when it was issued.
Although the regulatory power of an administrative procedure is the responsibility of the relevant body, depending on the case, this cannot be taken as an absolute, to the point of becoming an obstacle to the effective compliance with what the higher standard seeks to implement. In practice, it remains to be seen whether this turns out to be the case.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
