The Comprehensive Import Monitoring System (SIMI) aims to monitor imports and ensure compliance with basic safety regulations for imported products.
It is worth remembering that the World Customs Organization (WCO) considers advance information to be a basic element within the regulatory framework for ensuring and facilitating global trade. The WCO advocates strengthening customs in order to meet current challenges.
The monitoring mechanism is authorized by the WCO and the World Trade Organization (WTO) as long as it meets its objectives and does not become a progressive means of restricting trade. If this were the case, SIMI could become a means of prohibiting imports.
Brief review of its implementation in Argentina
Advance Import Declarations
During the presidency of Dr. Cristina Fernández de Kirchner, it was established, through art. 5 of the AFIP General Resolution 3252/2012, that at the time of making official the final destination of an import for consumption, the Maria System (SIM) would require the number of the Anticipated Import Declaration (DJAI). The measure required prior submission to controls by competent agencies in order to verify and validate the imports that occurred.
Non-Automatic Import Licences
On December 21, 2015, after Macri assumed office, through AFIP General Resolution 3823/2015, the DJAI mechanism was revoked and the Comprehensive Import Monitoring System (SIMI) was established for definitive import destinations for consumption registered by the subjects included in Section 1 of Article 91 of Law 22.415 and its amendments -Customs Code- and in AFIP General Resolution 2551/2009, registered in the "Special Customs Registries" provided for by AFIP General Resolution 2570/2009, its amendments and supplements. Later specified by Joint General Resolution AFIP and SC No. 4185/2018. Likewise, by Resolution SC 523/2017 of the Ministry of Commerce, the procedure for requesting Automatic and Non-Automatic Licenses through the "Comprehensive Import Monitoring System" (SIMI) is established, providing in Article 8 the jurisdiction of the Federal Public Revenue Administration when inconsistencies arise in relation to the information contained in the license application.
This was implemented with the aim of developing instruments that, in addition to optimizing their specific functions in customs matters, favor competitiveness and the facilitation of foreign trade, without losing sight of controls and risk management regarding merchandise.
New Non-Automatic Import Licences
When Dr. Alberto Fernández took office, through SIEC and GCE Resolution No. 1/2020, automatic and non-automatic licenses were maintained, but the number of Tariff Items of the Common Nomenclature of MERCOSUR that must process a NON-AUTOMATIC License was expanded, prior to the officialization of the import clearance for consumption.
Exceptions to be taken into account
Since the validity of SC Resolution No. 523/17, the requirement of a Non-Automatic License (LNA) was applied for a limit of Tariff Positions.
That is to say, since the new government took office on December 10, 2019, it was decided to expand the list of affected tariff items, prior to being imported, to comply with the requirement of a Non-Automatic License (LNA) – SIEC and GCE Resolution No. 1/2020. Many goods, which prior to this new resolution were only covered by an Automatic License (LN), must now process the Non-Automatic License (LNA).
What happens to goods imported prior to Resolution 1/2020 that were not subject to an LNA?
The regulation itself (art. 11 Res. SIEC and GCE No. 1/20), which expands the number of goods for which the LNA will be required, establishes an exception for certain cases, with the following scheme of requirements:
The following goods are exempt from Non-Automatic Licenses (LNA) as of January 9, 2020:
a) With a LAI application submitted to SIMI and in OFFICIAL status.
b) Shipped with final destination in the customs territory – by land, water, air – and loaded onto the means of transport.
c) In the Primary Customs Zone, ARRIVED prior to the Customs Territory.
Requirement: Import applications must be registered within 60 calendar days from the date the Resolution comes into effect. Otherwise, the exception provided for in the regulations will expire.
Current expectation
This type of prior requirement applied on the basis of statistical objectives and security controls, subject to certain deadlines and mandatory compliance by the administration, cannot be questioned as long as its purpose is not distorted.
As is public knowledge, during the Fernández de Kirchner government the main objective of this system was distorted, which caused the quasi-closure of imports, to the point that the Justice intervened in many cases, making it clear in its rulings that “the regime established by the resolution… is for information purposes only, in order to assess the commercial flow of imported products sufficiently…” (cfr.10.877/08 “Tutifruti SRL. – Inc. Extension Med. II c/ EN- Ministry of Economy Resolution 485/2005 – DGA/4 containers) s/ knowledge process” 28/10/08- C. NAC. CONT. ADM. FED.- Room II.).» “… especially taking into account the objective pursued by the regime established by the resolution…, which would be none other than to evaluate the commercial flow of the products included in different tariff items mentioned in Art. 1 of the aforementioned rule…” “… a simple act of knowledge by the administration to monitor the course of the importation of certain merchandise…” (cfr. 3.256/08 “Long Full SRL. – Inc. Med. c/ EN.- SIC PYMES-Dirección de importas – Resolution 47/2007 s/ Amparo ley 16.986 – C- NAC. CONT.ADM. FED. Sala IV)”.
For its part, the World Trade Organization (WTO) itself opportunely resolved that "The practices and procedures imposed by the Argentine authorities on companies as a condition for importing goods into the country are incompatible with the General Agreement on Tariffs and Trade of 1994 (GATT, 1994)"That is, they are practices and procedures that restrict international trade," which confirms the conclusions previously reached by the WTO Special Group - 15.1.2015 - (according to Note Dr. Augusto Vechio - EL DERECHO Newspaper - 4.3.2015 - No. 13.681, year LIII, Ed. 261).
Under the government of Engineer Macri, the framework of the so-called Advance Import Declaration (DJAI) was repealed, giving rise to a licensing system, seeking to return to the objectives of these primary controls, which are far from establishing a prohibitive import framework.
In conclusion, the current government of Dr. Alberto Fernández decided to maintain the licenses, increasing the channel of controls regarding a large number of goods by expanding the Tariff Items for which a NON-AUTOMATIC license (LNA) will be required.
This recent measure has been viewed with great caution by the foreign trade sector, with uncertainty as to whether such action will respond to a real exercise of the objective pursued by this type of authorized systems and limited in their due exercise, both in time and in the nature of the requirement, or it may be a new way of distorting the mechanism to ensure a scheme that imposes definitive prohibitions on imports of certain goods.
Time will tell, for now we only have to look at what the National Justice and international organizations -WTO- were able to decide regarding past situations, where the practice of a regulated system such as the one described, if used contrary to its objectives, would turn it into an arbitrary action outside of the law, that is, unconstitutional.
By: Dr. Guillermo Felipe Coronel, Lawyer specializing in Customs Law
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
