As a result of the procedures that have been and still are public, questions are being received about the functions and powers of the Customs Service in the context of the investigation and repression of currency exchange offences. Let us therefore seek to shed light on the subject.
The functions and powers of the Customs Service were textually in force in the Customs Code (Title I, Chapter II, arts. 23 to 28) which were repealed by Decree 618/97 (in this regard, a review of the constitutionality of said Decree is in order).
It should be clarified, however, that the functions and powers have not been altered in substance, but have become part of another legal instrument, as mentioned in the same Decree when stating in art. 3, paragraphs b, c and d the following, referring expressly to Customs:
Art. 3º-The FEDERAL PUBLIC REVENUE ADMINISTRATION shall be the Entity in charge of executing the Nation's tax and customs policy, applying the corresponding legal regulations. It shall have the functions and powers of the merged agencies mentioned in article 1 of this document and in particular those detailed in this article, without prejudice to those conferred by other regulations:
b) The control of international traffic of goods provided for by the respective legal regulations.
c) The tariff classification and valuation of goods.
d) All functions arising from its mission and those necessary for its internal administration.
Although the last paragraph refers to possible other regulations that agree on functions and powers, this is not a carte blanche to confer others that alter the essence of the same, as it would imply denaturing the organization by placing it as the executive arm of what does not correspond to it, as there are also other regulations that grant functions and powers over the exchange regime, such as Law 19.359, conferring on the Central Bank the exclusivity of the pertinent attributions for its application.
Current situation
However, in recent times it has been established that Customs is exercising controls that are directly inappropriate for it, such as General Instruction 7/2022 on exchange controls for exports and exchange controls even on public roads or in raids on so-called "financial dens". Therefore, it cannot be argued that Customs carries out such operations in order to control compliance with regulations that may affect customs control (in some cases with reference to Article 97 of the Customs Code and in others as a controller in the event of possible under- or over-invoicing of customs operations).
Control over the entry and exit of foreign currency in customs operations is a power of the Central Bank conferred by Law 19.359. For this reason, the foreign exchange prevention measures adopted by Customs do not form part of its functions and powers. In this regard, it had already been expressed in a previous note in this same medium entitled “An early warning system that exceeds powers and violates constitutional guarantees” (1). Even more so, the controls that Customs personnel carry out on public roads or in control operations in “financial caves” are absolutely inappropriate to their functions and powers. But the drought in the matter of foreign currency reserves imposed that in fact, such functions and powers were distorted. It is then appropriate to ask whether a request for annulment can be filed regarding the effects of such procedures, given the clear absence of powers of the Customs Service to control the foreign exchange regime.
Regarding the control of foreign currency inflows from exports, there was already a precedent, which was General Instruction 2 of 2012. Given the rejections that such instruction had in the Judiciary (2), the same Customs proceeded to repeal that measure, alleging then "since the jurisprudence understood that the subject matter of the aforementioned general instruction falls within the jurisdiction assigned by the legal system to the Central Bank of the Argentine Republic, a criterion that was submitted for study and shared by the technical legal areas of the Agency, it is appropriate to leave the aforementioned rule without effect." That is to say, by applying the doctrine of own acts, the Customs understood that its own functions and powers do not cover exchange control. It is welcome that it understood this at the time. And it is appropriate that it should be so, since the conduct pursued within the typical framework of the exchange regime is the power of the Central Bank of the Argentine Republic, which arises from its own Organic Charter, which in turn has a clear principle of legality in accordance with the National Constitution and the laws that are enacted as a result.
Opportunely, the Supreme Court of Justice of the Nation determined in a renowned test case "the fact that for practical reasons the body that exercises exchange control has partially delegated it to another administrative body through an administrative act, cannot have the potential to change the nature of the control that is exercised and which is the basis of the legal assets that criminal exchange law seeks to protect" and that customs criminal law can only take into consideration "those specific functions of customs activity" (3).
Conclusion
There is no foreign exchange jurisdiction that has been delegated to Customs, or that even if administratively assigned, can be considered legal or constitutional, since the principle of legality and therefore due process would be violated, in accordance with art. 18 of the National Constitution. Thus, the actions of the Customs Service in the prevention and prosecution of activities linked to the foreign exchange market are arbitrary and framed as a clear abuse of the law. Not even under General Instruction 7/2022 can Customs interfere in ensuring the entry of foreign currency through exports, given that it is not the appropriate legal means, since it is an administrative resolution through which the principle of legality in foreign exchange matters is violated.
For this reason, it is possible to raise the nullity of certain procedures led by Customs personnel in matters of prevention regarding exchange control.
- Note from Drs. Guillermo Sueldo and Guillermo Felipe Coronel in which it is stated If an administrative regulation calls for the use of actions within its functions, but in order to subject them to controls outside its authority, it would be attempting to arrogate or extend powers over a matter that is not within its protection in terms of the Law... Consequently, an instruction that can establish sanctions and/or measures, even preventive ones, such as the suspension of registration, motivated by non-compliance outside the control of the customs bodies and demand guarantees of such compliance, is to move away from the premises established by the National Constitution and Laws dictated by the Congress of the Nation headed by the Customs... »
- (conf. CNACont.Adm.Fed., Room II, Atanor SCA, dated 24/11/15, and Atanor SCA, dated 26/11/15). (CNACont.Adm.Fed., Room IV, El Matrero SA, dated 16/04/15, among others).
- (CS, Legumbres SA and others, judgment of 19/10/89, Rulings 312: 1920).
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
