Historical Background
Originally the declaratory action of certainty was not even considered a contentious process, since it was not noted that a judicial case - in the terms of article 2 of Law No. 27 (1)– could be conducted through such a procedural means. Therefore, the courts rejected its admissibility, viewing such an action as a hypothetical, abstract, or merely conjectural approach lacking the controversial nature inherent in judicial proceedings.
The denial of the declaratory action as a judicial case ended with the enactment of the National Civil and Commercial Procedural Code—Law No. 17.454—which introduced, in Article 322, the regulation of the merely declaratory action as a "case" in the procedural world. The current law provides: "…An action may be brought to obtain a merely declaratory judgment to end a state of uncertainty regarding the existence, scope or modalities of a legal relationship, provided that this lack of certainty could cause current harm or damage to the plaintiff and the latter does not have any other legal means to put an end to it immediately.... ".
Procedural evolution
This incorporation of the declaratory action and its positive recognition as a judicial process led to the need to determine whether it could also accommodate the exercise of constitutional review and the jurisdictional protection of the plaintiff. In this regard, following the jurisprudential guidelines of the Supreme Court of the United States (2), the precedent provided by our High Court in the case "Province of Santiago del Estero v. National Government and another" (Judgments: 307:1379) is of great value, since based on this it is considered that this action, on the one hand, enables the control of constitutionality and, on the other, makes it possible to avoid the consummation of damage to the plaintiff.
This position was reiterated by the Supreme Court of Justice (SCJN) in "Constantino Lorenzo v. National Government" (Judgments: 307: 2384), which stated that abstract and general requests for unconstitutionality, which cannot be taken as a contentious action due to the lack of immediate interest of the individual making the request, must be distinguished from actions determining constitutional rights, the ownership of which is claimed by the plaintiff and which tend to prevent or impede the violation of such rights; such as the action for mere certainty and the amparo.
Despite the clarity of the aforementioned precedents, there was still debate about whether this was a declaratory action of certainty with constitutional review or a different action where the object of the claim was to have a rule declared unconstitutional. Given this situation, through a series of pronouncements (3), the Supreme Court indicated that the direct exercise of the action of unconstitutionality was admissible as a suitable means to prevent or impede the violation of constitutional rights, whether in the form of protection, a merely declaratory action or a summary trial. (4).
Finally, we must mention the important decision in the 1987 case "Newland Leonardo v. Province of Santiago del Estero" (Judgments: 310: 606), in which the Supreme Court of Justice (SCJN) specified the scope of the declaratory action even in cases where the disputed tax had been paid. In this regard, it was stated that: "...The rule 'solve et repete' does not prevent the admissibility of the merely declaratory action, when its prerequisites are met, especially the state of uncertainty regarding the scope of the specific legal relationship and the sufficient interest in the plaintiff, since the requirement of prior compliance with what constitutes the object of the discussion would imply ignoring the need for judicial protection, which tends to clarify the state of uncertainty between the taxpayer who questions the attitude of the State and the latter.... "
Thus, prior to the 1994 constitutional reform, the procedural and jurisprudential scope of the declaratory action for certainty was defined as an autonomous action for unconstitutionality useful for conducting effective judicial protection of taxpayers' rights in tax claims arising from questionable regulations. This was even the case in which payment of the tax was demanded and made. It is therefore appropriate to question the effect of such reform, particularly with regard to conventions incorporated with constitutional status.
However, it should be noted first that, starting with Articles 116 and 117 of the amended National Constitution, the courts of the Republic are entrusted with the jurisdiction and decision of all "causes," "cases," or "matters" that address matters governed by the Constitution. These latter terms are used interchangeably and, therefore, are considered synonymous.
Secondly, we must remember that the guarantee of effective judicial protection, enshrined in Articles 8.1 and 25 of the American Convention on Human Rights, prescribes the elimination of all types of obstacles to access to the process and, in this regard, the Inter-American Court of Human Rights - IACHR - has stated that: "...States should not place obstacles in the way of people who come before judges or courts to have their rights determined or protected.... ". (5)
In this context, Spisso maintains that the admission of the declaratory action in tax matters "It constituted a significant achievement on the path towards the effective judicial protection of individual property rights.". (6) Along the same lines, Cassagne points out that the affirmation of the Principle of Effective Judicial Protection goes beyond the scope of the amparo action. He also indicates that constitutional regulation contributes to the objective of "strengthening justice" prescribed in the preamble of the National Constitution. (7)
It is concluded that conventionalism reinforced the procedural and jurisprudential ideas that existed regarding the declaratory action of certainty even before the constitutional reform.
Procedural setback
Despite the foregoing, it would appear that, in some cases, certain jurisprudence still resists the application of the declaratory action of certainty as a useful means for exercising constitutional review in tax matters in general, and customs taxes in particular, or that it resists using it for protective purposes. In other words, it is devoid of content and purpose.
In the last aspect mentioned, for example, there have been cases in which a tax or tax-customs regulation has been declared unconstitutional, but no refund has been ordered under that regulation. Those who support this position argue that the ruling can only be declaratory. It would seem, then, that in these cases, we are returning to the vacuous concept that the declaratory action of certainty had prior to its incorporation into the National Civil and Commercial Procedural Code. In short, in this hypothesis, the process culminates with an abstract declaration of unconstitutionality that resolves nothing.
In light of this, we could formulate the following questions:
1.- What is the point of requiring the existence of a "judicial case" as a procedural condition for admissibility of the action if, after the process is processed, it is not resolved?
2.- If the declaration of unconstitutionality is the last ratio of the legal system can it be accepted that it does not resolve the judicial case?
Any response to these questions must take into account the IACHR's ruling, curiously enough, regarding a case brought against the Argentine Republic. Its reiteration does not seem redundant: "...States should not place obstacles in the way of people who come before judges or courts to have their rights determined or protected.…” (“Cantos vs. Argentina”).
The game of seven differences
Let us suppose that, in application of the ruling by the Supreme Court of Justice in the precedent “Camaronera Patagónica” (8)In a case we'll call "X," a decree issued by the National Executive Branch, which demanded and collected sums of money in the form of "customs duties," is declared unconstitutional, and, based on this, the refund of the amount paid is required. What should be refunded?
What was presented reminds us of the precedent "Cencosud" of the CSJN (9), in which the Supreme Court overturned the judgment that, admitting the repetition of what was unduly paid by the plaintiff in the concept of additional common external tariff transitional (10), ordered the National State to pay the sum of dollars, converted into national currency at the exchange rate in effect on the day prior to the effective date of cancellation. In making this decision, the court stated that Article 20 of Law 23.905 regulates the currency in which customs duties owed by taxpayers are determined and the instruments that may be used for their cancellation. However, it does not in any way refer to the manner in which the amounts to be reimbursed by Customs for overcharged duties are determined or calculated, nor to the currency that must be used for their cancellation.
However, we will examine the differences between "X" and "Cencosud" to conclude that comparing them is incorrect. In this context, readers are invited to participate in the seven-differences game we saw on the back pages of newspapers when comparing two seemingly identical images:
1.- Difference between the objects of the actions: In "Cencosud", the ruling is reached as a result of a recourse procedure processed under the terms of art. 809 et seq. of the Customs Code. In "X", however, the resolution arises after a declaratory action of certainty is processed, the purpose of which is greater than that of a recourse initiated through the administrative-customs procedure. Indeed, said purpose includes the request for a declaration of unconstitutionality of the rule that generates legal uncertainty and based on which the customs tax is required, in addition to the avoidance of the consummation of the damage. This last action, thus raised, is of a preventive and not restorative nature, since it does not seek to repair all the damages that the decree could have caused.
2.- Corresponding procedural route: Considering the purpose of the actions, "Cencosud" must proceed through the administrative procedure regulated by art. 809 et seq. of the Customs Code. "X", on the other hand, does not. The aforementioned repetition procedure is not a suitable procedural means for understanding the unconstitutionality raised, nor does the General Directorate of Customs have material jurisdiction to hear claims of this magnitude. Ultimately, in these circumstances, the action for declaratory certainty is brought in a subsidiary manner due to the absence of a specific and suitable procedural means that can address the subject matter raised.
3.- Declaration of unconstitutionality: In "Cencosud," there is no declaration of unconstitutionality. In "X," the unconstitutionality of a decree from which the tax requirement arises is declared.
4.- Nature of the tax requirement: Since the tax requirement in "Cencosud" is constitutional, it maintains its regulatory nature; that is, it is a customs tax. However, in "X," the decree having been declared unconstitutional, we are not dealing with a customs tax. What's more, based on the Principles of Legality and the Reserve of Law, in this case we do not even have a "tax."
5.- Application of Law No. 23.905: : Since this is a customs tax, Article 20 of Law No. 23.905 applies to “Cencosud.” However, in “X,” we are not even dealing with a tax, so Law No. 23.905 does not apply.
6.- Overpayment of a tax or none of these characteristicsIn “Cencosud,” an overpaid tax is repeated. In “X,” we do not legally have the “payment” of an obligation, nor an excess, since there is no part owed and another part that exceeds that condition. It is reiterated that we do not have a tax.
7.- Scope of the return: As a result of all of the above, in the case of "Cencosud," the Supreme Court of Justice (SCJN) decided to return the amount paid in pesos. However, in the case of "X," a different ruling should be made, otherwise the damages being prevented would be consolidated.
Final words
As a reflection, it is observed that in a State subject to cyclical economic crises, tax collection schemes of dubious constitutionality are recurrent. When the harm caused by these measures is consummated—that is, when the resources are collected and allocated to the budget—the free exercise of jurisdiction is restricted, making the damage difficult to repair.
Therefore, in the absence of a specific process, the declaratory action for certainty appears to be the ideal procedural means for these cases. Its preventive nature allows for the resolution of constitutional issues, facilitates effective judicial protection, and grants the judge full jurisdiction.
- Chapter I of Law 27 is entitled "Nature and General Functions of the National Judiciary." Article 1 reads: "…The National Justice will always proceed by applying the Constitution and the National laws, to the decision of the cases in which the interests, acts or rights of Ministers or public agents, of simple individuals, of the Province or of the Nation are involved.…”. While Article 2 provides: “…It never proceeds ex officio and only exercises jurisdiction in contentious cases in which it is required at the request of a party.... ".
- The Supreme Court of the United States, the leading case: “Aetna Life Insurance Co. v. Haworth, 300 US 227,” held that the following conditions were necessary for this type of action: a) the need for administrative activity that affects a legitimate interest; b) the degree of impact must be sufficiently direct; and c) the activity must be sufficiently specific.
- “National State v. Santiago del Estero” (Judgments: 310:2812) of 1987, “Polino v. PEN” (Judgments: 317:335, 342) of 1994, “Ravaglio v. Province of Santa Fe” (Judgments: 317:1224) of 1994) and “Agueera v. Buenos Aires” (Judgments: 320: 690, of 1997.
- For further information, see Bianchi, Alberto, “From the Declaratory Action of Certainty to the Declaratory Action of Unconstitutionality”, El Derecho Constitucional Magazine, 4/17/2021; Palacio de Caeiro, Director, “Treatise on Federal Law and Special Laws”, La Ley Bs.As. 2013, Vol. I, p. 1396 et seq.; Manili, Pablo Luis, Coordinator, “Constitutional Procedural Law”, Ed. Universidad, Bs.As 2005, p. 265 et seq.; Bianchi Alberto, “Constitutionality Control”, Ed. Abaco de Rodolfo De Palma, Bs. As. 2002, Vol. I, p. 403 et seq.
- IACHR, “Cantos vs. Argentina,” judgment of 11/28/2002
- Spisso, Rodolfo R., “Actions and resources in tax matters”, 5th ed., T. I, Buenos Aires, Abeledo Perrot, 2020, page. 323.
- Cassagne, Juan Carlos, “The declaratory action of unconstitutionality”, LL 2015-D, 589.
- Errors: 337:388.
- CSJN, “Cencosud SA (TF 29.535-A) c/ DGA”, judgment of 05/15/2014.
- Conf. Decision No. 6/01 of the Common Market Council and Decree No. 290/02.
The author is a partner at the Customs Law Firm Centarti & Rizzi, Director of the Diploma in Customs Law at the Catholic University of Córdoba, and Academic Director of the Diploma in International Customs Law at the International Trade Centre (UN-WTO). He also teaches Customs Law and Customs Criminal Law at various universities.