Reasons such as possible significant changes in trade flows and the objective of controlling and monitoring imports were the main arguments for implementing prior import licenses as a verification mechanism prior to the release of goods to the market.
The poor functioning of the system resulted in the numerous legal challenges brought by importers.
And in this sense, the Federal Administrative Litigation Court was quick to rule, both in the first and second instance, considering that obtaining said certificates caused unjustified delays in the delivery of the goods to the market, due to the long duration required by the relevant procedures, constituting a real obstacle to importation.
And so, by issuing countless rulings, it declared the regulations unconstitutional.
However, the highest court of justice (Supreme Court of the Nation) ruled contrary to what had been decided by the previous instances, setting forth the following considerations as its main arguments: that the declaration of unconstitutionality of a rule implies an act of utmost institutional gravity, such that it should be considered as the ultima ratio of the legal order... and that it is necessary to emphasize that it is the responsibility of the person who invokes unreasonableness in his allegation and proof... the statements of the appealed judgment... are mere allegations about the alleged damages that the plaintiff would experience as a result of the verification tasks to which the plaintiff must be subjected. The plaintiff did not provide specific evidence on such matters, which is why its arguments are merely conjectural. It has not brought or mentioned any evidence that allows an evaluation of the disproportionate requirement of obtaining the ICJ, which is why it did not demonstrate the unreasonableness of the challenged regulation. Nor has it done so with regard to its right to work and engage in lawful industry; it has not attempted to demonstrate how the exercise of its commercial activity is impeded by the imposed duty of control, or even to outline the specific, harmful difficulties that the regulations under consideration would cause it. (Conf. El Brujo SRL c/EN Ministry of Economy AFIP DGA «res. 485/05 c/General Directorate of Customs» E. 45. XLVI., of September 4, 2012)
The examination of the reasonableness of laws in terms of their constitutionality cannot be carried out except within the scope of the provisions contained therein and in no way on the basis of the results obtained in their application, since this would mean evaluating them on the basis of extraneous factors. The poor results that the ruling attributes to their specific practical application are clearly insufficient to support the unconstitutionality that it declares. (Conf. Allimport SA c/EN “Mº Economía” resol. 485/01 s/knowledge process “A. 962. XLVII., of November 27, 2012)
However, in January 2013 the decision was issued Resolution No. 11/2013 (Ministry of Economy and Public Finance), by means of which all resolutions that implemented the Import Certification are repealed, as a prerequisite for the release of merchandise to the market.
On the other hand, on January 5, 2012, the decision was issued General Resolution No. 3252 (AFIP), through which an advance information regime was implemented applicable to all final import destinations for consumption, understanding it as basic to contribute to the strengthening of customs, enhancing the results of comprehensive inspection.
Thus, importers should, prior to issuing the Purchase Order, Purchase Note or similar document, produce the information indicated on the microsite ANTICIPATED IMPORT AFFIDAVIT (DJAI), available on the AFIP website, where they would also be informed of any new developments and/or observations that may have been made by the organizations that adhere to the mechanism.
And in this sense, through the Resolution No. 1/2012 (11/01/12), the Secretariat of Domestic Trade formalized its adherence to the same, expressly establishing in its art. 2 that it would have a period of 15 working days to issue a ruling on the matter.
Furthermore, the General Resolution No. 3255 (AFIP), dated 20/01/12, established that said agencies would have a period of 72 hours (from the officialization of the declaration) to make the corresponding observations, which could be extended up to a maximum of 10 calendar days; after which, if no observations have been made, the import operation would continue.
However, in practice this did not happen, the deadlines were not met and this situation led to the filing of new legal claims by the importers.
And so, while justice began to consider abstract the claims related to the application of import certificates, in consideration of the repeal ordered by the Resolution No. 11/2013, The different chambers of the Federal Administrative Litigation Court have been specifically ruling on the DJAI, developing the following considerations: It should be concluded, with respect to the implementation of the DJAI, that not only must it be considered that the time elapsed since its request for granting without any response (more than six months) unreasonably exceeds the deadlines set for the implementing authority to issue a ruling on the matter, but that the individual is unable to expedite its processing as the observations made by the competent body are not recorded, which entails an administrative de facto route that affects the individual's right of defense by implying in the facts, a prohibition "even temporary - on import without legal support - the paralysis of import "as a result of the lack of the DJAI exit status presented - could entail a loss that is very difficult for the plaintiff to repair since the defendant's conduct prevents marketing and the recovery of the flow of business. In addition, the storage costs caused by the defendant's lack of response must be considered, a fact that accounts for tangible damage (Conf. Marycuer SA c/EN “ Mº Economía “ SCI “ Resol. 1/12 “ AFIP “ DGA “ Res. 3252 3255 3256 s/Proceso de conocimiento “ Sala III, Case No. 50.582/2012, June 4, 2013; ruling to which recent rulings continue to refer: Distribuidora Silicar SA c/EN-M Economía “ AFIP “ DGA and another s/Amparo Ley 16.986 “ Sala III, Case No. 43.609/13, July 1, 2014, among others.) It must be considered that the time elapsed since the application without a decision on the matter (almost six months) would prima facie unreasonably exceed the deadlines set by the contested resolutions themselves for the enforcement authority to rule on the matter and would imply in fact a prohibition "even temporary" on importation without legal basis. The reasons for the observations made by the Secretariat of Domestic Trade that would prevent the validation of the DJAI in question do not arise either. That the aforementioned prohibition on importation without apparent legal basis constitutes a serious harm that cannot be subsequently repaired. The truth is that it would not allow the apparent violation of the constitutional right to trade to be repaired in natura, which is configured in the face of the alleged impossibility of exercising its corporate purpose (Conf. Logicalis Argentina SA c/EN “AFIP – SCI and another s/Precautionary Measure (Autonomous)” Chamber IV, Case No. 43.735/2013, of May 6, 2014; Koulum SA c/ EN “Mº Economía” SCI “AFIP s/ Precautionary Measure (Autonomous) – Chamber IV, Case No. 39.466/2013, July 2014)
Now, the Supreme Court of Justice of the Nation only needs to decide on the claims made by importers regarding the DJAI and its unconstitutionality, as it becomes a restrictive tool for the entry of goods not prohibited in the regime of import destinations for consumption. It will then be necessary to see if, in the end, the highest court supports the position maintained by the lower court in its different rulings, which has considered that the delays and/or absence of decisions to issue the DJAI would imply in fact a prohibition - even temporary - on imports without legal basis or if it maintains the criteria adopted for the Licenses, which were left without effect by resolution no. 11/2013 and that the Court will refuse to declare their unconstitutionality.
Notwithstanding the foregoing, it should be noted that in terms of its grounds, the Court left the door open to consider unconstitutionality, to the extent that the irrationality and damage to constitutional guarantees regarding the licenses are proven. Therefore, possibly, in the now DJAI, if it is proven that since their implementation they have shown, as the Federal Administrative Litigation Chamber held, to result in fact be a prohibition, we will surely soon see a ruling from the Supreme Court of Justice of the Nation, which will support such a decision already resolved by the first instance judges and the Federal Administrative Litigation Court.
