I understand that there is no one who can doubt the importance of the activity of our Customs and its functions and powers. In recent times, its activity has taken on a important role in an active role that he has probably rarely had, which is worth highlighting.
Having clarified this point, it is necessary to examine some actions that, in my opinion, exceed the regulatory framework and the objective that Customs has at the national level, which, as we know, is the control of imports and exports.
In light of this, some media have recently published an operation by Customs personnel in the Central Market. According to the information disseminated in the media, Customs agents were seeking, through this operation, “price distortions.” Obviously, in the context of measures aimed at containing inflation and control over foreign currency for imports. Without entering into political terrain, which is not the intention of this note, it is enough to agree that any political measure of government (whatever it may be) that has as its objective some regulation that falls on the population, sector or activity, must undoubtedly conform to the most important and hierarchically superior regulatory framework, such as the National Constitution.
Returning to the news article that reported on the customs procedure at the Central Market, it stated that “The traceability of imported and locally produced foods is being controlled with price distortions”. What the Customs Service can do, without a doubt, is to verify the justification of imported merchandise for commercial purposes; since the lack of such justification merits the imputation of the infringement provided for in art. 985 et seq. of the Customs Code.
However, having agreed on the above, it is appropriate to refer to the powers established in art. 123 of the same Customs Code; that is, those that have as their object verifications in the secondary customs zone. This is because it is an area in which controls are more lax because the activities linked to foreign trade operations are of an exceptional nature; it is for this reason that the control is less intense. For this reason, in this area the control aims to determine whether the imported goods found there were duly released to the market and under which regulatory context they were introduced into the customs territory.
It thus follows that the exercise of Customs powers in the secondary zone has a clear exceptional nature, and is therefore conditioned in terms of the difference from any other control carried out in the primary zone.
In this sense, the detention of means of transport is only intended to verify the seals, stamps and documentation that justify the possession and transfer; similarly, in terms of the identification and detention of persons who can be presumed, with a certain degree of probable cause, to have been involved in some customs offense.
As regards the search and seizure of goods, it is essential that there is at least a well-founded suspicion of the commission of a customs offence, since its mere arbitrary implementation with the purpose of intimidating, distorts the functions and powers of customs, since a mere suspicion without a clear basis lacks support for the arrest of persons, the search of homes and the seizure of objects.
In summary, the functions and powers of the Customs in circumstances such as those reported by the media on the occasion of the control operation at the Central Market of Buenos Aires, are legitimate insofar as they are intended, within the aforementioned traceability, to verify the conditions that prove their legitimate introduction into the customs territory and subsequent clearance to the market. Any precautionary measure that is adopted must be carried out with extreme caution and in attention to its restrictive meaning as regards the right of defense. It is not the function nor does it have the power of the Customs Service to take a norm and apply it with a different objective, such as price control. That is to say, the legal attribution of functions and powers cannot be used for purposes other than those for which they have been granted, since this would imply a clear defect due to deviation of prerogatives.
Perhaps it is time to consider a deep reform, which implies giving the Customs a clear character of its own, separate from the tax collection agency. The Customs cannot be run under a tax collection character, because that is not its objective. Nor is exchange control, which is clearly the responsibility of the Central Bank.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
