Despite the different considerations that have been made regarding DNU 70/2023, it is certainly currently a regulation that has been in force since December 29, 2023 (1). At least, with regard to customs matters, it can be estimated that, since its entry into force, the Customs Code has undergone substantial modifications and that today they are applicable, both in terms of subjects, operations, prohibitions and procedures.
Now, it is interesting to ask whether the current Customs Code, as it has been reformulated, encourages its application in relation to prohibitions on all events that generate imports or exports.
Draft reform of the Argentine Institute of Customs Studies
Before we get into this analysis - in reference to the prohibitions - it is worth highlighting that, in 2019, the Argentine Institute of Customs Studies (IAEA) submitted to the Federal Administration of Public Revenues (AFIP) and the General Directorate of Customs (DGA) a draft reform of the Customs Code.
The valuable work was carried out by the Drafting Committee (2) of the project, composed of outstanding professionals in the field. Those who, in the search for obtaining a serious and orderly work, promoted two weekly meetings from December 6, 2018 to May 17, 2019, to finally be presented on May 21, 2019 to the AFIP and Customs authorities.
The purpose of this work was to correct certain inconsistencies and gaps that had been introduced over the years or the partial alterations that had broken the coherence of the text, but conceiving the need that the proposed or adopted modifications do not alter the values that arise from the National Constitution, as well as ensuring that the normative system maintains the harmony and structure that it had from the origin. (3).
It should be noted that DNU 70/2023 seems to have had such a proposal in mind for some of the modifications introduced. This can be observed with respect to the reform of articles such as 226,227,228,323,324,325,326,960 (the latter in incomplete form). But unlike the DNU, the IAEA project – regarding the Customs Broker – maintains the obligation of this outstanding professional who is so essential for the traceability of imports and exports.
The Drafting Committee, in the project referred to here, has also made reference to different issues of importance, which in our opinion DNU 70/2023 would have been an opportunity to promote the resolution of divergences that remain, or where appropriate, have been momentarily clarified by the Supreme Court of Justice of the Nation itself (4), as an example of article 1026 (5), regarding the double jurisdiction over the crime of smuggling and the application of penalties between the Judiciary and the Customs Administration, and thus other issues that would have been worthy of attention at this instance to be the subject of reformulation.
In any case, this note does not intend to provide in depth those points that should have been considered for the reformulation of a norm so transcendental for the Nation, but we do note the importance of highlighting the value of the work of the IAEA, which in some way has borne fruit with the modification of certain articles in the terms that have been duly elaborated, at that time, by the Drafting Committee of the project. Despite not having observed the care, intended by the Drafting Committee itself, in promoting a reform while maintaining the harmony and structure that it had from the beginning.
Changes in prohibitions
Returning to the initial question, we will analyze the effects introduced in terms of economic prohibitions and their scope on imports and exports documented before or generated after their validity.
The DNU, through article 143, repeals articles 613, 614, 615, 616, 617, 618, 619, 620, 622, 623, 632 and 633 of Law No. 22.415 (Customs Code) and its amendments; on the other hand, it reformulates article 609 of the Customs Code.
Consequently, the rule leaves the following issues without effect:
- The application of economic prohibitions on imports and exports for consumption, including those operations that may be determined by special provision.
- Any special provision to the contrary that may result from applying prohibitions on imports for consumption does not affect those goods that, having been previously exported, were not for consumption.
- Any special provision to the contrary that may result in applying prohibitions on exportation for consumption does not affect that merchandise which, having been previously imported, was not for consumption.
- The device of the entry into force of the prohibitions on import and export is based on the official publication of the respective regulation. As well as the clarification of considering sufficient publication that made in the Bulletin of the National Customs Administration, regarding the prohibitions referred to here previously.
- The effect of the exception on imports, with respect to prohibitions of an economic nature, in that they do not apply to merchandise that is, on the date the measure comes into force, in any of the following situations: a) shipped with final destination to the customs territory by land, water or air and loaded onto the respective means of transport; b) in a primary customs zone, having arrived previously in the customs territory. Likewise, the reference to the fact that the benefit will expire if the import application for consumption is not registered within the period established by the regulations, which may not exceed ninety (90) days from the entry into force of the measure, and in line with the power of the Executive Branch to order that the import prohibitions also do not extend to merchandise that is in other circumstances, such as that covered by an irrevocable letter of credit or paid in whole or in part, under the conditions and with the limitations established in such cases.
- In the case of exports, economic prohibitions do not extend, unless otherwise provided, to merchandise for which the corresponding request for export destination for consumption has been registered prior to the date on which the measure comes into force.
- The provisions of Article 622 do not prevent the Executive Branch from ordering that export prohibitions also not extend to merchandise that is in other circumstances, such as that covered by an irrevocable letter of credit or paid in whole or in part, under the conditions and with the limitations established in such cases.
- The Executive Branch may establish economic prohibitions on the import or export of certain merchandise, on a temporary basis, in order to fulfill any of the purposes provided for in Article 609, when such purposes cannot be adequately fulfilled through the exercise of the powers granted to establish or increase the taxes that tax the respective destinations.
- Notwithstanding the provisions of Article 632, when it comes to relative prohibitions of an economic nature, the exceptions granted in favor of a specific person must be established by law.
- In short, DNU 70/2023 has rejected all economic prohibitions on imports and exports, establishing that, if applicable, these must be established by Law, expressly establishing, through article 142 of the DNU, a specific ban on the Executive Branch of the Nation to establish prohibitions and restrictions on exports or imports for economic reasons (through the reformulation of article 609 of the Customs Code).
Based on this new guideline that results from observing the Customs Code, we will place ourselves in two positions differentiated by the time period in which customs operations are presented, that is, those subject to officialization after the entry into force and those registered in advance.
?Import and export destinations from the effective date of the DNU. In this first case, there is no state of doubt that the taxable moment The validity of the operation brings with it the validity of the rule to be applied. Consequently, imports or exports that may be subject to a request for destination as of December 29, 2023, will be governed by the new regulatory framework in force. However, within the applicable set of regulations, it may happen that there are some regulations that are in force regarding economic prohibitions, issued prior to the DNU. It is then that a discrepancy may arise as to whether or not the economic prohibition is applicable in the face of a regulatory framework that has not been expressly repealed.
In our opinion, since the reform introduced, the Customs Code prevails over any lower-ranking regulation that may apply prohibitive states, even when they were supported by the scheme of the Customs Code in force previously. Such support arises because by reformulating the articles of Law 22.415 (CA) and establishing a framework of inapplicability of prohibitions of an economic nature, its legal force becomes primary over those regulations that, even when they were not expressly repealed, decline in their effect by imposition of the regulation of higher hierarchy. Especially, when its tacit repeal flows from the precise content of the consequent regulations, after noticing that any new law that fully regulates the matter that the previous one covered, leaves the latter without effectiveness even when its repeal is not expressly established (6). In addition, if the considerations of the DNU are analyzed, the rule is upheld with a view to its immediate application, otherwise the enabling framework to support the determination of the non-application of prohibitions - in this case of an economic nature - would not maintain the intended purpose, as it is intended to maintain rules that apply prohibitions contrary to the meaning attributed by the new framework that deals with the matter in a global manner.
A clear example of the search for this exercise of direct imposition, from its validity, is that DNU 70/2023 renders Law 25.626 ineffective, a rule that refers to an express prohibition, certainly such repeal provides a solid foundation for the search for the non-application of prohibitions of an economic nature that is intended to occur from the issuance of DNU 70/2023 and not an exercise for the future.
Import and export destinations prior to the DNU. Based on this precedent, it is necessary to analyze the scope of the effects of prohibitions applicable prior to the DNU. Specifically, with respect to possible situations that may have generated charges in criminal, delinquent or infraction matters, as the case may be.
In this sense, we must start from the same concept, the taxable momentIt is clear that if at the time of the taxable moment a prohibition of a taxable nature was in force,
economic, with the exception of what is determined by article 618 (in force before DNU 70/23) and there has been conduct on the part of the importer or exporter that gives rise to an alleged irregularity, as a consequence of being faced with an operation with the scope of a prohibition of this kind, the imputation effect denotes to be applicable. This is because, at the time of taxation, the current regime applies and in such a scheme, the prohibitions that may have existed are mandatory.
Nevertheless, to what extent can someone be convicted as a result of a prohibition that has ceased to have general treatment at the time of a final sentence being issued?
If we consider that in criminal matters the guarantee of the most lenient criminal law is applicable, it could be considered that, an accusation that is based on only a charge of prohibition of this magnitude, which today due to the new regulatory framework would not be applicable, would be within the scope of this benefit provided by the current regulation in force.
It does not escape our notice that Law 22.415 itself in article 961 states that, The regulation issued after the configuration of the infringement that modifies the customs or tax treatment of the merchandise will not have effects as a more lenient penal regulation for the purposes of applying the sanctions contemplated in this chapter. As well as article 899, it indicates that, If the criminal law in force at the time of the commission of the offence is different from the one in force at the time of the ruling or in the interim period, the one that is more lenient for the accused shall apply. The same effect shall not be applied to any law that modifies the customs or tax treatment of the goods.
This may seem reasonable in the face of a variation that determines the treatment in tax matters or prohibitions on explicit merchandise, but in this case, we are faced with a specific evolution in the matter of prohibitions, conceiving a change of legal position by establishing the inapplicability of prohibitions and restrictions, that is, all scope of this type of restrictive measures in general terms is rendered ineffective, preventing their application from within the Executive Branch and thus, as previously maintained, all possibility of establishing economic prohibitions from within the orbit of the Executive Branch is renounced. And although such ritual will be applicable to new operations, the peculiar support of expiring within the universe of imports and exports the prohibitions and restrictions of this kind, denotes a modification that transcends the particular tax treatment. As clearly expressed by Dr. Marcelo Antonio Gottifredi (7), as regards prohibitions, strong principles are established in favor of freedom and reduction of powers of any state entity that could restrict it.
In short, it reflects an adjustment in the universe of prohibitions, reversing their inapplicability in imports and exports, at least, from the cavity of the Power that holds the faculty of the administration of the nation. Specifically, prohibiting the prohibition of the PEN and consequently, with the clear effect of reviewing all punitive decisions in order to this subject, giving force to the principle of the guarantee of the most lenient law. Starting from the fact that the prohibitions of an economic nature imposed by the PEN are no longer punishable by their own effect of not being able to be imposed. In short, we are faced with a framework that globally modifies everything that refers to the subject of prohibitions of an economic nature and with this, it has repercussions, in our opinion, in the decriminalization of actions related to imports or exports affecting prohibitions of an economic nature emanating from a decision of the administration.
Although this is not a law that expressly decriminalizes, it is unquestionable that by modifying the general scheme of non-application of economic prohibitions, being the objective element of support for penalization in cases where such compliance is affected, it is observed that such legal precept provides the removal of any penalty from imports or exports that may be imposed based on such circumstance.
Thus, in the face of an open process without a final judgment, opened by the mere imposition of an economic prohibition, emanating from a regulation of lower rank than the Customs Code with its new dogma in relation to the subject matter of prohibitions, leads to the guarantee of the most lenient criminal law having a scope for these cases. This, because the retroactivity of the most lenient criminal law takes place in the face of a displacement of the general treatment observed for all economic prohibitions on imports or exports, not being a merely singular measure, supplying, then, the scope of a proper broad interpretation, based on the constitutional hierarchy arising from the latest reform of the National Constitution (1994), which favors the scope of article 9 of the San José de Costa Rica Pact and article 15 of the International Covenant on Civil and Political Rights.
Especially when the future of a decision of this kind, regarding the prohibition of the Executive Branch from establishing economic prohibitions, is supported by constitutional bases and international agreements, in addition to the doctrine of the Supreme Court of Justice of the Nation (NATE), which was ratified in 2023. Recalling that, by means of the ruling of August 3, 2023, in the case "Casas, Carlos Arturo and another vs. AFIP DGA s/ challenge of administrative act", the highest Court of the Nation considered applicable to the case the criterion it adopted in 2012 in the case "NATE Navegación y Tecnología Marítima SA (TF 22.2720-A) vs. DGA. Referring to its grounds. That is to say, in the matter of prohibitions, the Court has established the criterion already taken more than a decade ago, in that legal certainty presupposes the typification by law, in accordance with the guarantee expressly externalized by the National Constitution in article 19 and that now, the DNU 70/23, has introduced in the letter of the Law, by reforming all this matter, by repealing the aforementioned articles and modifying in this doctrinal line article 609 of the Customs Code, which ultimately only attends to what was established by the constituents when establishing article 19 of the National Constitution.
Accordingly, in this case we are not dealing with a limited modification of tax or customs treatment, but rather with the remediation of a situation that was contrary to the National Constitution, establishing a new integrative regulation of the matter and thus, by its terms, denotes a clear decriminalization. In this sense, it should be observed as a rule that supports its application for the review of the scope of the guarantee of the most lenient criminal law, since there would be a clear cause for justification of innocence, which although it takes legal relevance from the DNU (70/23), was already supported by the precept of the National Constitution itself.
Conclusion
For the above reasons, we believe that the new legal device - now part of the Customs Code -, regarding the change of the entire structure regarding economic prohibitions, conceives a framework that provides exemption from any requirement that restricts customs operations, even in the face of the possible presence of administrative regulations that provide for restrictions of this kind. On the other hand, in those operations that find an open process for alleged irregularity in order to apply prohibitions of this type due to the effect of regulations not arising from the National Congress, it would be viable to consider DNU 70/2023 as a regulation that protects the task of externalizing the guarantee of the most lenient criminal law, in order to reach a fair sentence in terms of what has always been in force in the National Constitution. Remembering, also, that Law (8) determines that, from its entry into force, the laws apply to the consequences of existing legal relationships and situations.
Concluding with the words of Dr. Juan Carlos Cassagne (9), who estimates the need to return to the postulates of the Albertian Constitution, by removing the obstacles that, with a vicious criterion of regulations, suppress freedoms.
Highlighted
1. Law 26122: DNU 70/23 will remain in force as long as it has not been expressly rejected by both chambers of Congress. If both chambers reject it, this implies the repeal of DNU 70/2023.
2. The Commission was composed of Marlene Hass, representing the Argentine Chamber of Commerce and Services (CAC), Juan Patricio Cotter and Martín Cornejo, representing the Chamber of Exporters of the Argentine Republic (CERA), Mateo Mc. Cormack and Mariela B. Fioramonti, representing the Chamber of Importers of the Argentine Republic (CIRA), Héctor G. Vidal Albarracín and José Pedro Bustos, representing the Customs Brokers Centre of the Argentine Republic (CDA), Enrique C. Barreira and Ana L. Sumcheski and Gustavo Müller, representing the Argentine Institute of Customs Studies (IAEA), the latter acting as group coordinator, with the collaboration of Ana L. Sumcheski in this task.
3. Basis and proposals for drafting the amendments to the Argentine Customs Code – May 2019 – Journal of Customs Studies No. 24, p. 113.
4. The Supreme Court resolved the issue in the case of “De la Rosa Vallejos” in its rulings of March 10, 1983, denying such autonomy and independence and limiting customs intervention to the application of penalties under its jurisdiction as accessories to the prison sentence and therefore to the results of what the criminal judge decides regarding the crime and those responsible. The Court ultimately declared that “… the criminal case against the accused having been definitively dismissed because it was considered that the act did not constitute a crime, the accused is protected by the constitutional guarantee of res judicata and, with respect to this crime, he cannot be tried again, nor can the accessory sanctions be applied to him…”
5. The drafters of the draft reform of the Customs Code presented on May 21, 2019, by the Argentine Institute of Customs Studies, propose to replace the present article commented here (art. 1026), to adjust it to the provisions of the Federal Criminal Procedure Code. Likewise, to replace arts. 1027, 1028, 1029 and 1121 of the Customs Code, so as to eliminate double jurisdiction in matters of smuggling and update the jurisdictions listed exhaustively in point 2 of article 1027. It will be worded as follows: Art. 1026 - "In cases of customs crimes, the following shall be responsible for: a) the national prosecutors and judges of first instance in economic criminal matters and the federal prosecutors and judges of the interior of the country, within their respective territorial jurisdictions; b) in the substantiation of the trial or debate, to the courts that correspond to their jurisdiction; c) the customs service, for the purposes of collecting and executing the liquidation of the corresponding customs taxes.” Annotated Customs Code, Volume VI, Guillermo Felipe Coronel and Guillermo Sueldo, pages 94 and 95.
6. Dr. Riggi Sumartio's vote on judgment, April 13, 1999, SAIJ Id: SU33002097 Al-Pol SRL s/ appeal for cassation». Case no.: 1838. Judgment April 13, 1999, Internal No.: 147.99.3. National Court of Criminal Cassation, Federal Capital, Autonomous City of Buenos Aires. Room 03, Judges: Riggi, Tragant, Casanovas. SAIJ Id: FA99261148.
7. Dr. Marcelo Antonio Gottifredi, Brief notes on customs matters of DNU 70/23 (Title V, “Foreign Trade”) – Modifications to the Customs Code, Law 22.415. Mercojuris.
8. Civil and Commercial Code of the Nation, Article 7: Temporal effectiveness. From the time they come into force, laws apply to the consequences of existing legal relationships and situations.
Laws do not have retroactive effect, whether or not they are of public order, unless otherwise provided. The retroactivity established by law cannot affect rights protected by constitutional guarantees.
The new supplementary laws are not applicable to contracts in the process of being executed, with the exception of the most consumer-friendly regulations in consumer relations.
9. Dr. Juan Carlos Cassagne, On the constitutionality of DNU 70/2023, Diario La Ley, Second Edition, 10.1.24).
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
