Since the conception of MERCOSUR and as it arises from the delimitation of spaces together with the definition of the customs territory, it was always clear that free trade zones and special customs areas were not part of this territory and that in said spaces a special differentiated regime was applied for import and export operations.
In order to address the link between the criterion of origin in these areas, it is necessary to review what Community regulations indicate in this regard.
We find ourselves, first of all, with the CMC Decision No. 08/94 “Free zones, export processing zones and special customs areas”, which establishes the conditions applicable to goods originating from commercial free zones, industrial free zones, export processing zones and special customs areas, and which provides in its article 2: “Unless otherwise decided, the States Parties shall apply the Common External Tariff or, in the case of exempted products, the current national tariff, to goods originating from commercial free zones, industrial free zones, export processing zones and special customs areas, without prejudice to the legal provisions in force in each of them for the entry of said products into their own country.”
As stated in the previous paragraph, origin from these zones was not admissible. That is, products entering any of the MERCOSUR free trade zones, even if they originated in MERCOSUR, automatically lost that status when entering or circulating through said zones. Furthermore, it does not recognize the preferences negotiated in the agreements if the goods entering the national customs territory come from free trade zones.
However, as a result of the advances in facilitation, in 2015 MERCOSUR approved the CMC Decision 33/15 “Export processing free zones and special customs areas”, which in its article 1 provides the following: “Notwithstanding the provisions of this Article, goods originating in a State Party or a third country that has the same rules of origin in all the States Parties, by virtue of the trade agreements signed by MERCOSUR, shall not lose their originating status when, in the course of their transport and/or storage, they use a special customs area, an export processing zone or a free zone, provided that the aforementioned zones are under the customs control of the corresponding State Party, and may only be subject to operations intended to ensure their marketing, preservation, fractionation into lots or volumes or other operations, provided that the tariff classification or the originating status of the goods stated in the original Certificate of Origin with which they entered said zones or areas is not altered.”
In other words, the main objective of this Decision is to ensure that goods originating in MERCOSUR Member States do not lose their status of origin when they enter the zones, and also that such treatment may be extended to goods originating in third countries that have the same rules of origin for entry into all Member States by virtue of trade agreements signed by MERCOSUR with third parties. This rule incorporates an exception for products from free trade zones so that they do not lose their status as originators, provided that they comply with the MERCOSUR Origin Regime (CMC Decision 01/09 in force and its amendments).
However, this Decision is not automatically applicable to the entire tariff universe, but as it is derived from the norm, the MERCOSUR Trade Commission (CCM) had to approve the lists with the NCM tariff items that benefit from said treatment. These lists were approved by CCM Directive No. 69/19 “Implementation of CMC Decision No. 33/15”, which includes 11 Annexes with the lists of products identified by Agreements and countries covered by it.
Other important aspects to highlight regarding the functioning and operation of this standard are the control mechanisms applied by the competent authority and the customs authority of each State Party in order to guarantee the correct compliance with what is established, which is nothing more than what was agreed by consensus in MERCOSUR.
Considering that all operations carried out through free zones, by the mere fact of being a special regime, are considered risk operations and also taking into account the need to have a document that allows accounting, stock control and differentiation of operations carried out under Decree 33/15, the incorporation of “derived certificates” of origin was carried out, through which commercial operators can make partial payments in different shipments supported by a MERCOSUR certificate of origin. In other words, merchandise may enter with the issuance of a derived certificate.
This mechanism for issuing derivative certificates is currently regulated solely by Uruguay and is in the process of being implemented by the other MERCOSUR partners. In the case of Argentina, its regulation at the national level is in process.
The incorporation of this type of tools, such as certificates of origin derived from free trade zones, within the bloc both internally and with the countries or blocs with which MERCOSUR has agreements, are steps that strengthen and that are gradually paving the way towards greater dynamism in international business and catalyzing the process of greater integration inside and outside the region.
She holds a degree in International Trade (Universidad Nacional de Luján) with postgraduate studies in the Master's Degree in International Economic Relations (Universidad Nacional de Tres de Febrero). She has been a professional development fellow of the Organization of American States (OAS) at the George Washington University School of Law (USA). In the academic field, she is a professor at the Universidad Nacional de Luján. In the professional field, she has been an official of the Secretariat of Commerce dependent on the Ministry of Economy of the Nation, since 2005. Currently, she is the National Coordinator of the Technical Committee No. 3 "Trade Standards and Disciplines" in charge of the negotiations of rules of origin of MERCOSUR; in addition, she is the Alternate National Coordinator of the Technical Committee No. 8 "Transposition of nomenclature of trade agreements with third countries and groups of countries" also of MERCOSUR.