These lines celebrate a new anniversary of the Argentine Customs Day and have a special meaning to highlight the work carried out by customs agents. The main topic will then lead to the mention of certain measures that deviate from the respect that all officials should have in relation to the legal system that regulates the matter and that tends to guarantee the fundamental rights that emanate from our wise Constitution.
I.- The customs agents I met
Any organization that provides services, whether it is public or private, is valued by its results, and an organization such as Customs is no exception to this rule. Its interaction with trade carried out by private parties is the most important part of the control function necessary to comply with the duties imposed by law. Customs agents interact with importers, exporters, customs brokers, customs transport agents, warehouse permit holders, freight forwarders and other professionals in customs-related services, so the success or failure of foreign trade tasks depends on the agility, efficiency and correctness of these procedures.
After graduating from university, I was lucky enough to be chosen, after a demanding preliminary examination, to work in the legal department of the customs service. In order to avoid any unfair omissions, I will refer only to a few customs officials I met, without neglecting the very valuable people whose responsibility and commitment to the institution I am aware of.
Among those I knew closely, I will mention my first boss: Carlos Giraldez, who had begun his career as a guard. When I met him, he was working as Head of the Secretariat in charge of resolving import and export infringement cases of the then Capital Litigation Department. He had no higher education, but in his years as a customs employee he had acquired a deep knowledge of customs institutions and technical regulations, as well as valuable experience. The lawyers or law students who worked with him learned the secrets of the old ordinances and regulations that he had in his memory. His opinion was usually accurate whenever a complicated issue was raised. He clarified it through axioms or customs sayings that summarized the common sense of any legal norm for an agile customs system such as the one that was intended to be established based on rapid foreign trade management. Later, I had dealings with the Technical Secretary of Customs, Francisco (Pancho) García, and with the person who served as Head of the Capital Operations Department (Buenos Aires Customs), Laureano Fernández. They were honest men, very good manners, with a vocation for service, respected and knowledgeable in their trade. Pancho García, whom I knew very well in the daily meetings that we held for years within the Drafting Committee of the Customs Code, confessed to me that he felt a special attraction for complicated cases regarding tariff classification, without prejudice to his knowledge in all areas of customs operations. Laureano Fernández drew attention for his intelligent reasoning and his knowledge of the history of customs institutions. I remember when he explained to me, in detail, the adaptation of customs operations that had to be made to reduce the risks run by merchant ships from belligerent countries that arrived at Argentine ports during the Second World War at the beginning of the 1940s.
They were important in the drafting of the Customs Code, contributing practical knowledge that shaped many operational rules that were incorporated thanks to their experiences according to the characteristics of each of the many customs offices in the customs system of our vast country. Later, they both, with the participation of the then Technical Secretary Héctor Di Giano and the constant legal collaboration of Mario Alsina, were the architects of the regulatory decree of the Customs Code that came into force in 1982.
In the Legal Affairs Department, there were lawyers such as Dr. Oyuela, Dr. Petersen and Dr. Bengolea who deserved praise in rulings by the Federal Court for their solvency, legal knowledge and effort in defending the customs rights and interests of our country. From the National Tax Directorate, Dr. José A. Sortheix, a lawyer with extensive knowledge of customs and tax law and the history of international trade, maintained fluid contact with the authorities of the Customs Cooperation Council, which he later led as interim director in 1976. His personal dedication was decisive in the preparation and drafting of the Harmonized System Agreement for Tariff Classification that is currently in force throughout the world, which is why he was referred to as the father of the Harmonized System. During his previous term in the National Tax Authority, he drafted, among many other laws, the project for what was Law 19.640, which created the Special Area of Tierra del Fuego and the Free Trade Areas of Argentine Antarctica and the South Atlantic Islands, with the dual objective of ratifying our sovereignty over the Malvinas Islands and Argentine Antarctica and of settling Argentine population in a territory that is crucial for the geopolitics of our country. In this law, the notion of the “origin of merchandise” was developed for the first time, in order to adequately regulate the benefits of exports and imports that occur between the Special Customs Area and the General Customs Territory. This model was later the basis of the autonomous system of origin of merchandise, embodied in art. 14 of the Customs Code.
Sortheix relied on the Customs Office on several occasions, requesting the sending of specialized customs agents to collaborate in the solution of specific issues that needed to be resolved by that Directorate based in the Treasury. In the customs legal field, he had the support of Dr. Mario Alsina, who had been sent to Europe by the Customs Office to study in detail the customs valuation system that governed that continent. Upon his return, he passed on his knowledge to the Argentine customs office, which formed the nascent valuation area. Later, Alsina moved to the National Customs Office, contributing his experiences with great customs specialists such as Ricardo Basaldúa, Daniel Zolezzi, Horacio Vicente, Miguel Galeano and others. This team attended the meetings of the Customs Cooperation Council Committees annually. Their repeated presence was very valuable for the continuity of the projects that had been worked on at that headquarters. This frequency also allowed for the creation of links that resulted in useful contacts for our country in the areas where important issues were decided prior to the signing of international agreements on foreign trade. This allowed the country to maintain continuity in its foreign policy guidelines, which was felt in the technical area and in the assessment of future regulations of international agreements. It was a time of learning for Latin American technicians, with the Spanish language being incorporated, along with English and French, as an official language in some of these committees. The work of the customs personnel in this close relationship with the National Tax Directorate allowed for the preparation of a draft General Customs Law in 1969, in which José A. Sortheix, Ricardo Basaldúa, Julio T. Rubens y Rojo and Juan Patricio Cotter Moine participated. This draft served as the basis for the subsequent drafting of the Customs Code of 1981.
At that time, customs personnel had a responsibility that, unfortunately, has been eroded as an unavoidable consequence of the deterioration suffered by our state bureaucracy. However, these testimonies that express the idea of effort, study and enthusiasm to reach levels of excellence highlight that we have reasons to try to have an efficient Customs, which can only be achieved with preparation, work and enthusiasm to do things well.
Both the aforementioned draft of the General Customs Law and the Customs Code indicate a methodology that tends to achieve an adequate balance between the prerogatives of the State and the fundamental rights of the administered. The Code intends that the administered, who is the weakest party in the customs legal relationship, be protected against the de facto actions or undue pressure of the power. Undue pressure, whether for political reasons, whim or corruption, can only be eliminated if the procedure is judicialized. Some of the mechanisms for this purpose are the issuance under the guarantee regime and the procedures for challenging or defending against unjustly raised infraction causes, with suspensive effect at the customs office and before the Tax Court, in order to prevent the detention of the merchandise from becoming a means of extortion.
II.- The culture of material and intellectual work as a productive force
In the process of preparing the German Customs Union after the defeat of Napoleon, one of its promoters, citing the French economist and businessman Jean Baptiste Say (1777-1832), disagreed with him, stating that “The prosperity of a people does not depend, as Say believes, on the amount of wealth and exchange values it possesses, but on the degree of development of the productive forces. If laws and institutions do not directly produce values, they do at least produce productive force, and Say is wrong when he maintains that people have been seen to become rich under any form of government and that laws cannot create wealth.”, adding, citing Adam Smith, that the author stated that the increase of wealth depends mainly on the productive force of labor, that is, on the degree of skill, dexterity and intelligence with which the work is carried out and on the proportion between the number of productive beings and those who are not ([1]).
The above paragraphs serve as a humble tribute to customs officials who knew how to honor their positions. They, in their own way and within their possibilities, fulfilled the requirements mentioned as sources of the greatest productivity of a country. Not only factories and machines are sources of production, but also education, honesty, morality and the correct enactment of the law and its strict application so that a country can function with a high level of productivity. The collaboration that generates solidarity and mutual trust are extremely important elements so that teamwork can bear positive fruits. We cannot fail to mention some words that dictate our hope that the country will return to a positive course to overcome the serious crisis that afflicts it.
III.- Need for respect for constitutional guarantees, especially by State officials who are, precisely, those who are charged with defending them.
The COVID-19 pandemic accustomed us during 2020 to the fear of contagion, the obligation to isolate ourselves, and to connecting via computer. In general, administrative procedures, including customs procedures, began to be delayed. Time made the National Government, for reasons of public knowledge, enter into a difficult situation to maintain the flow of foreign trade. The economic inactivity generated by the pandemic implied a decrease in State resources without reducing public spending. This, together with other subsequent reasons such as the drought in the countryside, a sector of high gravity in exports, made the issuance of currency a palliative that was no longer exceptional. Inflation and consequent depreciation of the same were generated, without the authorities admitting to devaluing the peso. Circumstances arose that recalled the policy carried out a decade earlier, tending to the economic isolation of our country in terms of foreign trade.
With the Central Bank monopolizing the purchase and sale of foreign currency and setting the price for its sale at a level close to half the value of the real market value, exports were discouraged with the consequent result of a lower income of foreign currency. The next step was that the State gradually restricted the sale of foreign currency to importers, generating delays in payment to suppliers, which in some cases implied a refusal to sell these currencies, which resulted in non-compliance with foreign commitments, damaging the confidence of the external sector and hindering the flow of the supply chain.
The AFIP and the Ministry of Commerce established, through Joint Resolution No. 5271/2022, the “Argentine Republic Import System” (SIRA). This Resolution reiterated the precedent of previous regimes from 2012 and 2018 ([2]). Like the current Resolution 5271/22, they created a system that, invoking as its objective the facilitation of the exchange of information with external organizations that participate in the entry of goods adhering to the regime of the "Single Window for Argentine Foreign Trade" (VUCEA), in reality fulfilled (and continues to fulfill) the opposite task, since it is used to regulate or restrict the delivery of foreign currency to importers to pay their suppliers. Thus, mistakes from the past continue to be repeated, without learning from the hard past experience.[3]).
These import restrictions are carried out on the basis of discretionary powers granted to administrative officials, without these measures being authorized by law, violating the clear rule of art. 75, paragraph 1 of our National Constitution. Art. 14 of the same provides that the fundamental rights granted by our National Constitution (among which is the freedom to trade with other countries), must be in accordance with the laws that regulate their exercise. This is not what happens with these regulations issued by sub-legal levels and without a legal basis that validates them.
Under the false guise of an information regime, a system of import restrictions was established through these sub-legal regulations. They were implemented by granting administrative officials powers whose discretion allows them to delay or deny freedom of trade. A resolution issued by an autonomous entity and a Secretariat dependent on a Ministry of the Executive Branch allowed them to assume powers reserved to the laws of Congress (art. 75, paragraphs 1 and 13 of our National Constitution).
The last recital of Resolution 5271 seeks to base its jurisdiction on art. 7 of Decree of Necessity and Urgency No. 618/97. It is not idle to remember that this article contemplates the power of "to issue general mandatory rules for those responsible and third parties in the matters authorized by law to the Federal Administration to regulate the situation of those facing the Administration”. As we have seen before, there are no laws that authorize the subjects that allow the dictation of such general rules.
The Customs Code, as its name indicates, is a “system” of rules that make up a special legal system, characterized by the coherence between its various provisions. It has Section VII referring to “Prohibitions on import and export”, which run from art. 608 to art. 634. None of them refers to limitations due to supposedly unclear or ambiguous situations mentioned through indeterminate legal terms.
Resolution 5271, on the other hand, does not define clear types of conduct or responsibility. Instead, it refers to ambiguous notions such as, for example, “lack sufficient financial economic capacity"Or"Customs and tax risk profile” without clearly determining when there is “sufficient” capacity or what the “risk profile” specifically consists of. This, without realizing that the Customs Code has already addressed the requirements that must be required for subjects who may be suitable to access the status of importers, exporters or auxiliaries of the customs service. This is established in Title III of Section I (Subjects) (articles 91 to 108).
Decree 618/97 claimed a non-existent “need” and “urgency”. It eliminated not only the articles of the Customs Code that provided that this type of regulations (then art. 30) were not susceptible to delegation because they implied a semi-legislative function (as in this case the regulation is), but also considered that in the case of having issued “general norms for the interpretation and application of the laws and regulations of the matter” (case of which we are speaking) the administered that invoked a subjective right or a legitimate interest could appeal to the Secretary of the Treasury of the indicated general norms, up to ten days after their publication in the Official Gazette (art. 26 of the Customs Code, repealed by the aforementioned DNU). In this way the Code guarantees the seriousness and responsibility of the official that issued this type of norms. The only official was the highest authority of the National Customs Administration, who was denied the possibility of delegating it to a lower level. It was understood that only the highest authority of the entity could assume responsibility for such a delicate administrative act that the law entrusts to him.
Joint Resolution 5271/22 claims to be “regulatory.” This is not true. There is no law that has required regulation in this regard. Note that the wording of Decree 1011/82, which regulates the Customs Code, contemplates in each of the articles which are the provisions of the Customs Code that are requiring the pertinent regulation. This is not the case. The Customs Code provides in its art. 94 the requirements required for the importer to be authorized to operate in that capacity. It requires clear and strict requirements for this, therefore the Resolution that created the SIRA interferes (without having the legal level to do so) with the content of art. 92 of said Code. This extension of the requirements already established in the law through a Joint Resolution of the AFIP and the Secretariat of Commerce is invalid. To this it should be added that one of the axioms of the customs procedure is operational speed. Time is money in national and international trade and any delay is detrimental to the importer or exporter.
The soul of tax collection is not the soul of customs control. Customs control is based on agility as a crucial element of commercial efficiency. For trade, time is money and customs must adapt to the specific guidelines of the trade it must control. Therefore, establishing systems that can be discretionally derived to delay or deny the right to import due to suspicions of alleged irregularities is contrary to the spirit of an efficient customs function because no one can ignore that it seeks to justify the “de facto” delays or denials of imports.
As we have said above, art. 94 of the Customs Code clearly indicates that not everyone can be an importer or exporter and that only those who demonstrate solvency and good conduct can do so. As we have seen, it is not possible for an infralegal norm to attempt to modify the current law to determine the level of suitability that is to be imposed on the administered person who has the status of importer. Above all, if it is based on vague or ambiguous criteria that allow a high exercise of administrative discretion that, as is known, generates practices of violation of the rights of importers and the creation of privileges for the friends of power.
Another point that attempts to justify this type of rules foreign to the Code system is the assumption that “risk profile”, stating that for this purpose the following will be considered: “among other elements”, If the importer has made “overbilling, underbilling operations, or the regime has been distorted with abusive practices”, in the investigation processes or if administrative or judicial measures have been taken in relation to these operations. As can be seen, the ambiguity of the notions of what is called a risk profile gives rise to almost any suspicious situation being considered as such. This removes the typicality of the situation that could be justified as a risk profile dangerous for tax revenue. This situation of lack of precision regarding the alleged irregularity of an act should not allow an official, of undetermined rank, to frustrate an import on the basis of possible conjectures or suspicions. This clearly contradicts the rules that the Customs Code seeks to establish as a guarantee for the administered.
Finally, if irregularities are suspected, the measures provided for in the Criminal Procedure Code for smuggling (see arts. 1117 to 1121) must be applied, or, if the case is an infringement, the measures provided for in arts. 1030 to 1052 and 1080 to 1117 of the Customs Code must be applied. If any measure is to be taken, the investigation must be initiated and the procedure must be followed in accordance with the provisions of art. 1094 of the said Code.
[1]Friedrich List (1789 -1846)National System of Political Economy”, Aguilar, Madrid, 1955, Chap. XII, p. 131.
[2]The SIRA system is a continuation of the previous “Import System of the Argentine Republic” (SIMI), established by Joint Resolution No. 4185/2018 (BO 8/01/2018). This, in turn, was a modified reiteration of the tool created as “Advance Import Declaration” (“DJAI”) established by AFIP General Resolution 3255 (BO 23/01/2012).
[3]Our country was sanctioned by a WTO Panel on 22-08-2014 for not complying with the commitments assumed before the WTO. In response to Argentina's appeal, the Appellate Body confirmed the Panel's decision on claims made by different countries (DS-438, DS 444 and DS 445), requiring Argentina to eliminate the measures. This implied the repeal of the DJAI, although modified by the SIMI, which, despite its lesser severity, maintained the potential of the previous scheme.
Enrique C. Barreira is a lawyer, he was senior advisor to the Legal Affairs Department of the National Customs Administration, he was a member of the Drafting Commission of the Customs Code, he is a postgraduate professor at the UBA and other universities in the country, a member of the Argentine Institute of Customs Studies and a founding member of the International Academy of Customs Law (ICLA).
