Our legal and political system is based on the National Constitution (NC), as the Supreme Law of the Nation that establishes the bases of said system. And as a professor of Constitutional Law once told us when we were students, “the National Constitution is the Gospel of the citizen.”
That being said, within the sphere of the State and its organization, we find Customs as an agency in charge of controlling the entry and exit of merchandise in international trade operations. And obviously, control over travelers and what they transport with them.
In the first part of the CN, this activity of entry and exit of merchandise begins to be regulated already in its art. 4, which indicates Article 4º.- The federal Government provides for the expenses of the Nation with the funds of the national Treasury formed from the proceeds of import and export duties, from the sale or rental of nationally owned lands, from the income from the Post Office, from other contributions that the General Congress imposes equitably and proportionally on the population, and from the loans and credit operations that the same Congress decrees for emergencies of the Nation, or for companies of national utility.
As we can see, the duties, that is, the taxes paid as a result of an import or export, are destined to the Treasury of the Nation in order to support part of the expenses of the organized State. In such a way that both the Customs institution and the taxes paid for import and export operations have a constitutional legal content.
With regard to the so-called “export duties”, it is worth considering that there was a commitment to eliminate them. This was so because in the original text of 1853 (in whose Convention Buenos Aires was absent) the right to export was expressly determined as a means of recourse for the National Treasury. But the separation of Buenos Aires lasted until the battle of Cepeda in 1859 with the triumph of the confederate forces over Buenos Aires, the signing of the Pact of San José de Flores and, consequently, a new Constituent Convention was agreed upon with the participation of Buenos Aires. When the Convention met in 1860 and due to pressure from Buenos Aires (which would no longer collect customs duties) it was proposed to eliminate export duties from the constitutional text. However, and given that a five-year period was granted for Buenos Aires to contribute its resources to the Nation and for the latter to contribute to the province what it would no longer receive, said tax would remain in force until 1865, although it was finally decided to extend it until 1866.
But a historic event would change the course of what was planned: the war against Paraguay. The nation needed all possible resources and there was no way to replace income to the public coffers in the midst of war. Thus, the Convention was convened in 1866 but with the sole objective of eliminating the term that had been previously imposed on the validity of export duties until 1866, achieving this goal with a narrow vote of 22 in favor and 19 against. In this way, the time limit up to which export duties would be collected was removed from the Constitution; and thus they continue in force. Perhaps the history of such taxes would have been different had the war of the triple alliance not intervened.
It should also be noted that art. 9 of the CN states: Article 9º.- Throughout the territory of the Nation there will be no customs other than the national ones, in which the tariffs sanctioned by Congress will apply.
This means that Customs is the responsibility of the national government, regardless of the geographic location of a customs office. Furthermore, this article clearly states the necessary intervention of the National Congress, since it grants it the power to set tariffs. This will be followed later in relation to the application of taxes on imports and exports.
It also points out the Article 10.- Within the Republic, the circulation of effects of national production or manufacture, as well as of goods and merchandise of all kinds, cleared through external customs, is free of duty.
Returning to the rules of our CN on the matter, it is appropriate to consider that the actions of importing and exporting are developed within the framework of commercial activities; therefore, those that are legitimately carried out under the protection of what is indicated in art. 14 as a right "to work and engage in any lawful industry","to navigate and trade”, For example, fundamental rights arise from being able to carry out work or an industry linked to international trade activities.
Then, art. 17 of the CN that regulates the right of property, recalling that it is a first generation right and in addition to the so-called explicit ones, establishes that "s“Only Congress imposes the contributions expressed in Article 4”; That is to say, import and export duties can only be determined by a law of the National Congress. In this regard, I refer to the note entitled “Import and export rights: the powers delegated in the Customs Code and the National Constitution”, published in Customs News dated November 17, 2021.
So far, the activities of production and trade, such as transit and navigation, are directly linked to import and export operations, and the taxes levied on these activities are destined for the National Treasury and their imposition corresponds to the National Congress.
In the second part of the CN and specifically in its art. 75 (Powers of Congress), it begins by naming the Customs in its first paragraph, as it says: 1. “To legislate on customs matters. To establish import and export duties, which, as well as the assessments on which they apply, will be uniform throughout the Nation.” And paragraph 10 states “Regulate the free navigation of inland rivers, enable the ports it considers convenient, and create or abolish customs.” Also paragraph 16 in reference to “provide for border security”; Well, if what is imported and exported has to do with what enters or leaves the territory, obviously it is the Customs' responsibility to fulfill its control function.
It is also appropriate to point out the International Treaties, since although Article 31 of the CN states “This Constitution, the laws of the Nation that are consequently dictated by Congress and the treaties with foreign powers are the supreme law of the Nation;” The provisions of art. 75, paragraph 22, must be taken into consideration, where it is expressly stated that Treaties have a higher hierarchy than Laws, and the Treaty of Asunción and the consequent creation of the Common Market called Mercosur and the free transit of goods between the countries that comprise it must be placed there; and the General Agreement on Tariffs and Trade (GATT). Therefore, when there are situations in which laws and resolutions contradict constitutional provisions and treaties, the latter norms must be chosen, leaving aside laws and regulations issued in clear contradiction with the provisions of the CN and International Treaties. Even more so in the face of those that have constitutional hierarchy having been incorporated into the constitutional text in 1994, such as those expressly indicated in paragraph 22 of art. 75.
Conclusion
For the above reasons, it is clear that Customs legitimately has functions and powers, since it has a constitutional basis. The taxes that tax international trade operations also do so, as long as they comply with what the CN expressly provides and what arises from doctrine and jurisprudence (for example, the Camoronera Patagónica ruling). Furthermore, Customs, in its exercise of control, not only allocates its resources to matters related to the collection of taxes on imports and exports, but also performs a control function in public safety in operations involving dangerous or harmful material for health, among others.
Just as customs legislation and the Customs Service itself have constitutional roots, in the same way and as a corresponding counterpart of powers, the legislation on the matter and the functions of the Customs Service must strictly conform to the rights and guarantees enshrined in the National Constitution. A situation that, on many occasions, does not seem to be properly observed. This is evidenced by provisions issued by agencies outside the customs sphere, but belonging to the Executive Branch, which establish tax treatment impositions and restrictions with prohibitive scope in practice, failing to comply with the constitutional guarantees and international agreements.
Customs is an essential body that fulfills the duty of exercising international merchandise traffic based on customs legislation, regulations that have a constitutional source and in this sense, its function cannot be subjected to frameworks that by their legal nature find flaws by contradicting the rights of those who act in foreign trade based on the guidelines of International Agreements and the Constitution itself.
Remembering that the World Customs Organization, in line with the World Trade Organization, safeguards the principle of facilitation, which should not be confused with the absence of customs control, but rather, that it should conceive transparent, predictable and in no way restrictive rules without foundations on bases that make it possible in order to comply with the Agreements that its members have sought to cover in favor of international trade, including the Argentine Republic in its capacity as a member party.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
