There are several queries made by importers regarding the restrictions imposed on the acquisition and subsequent transfer of foreign currency for the purpose of anticipating and settling foreign trade transactions. Based on this, an analysis will be made of the extent to which such conditions imply a restriction that violates constitutional rights and guarantees.
It is not a question of questioning here orientations or decisions of economic policy that are proper to the public administration, but of considering whether they violate the principles, rights and guarantees of our National Constitution, as a fundamental law and of higher hierarchy in our legal system. And this is also so because the power of the State in the regulation and even restriction of rights cannot have an absolute character; because the opposite would be to admit the function of the State only as an end, exhausting itself in itself, instead of its meaning as a means to achieve objectives for the community and within rules that do not override constitutional principles, rights and guarantees, of an explicit and implicit nature.
Administrative acts and legality control
Although administrative acts enjoy the presumption of legality, this does not in any way imply that the act cannot be subject to review by the Judiciary as to its legality and due constitutional control, otherwise effective judicial control would be impeded. In light of this, we must also consider at least three fundamental principles of administrative acts, namely:
a) Legality: This means that all regulations issued by the public administration must comply with the law and therefore will be subject to review.
b) Equality: This principle aims to prevent the existence of provisions that imply unfair discrimination towards certain people or groups.
c) Reasonableness: This involves taking into consideration the proportionality of the measure imposed with its purpose, understanding that the arbitrariness of an administrative act or measure would cease to be reasonable and become abusive, unreasonable and unconstitutional by notoriously affecting rights and guarantees enshrined in the CN.
In this sense, it should be noted that a state structure removed from such parameters loses its essence and its reason for being, losing also its power to impose on society the obedience of a certain order.
Restriction on imports
In the case of importers who have legally agreed to an international commercial operation, their rights to exercise any lawful industry, to work, trade and dispose of their property are severely affected when administrative measures prevent them from developing such rights effectively.
The imposition of an improper application of such rules in practice, thus violating provisions of constitutional hierarchy superior to any administrative resolution, warns of the presence of barriers and impediments to international trade, Such administrative provisions may not entail more burdens than those necessary for the application of such measures.
It should also not be overlooked that international trade cannot be seen as separate from legal certainty, which must be present within the rules that regulate the relations between the parties in order to conceive a free action of disposal and thus, an adequate, harmonious and safe commercial exercise. A fundamental and necessary activity of the peoples of the world.
Cutting back, limiting or hindering imports has a direct impact on exports. Not only in those countries that are sellers, but also in Argentina itself, which, in order to meet its own needs for better and greater production with a view to exports, inevitably requires inputs, machines, auto parts, services, etc. from imports.
The power of the BCRA as a monetary authority is not being questioned here, but the regulations implemented that restrict free access to the acquisition of foreign currency within the framework of a legal commercial operation in international trade, have an arbitrary and discriminatory nature, which violates the principles of legality and reasonableness, being consequently a disproportionate rule.
Without failing to highlight the harmful consequences that these generate, in the face of non-compliance with commitments assumed between parties from different States, with its negative repercussions on Argentina itself, which ends up positioned as non-compliant, unreliable, ultimately discredited at the global table of international trade in the eyes of the countries of the world.
Constitutional control
In this way then, it is evident that we are facing an act of the Administration that can be reviewed by judicial means, since it is a manifestly arbitrary act; and that although the State usually alleges the criteria of opportunity, merit and convenience for its acts, said criteria can never be left outside the control of legality by the Judicial Power, without this implying the substitution of functions.. (Errors 308:2246; 311:2128; 314:1234; 323:3139; etc.)
Therefore, the judicial review of regulatory aspects of public administration becomes a classic control of legitimacy and, therefore, is not covered by those typical reasons of opportunity, merit and convenience that were taken into account at the time the administrative act was issued. (Rulings 315:1361). Furthermore, prohibiting the possibility of judges exercising control over the legality of certain acts implies an infringement of effective judicial protection.
In order to ensure that attention is not diverted from the situation described here, no power to issue administrative regulations is called into question. but its reasonableness and legality, under the protection of our legal system and its normative hierarchy, for which, the effect of the measure with its intended purpose must also be considered.
Consequently, as long as restrictive measures violate appropriate reasonableness and legality, the direct consequence is that such administrative measures lack reason for being and cannot withstand legal survival, causing a manifest disproportionality between the intended objective and the means used for that purpose.
The conditions imposed on the acquisition and transfer of foreign currency imply ordering the rights of citizens that are within the framework of the law, and the State cannot dispose of such rights arbitrarily, with the harmful effects that its imposition implies in the relations of assumed international parties.
Conclusion
Therefore, all Any provision that clearly violates any of the aforementioned rights constitutes an obstacle to the importer's normal and legitimate exercise of acquiring foreign currency to pay for a commercial transaction, thus requiring the Judiciary to promptly restore the violated rights. And even if one tries to enforce the behavior questioned here under a supposed legality, it must be kept in mind that any behavior, appropriate to an arbitrary norm, is infected with arbitrariness, since the norm on which it is based suffers from this vice.Bidart Campos; Legal regime, p. 254); Arbitrariness is the opposite of moral law (Bielsa, The appeal for protection, p. 202) Furthermore, resolutions that prohibit the owner from exercising his rights over his merchandise have an undue restrictive effect on trade in a private international contract.
Consequently, the BCRA regulations that arbitrarily prevent legal and normal access to the foreign exchange market to undertake a compromised international purchase and sale transaction are clearly unconstitutional and are subject to judicial review through the relevant procedural measures in order to restore the affected importer to his unjustly violated right, which, as has been said, violates not only the importer's own guarantees, but also international trade, which is so necessary, especially in these times, for the progress of our nation.
Guillermo J. Sueldo is a lawyer specializing in Customs law
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
