Towards a School of Customs Procedural Facilitation

1.- Introduction

🟦1.a.- Concept of legal relationship

One of the most essential topics in the "General Theory of Law" is the concept of a legal relationship. Savigny defines it as a bond between two or more persons, determined by a legal norm, which confers on one a power or faculty and on the other a duty of obedience or performance. 

Despite the simplicity and limitations of the concept, we will not delve into its historical evolution - through Kelsen and the School of Jurisprudence of Concepts - as it would exceed the scope of this article. 

To reiterate, every legal relationship has three elements: the subjects (claimant and obligor), the object (performance), and the cause (law that recognizes the relationship, making it legal).

In turn, the object of the legal relationship is made up of a performance of giving, doing or not doing. 

Eventually, in the event of differences regarding the interpretation of the scope or fulfillment of the established legal relationship, a second legal relationship arises, essentially linked to the first. In effect, a jurisdictional authority is added to the parties involved, and the object shifts to a legally defined performance obligation; this constitutes the power and obligation of the authority to resolve such a dispute. 

At the same time, as Barreira points out, the original performance has its own object or purpose (1). This purpose is the reason why this bond is relevant to the law and also the element that allows a given relationship to be categorized within the framework of a certain legal discipline; since each branch of the legal system has its own purposes.

🟦1.b.- Customs legal relations

We can ask ourselves if we have any legal relationships that fall under customs law. And if so, what is the purpose or purposes relevant to this branch of law? 

In this sense, the customs legal relationship has two relevant purposes that are inherent to it: 

• On the one hand, customs control of imports and exports for the application of the corresponding legal treatment to each item of merchandise, and, 
• On the other hand, there is the facilitation of regular international trade. At this point, it should be clarified that customs legal relationships can be "regular"—those arising from the import or export of goods subject to customs control—or "irregular"—defined in contrast to the former. That said, any discussion of trade facilitation will always refer to regular customs legal relationships.

🟦1.c.- Implementation of control and facilitation

Both control and facilitation are legitimate aims, and depending on how they are pursued, their application can be harmonious or contradictory. This leads us to consider the Principles of Reasonableness and Proportionality, since:

• If I exert disproportionate control, I will unreasonably affect the facilitation. 
• If I unreasonably facilitate, I encourage irregular trade and may affect the population and/or environment of a given customs territory.

🟦1.d.- Importance of the Trade Facilitation Agreement 

This is where the World Trade Organization's (WTO) "Trade Facilitation Agreement" (TFA) becomes important, as it provides a series of tools to harmoniously pursue both objectives. It introduces mechanisms such as the "Authorized Economic Operator" (AEO), the "Single Window for Foreign Trade" (SVUCE), "advance rulings," etc., all with clear purposes: 

• • i) provide legal certainty; 
  • ii) reduce the potential for hypothetical controversies; 
  • iii) reduce the time required to release the merchandise.
  • iv) reduce costs associated with unjustified delays. 

It's quite reasonable to argue that trade facilitation was one of the main motivations behind the Kyoto Convention, the General Agreement on Tariffs and Trade, and subsequent treaties and agreements. In other words, those who hold this view seem to imply that there's nothing new under the sun. However, I respectfully disagree, as the added importance of the TFA is practical. Indeed, these tools allow for the management of regular trade facilitation, and thus: 

• We visualize the cost of unjustified delays in the release of goods (e.g., we know how much a day of delay costs). It is not the same to appreciate an abstract concept—such as any article of the GATT—as it is to appreciate a concrete number or proportion—e.g., 1% of the value of the goods for each day of delay in port. 
• We moved from a "general and presumed Trust Dispatch System" to a "concrete and proven" one: 

• • Customs can rely on an AEO's customs declaration because it provides proven reasons for doing so, not because it presumes it in the abstract. 

• We shift the focus of control from the object to the controlled subject. Consequently, the "Principles of Confidential Dispatch" and "Selectivity of Control" are modified by Facilitation.

In short, we have a "practical paradigm" that, through this type of tool, allows the harmonious realization of the purposes of control and facilitation of the customs legal relationship.

2.- Legal challenges presented by the Facilitation of Regular Trade

🟦2.a.- Scope of Regular Trade Facilitation

“Regular customs legal relations” can occur in two stages:

• The first phase begins with the arrival of the means of transport in the customs territory (or sometimes even earlier, depending on national legislation) and ends with the authorization, via administrative act, of the release of the goods according to the requested customs destination. We will refer to this phase as the “administrative stage”. 

• The second is the one that may eventually arise from a legal dispute between the customs service and the international trade operator, whether it originates from a rejection of the release request or occurs after its authorization. We will call this phase the “jurisdictional stage”(3)

The AFC is interested in the “administrative stage” and not the “jurisdictional” one. In this sense, if there were a motto for the AFC, it would be: “Release now, even under bail, and monitor and/or judge later.”

However, if potential disputes materialize and litigation drags on indefinitely without reaching a final resolution, the gains made in the first stage are lost in the second. In other words, in these cases, the legal certainty, time, and cost savings achieved are eroded. 

Unfortunately, in Argentina, cases in which the statute of limitations has been applied to customs actions due to violations of the "Reasonable Time" guarantee (4) are becoming increasingly common. And I say it is unfortunate not because these decisions are incorrect—they are correct—but because we are beginning to normalize indefinite delays when a single dispute that unjustifiably takes twenty years to reach a final judgment should prompt procedural and jurisdictional changes to prevent this from happening again.

One of the most common scenarios in our country involves conditional statements released under bail that await the eventual resolution of the main case file (5). In this context, it is worth asking:

• What good is it to release merchandise quickly if the original dispute isn't resolved in a timely manner, and if every day, with each new conditional declaration, the foreign trade operator must accumulate new guarantees, the costs and total potential liabilities of which can exceed the company's equity? What, then, has been facilitated?

A legal system that is efficient in the "administrative stage" of the regular customs legal relationship but fails in the "jurisdictional stage" undermines the facilitation of regular trade, access to justice, and effective judicial protection. 

In conclusion, trade facilitation goes beyond the Trade Facilitation Agreement and must necessarily, through national customs procedures, processes and administration of justice, encompass the “jurisdictional stage” of the customs legal relationship.    

🟦2.b.- The School of Customs Procedural Facilitation

Having identified the need, the points on which a [plan/method/etc.] should be developed are outlined. “School of Customs Procedural Facilitation”:

• i) The review and legal reform of the statute of limitations for customs actions and related matters, when these are unreasonable or disproportionate. In order to analyze the above, the following should be considered: 

• • The era in which these laws were enacted and the changes in available material and human resources are relevant, as all legislation is situated within a specific historical context, which determines the relationship between the means employed and the ends pursued. If, at the time the legislation was enacted, typewriters were used and communication was conducted via official letters and/or letters rogatory—with the inherent delays—and today we use interconnected computer systems for sharing information on foreign trade operators, cell phones, emails, and artificial intelligence—to name just a few resources—the same deadlines, methods of calculation, and grounds for suspension or interruption cannot reasonably apply. 
  • The possibility of systemic inconsistencies. For example, in Argentina, it is unreasonable that a statute of limitations of 5 years is provided for the imposition of a customs offense penalty (6), whereas to formalize the criminal investigation of a crime such as smuggling, a period of only 90 days is foreseen, extendable for the same term before the judge of guarantees (7)This means that investigations of minor offenses are given more time than those for prosecuting more serious crimes. This raises the question: Could the formal investigation of a customs violation be subject to the same timeframe as the formal investigation of criminal offenses? 

• (ii) The incorporation of oral proceedings into customs procedures and processes, as has occurred in the fields of criminal law and even civil law (8). Indeed, it has been proven that oral proceedings have streamlined processes, significantly reducing procedural timeframes until a final resolution is reached. It is striking how civil cases that used to take years to resolve are now resolved in months under the oral system. However, it should be noted that:

• • Specific studies are needed to adapt oral proceedings to customs procedures and processes. The specific purposes of each legal relationship, according to the branch of law to which it belongs, determine the framework of the discipline. 
  • Procedural facilitation should not be confused with procedural expediency. The aim is to reach a jurisdictional solution that resolves the dispute as quickly as possible, while duly respecting the guarantees of effective judicial protection and due process incumbent upon the jurisdictional body. In other words, a quick resolution at any cost is not the goal (9). 

• iii) The implementation of “enforceability mechanisms” in domestic law. That is, “coercive incentives” that enable the conduct necessary to facilitate regular trade. In this respect: 

• • From the perspective of the individual, in the case of the Argentine Customs Code we have as an example the “automatic fine” provided for in art. 218 (10) for not clearing the merchandise for customs purposes within the appropriate time; all of which is complemented by the “official clearance” by the customs service (11).
  • From the State's perspective, the following could be implemented:
    • In the “administrative phase”, through administrative silence with positive meaning (for example as a mechanism for authorizing what is requested from the customs administration when it does not respond in a timely manner).
    • In the “jurisdictional phase”, as a Systemic Interpretive Principle: “In dubio pro facilitación”. And,

• iv) The design and implementation of new technologies such as, for example, a web platform that allows the processing and transparency of the exercise of customs jurisdiction, from its beginning in the administrative headquarters until its final resolution.

🟦2.c.- Final considerations: The importance of practicality 

From a theoretical standpoint, it might seem essential to determine whether facilitating regular trade is a "legally protected asset" or a "guiding principle or legal value to which we aspire." Is it a "specific social or individual interest that we can protect through an infractionary or administrative sanctioning norm," or is it a "desirable state of affairs" or a "mandate for optimization or efficiency in customs administration and jurisdiction"? 

In this regard, I believe that categorization for the sake of categorization itself is pointless. Nor do I see any theoretical mandate that imposes a duty to categorize this "interest" in one way or another in order to assign it limits. 

On the contrary, I believe that the practical approach guiding the TFA should prevail. Ultimately, what matters is providing the greatest possible protection for facilitating regular trade through various tools such as oral procedures, the incorporation of enforcement mechanisms, the design of web platforms for processing and resolving customs disputes, and so on.

In conclusion, the protection of this interest in facilitating regular trade can be pursued simultaneously as both a legal right and as a guiding principle of customs law, its procedures, and/or processes. It will only be necessary, where appropriate, to define by law the scope of both types of protective measures. 

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1. BARREIRA, Enrique C., “The tax legal relationship and the customs legal relationship”, Journal No. 18 of the Argentine Institute of Customs Studies, p. 55 et seq.

2. GATT (for its acronym in English).

3. The term “jurisdictional” is used and not the word “judicial” because any controversy arising from the regular customs legal relationship can be resolved by the customs service or by some type of administrative tribunal that controls it, in the exercise of materially jurisdictional powers. 

4. Rizzi, Juan P. “The guarantee of a reasonable time frame and the customs infringement procedure”, Customs Law Dossier “The reasonable time frame – Part One”, JA 2024-

5. Article 227 of the Customs Code: “…1. If any dispute, whether summary or non-summary, is pending before customs authorities arising from the declaration of elements necessary for tariff classification, valuation, or application of duties and prohibitions related to imported goods, and such declarations are identical to those that must be declared, the interested party may subject the latter declaration to the prior declaration. The final decision issued by the customs administration will also apply to the subject declaration, without prejudice to any individual appeals that may be filed against the decision. 2. In the case provided for in paragraph 1, the customs service shall conclusively verify that there is an identity of the cause of dispute, for which purpose, if the controversy so requires for its decision, representative samples of the goods in question shall be taken, after prior notification to the interested party…”. Article 228: “…If the interested party declares goods in accordance with the form provided for in Article 227, with the verification by the customs service contemplated in paragraph 2 thereof, they shall not incur a customs offense for the possible inaccurate declaration made in the subordinate declaration…”. Article 453: “…1. The guarantee regime provided for in this Title must be used when it is intended to obtain: a) protection against the possible demand for differences in duties that the customs service may notice with respect to the settlement contained in an import or export entry. In this case, the guarantee must cover the difference between that amount and the maximum that the customs service reasonably considers could be owed for that purpose.”

6. The time limit begins to run from January 1st of the year following the date of commission of the infraction or its discovery, and is subject to interruption of the time limit, such as the opening—without notification—of the customs infraction summary, pursuant to Article 937, paragraph a) of the Customs Code. This latter eventuality can extend the time limit to up to 10 years from the date of commission or discovery of the alleged infraction, without a definitive expression of the will of the customs service. 

7. As provided in art. 253 et seq. of the Federal Criminal Procedure Code.

8. For example, in civil proceedings in the Province of Córdoba.

9. This danger could arise in customs offenses when a process is attempted to be carried out automatically and without consulting the accused, in terms of the full reparation of the damage (cf. art. 59, inc. 6° of the Argentine Penal Code).

10. “…If the application for a customs procedure, with the relevant supplementary documentation, has not been submitted within the period established in Article 217, the importer will automatically be liable to a fine equivalent to ONE (1%) percent of the customs value of the merchandise in question, except in the case provided for in Article 221.".

 11. Article 417, paragraph b: “…The customs service will announce the existence and legal status of the merchandise for 3 days in the customs department bulletin, indicating the number, brand and packaging or other characteristics sufficient for its individualization, when:…b) no definitive or suspensive customs procedure is requested for said merchandise within the corresponding period, in accordance with the provisions of articles 199, 218 and 222.