On February 13, 2014, the Federal Administrative Litigation Court of Appeals, in the case “Procesadora de Boratos Argentinos SA v. DGA – File No. 41162/2013”, held that the considerations already set forth in the case “Whirlpool Puntana SA (TF 21639-A) v. DGA”, judgment of 22/11/11, were applicable to the case, where it expressly declared the unconstitutionality of Resolution No. 11/2002 of the Ministry of Economy for considering it a rule that affects constitutional precepts and is detrimental to the commitments assumed by the Member States of Mercosur.
Considering that the “right to export” in the terms of the resolution of the Ministry of Economy No. 11/2002, would not be applicable to exports. In such an event, it is important to highlight the considerations of the ruling that the Chamber refers to in order to establish such unconstitutionality of the so-called “RETENTIONS” on exports. In such a ruling, it can be observed that Justice rescues the value of essential points held by international treaties and the priority source that Argentina must be and have for its internal legal order. Serving the constitutional principles, such as the “system of priority” – value of higher-ranking norms over lower-ranking norms – and the objectives that the treaty prioritizes, to resolve on the illegality from a constitutional framework, for affecting the guidelines established in the Treaty of Asunción, which gave rise to the COMMON MARKET OF THE SOUTH – MERCOSUR. But beyond the specific case in which the Court observed these points in order to declare the “right of export” unconstitutional, the considerations expressed in its ruling are of great value because Justice makes it clear that the State cannot apply restrictions, preventing or hindering the implementation of free trade between the parties. This shows that any provision that prevents or affects the obligation of any State party to strengthen integration and free trade is unconstitutional and, consequently, the creation of “advance import declarations” –DJAI–, by positioning itself as an action tending to restrict and prevent free trade between the States of MERCOSUR, is also illegal. The Chamber upheld its decision of unconstitutionality of the “right of export” on the basis of the autos “Whirlpool Puntana SA (TF 21639-A) c/DGA”, judgment of 22/11/11”, which in that instance recalled that the Supreme Court of Justice by majority in the case “Cafés La Virginia” (Rulings 317:1282), specified that “The legislator does not have the power to modify a treaty by law and although he may dictate a rule that contradicts a treaty or makes its compliance difficult, such an act would entail a violation of the principle of the hierarchy of norms (art. 31 of the CN); therefore, it would be a constitutionally invalid act. He also noted that “The legislator cannot delegate a power that he does not have, from the point of view of the legitimacy of a delegation, this directive is always present – whether the delegating rule says so expressly or not – that neither a law nor another rule of lower rank can violate an international treaty.. Based on this, the Chamber indicated that the Argentine State must ensure that an international treaty is not violated, and in this context, it carried out a due analysis of the Treaty of Asunción of MERCOSUR and its effects on the tax-customs order for the Argentine Republic. Thus, the Chamber aligned its position on the following points that are essential to highlight:
-The Supreme Court of Justice of the Nation established that the internal legal system cannot contradict, hinder or omit the implementation of the Treaty of Asunción (Cocchia J ruling – 316:2624)
-Treaties and concordats have a higher hierarchy than laws according to art. 75, paragraph 22 of the Argentine National Constitution and paragraph 24 expressly contemplates integration treaties.
-The Treaty of Asunción signed on March 26, 1991, between the countries of Argentina, Brazil, Uruguay and Paraguay, constitutes the fundamental basis of Mercosur, given that it regulates the relations between the member States and constitutes the backbone on which the latter is built; in this sense, the Protocol of Ouro Preto ratified by Law 24.560 establishes it (art. 41).
-The Treaty of Asunción also constitutes an agreement on economic, legal and political integration, of partial scope within the framework of ALADI, appropriate to the GATT and framed by the provisions of the Vienna Convention on the Law of Treaties.
-Depending on the obligations it creates, it is called a “treaty-law” because it provides general legal norms with indefinite validity.
-Thus, the rights and obligations it contains are legally binding on the States Parties from the moment they enter into force.
-Likewise, Article 1 of the Treaty of Asunción determines its essential objective, since it seeks the constitution of a common market and for this purpose establishes the “free circulation of goods, services and productive factors between countries, through, among others, the elimination of customs duties and non-tariff restrictions on the circulation of goods and any other equivalent measure.”
-The free economic circulation of goods conceptually implies (as can be seen from the WCO glossary of international customs terms), “goods that can be disposed of without restrictions from the customs point of view”
-Also, Article 1 determines “the commitment of the States Parties to harmonize their legislation in the relevant areas to achieve the strengthening of the integration process.”
-Such harmonization involves making changes to national regulations to create similarity between them and the objective of the Agreement.
Based on these clear concepts, the Chamber, while recognizing that the elimination of restrictions cannot be carried out immediately and for this the State sets deadlines for its compliance, which cannot be admitted, from the constitutional point of view, It is the imposition of customs duties that are aggravated by those existing at the time of signing the agreement., Even though they may be established based on an emergency situation. Thus, the Chamber's ruling resolves to consider that resolution 11/02 of the Ministry of Economy, which established additional "export duties" for consumption for goods included in the Common Nomenclature of Mercosur, warns that such a decision is UNCONSTITUTIONAL. In conclusion, the ruling values the Treaty of Asunción and leaves, without a doubt, a clear observation for the Argentine State: First of all: “that is part”; second: "that it should not be forgotten that the Treaty of Asunción is a source of internal law" and third: “that the actions of the different States, in this case Argentina, must be oriented towards economic integration and the strengthening of MERCOSUR”. Objectives that can never be achieved by adopting internal measures such as those imposed by the Argentine State through resolution 11/02 that establishes “export duties” (retentions). Perhaps the Argentine State should also note that measures such as those that have given rise to the DJAI in matters of import, from the perspective in which it is used to restrict the entry of goods; impose the same observation that results from the resolutions by Justice. Given that without a doubt, they affect economic integration and the strengthening of MERCOSUR. This ruling is to be resolved by the Supreme Court of Justice of the Argentine Republic, with which it must wait for the opinion of the highest Court of the Argentine Republic, on the clear and valuable opinion through its sentences that the judges of the Federal Contentious Administrative Chamber have given.
Dr. William Felipe Colonel
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