In an unusual reaction, the DGA filed an extraordinary appeal against a Court ruling, in order to reach the Supreme Court of Justice in relation to a precautionary measure that rules in favor of the plaintiff in the process.
The reaction is unusual, since it is a precautionary measure, the process of which is then continued with a lawsuit, as provided for by law. Therefore, the precautionary measure is not a final judgment and does not correspond to an extraordinary appeal, unless, of course, its resolution causes irreparable harm that could justify it. This is not the case.
Why is this not the case? Because the processing of a SIMI, as indicated by current regulations, is intended to provide statistical information and cannot in any way constitute a tariff barrier, which is strictly prohibited by the regulations in this regard.
In the appeal it raises, the DGA says that the measure "It attacks Law 24.425, which approves the Final Act incorporating the results of the Uruguay Round of Multilateral Trade Negotiations; the ministerial decisions, declarations and understandings and the Marrakesh Agreement, which establishes the WORLD TRADE ORGANIZATION (WTO).".
Nothing could be further from the truth, since the resolutions challenged by the precautionary measures imply a restriction not permitted by Article XI of the General Agreement on Tariffs and Trade (GATT) of 1994, and also violate Articles 1.6 and 3.2 of the Agreement on the Procedure for Implementing the Agreement on Import Licensing Procedures (Licensing Agreement -AL-) - both ratified by Argentina through Law 24.425.
Consequently, this is a matter of unreasonableness and violation of international treaties - of supralegal hierarchy according to the Argentine constitutional system - that violate articles 28, 31 and 75, paragraph 22 of the National Constitution.
It should also be noted that the increase in the powers granted to AFIP for the processing of SIMI applications, in addition to those already existing in other agencies, always reiterates vague, inaccurate and inconsistent purposes with reality, with cumbersome and discouraging procedures that violate the provisions cited above. It is therefore more than unusual, one could say disrespectful, to argue about the same rules that prevent the application of non-automatic licenses as they are implemented, to pretend to make people believe that the precautionary measures violate those same rules.
The only applicable barriers, according to the international and national regulations applicable to the case, are import and export duties; and the general principle is the prohibition of the application of non-tariff restrictions to manage imports and exports.
That being said, it must be made clear that none of the purposes invoked in the licenses implemented in Argentina fit within the grounds for admission of non-tariff restrictions expressly provided for in articles XI, XII, XIV, XIX, XX and XXI of GATT 1994, thereby also violating the Licensing Agreement, which in its article 1.2. requires its adaptation to the GATT, in article 2.2.b) prohibits the imposition of automatic licenses when other means can be used to achieve the stipulated end (only statistical means), in article 3.1. provides that non-automatic licenses are those that may be rejected and, in its article 3.2. provides that the non-automatic license must be related to its purposes (that is, reasonableness, which is also not present in the case, for the reasons already explained).
Even the non-automatic licenses implemented in our country and which have given rise to hundreds of judicial measures are clearly unconstitutional, since they violate arts. 31 and 75, paragraph 22 (treaties and concordats have a higher hierarchy than laws) as they violate the agreements incorporated into the Final Act of the Uruguay Round of the GATT, approved by law 24.425 and therefore with supralegal hierarchy.
Therefore, this SIMI system, as it is implemented, not only causes damages that can only be repaired by precautionary measures, but is also clearly unconstitutional, as it violates articles 31, 28, 75 (paragraphs 1, 13, 22) and 76 of the National Constitution, and therefore is absolutely null and void and therefore incurable in the terms expressed in article 14 of Law 1a of Administrative Procedures. (19549).
He also alleges in his presentation of the aforementioned extraordinary appeal (File 11320/2021, entitled “KAYROS INTERNACIONAL SRL c/ EN-M PRODUCTIVE DEVELOPMENT SECRETARY OF INDUSTRY, KNOWLEDGE ECONOMY AND EXTERNAL MANAGEMENT-SIMI 250062C AND OTHERS S/ PRECAUTIONARY MEASURE – AUTONOMOUS”, that the AFIP-DGA did not have the opportunity to defend itself in court in the second instance of the process; something that is also unusual since the DGA was notified of the appeal that the plaintiff filed against the initially contrary judgment of the first instance. That is, for some unknown reason, it let the deadline to respond to the appeal brief expire. Therefore, there was no deprivation of defense in court.
Another argument that the court intends to use to reach the Supreme Court is that the precautionary measures prevent Customs from fulfilling its function. This is absolutely false, since with SIMI or its replacement by a precautionary measure, the Customs function is fully fulfilled. In other words, it does not depend on the granting of a non-automatic license to faithfully exercise its functions and powers in the importation of merchandise. Because if this were the case, the existence of licenses would have to be eternal; something impossible.
The Judiciary is also a branch of the State, which intervenes to safeguard the control of legality and to replace unjustified and illegal provisions with measures of its own nature. Customs is not harmed by this and, moreover, this simple and very vague assessment is not demonstrated by any concrete fact. And furthermore, such an assertion is disrespectful to the legal order.
If the granting of the SIMI, as the appellant rightly acknowledges, is the function of another body, it means that the AFIP-DGA must always abide by what that other body decides in such a case; and, failing that, what the Judiciary decides within the framework of effective judicial protection. Because it is not the function or legal power of the AFIP-DGA to intervene in this.
Regarding restrictions based on “opportunity, merit and convenience,” the Inter-American Court of Human Rights has said: The suspension of guarantees must be considered illegal, as well as any action by the public authorities that exceeds the limits of what is strictly necessary to deal with the emergency, which must be precisely indicated in the provisions that decree the state of exception. Nor can specific measures that affect the rights or guarantees suspended deviate from these general principles, as would occur if such measures violated the exceptional legality of the emergency, if they were extended beyond their temporal limits, if they were manifestly irrational, unnecessary or disproportionate, or if their adoption would have resulted in a deviation or abuse of power. (IACHR, Advisory Opinion OC 8/87)
It is thus clear that, in order to implement a restrictive measure based on emergency and public necessity, the usual arguments of “opportunity, merit and convenience” are not enough, nor is it enough to simply mention that it is useful. And this is so because, in order to achieve the objective that the measure seeks, it must be subject to what least restricts the right that it seeks to protect.
Accordingly, only the measure that is the least intrusive and oppressive of the rights and guarantees affected by the restriction itself will be legitimate. We also consider that it must be kept in mind that it is not sufficient to consider the result or effectiveness of the restriction measure, since what must be considered is the degree of damage it causes to constitutional rights and guarantees, which are obviously also protected by the right to defense (Art. 18 CN).
Let us bear in mind that such restrictive measures are dictated with the argument of maintaining an economic and social order. But such order is based on the CN and therefore, there are limits within which the powers can interfere in its protection.
In short, restrictive measures adopted by the National State through organizations such as Ministries, Secretariats and even by the Central Bank, even based on their own prerogatives, in addition to the due control of the classic effective judicial protection, must also be analyzed as to the degree of harm they cause to constitutional rights and guarantees, since the state of necessity, economic emergency or government program must not alter the republican system, nor alter fundamental rights in such a way as to cause greater harm than that which is supposedly sought to be protected by the restrictive measure.
On the other hand, and in consideration of the alleged arbitrariness that the DGA has stated in said proceedings with its extraordinary appeal, it must be kept in mind what the Supreme Court itself has determined, when stating that in order to qualify a final judgment as “arbitrary”, it must be pronounced and unequivocally proven that in “there has been a departure from the normative solution provided for the case (Rulings 296:120; 295:417: 303:436), or from the rule of due process (Rulings 296:256; 303:242), or a decisive lack of justification (Rulings 295:278;303:617;303:818) or only the externalization of the mere will of the sentencer (Rulings 296:456)”. With more reason, “The doctrine of arbitrariness is not intended to correct erroneous judgments in the third instance or those that the appellant considers to be such due to his disagreement with the scope attributed by the judge to principles and rules outside of common law or with the assessment of the evidence, but rather it has a strictly exceptional character.” (conf. Rulings 297:173; 300:92 and 535; 300:390; 302:142).
The court also stated that “It is necessary that conduct conform to the Constitution, avoiding customs that deviate from it for reasons of circumstantial convenience.” (autos: ―Bertuzzi, Pablo Daniel and another v. EN -PJN and another s/ amparo law 16.986.)
Consequently, the intended maneuver of taking the matter to the Supreme Court of Justice of the Nation for a precautionary measure, the result of which in no way implies an irreparable burden on the State and even less so on Customs, does not stand up to further analysis. On the contrary, it would be justified in the case of two unfavorable sentences against the plaintiff of the measure, for the above-mentioned legal and constitutional arguments.
If the extraordinary appeal is successful, it is to be expected that the Supreme Court will issue an exemplary ruling on these situations.
Guillermo Sueldo is a lawyer. Member of the International Trade Institute of the Argentine Association of Constitutional Justice
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