In Argentina, there is no vertical binding force of the rulings of the Supreme Court of Justice of the Nation on lower-ranking courts. That is, the vertical stare decisis principle which does apply in common law countries, where it provides that lower court judges are obliged to resolve pending cases in accordance with the decisions of previous judgments issued in similar cases by their hierarchical superiors.
Nevertheless, the decisions of the Supreme Court set out a relevant doctrine and in customs matters it acted, we could argue, as a principle of obedience.
In this regard, we consider it important to highlight two decisions of the Court that were made in 2023, and that, based on their effects, serve to refresh decisions made a decade ago.
Casas, Carlos Arturo and another v. AFIP DGA s/ challenge to administrative act – August 2023-
By its ruling of August 3, 2023, the Court considered applicable to the case the criteria it adopted in 2012 in the case "NATE Navigation and Maritime Technology SA (TF 22.2720-A) c/ DGA. Referring to its grounds, that is, in the matter of prohibitions, the Court has established the criteria already adopted more than a decade ago, in that legal certainty presupposes the classification by law, in accordance with the guarantee expressly expressed in the National Constitution in article 19.
As highlighted by the Dr. Juan. Patricio Cotter (1), “although some years have passed since the “Nate” case, this doctrine has become relevant, given that recently, in August 2023, the Supreme Court has validated its full application. Thus, the High Court, in its current composition, has ratified the “Nate” doctrine and the proper interpretation of the concept of prohibition established in the Customs Code, giving preeminence to the principle of legality and legal certainty.”
Gut Metal SRL v/ EN-AFIP s/Directorate General of Customs, Export Duties, Nullity of Decree Dto 793/18 - October 2023-
On October 10, 2023, the Court declared inadmissible the appeals filed against the decision of Chamber V of the Federal Administrative Litigation Court. Ending the legal debate regarding whether Decree 793 (2) which allows the application of export duties for the export of a universe of goods is illegal or not.
We recall that the CAF Chamber V decided to address the exporter's claim that the amounts representing the income of a duty (DE) imposed by Decree 793/18 should be repeated, which was not legal and declared its nullity. For this purpose, reference was made, among other considerations, to what was decided by the Court in the case. Camaronera Patagónica SA v/Ministry of Economy and others s/protection, Judgment issued on April 15, 2014 and signed by judges Ricardo Lorenzetti, Carlos Fayt, Juan Carlos Maqueda, Raúl Zaffaroni, Carmen Argibay and Enrique Petracchi.
Although the Court did not rule on this case -Gut Metal-, by rejecting the appeals filed against the decision of Chamber V of the CAF, it certainly favors giving firmness to a decision of the Chamber that had its legal support in the doctrine of the CSJN, as can be seen below.
“It should be noted that the plaintiff claims the refund of export duties assessed and paid between October and November 2018, after the issuance of Decree No. 793/18, but prior to the entry into force of Law No. 27.467, which – in accordance with the terms of the provisions transcribed above, and in accordance with the interpretation of the Court in the cited case – provided a legal basis, with effects exclusively going forward, to a tax that was previously unenforceable, having been instituted by an invalid administrative act (arg. art. 14, sec. b), Law No. 19.549).”
Thus, the considerations of the highest court in the precedent cited in the previous recital resolve the issue under study and oblige the plaintiff to be admitted in his appeal, to annul the appealed judgment, to declare the nullity of Decree No. 793/18 and its amendments and, consequently, to recognize the plaintiff's right to obtain the refund of the export duties paid without cause when formalizing the export clearances nos. 18 073 EC01 029638 D, 18 073 EC01 033767 B and 18 073 EC01 030846 T (see pages 21/2, 26/30, and 35), the payment of which was not, moreover, denied in the proceedings by the defendant (see pages 25, 34 and 37, and the terms of the response to the complaint found on pages 70/80 of the digital file).”
“To uphold the appeal filed by the plaintiff and, therefore, to set aside the appealed judgment, to declare the nullity of Decree No. 793/18 and its amendments and, consequently, to recognize the plaintiff's right to obtain the refund of the export duties paid without cause when formalizing export clearances Nos. 18 073 EC01 029638 D, 18 073 EC01 033767 B and 18 073 EC01 030846 T”
Conclusion
These two decisions not only ratify important doctrines on issues of relevance in customs matters, but also reaffirm -with their update- the rule that the doctrine of the Court's rulings are binding on the lower courts, when no new arguments have been invoked and/or have not been examined and justify a different solution. Contributing to legal certainty, which is not limited to the rules, but must be present in the decisions emanating from the Courts. In this way, we end this brief commentary with one of the phrases of Dr. Juan Bautista Alberdi: "The law, the Constitution, the government, are empty words if they are not reduced to facts by the hand of the judge, who, in the end, is the one who makes them a reality or a lie."
- Prohibitions and the violation of inaccurate declaration – Aduana News – 13.10.2023/XNUMX/XNUMX.
- Decree 793 (BO 4.9.2018) – ARTICLE 1°.- An export duty of TWELVE PERCENT (31%) is hereby established, until December 2020, 12, on the export for consumption of all merchandise included in the tariff items of the COMMON NOMENCLATURE OF MERCOSUR (NCM). ARTICLE 2°.- The export duty established in article 1 may not exceed FOUR PESOS ($4) for each United States Dollar of the taxable value or the official FOB price, as appropriate. For goods included in the tariff items of the COMMON NOMENCLATURE OF MERCOSUR (NCM) detailed in Annex I (IF-2018-43170212-APN-SSPT#MHA) which is part of this decree, this limit will be THREE PESOS ($3) for each US dollar of the taxable value or the official FOB price, as appropriate.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
