The main problem that legislative reforms often encounter is that they attempt to quickly change current regulations without properly analyzing the collateral consequences. Haste usually occurs when the measures are not consulted and not complied with by qualified or knowledgeable persons on the subject. When I speak of “suitability” I pay tribute to Francisco “Pancho” García and Laureano Fernandez, who, as expert non-professional customs officials, formed part of the drafting committee of the Customs Code (Law 22.415), a work that dates back to September 1981 and is still in force today.
Well, if we look at the provisions of the recent Decree of Necessity and Urgency No. 70/2023, which with the aim of facilitating international trade has introduced reforms in its arts. 98 to 104, which as we will see have the opposite effect. Thus, the registration of Customs Brokers and the training requirements are abolished, to allow any person to document customs without proving any knowledge, or the obligation to report unusual or suspicious operations for money laundering. As I will demonstrate, this is not only not favorable to the streamlining of international trade, but it weakens the customs control carried out by customs in matters of import and export. I do not have to insist on the advantages of the intervention of the customs broker, I will only say that it is a guarantor of an agile and safe operation.
The elimination of the declarant's suitability and specialized experience in the preparation of customs documents undoubtedly affects the correct classification and valuation of goods. Let us not forget that the reform of Law 25.986 and the implementation of the computerized declaration system entrusted the declarant with the complex task of classifying the merchandise in terms of tariffs in accordance with the Harmonization and Designation System of Merchandise. Thus, the recent government act, despite maintaining art. 36 of the Customs Code, which invests it as an assistant to the customs service, did not take into account the evolution of the profession of the customs agent and that it is not a mere manager of procedures, but a true international trade advisor.
It is striking that the current government has focused on deregulating the activity of the freight forwarder and has not reached other foreign trade operators. Furthermore, in the case of Couriers, it is planned to increase the limits on shipments (LN 4/1/23), despite the fact that being a simplified and not detailed declaration it does not allow for the detection of counterfeits, or an incunabula, or a famous painting, or parts of sophisticated weapons or synthetic drugs. Let us think of a spare part for an aircraft in which hundreds of passengers travel.
The World Customs Organization (WCO) published the Framework of Standards for Cross-Border Electronic Commerce (Custom Broker Guidelines), in which it warned its member countries that in order to facilitate international trade, the conditions of the traditional commercial form and the equality of operators must be preserved. This Regulatory Framework highlighted that Customs authorities needed more transnational data to deal with issues of protection, illegal trade (including counterfeiting), cybercrime in general and money laundering through commercial operations. - It was highlighted that although e-commerce advances day by day, the risks should not be overlooked: fractionation of shipments, abuse or misuse, non-application of restrictions or prior authorizations to safeguard public health or safety.
.Now, as such guidelines are generic, so that they do not remain as expressions of wishes, and can be enforced, the International Association of Professional Customs Agents (ASAPRA), meeting on February 13, 2020 in Punta Cana, Dominican Republic, collecting a document, prepared by the Customs Brokers Center of Argentina ( ), issued a statement recommending to the Customs of the Member States, different points ().
Such measures are even more relevant when one considers that cross-border e-commerce is not regulated in a comprehensive manner in international agreements, but only through isolated provisions that have prioritized the “urgency” of shipments over their effective control.
This is how it was planned to combat the risks to illicit trade presented by electronic commerce, such as the splitting of shipments, abuse or improper use, non-application of restrictions or prior authorizations to safeguard public health or safety ( ). Likewise, by documenting it through a simplified and non-detailed declaration, it does not allow the detection of counterfeits, or an incunabula, or a famous painting, or parts of sophisticated weapons or synthetic drugs. Regarding narcotics, new technologies facilitate their international trafficking (international suppliers/buyers with anonymous sales portals on the "Dark Web, allow buying and selling through blockchain, and making payments through its virtual currency, bitcoin, not controlled by any financial entity or Central Bank; small quantities of drugs can be sent through e-commerce (courier or mail), which, in addition to the difficulty of identifying the person responsible, our jurisprudence can excuse, under the presumption that their destination is personal consumption.
Thus, even though today, behind organized crime, the e-commerce route gives access to the common citizen who is not controlled by anyone, our country, through a DNU that invokes the facilitation of international trade, takes away all effectiveness from the suitability of the document holder.
Finally, it is contradictory that Argentina has made an international commitment and unilaterally and without consultation decides on measures that affect its commitment. It should be noted that the elimination of the declarant's suitability may have negative implications for cooperation between customs and the private sector, as well as for the effectiveness and transparency of customs procedures. This could contravene rules 1.3 and 8.5 of the General Annex of the Revised Kyoto Convention, which underline the importance of effective collaboration and transparent procedures in the international customs field.
Finally, as further proof that seriousness and efficiency in customs clearance is one of the pillars of the Argentine Customs Brokers Center, it is worth mentioning the document approved on November 6 by ASAPRA in Santiago de Chile, which includes a detailed guide to action on issues related to risk, surveillance and control of merchandise.
Article published in the Customs Brokers Center, with authorization for reproduction
The author is an advisor to the Customs Brokers Center and Co-editor of the Customs Code, Law 22415 and amendments.
