Customs law scholars have taught that there is a fluid relationship between Customs Law and other branches of law, pointing out that: "(…) when analyzing the content of Customs Law in Chapter III, we have seen that many of the regulations that comprise it can be classified, following other classification criteria, as “administrative”, “tax”, “criminal”, “commercial” and “procedural” (…)”[1].
In this order of ideas, the relationship between customs law and other branches of law is analyzed, pointing out that Customs Law has a “relative” autonomy because in certain aspects Customs Law provides special (specific) solutions, such as (1°) when it defines merchandise as an “object” capable of being imported or exported, giving a special meaning to the word much broader than that of “movable property”; or, (2°) when it defines in art. 787 of the CA[2] the extension of the tax obligation in a different way to that provided for by art. 724 of the Civil Code[3] repealed[4].
In a similar vein, an outstanding reference work[5] repeats these concepts by highlighting that: “(…) At this point it should be noted that customs law provides special solutions, certainly different from those proposed by civil law, in relation to several of its institutions. (…)".
It should be added that the experts seem to agree that customs law has nuances specific to the customs specialty, but, nevertheless, the specific customs matter would not be a totally autonomous branch but rather is usually nourished by other branches of law.
I agree with the view of the majority doctrine -ut supra- individualized, although I note that when analyzing the relationship between customs law and civil law, it would seem that civil law has less to offer (compared, for example, with administrative law).
This is because, as we saw, the institutes of customs law would displace those that come from civil law.
Perhaps because of this way of seeing customs law, a special law without a doubt, we almost inadvertently isolate customs law from civil law.
Without prejudice to the above, in the following paragraphs I propose a paradigm shift... to reflect again on whether civil law has (or not) something to project into customs law.
I will say in advance that yes, and that this is directly linked to certain issues related to the preservation of the environment, issues that also concern our leaders and most prominent jurists.
It is worth noting that, in his work “The New Enemy: Environmental Collapse”[6] Dr. Ricardo Luis Lorenzetti highlights the importance of the imminent environmental collapse and warns about the efforts that we as a society must make to stop it.
In this order of ideas, customs law should not be a mere spectator of the problem, since in order to prevent environmental damage it is necessary to push the boundaries of the current Customs Code and complement it with art. 1710 and following of the Civil and Commercial Code of the Nation (hereinafter CCyC).
There are situations in which customs law is simply not enough.
For example, let's consider the assumption that a shipment containing hazardous waste arrives in Argentina and the importer proceeds to unload it in a "generic" port.[7], that is, without registering any customs destination for that merchandise.
The merchandise[8] -after the deadlines and/or circumstances foreseen have expired, citing in a generic manner the “Title II, IMPORT DESTINATIONS, Chapter I. General provisions” of the Customs Code- it enters “into arrears”[9] and in accordance with the usual customs channels, the National State (General Directorate of Customs) initiates the “ex officio clearance” procedure (articles 449 and 451 of the Customs Code).
When processing the goods ex officio, the National State (General Customs Directorate) will warn that the imported goods are "hazardous waste" but that the conduct does not qualify as smuggling in any of the cases, and will require the importer, if a known owner is involved, to re-export them (this being the only thing that could be done, in addition to instructing a summary for customs infringement).
In this context, the National State takes possession of the merchandise and, since the conduct does not fit into any of the criminal types of smuggling, eventually, may only initiate a summary for the violation of inaccurate declaration (technically it would have evaded a ban); reason why in this factual framework, the National State (as a whole) would have obtained hazardous waste (due to the prior abandonment of the merchandise in question - that is, hazardous waste - in favor of the State?)... and having to bear (from its own funds) the costs for the deactivation of the merchandise in an environmentally sound manner (which are very high in general).[10]).
Also, considering that the (hazardous) waste in general has a low commercial value (if not zero), the fine of art. 954 inc. b) of the CA (which must be graduated from ONE (1) to FIVE (5) times) “the customs value of the infringing merchandise”) It simply won't be enough to deactivate the hazardous waste and prevent it from causing environmental damage..
Therefore, the situation presented shows that the issue did not have adequate legislative treatment at the time of the sanction of the Customs Code (1981), since the problem of illegal trafficking of hazardous waste became more prominent and ostentatious after the sanction of the Basel Convention in 1989.[11]
However, in this work we ask the following: With the arrival of the new Civil and Commercial Code of the Nation[12]Can the State do anything to counteract the worrying situation that has emerged?
Before answering this question, it should be noted that we start from a very specific case study and seek to demonstrate how Preventive Damage Law can positively break into customs matters, exploring a possible solution based on the current projection of art. 1710 inc. b) of the Civil and Commercial Code of the Nation, insofar as it allows the State (in general) take reasonable measures to prevent or mitigate damage; by directly requesting the importer to reimburse the value of the expenses that will be incurred (by means of budgets) to deactivate the hazardous waste in an environmentally sound manner.
El “alterum non laedere” or the obligation to prevent damage arises from art. 1710 inc. a) and b) of the CCyC and at a higher hierarchical level it arises from art. 19 of the National Constitution, which establishes that “(…) the private actions of men that in no way offend public order and morality, nor harm a third party, are reserved only to God, and exempt from the authority of the magistrates (…)” ; deriving from it – by contrary sense– that any action that causes harm must be repaired (establishes the generic duty to repair the damage caused to another subject, according to the aphorism alterum non laedere). In the same sense, see SCJN, 5/8/1986, «Gunther, Fernando Raúl v. National State (Argentine Army) s/summary», Judgments: 308:1118. See also «Santa Coloma, Luis Federico and others v. EFA», Judgments: 308:1160 and «Honorio, Juan Luján v. Argentine Nation», Judgments: 308:1110.
In this sense, Dr. Ricardo Luis Lorenzetti points out that the "preventive function" or "inhibitory protection" can be defined as the purpose of civil liability aimed at the early avoidance of the occurrence of damage (generic duty of prevention) or once it has occurred, to make it cease, reduce it or stop it so that a greater one does not occur, that is, with the aim of stopping its aggravation.[13].
Dr. Aida Kemelmajer de Carlucci teaches that prevention is "(…) the set of activities, instruments and methods of action aimed at avoiding or reducing the damage that, due to any kind of accident, may be suffered by people or property (…)"[14].
On the other hand, Dr. Pizarro classifies the "preventive purpose" into one of a "general" nature and another of a "more specific" nature. The first, the "general" one, explains the author, operates indirectly, by deterrence and is reflected in the effective threat of a legal consequence in the event of damage, with an adequate system of sanctions, since these deter potential offenders, while the second, the "more specific" one, is limited to risky or dangerous activities due to their frequency of occurrence or the magnitude of the damage or to protect certain rights such as, for example, personal rights, manifesting itself through the imposition of special duties on certain subjects - including officials - so that they adopt adequate security measures, such as when a judge or an administrative official is assigned the power to order preventive measures.[15].
Well, having established all that has been stated, and having analyzed the relevant concepts, I would say that it goes without saying that the legal regime currently in force through arts. 1708, 1710, 1711 and 1794 of the CCyC, as well as arts. 19 and 42 of the National Constitution (preventive right to damages) allows a positive impact of Preventive Damage Law in the operational customs area.
This concept will be clearly reinforced by the same article 41 of the National Constitution (1994 reform), evidencing such character, when it invokes in its last paragraph: “(…) the prohibition of importing waste, currently or potentially dangerous (...) ".
Indeed, the rules (arts. 1710 et seq. of the CCyC) allow the importers of hazardous waste to transfer the costs that their activity causes to society (understood as a whole), forcing them to take responsibility not only for repairing the environmental damage caused but also for “preventing” it (quickly deactivating hazardous waste).
Unfortunately, this objective cannot be achieved by applying only the repressive regulations of the Customs Code, nor can it be achieved by applying the fines of article 49 of Law 21.051 by an enforcement authority other than customs.
In this special context, the emergence of Preventive Damage Law in Customs Law appears positive and in line with the modern times in which we live.
Civil Tort Law offers us a valuable alternative that has not been considered until now… repairing environmental damage and preventing it.
It can be concluded then that, in this case, civil law (Law of Torts) can effectively complement the specific customs regulations and in a very positive way for our entire society.
Civil law thus demonstrates that it still has much to contribute to customs law… surely much more than we have noticed until now and than what has been applied.
[1] Basaldúa, Ricardo X., “Customs Law. General Part”, Edit. Abeledo Perrot (1992), p. 211
[2] Art. 787 of the CA establishes: “Under the conditions provided for in this code, the customs tax obligation is only extinguished by: a) payment of the amount owed; b) compensation; c) forgiveness; d) transaction in court; e) prescription.”
[3] Article 724 of the repealed Civil Code (Law 340) established: “Obligations are extinguished: By payment. By novation. By compensation. By transaction. By confusion. By the waiver of the creditor's rights. By the remission of the debt. By the impossibility of payment.”.
[4] Basaldúa, Ricardo X., “Customs Law. General Part”, Edit. Abeledo Perrot (1992), p. 258/261
[5] Cotter, Juan Patricio “Customs Law” Edit. Abeledo Perrot (2014), V1, Ebook.
[6] Lorenzetti, Ricardo L “The new enemy: Environmental collapse”, Sudamericana Publishing (2021)
[7] It declares “general cargo” or something similar. Obviously not informing that it is hazardous waste, so that it can be unloaded. Otherwise, the State could not authorize the unloading because the last paragraph of art. 41 of the National Constitution prohibits the entry into the national territory of waste that is currently or potentially hazardous. In this case, we are talking about a typical “de facto import”, which takes advantage of the State’s inability to review all imported goods. Once unloaded, the goods are already in Argentine customs territory and also in national territory (political territory).
[8] The Mercedaria would have entered into a “provisional import warehouse” in accordance with art. 198 et seq. of the CA. The WCO glossary defines customs warehouse as “the customs regime under which imported goods are stored under the control of customs in a place authorized for that purpose (customs warehouse), with suspension of payment of customs duties on import or export”. This same definition is adopted by the Kyoto Convention (revised in 1999), in its Annex D, Chap. 1.
[9] The doctrine has said that: “(…) Merchandise that, having arrived regularly, is not the subject of an authorized customs destination request is called “in arrears” or “in arrears”, a word that means delay or, also, residue that remains of something. In the customs field, this word is used to refer to merchandise that remains in customs warehouses, without being removed by those who have its legal disposal (…)” (Alsina, Mario A., Barreira, Enrique C., Basaldua, Ricardo , page 2011).
[10] If the costs of properly deactivating hazardous waste were lower than facing an infringement under the terms of art. 954, paragraph b) of the CA, these cases would not exist.
[11] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. Approved in the Argentine Republic by law 23.922. B. Of. 24/04/1991
[12] The new Civil and Commercial Code of the Nation approved by Law 26.994 is in force since 01/08/2015, in accordance with art. 7 of Law 26.994 (see Law 27.077).
[13] Lorenzetti, Ricardo L., “Fundamentals of private law. Civil and Commercial Code of the Argentine Nation”, Edit. La Ley (2016), p. 351.
[14] Kemelmajer de Carlucci, Aida, «The preventive function of liability in the Civil and Commercial Code of the Nation», in Peyrano, Jorge W. (dir.) – Esperanza, Silvia L. (coord.), Preventive action in the Civil and Commercial Code, Rubinzal-Culzoni, Buenos Aires – Santa Fe, 2016, p. 365.
[15] Pizarro, Ramon D., «Preventive function of civil liability. General aspects», SJA of 20/9/2017, p. 39, AR/DOC/3952/2017, point I.2. See the classification in «general deterrence» and «specific deterrence» in Acciarri, Hugo A., “Elements of economic analysis of the law of damages”, The Law, Buenos Aires, 2015, pp. 61 et seq., and Acciarri, Hugo A., “The relationship of causality and the functions of the law of damages”, Abeledo Perrot, Buenos Aires, 2009, pp. 207 et seq., and in «general deterrence» and «special deterrence» in criminal law in Black´s Law Dictionary, Bryan A. Garner (editor in chief), 8th ed., 2nd reprint, Thomson West, St. Paul, 2007, p. 481. Also in Italian doctrine in Alpa, Guido, “New treaty on civil liability”, translation and notes by Leysser L. León, Jurista Editores, Lima, 2006, pp. 207 et seq.
Lawyer (UBA), Customs Law Specialist (ECAE PTN), Customs Management Specialist (UNLaM), and Researcher (ECAE PTN). Professor of undergraduate and graduate customs law, member of the AAEF, IAEA, and the Customs Law Institute (CPACF). The opinions expressed in this publication are the author's own, technical, and should not be considered the opinions of any institution to which the professional is affiliated.
