The Government of the Argentine Republic has decided to apply a ban on the export of goods with respect to different tariff items. Specifically, preventing the definitive export destinations of meat products of bovine origin, whose tariff items according to the MERCOSUR Common Nomenclature correspond to the following: a) 0201.10.00; b) 0201.20.10; c) 0201.20.20; d) 0201.20.90; e) 0201.30.00; f) 0202.10.00; g) 0202.20.10; h) 0202.20.20; i) 0202.20.90; j) 0202.30.00.
Such restrictive action was issued by Ministerial Resolution No. 75, based on “the protection of the public interest that aims to guarantee the essential rights of the population and their effective enjoyment, being a priority interest to have assured unrestricted access to basic goods, especially those aimed at ensuring the food of the population, a situation to which particular relevance was given, in the context of the current emergency, in accordance with Decree of Necessity and Urgency No. 260 dated March 12, 2020, which extended the public health emergency declared by Law 27.541, by virtue of the pandemic declared by the World Health Organization (WHO) in relation to the Coronavirus COVID 19, whose spread worldwide is public knowledge”
Requirements for imposing prohibitions
For its part, the Ministerial Resolution was supported by the Customs Code - Law 22.415 - which regulates in its articles 609 and 610 prohibitions of an economic and non-economic nature, respectively, and to the extent that the purposes indicated by the regulation itself are presented, among them and those that were the subject of justification by the Government, are: “stabilise domestic prices at convenient levels or maintain a supply volume adequate to the supply needs of the domestic market”(according to section d – article 609 of the CA); “protects good faith in business, in order to prevent practices that could mislead consumers” (according to section g of article 609 of the CA); “affirm national sovereignty or defend the political institutions of the State” (according to section 610 of the CA); “public health, food policy or animal or plant health, among others (according to inc. e article 610 of the CA).
So far, the framework of the provision that establishes a prohibition on the goods detailed in the regulation under comment, sets out reasons that the Law - Customs Code - establishes for the imposition of this type of restrictions within the framework of customs operations. Without prejudice to the considerations that may be observed in what refers to its presence or not in the reality of the facts, an aspect that is not the object of analyzing in this opinion note, in what concerns the enumeration of such purposes that are sought to be avoided, it could be considered that they would find legal support, at least and up to this point, as far as it refers to the Customs Code.
Powers to establish prohibitions
However, the very device that establishes the closure of exports for a period of time also refers in its reasoning to article 632 of the Customs Code, and here a contradiction is evident with the precept of the norm that is intended to be used to justify the issuance of this device.
Indeed, although Law 22.415 allows for the application of prohibitions, both economic and non-economic, as long as the justifying reasons stated in the Law are given, such power, which is certainly disputed, is entrusted solely to the National Executive Branch and not to a ministerial area. "The Executive Branch may establish economic prohibitions on imports or exports, on a temporary basis, in order to fulfill any of the purposes provided for in article 609, when such purposes cannot be adequately fulfilled through the exercise of the powers granted to establish or increase taxes that tax the respective destinations." . Similarly, this is established in article 631 of the CA when referring to non-economic prohibitions. Although Resolution No. 75 does not mention it, it also applies non-economic prohibitions.
Consequently, this prohibition provision, even if it may or may not be based on the precepts that align the rule for special cases, can in no way be applied by order of a ministerial resolution.
Although there is a possibility of delegation of functions to the ministerial areas by the National Executive Branch, certainly for these cases where an express regulatory framework -Law 22.415-, which refers to a topic, which clearly raises a highly sensitive issue of degree regarding the prohibition of the constitutional guarantee of the right to exercise free trade and affecting international agreements., cannot be subject to execution by sectors of the administration, even when they may be within the orbit of the Executive Branch, based on general delegations.
Especially when such delegation would not be expressly predetermined by a Law. Remembering that Law 22.292, when referring to the possibility of delegating these powers, was rendered ineffective by express repeal of DNU 2488/1991.
Law 22.792, not incorporated into the Code, through its art. 5 authorized the EP to delegate to the competent ministry based on the subject matter involved, under the conditions that it deemed appropriate to establish the powers conferred by the article in question, but it was repealed by DNU 2488/1991. (according to the Commented Customs Code – Mario A Alsina, Enrique C. Barreira, Ricardo Xavier Basaldúa; Juan P. Cotter Moine; Héctor G. Vidal Albarracín – Volume II – page 308 – commentary on article 632 of the Customs Code – Ed. Abeledo Perrot)
Likewise, the treatment of what the case merits, which results in an extremely delicate matter, such as the express prohibition of a lawful activity affecting the private interest, and on the other hand of a broad prevailing need at present, where international trade must be encouraged, especially in an Argentina with so many primary needs, including foreign currency income, which shows a general interest, added to the fact that in a globalized world where the commercial interaction of nations is of great value and the WTO itself seeks to protect and promote through international agreements that Argentina has signed, It imposes that any treatment involving the prohibition of international trade should not be outside the exclusive power of the National Congress. (according to article 75 paragraphs 1, 13, 14, 17, 19 of the National Constitution).
“The words liberty and property, which encompass all social and political life, are constitutional terms and must be taken in the broadest sense, and the latter, when used in Articles 14 and 17 of the Constitution, or in the provisions of that statute, includes all appreciable interests that a man may possess outside himself, outside his life and liberty; therefore, the rights arising from the State in favor of individuals are protected by the constitutional guarantees enshrined in Articles 14 and 17 of the Constitution.” (SCJN, “Fallos”, Vol. 145 p. 307; Vol. 176 p. 363; Vol. 183 p. 116).
GATT
It should be added that although Resolution No. 75 states: “The 1994 Agreement on Tariffs and Trade approved by Law No. 25.425 allows for temporary restrictions on exports to prevent or remedy an acute shortage of food products or other essential products for the exporting contracting party”, this imposes to a greater degree, that this decision, if applied, must emanate expressly from a formal law, if applicable, from the power to which it may have been delegated, with its due limitations, without the possibility of referencing such protection on such a delicate action - prohibition - to an administrative area, and that Law that may delegate to the Executive Branch, must safeguard faithful compliance with that established by international agreements that prevent the express prohibition in line with this type of actions, only permitted within the justifications imposed by the International Agreement and not a lower-ranking and earlier rule such as Law 22.415 - Customs Code -
It is important to remember that Article 11 of the General Agreement on Tariffs and Trade (GATT), when dealing with “the general elimination of quantitative restrictions,” states that: Neither Contracting Party shall impose or maintain - other than duties, taxes or other charges - any prohibitions or restrictions on the importation of any product into the territory of another Contracting Party or on the exportation or sale for export of any product destined for the territory of another Contracting Party, whether enforced by quotas, import or export licensing or other measures. And although the Agreement states that such provisions will not apply to certain and specific express cases - stated in its second paragraph - none of these justifications are evident for the imposition of prohibitions established by Resolution No. 75, not even the one referred to in relation to preventing or remedying an acute shortage of food products or other essential products.
Thus, and despite what is provided for in Law 22.415 in its article 632, this does not make it possible to deviate from what has been internationally agreed by Argentina, which, starting with Law 24.425 regarding the ratification of the GATT Agreement, has expressly limited the imposition of prohibitions, with their possible temporary application only in justified cases within what such Agreement predetermines, which in no way align with those of articles 609 and 610 of the Customs Code.
In this context, it must be kept in mind that the GATT Supplementary Agreements They are important to highlight, since they establish how the exceptions allowed by the GATT in the area of restrictive technical measures should be applied. They should take into account, in primer place, if such measures imposed by the National State are measures falling within the exceptions established by the GATT; second, if its application is presented with excessive formalism; third, If it turns out that there is a technical measure with the requirements that are required for such purposes –carried out by a special and scientific body-; fourth, that does not have the function of hindering and fifth, if carried out in accordance with the guidelines of the GATT complementary agreements.
Therefore, if it is considered that there is any justification determined by the GATT Agreement, such a device imposing a temporary prohibition must expressly emanate from a formal Law, as it is an attribution of the National Congress, even and beyond what may be established by the Customs Code, which, as of Law 24.425 – GATT Agreement – the State must, in terms of the subject matter of prohibitions, submit to the express limitation of the use of this type of action –exceptional- to what is established by international agreements.
Express deadline
One of the prerequisites for applying this type of measure is that they must be temporary, as clearly stated in Article 632 of the Customs Code. And although Resolution No. 75 refers to a 30-day period, this may create a confusing situation regarding the actual duration of their validity.
The absence of a clarification regarding whether these days are working days or consecutive days, leads to an optimistic view that they will be consecutive, but considering that they regulate aspects that deal with administrative/operational issues within the framework of customs matters, such as the restriction on requesting to allocate exports for consumption, the application of article 1007 of the Customs Code could be appropriate, which expressly states that "unless otherwise provided, periods not exceeding thirty days and, regardless of their length, those of a procedural nature shall be counted as administrative working days".
We therefore understand that this lack of reference in the regulation itself should have been prudently referenced expressly indicating the specific period, reflecting without a doubt the terms of the stage in which the right to export will be restricted.
The punctual lack of a determination of a term is also a defect that would lead to non-compliance with the precepts mandated by the higher-ranking regulation, and its absence or imprecision would generate a state of non-compliance with the effects that such a circumstance presupposes.
Conclusion
In order to the above, we consider that Resolution No. 75 of the Ministry of Agriculture, Livestock and Fisheries would find breaches of the precepts that the Law and International Agreements impose. Among them, the defect inherent to its origin by contradicting the guarantee of legality that protects the National Constitution itself for the treatment of a matter such as that which refers to an action to prohibit constitutional guarantees, and considering the Customs Code, such exclusive attribution is delegated, with the express limitations that are imposed for such effect, only to the National Executive Power and not to another area within the organic structure of the State. It cannot be the object of delegation, not even through general delegations, which also turn out to be the object of great doctrinal discussion, especially when issues that deal with freedom are involved. Adding to the limitations established by the GATT for the application of restrictions, such as the one of species, and that would not be within those exceptional justifications provided by the international norm.
Finally, the framework published in the Official Gazette of 20.5.2021 would have flaws that would lead to considering it to be a norm without force of application because it contradicts the constitutional principle of legality required by the National Constitution.
Guillermo Felipe Coronel is aLawyer specializing in Customs Law. DDirector of Customs News
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