Mercosur is in force; it is not a political idealization but a legal reality for its member states, who have signed an international treaty ratified, as appropriate, by their respective Congresses.
As is known, this treaty establishes the customs union through the elimination of tariffs. and any other type of non-economic restrictions within its scope (Chapter 1, art. 1 of the Treaty of Asunción – Law 23.981); the elimination of non-tariff measures, also of any kind (art. 5, inc. a and b), the provision that the products of a member country will enjoy the same tax treatment in the other member States (art. 7). Likewise, in Annex I, art. 1, the member States are obliged to eliminate, at the latest by December 31, 1994, all taxes and other restrictions that may apply to its foreign trade, as is also highlighted in its articles 2 and 3 of the same Annex, what should be understood by taxes and restrictions and, among the latter, it is quite clear that it refers to those of any type, whether financial, exchange or of any other nature, that prevent or hinder, by unilateral decision, reciprocal trade.
The Argentine State has ordered the continued application of licenses even for goods originating from Mercosur, violating, among other things, international regulations on such licenses, since these are not measures that can never be extended indefinitely, but must be temporary.
As regards the exclusive scope of Mercosur, its Treaty, which is the Supreme Law of the Nation, according to art. 31 of the National Constitution, is specifically violated; in addition, the restrictions thus imposed violate, as a whole, the constitutional principles of legality, reasonableness, property, freedom of trade and the right to exercise all lawful industry and the right to property, among others.
It should be added that since these are statistical regulations, they could be processed after the goods have been released to the market and not before, thus generating the already known inconveniences, which entail particular and general economic consequences, since for statistics, their essence is not altered, unless the hidden objective were another. If this were not the case, there is a great incongruity between the objective and the means used for it, distorting the essence of non-automatic licenses.
Now, to sum up, we could add another legal argument, which is to consider whether Mercosur constitutes or not a single customs territory, therefore and according to the concepts that emanate from art. 9 of the Customs Code, the introduction or extraction of merchandise, for example from Brazil or to Brazil, could not be considered imports or exports; therefore, they could never be subject to any restriction, apart from the above.
Furthermore, the serious legal uncertainty that this causes results in enormous losses of an economic nature for our country.
By: Dr. Guillermo Sueldo, Member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
