Administrative Provision 9/2020 was recently issued by the Undersecretary of Commercial Policy and Management of the Ministry of Productive Development, through which the universe of merchandise that will become part of the list of those for whose importation, they must go through the prior process of Non-Automatic Licenses, is expanded.
The regulation in question does not clarify who the enforcement authority will be, how the procedures should be carried out, the time in which said authority must be issued, or the validity of the license once granted; although it is presumed that the maximum time for the enforcement authority to issue an application cannot exceed 60 days, in accordance with the regulations already in place on the matter; and that the validity of the license will be 180 days.
But it is appropriate to analyze the issue in its relation to the Mercosur Treaty, which is of course in force.
Let's start by understanding that This is a legal reality for its Member States, who have signed an international treaty ratified, as appropriate, by their respective Congresses. 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 type (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, no later than December 31, 1994, all taxes and other restrictions that could be applied in their foreign trade, as also highlighted, in its arts. 2 and 3 of the same Annex, what should be understood by taxes and restrictions and, among the latter, It is clear that it refers to any type, whether financial, exchange or of any other nature, that prevents or hinders, by unilateral decision, reciprocal trade.
The Argentine State, by unilaterally ordering the application of non-automatic licenses with indefinite time and without distinguishing the origin of the imported merchandise, consequently covering those of Mercosur origin, violates the relevant Treaty as well as international standards on such licenses, since these are not measures that can never be extended indefinitely, but rather must be temporary, and consequently the period of their duration must be determined.
With regard to 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 contradict the constitutional principles of legality, reasonableness, property, freedom of trade and the right to exercise any lawful industry, among others.
It should be added that since these are statistical regulations, they could be processed after the release of the goods to the market and not before, since, as this is a prior procedure, serious inconveniences are generated that entail particular and general economic consequences, since for statistics the essence is not altered with its subsequent processing unless the hidden objective was another. That is, with the processing prior to the officialization of the import clearance, There is a major inconsistency between the objective and the means used to achieve it, distorting the essence of non-automatic licenses.
To all this we must add a question: Are there imports and exports within the scope of Mercosur? Well, since it is a single customs territory and according to the concepts that emanate from art. 9 of the Customs Code, the introduction or extraction of goods between member countries of Mercosur could not be considered imports or exports; therefore, they should never be subject to any restriction, apart from all the above.
There will surely be several legal issues that will arise around this new administrative provision, which If not resolved through dialogue between importers and the enforcement authority, they will lead to the judicialization of foreign trade.
By: Guillermo J. Sueldo. Lawyer specializing in Customs Law and International Trade
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.
