The Central Bank has begun to have greater involvement in international trade operations, participating directly in the processing of Import Licences through SIMIs, with its own regulations for the Foreign Exchange Market which, although they are prerogatives of said entity, are still directly related to legislative powers, which no longer belong to it, and even with an affectation of rights and guarantees enshrined in the National Constitution and international regulations specific to international trade.
Imposition of categories
It was through Communication 7466 that the Board of Directors of the Central Bank made the decision to intervene in the import monitoring system (SIMI). Based on this and subsequent regulations, the Central Bank has the power to classify importers into categories. Some will be able to access the Single and Free Exchange Market (MULC), while other operators, classified in Category B, must seek financing within a period of up to 180 days from the entry of the merchandise into the customs territory, which is not the same as its release to the market.
In the case of Category A, the Central Bank determines that access will be based on a consideration regarding the equivalent of the lower value between imports from 2021, plus 5% of said value or imports from 2020, plus 70% of said value. If that amount is less than US$ 50.000 or the importer has not made purchases in the last two years, andl The limit will be US$ 50.000 per year. This is a technical provision that is absolutely arbitrary since it directly intervenes in the legal commercial activities of each importer, which goes beyond the prerogatives of the Central Bank, since it begins to regulate the free exercise of a legal commercial activity and the right to property. In other words, it legislates on a matter that is not its own function, in addition to doing so in clear violation of constitutional rights.
Other provisions
In turn, on April 18, the Central Bank has issued, through Communication A 7490, an ordered text of regulations on Foreign Affairs and Foreign Exchange, adapting the following Communications:
A-7433 – EXTERIOR AND ADJUSTMENT CHANGES – 06.01.2022
A-7466 – EXTERIOR AND ADJUSTMENT CHANGES – 03.03.2022
A-7469 – EXTERIOR AND ADJUSTMENT CHANGES – 10.03.2022
A-7471 – EXTERIOR AND ADJUSTMENT CHANGES – 18.03.2022
A-7472 – EXTERIOR AND ADJUSTMENT CHANGES – 22.03.2022
A-7488 – EXTERIOR AND ADJUSTMENT CHANGES – 07.04.2022
All these provisions, which the Central Bank surely considers within the scope of its functions, exceed its powers insofar as, as stated, it makes decisions regarding the activities and property of importers in a discretionary and arbitrary manner. And although administrative acts, such as the one in question, enjoy the presumption of legality, this does not in any way imply that the act cannot be subject to review by the Judiciary regarding its legality and the due control of constitutionality, otherwise effective judicial control would be impeded.
Purpose of the BCRA
Law 20.539 (BO 10.10.1973) approved the Organic Charter of the Central Bank of the Argentine Republic, a regulation that has been modified by Law 24.144 (BO 22.10.1992) and Law 26.739 (BO 29.32012), providing that: The bank's purpose is to promote, to the extent of its powers and within the framework of the policies established by the national government, monetary stability, financial stability, employment and economic development with social equity. (Article replaced by art. 2 of Law No. 26.739 BO 28/3/2012). In this context, the objective of this Body does not rest solely on monetary or financial stability, but its task also results in employment and economic development. To this, it must be added that the Law requires that all measures must maintain these purposes with social equity. At least, this is what it emphasizes with respect to economic development, which invites us to consider that any provision must be issued impartially.
From here, we must consider at least three fundamental principles of administrative acts to which all provisions emanating from the Central Bank must be aligned, namely:
a) Legality: This means that all regulations issued by the public administration must comply with the law and therefore will be subject to review.
b) Equality: This principle aims to prevent the existence of provisions that imply unfair discrimination towards certain people or groups.
c) Reasonableness: This involves taking into consideration the proportionality of the measure imposed with its purpose, understanding that the arbitrariness of an administrative act or measure would cease to be reasonable and become abusive, unreasonable and unconstitutional by notoriously affecting rights and guarantees enshrined in the National Constitution.
Thus, no provision within the administration may substantially restrict constitutional rights and guarantees, encroach on powers that include other branches, that imply modifications or restrictions to the domain and administrative interventions in private companies or complementation that alters the spirit or letter of laws of Congress, or regulate the exercise of the rights of individuals (Articles 14,17,18,19, XNUMX, XNUMX, XNUMX of the National Constitution). Recalling that a state structure removed from such parameters loses its essence and its reason for being, also losing its power to impose on society the obedience of a certain order.
Tinternational traffic of goods
On several occasions, the BCRA itself has indicated that its regulations act and are applied after the procedures that the importer must carry out before other Organizations tending to authorize its operation and with the focus exclusively on the exchange issue, and provided that they meet specific requirements for this purpose, they will be allowed access to the exchange market. Such recognition is in line with the defined powers and faculties that both the National Constitution and laws passed by Congress establish for the different organizations belonging to the State. In this sense, in customs matters, the banking entity cannot enter into the control of international merchandise traffic. Work that according to the National Constitution only involves Customs.
Now, the scheme and purpose that the BCRA measure intends to impose regarding the categorization of imports and thus, deny or authorize, is to introduce its control in an activity that is only the responsibility of the General Directorate of Customs. Article 112 of the Customs Code provides that, The customs service will exercise control over persons and merchandise, including those that constitute a means of transport, insofar as they are related to the international traffic of merchandise.. Implying that the control of international merchandise traffic, with scope to the persons and means of transport that fall within such activity, is the exclusive function of Customs. From this, no organization can assume the authority to control the international traffic of merchandise.
The conditions imposed on the acquisition and transfer of foreign currency imply entering into the universe of imports, discriminating through a categorization scheme to allow or prohibit international traffic. It is eloquent that establishing limitations or imposing postponements in time to enable committed payments, preventing the exercise of trade, the availability of property, and the honoring of assumed contractual obligations, are measures with a clear prohibition on imports. Especially those that the Central Bank arbitrarily places in Category B, since these are importers who must make an advance payment on the sale, after which the time it takes to produce the product and the subsequent freight, to then count the arrival of the merchandise and start counting the 180-day period required by the law. This results in exercising control over the international traffic of merchandise, regulating its entry and ultimately, assuming powers that are not its own.
It should be noted that the Central Bank's authority to issue administrative provisions is not in question, but rather its reasonableness and legality., under the protection of our legal system and its normative hierarchy, for which, the effect of the measure with its intended purpose must also be considered, which must always maintain a state of impartiality, through clear equity with the purposes and the safeguard of not curtailing unavoidable individual guarantees. Limitations that Law 24.144 shows when indicating the purpose of the Central Bank. Never again can these measures be outside its jurisdiction, much less, can they avail themselves of powers that the National Constitution has exclusively rested on Customs.
Consequently, the BCRA regulations that arbitrarily prevent legal and normal access to the foreign exchange market to undertake an international purchase and sale transaction and thereby curtail the guarantee of marketing, contracting, and enjoying ownership, are clearly unconstitutional, and are subject to judicial review through the relevant procedural measures in order to restore the affected importer to his unjustly violated right.
Public interest
In this type of measure, the argument of “public interest” is often mentioned, almost as if it were a copy and paste, generally without any basis. This is so, as long as said interest is based on issues that affect the general public, such as situations that deal with public health or safety, the environment, institutions; but appealing to the public interest as a novel tool to sustain an import tariff barrier, in open violation of norms of supra-legal hierarchy, is almost insulting to intelligence and to the legal order itself. It must be kept in mind that the harmonization of the public interest with the safeguarding of constitutional guarantees requires remembering that the resources that the State can use must yield, in specific and singular cases, to the reasonableness of judicial decisions that seek to enshrine the rights and guarantees of citizens.
It is very difficult to understand this type of consideration, given that we are in the presence of a clear fact that shows the effective impediment to being able to exercise a right, but on the other hand, in the absence of its due exercise, damage is caused. Not only by impeding the importer's own right through a measure imposing a prohibition, but also, this has repercussions on aspects of contractual non-compliance that cannot be ignored as existing by the enforcement authority. This causes serious harm, and entails a damaging effect against the general interest; since, in the face of this type of measures, with scope for the entirety of international trade, Argentina in the world's view is seen as a nation that does not agree with the fundamental precept in international trade, which is to honor its commitments, a principle that all nations watch over, by virtue of the fact that it is the bridge for the proper economic development of every society. Therefore, reducing the basis of these prohibitive measures to a public interest is contradictory, since in its alleged attempt to protect such interest, it ultimately harms it. Consequently, the damage that is produced is greater than that which is supposedly intended to be avoided by alleging the public interest. On the other hand, preventing the constitutional guarantee of disposing of one's property after having lawfully entered into an international contract, and the duty to honour one's debts as a result of the consideration assumed in a deferred manner, implies an infringement of constitutional rights and guarantees that cannot be violated under the pretext of a higher interest.
Even though the law and the regulations of the Central Bank are a consequence of what the rule of law establishes, they cannot be implemented in such a way as to annul the rights and guarantees of the Supreme Law of the Nation. The declarations, rights and guarantees of our National Constitution are unchangeable by means of a common norm. And this is so, as long as Constitutional prevalence is not a legal-normative power, but rather a duty of the State and, even more so, when it concerns something specific such as access to what legally belongs to each person and also for the fulfillment of a legitimate contractual obligation.
It should also be noted, regarding the matter of restrictions, the provisions of the American Convention on Human Rights, which, in relation to the scope of restrictions, states: Article 30. Scope of restrictions The restrictions permitted under this Convention to the enjoyment and exercise of the rights and freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and for the purpose for which they have been established. But this does not mean that laws or other regulations based on a general interest are more harmful than what they are intended to avoid and the regulations that protect them. In other words, restrictions are less important than suspensions and, in addition, they should never be confused or interpreted as an endorsement of the suppression of rights or their prohibition.
Conclusion
In view of the above, the suspension of rights and guarantees should be considered illegal, especially those issued by public authorities that exceed the limits necessary to deal with a situation of emergency or public interest. Even more so when such measures deviate from their competence, as well as from general principles, with an indefinite extension in time and are disproportionate; which includes an abuse of the right on which the State body in question, in this case, the Central Bank, seeks to protect itself. Because among the measures that could still be considered appropriate, the least harmful must be chosen.
In short, if the rules and considerations emanating from the ACHR place emphasis on situations of public danger, they must be even more enforceable in the event of emergencies or supposed economic emergencies that do not put public safety or the sovereignty of the State at risk. For this reason, the rules emanating from the Central Bank that arbitrarily restrict free access to the exchange market have the character of a prohibition, both to trade, to dispose of property, to comply with committed obligations, to sign agreements, deviating from all constitutional and supra-legal parameters, creating an abusive, illegal and non-competitive barrier for operators of international trade, by establishing provisions that ultimately prohibit activities guaranteed by the Constitution and that are essential and urgent for the development of a nation.
By Guillermo Sueldo and Guillermo Felipe Coronel. The authors are members of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
