In this regard, reference was made to the technological mechanisms that have led to a high level of certain possibility of achieving the transformation of "Foreign Trade", enriching it with a dynamic action through the interaction of all the protagonists in the value chain of international trade and with this, it joins customs to become a facilitating link and generator of greater security in favor of international trade.
From this message, each customs office in Latin America worked to achieve these objectives, which can be seen in the clear messages that the heads of each organization have left this year – Chile; Bolivian; Uruguay; Argentina - Added to this is the integration of nations to form blocks, where a fluid and greater commercialization is prioritized above any protectionist guidelines that impede interaction.
Although the "regional units" were not born in 2014, nor in this decade, it can be observed that they have had a greater boom and conviction of the need to deepen the "national units" for a scheme of greater progress in each nation, which in these times is achieved from a framework of association and not isolation.
When MERCOSUR was established by its founding countries, at the time of signing the Treaty of Asunción in the 80s, it made clear its objectives and the conviction that its priority source was to be a "regional union" with due exposure to "customs unity". This implies the removal of any restriction that could prevent or partially or totally curtail the circulation of goods within such a block.
In this sense, despite the efforts that have been carried out since its inception by the different member countries and those that have been added over time as associates, it is difficult to understand that, almost at the end of 2014 and with clear contrary effects for this new year, the contradictory decision and alien to fundamental principles of international and constitutional law, as was the ruling of the Supreme Court of Justice of the Nation, which many embraced as a triumph, is noted. the decision that Argentina can charge EXPORT DUTIES within MERCOSUR. (CSJ ruling 61/2008 (44-W) “Whirlpool Puntana SA (TF 21.671-A) C/ General Directorate of Customs” – ruling of 11/12/14).
To maintain that the “Treaty of Asunción” is not applicable to the Argentine internal regulatory framework, which could prevent the imposition of “customs export duties” within the customs territory made up of the MERCOSUR countries, is to ignore the guidelines of customs law and the basis for considering that one is dealing with a customs unit. Even less, is it in accordance with the law to establish that Argentina did not sign the obligation not to charge customs export duties and that there is only a mandatory framework for import duties.
These concepts are clearly in complete contradiction with those that provide the basis for customs integration and the concept of free movement of goods within a given international customs area. To consider that there is an obligation not to apply "import duties" and not export duties is simply a clear misunderstanding in customs matters of what is understood as customs restrictions in tax matters.
Likewise, the framework of reciprocity established in Article 2 of the Treaty of Asunción is forgotten and in practice, it can be observed that the other member countries do not charge export duties. Obviously, this is because they have been able to give a proper interpretation of what is established in the fundamental law of MERCOSUR, that is, the Treaty of Asunción. Argentina has not only violated the treaty by failing to comply with reciprocity, but also by not complying with what Article 1 mandates, despite this ruling.
There is no doubt that a decision of this kind cannot be celebrated, not only because of the legal guidelines that can be seen in the ruling as inappropriate in terms of customs and international agreements, but also because it is a significant step backwards in relation to the needs that the world calls for in terms of INTEGRATION. What is the point of celebrating that Argentina would be authorized to collect withholdings within a customs unit such as MERCOSUR, if this results in erasing and moving away from the spirit of its creation?
INTEGRATION is closely related to the spirit of TRUST and Argentina must, through its institutions, show that it has to be a trustworthy country, first legally and then in the other pillars that make every nation credible, that is, "political", "economic" and "social". However, if there is a decision by the highest Court of the Nation, which ignores the signed agreements and their clear spirit, objective and priority reality, it is appropriate to ask: how can this trust be achieved? How can one become part of an integration?
At the end of each year, an evaluation of the most significant events, good and bad, is always carried out, and one is filled with hope for this new and fresh 2015. What happened with the Court's ruling is not something to celebrate, even if the treasury can continue to satisfy the collection of withholdings within MERCOSUR, in the long run it will lead to greater losses due to a lack of credibility, confidence and absence of integration.
INTEGRATION is a right and the world, in favor of each nation, preaches for it, but like every right, it is accompanied by an obligation and in this case, it is TRUST. Giving trust is the opening to INTEGRATION. Until this happens, Argentina will be far from belonging to a REGIONAL/CUSTOMS UNIT, even if it can add a deputy to PARLASUR.
Dr. Guillermo Felipe Coronel
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
