In Buenos Aires, on the 26th day of September 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-named member presiding, met in order to resolve the case entitled NIKE ARGENTINA SA v. DGA s/ appeal; file No. 17.319-A
I) That at fs. 71/94 round. Nike Argentina SA, through its representative, files an appeal against Resolution No. 1856/02 issued in file No. ADGA 580.390/99, by which charges Nos. 950/99 and 951/99, due to the preparation of supplementary settlements for tax differences made in the aforementioned file, due to the application of the definitive safeguard measures established in the form of minimum specific duties by Resolutions 987/97 and its amendments. It refers to the background of the measures imposed by Res. 987/97 and its amendments: Refers to the background of the measures imposed by Res. 987/97 and its amendments: Resolutions 811/93, 1696/93, 305/95, 103/96, 23/97, 225/97, 226/97 and 249/97, as well as decrees 2275/94 and 998/95. Provides a summary of the case of Argentina – Safeguard Measures against footwear impositions. It highlights that, as it arises from Resolutions 987/97 and 512/98, which would be in force at the time of the officialization of the import clearances in question, this would have its legal basis in the application of Law 24.425 and its regulatory decree 1059/96. It is understood that the determination of the legitimacy of the safeguard measures established through the Resolutions of the Ministry of Economy must be carried out by analyzing their consistency with the conditions for applying a safeguard measure in accordance with GATT 1994 and the WTO Safeguards Agreement. It highlights that countries that have ratified the Safeguard Agreement and are members of the WTO may only apply safeguard measures in accordance with the procedure regulated in the Agreement and that the investigation carried out by Argentina does not provide any legal basis for the application of the definitive safeguard measures imposed by Res. 987/97 and its amendments, or any other safeguard measure. Lists the legal conditions for applying a safeguard measure, referring to Art. XIX of GATT 1994, Art. 2 and 4 of the Safeguards Agreement. It elaborates on the alleged failure to comply with the requirement provided for in paragraph 1 a) of Art. XIX of the GATT of 1994 and Arts. 2 and 4 of the Agreement regarding increased imports, serious injury and causality. It understands that Argentina was not authorized under the Safeguards Agreement, on the basis of which it based the measures imposed, to count imports from Mercosur for the purposes of determining injury and causality, while at the same time being authorized to exclude Mercosur member countries from the application of the safeguard measures imposed as a result of the investigation. Considers that art. 2.2 of the Agreement implies that safeguards must be imposed on the basis of non-discrimination on products from all sources, without distinguishing whether they originate in member countries of the Union or third countries. It differentiates safeguard measures from other measures such as anti-dumping duties and countervailing duties. It is estimated that the safeguard measure imposed by Res. 987/97 is inconsistent with art. 2 and 4 of the Safeguards Agreement and XIX of the GATT and, therefore, cannot serve as a legal basis to justify the tax demands made of it. It is understood that the safeguard measures adopted by Argentina manifestly violate the obligations assumed internationally in the WTO, art. XIX of the GATT Agreement, and especially in Arts. 2 and 4 of the Safeguards Agreement, being clearly illegitimate because they contradict hierarchically superior rules. He adds that, as a consequence of this illegitimacy, the payments required by the customs service pursuant to Resolutions 987/97 of the Ministry of Economy and its amendments, constitute tax demands without cause, as they lack legal basis in the regulations on which they claim to be based. Considers that, in the terms of art. 1165 of the CA, this Court is competent to rule on the illegality of Res. of the ME 987/97 and amendments, rendering the safeguard measures established by it inapplicable and, therefore, specifies that the supplementary liquidation charges made by the customs service (which claims to have guaranteed in cash to avoid the contingency of 36% annual interest) must be declared inadmissible. Provides evidence, reserves the federal case and requests that the appealed customs resolution be revoked, with costs. He also requests that the release of the cash guarantees granted be ordered, plus the corresponding interest.
II) That on pages 103/109 the public prosecutor's office answers the notification duly conferred upon it. It makes a brief summary of the actions and grievances raised by the plaintiff. It indicates that the Customs has complied with the provisions of the regulations issued by the competent body, accepting the international agreements without violating multilateral trade negotiations, decisions, declarations and ministerial understandings. It cites art. 11 of Annex VII of the Agreement approved by law 24.425 and states that the safeguard measure questioned by the plaintiff was dictated by MEYOSP Resolution No. 1696/93, while Decree No. 998/95 is related to Decree 2275/94, which authorizes the Ministry of Economy to introduce or withdraw products from the exceptional regime and to take the necessary safeguard measures for nationally manufactured products. The Court considers that at the time the plaintiff carried out the transaction in question, the eight-year period provided for in the aforementioned art. 11 had not been met, so the appellant could not claim to enforce subsequent decisions. It adds that at the time of filing the appeal, the Resolution imposing the payment of Minimum Specific Rights was in force and cites jurisprudence of this Court and of Chamber 4 of the Honorable Chamber. It emphasizes that the determination of the DIEM in the transactions in question has been in accordance with the guidelines set by the current regulations. It affirms that the liquidations carried out comply with the law, being appropriate and correct. It offers evidence and requests that the plaintiff's claim be rejected, with costs.
III) That at fs. 113 the case is opened for evidence, which is produced at fs. 158 of the ant. adm. At fs. 126 the proceedings are put to argument, making use of this right the plaintiff and the Treasury at fs. 130/134 back and 135/136, respectively. At fs. 138 the proceedings are called to judgment.
(IV) That on pages 1 of file CDGA No. 580390 there is charge No. 950 and on pages 3 charge 951, referring to DI 1997 1 IC04 61734 and 67334, respectively. On pages 8/11 back, the plaintiff files an objection against those charges. On pages 34 there is a report from the Import Inspection and Valuation Division on the reasons that gave rise to the aforementioned charges, giving as a basis the application of Resolution 987/97. On pages 98/99 the liquidation for charge 950/99 is listed and on pages 100/101 the one relating to charge 951/99. On pages 109 shows Import Clearance No. IC04 061734 B and on pages 110 Import Clearance No. IC04 067334 D. On pages 115/141, MEYOSP Res. Nos. 226/97, 987/97, 512/98, 1506/98 and 837/98 are added. On pages 148/150, Resolution No. 1856/02 appealed in this case appears.
V) That the undersigned opened the case for evidence at pages 113 of the proceedings in order to comply with the broad principle of evidentiary admissibility and taking into account that this case may be reviewed by the Appellate Court, but this Court cannot rule on the constitutionality or not of MEYOSP Resolutions 987/97 and 512/98 because it is prohibited by art. 1164 of the CA, which is why the grievances relating to the decisions of international organizations that would have considered the safeguard measures adopted by our country to be illegitimate are not analyzed (see arguments at pages 74/78 of the proceedings), nor are the grounds on which the appellant believes that these Resolutions would violate international agreements examined, since they were issued by the so-called improper delegation, so that they have the same character as laws whose unconstitutionality cannot be declared.
That the plaintiff's arguments on pages 93 back/94 regarding the invoked powers of this Court to declare the illegality of MEYOSP Resolution 987/97 and its amendments, pursuant to the provisions of art. 1165 of the CA, cannot prosper, since this provision refers to the powers of this jurisdictional body to declare, in the specific case, that the applied ministerial or administrative interpretation does not conform to the interpreted law. On the other hand, the aforementioned MEYOSP Resolution 987/97 does not comprise a mere ministerial interpretation, but constitutes an act dictated by the conferral of powers of the Congress of the Nation that gives it the character of delegated legislation.
That, in effect, art. 663 of the CA (basic legislation) establishes that the specific import duty must be established by law, without prejudice to which it provides for assumptions in which it authorizes the Executive Branch to set them, among which the situation raised could be included; the specific import duty can operate as a single import duty or as a maximum, minimum or additional duty to an ad valorem import duty (art. 662 of the CA). It should be noted that the Executive Branch delegated this power to the Ministry of Economy and Public Works and Services by decree No. 2752/91.
In addition, it is clear from the Considerations of MEYOSP Resolution No. 987/97 that it was issued in accordance with the powers conferred by Law 24.425 and Article 36 of Decree No. 1059/96 (Official Gazette 24/9/96). MEYOSP Resolution No. 512/98 also invokes the powers of Law 24.425 and Decree 1059/96.
That the Supreme Court has held that certainly, Congress cannot delegate to the Executive Branch or to another department of the Administration, any of the powers or attributions that have been expressly or implicitly conferred upon it, and that, of course, there is no delegation properly speaking except when an authority invested with a certain power passes the exercise of that power to another authority or person, discharging it upon him. He added that there is a fundamental distinction between the delegation of power to make the law and the conferring of certain authority to the Executive Branch or to an administrative body, in order to regulate the details and particulars necessary for its execution, and that the legal recognition of powers that are left to the reasonable discretion of the executive body cannot be judged invalid in principle, provided that the legislative policy has been clearly established (Fallos, 270:42, consid. 8, and its citations) (CS, Conevial SA, of 29/10/1987, Fallos, 310:2193; italics added). In this last pronouncement, the high court, when analyzing Law 20.545, affirmed that executing a certain legislative policy also implies the power to dictate norms adapted to changing circumstances, especially in a matter that, being so subject to variations as the one in question, was deemed appropriate to leave it to the prudent discretion of the Executive Branch, instead of subjecting it to the delays inherent to the parliamentary process, concluding that such norms did not imply a delegation of legislative powers but rather an exercise, conditioned and directed to the fulfillment of the purposes desired by the legislator, of a normative activity circumscribed to the limits of the law in which it finds its source (Fallos, 286:325).
That the constitutional reform of 1994 did not expressly provide that, except in cases of public emergency, the National Congress may confer powers to the Executive Branch within a clear and precise legislative policy regarding the setting of rates, elimination of exemptions, etc. (which doctrine usually calls, unlike the Supreme Court, delegations or improper delegations, although the Supreme Court has also used this last expression e.g., Cafés La Virginia SA, 13/10/1994; Fallos, 317:1282-). However, the Supreme Court has not declared the unconstitutionality of this type of improper delegations after the aforementioned constitutional reform.
It should also be noted that Article 3 of Law 25.645 (Official Gazette, 9/9/02) expressly approved all of the delegated legislation issued under the delegating legislation existing prior to the constitutional reform of 1994. Consequently, the powers or delegations of Article 663 of the CA remain in force today.
(VI) Furthermore, it should be noted that Article XIX of GATT 1947, which was adopted by GATT 1994, provides for the possibility of States adopting emergency measures on the importation of certain products. Point 2 in fine of the cited article even allows for the provisional adoption of suspension measures without prior consultation, provided that this takes place immediately after the cited measures have been adopted.
That art. 7 of the Safeguards Agreement, approved by Law 24.425, enables contracting countries to apply safeguard measures for the period necessary to prevent or remedy serious damage and facilitate adjustment. This period shall not exceed four years, unless extended in accordance with paragraph 2. Art. 11, paragraph 2 of this Agreement refers to the requirements for the progressive elimination of protective measures existing at the date of entry into force of the Agreement, which obviously recognizes their application after such date.
VII) That, on the other hand, the plaintiff has not made a specific and reasoned criticism of the liquidations made by customs, which were based on the fact that for each import clearance the unit of measurement (Par) was multiplied by the DIEM that the aforementioned Resolution [MEYOSP 226/97] sets for the Tariff Positions declared in each item, which was subtracted from the Ad Valorem Duty paid in each case by the interested party, so that the difference in the duties to be paid generated an increase in the VAT Base, with respect to which the remaining taxes are calculated (VAT, additional VAT and perception of income tax (see report on fs. 158 of the adm. ant.).
VIII) That there is no place for the release of the guarantee requested by the appellant on fs. 94 back, given the way in which the present vote was taken, to which it is added that the ruling is not final.
Therefore, I vote for:
1°) Confirm the DEPLA DVI Resolution No. 1856/02 of the Head of the Customs Legal Procedures Department. With costs.
2°) There is no place for the release of the guarantee requested by the appellant on fs. 93 back.
3°) The appellant is hereby ordered to, within a period of 5 days, prove payment of the balance of the action fee provided for in Law 22.610 and amended by the contested tax determination, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Confirm the DEPLA DVI Resolution No. 1856/02 of the Head of the Customs Legal Procedures Department. With costs.
2°) There is no place for the release of the guarantee requested by the appellant on fs. 93 back.
3°) The appellant is hereby ordered to, within a period of 5 days, prove payment of the balance of the action fee provided for in Law 22.610 and amended by the contested tax determination, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
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