Through Resolution 549/2021 (BO 31.05.2021), The Secretariat of Domestic Trade of the Ministry of Productive Development of the Nation, decided to incorporate into the national legal system Resolution No. 62/2018 of December 16, 2018 of the Common Market Group of MERCOSUR, whose purpose is to approve the new MERCOSUR technical regulation on “labeling of textile products”.
Measures implemented
This resolution, in addition to incorporating the framework of the MERCOSUR device, established the following scope:
Liability
The obligation to comply with the provisions on labeling is determined depending on the origin of the product. Thus, for national products, the responsibility will be that of the manufacturer, while for foreign products, it falls on the importer. (according to article 3 Resolution 549/2021)
Prohibition
The definitive importation and commercialization in the domestic market of the goods mentioned in the Annex of this resolution is prohibited in cases where they do not comply with the provisions established in this regulation. In this way, the importation for consumption - definitive import destination - of the products is subject to compliance with the requirements set forth in the Annex of Resolution 549/2021 (according to article 2 Res. 549/2021)
Supervisory authority
The Customs Office – General Directorate of Customs – is empowered to monitor compliance. (according to article 5 Resolution 549/2021)
Validity
The enforceability of these requirements will begin to apply from the 120 consecutive days from the date of publication -31.5.2021- Consequently, all supervision and control of its compliance is applicable as of 28.9.2021. (according to article 8 Resolution 549/2021)
Infringement
In the event of non-compliance, sanctions will be imposed, both in terms of Law 24.240, decree 274/19, as well as Law 22.415 (Customs Code). (according to article 7 Res. 549/2021)
some considerations
Resolution 549/2021 establishes the status of prohibited merchandise that does not comply with Resolution 62 of MERCOSUR -labeling-
Likewise, customs will be the authority to monitor compliance of goods coming from abroad for import for consumption after the import clearance is officially approved.
On the other hand, it establishes the application of sanctions against the infringement that may correspond in terms of the Customs Code -Law 22.415-
These specifications that emerge from Resolution 549/2021 indicate that, in the absence of compliance with the established requirements, customs would be authorized to take the following measures:
- Stop import clearance.
- Consider merchandise as prohibited.
- Charge the violation of art. 954 inc. b) of the CA
- Preventing its delivery to a place, even under the guarantee regime.
- Instruct a summary for the infringement, imputing the infringing status stated in point c), with the requirement of a fine equivalent to the customs value of the merchandise.
- Hold the importer responsible for this infringing situation.
- Jointly liable for the violation by the customs agent.
Consequently, importers must have a sensitive control of compliance at the origin or provenance of the requirements. In any case, we believe that the regulation exceeds the powers provided by the MERCOSUR framework by framing any potential non-compliance, which in fact may occur on the part of the seller/manufacturer, as the responsibility of the importer. With the aggravating factor of treating the merchandise as prohibited, with the consequences that this imposes in the event of a definitive import destination. Not adjusting to the guidelines established by the original regulation – Resolution No. 62 MERCOSUR – which did not establish a prohibitive policy regarding the goods subject to entry into the customs territory.
Judges' opinion
The Court has issued its opinions on the application of prohibitions and their effects on customs infringements, remembering that the Supreme Court of Justice of the Nation considered that the concept of prohibited goods has a much more restricted scope and that the lack of any certificate or prior procedure does not affect the prohibited goods. In the case of Nate Navegación y Tecnología Marítima SA (TF 22.220-A) c/DGA, the Supreme Court adhered to the grounds set forth in the opinion of the Attorney General's Office that advised revoking the sentence applied to the company, establishing that not all restrictions and simple conditions for the export and import of goods should be elevated to the category of prohibitions - ruled the Attorney General - giving arts. 608 and ccs. of the Customs Code a latitude that would lead, in practice, to distort the designed system. “Indeed –he pointed out–, all customs operations must be carried out following the established guidelines regarding schedules, methods, administrative procedures, declarations and payments of the corresponding taxes, and other well-known requirements of such a delicate regime. But this cannot imply the inversion of the fundamental rule enshrined in art. 29 of the National Constitution, thus elevating such requirements to the level of prohibition, which would only be lifted for cases in which such legally and statutorily determined steps were followed, in which case – always within this perspective that I consider erroneous – it would be an “exception” to the rule of prohibition.”
Thus, the Federal Administrative Litigation Chamber held that if it were interpreted that the non-compliance with any requirement, restriction or condition imposed for importation constitutes an exception that displaces the validity of a general prohibition to import, the scope of the prohibitions would be extended in an uncertain and indefinite manner and any non-compliance would make the exception disappear, while the alleged general rule of the prohibition to import would regain validity, although this had never been established explicitly, but merely induced through that logical inference. In the same sense, CNACont.Adm.Fed., Sala IV, Telefónica Móviles Arg. SA, 29/04/10; ibid., Sala III, Aceitera General Deheza SA, 13/2/13.
On the other hand, Article VIII: Rights and formalities relating to import and export of the GATT, states, "where the contracting parties also recognize the need to reduce to a minimum the effects and complexity of import and export formalities and to reduce and simplify the requirements relating to the documents required for import and export."
It is therefore not reasonable that this type of customs operation could be subject to a complaint under the terms of article 954, paragraph b) of the Customs Code, with the effect of detaining a shipment and making it impossible to dispose of the goods, with the aggravating factor of the time that such a restrictive measure remains in force due to the effect of long-standing administrative processes.
Likewise, as regards the fact that prohibitions cannot be discretionary, the Fifth Chamber of the National Court of Appeals in Administrative Litigation in the aforementioned precedent “Nate” affirmed that customs prohibitions must arise from the express and unequivocal wording of the norm, in such a way that its existence as a general rule worthy of compliance, as well as the respective sanction for its non-compliance, can be effectively discerned and verified. In the same position, the Court considered that the Code does not specifically establish any prohibition, but that they “must arise from the legislation that corresponds to the subject matter in question.”
Conclusion
The decision of the Chamber and the Supreme Court is consistent with Article X of the GATT – Publication and application of trade regulations – which requires that all foreign trade regulations must be published in order to maintain transparency in international trade operations. Thus, in this case, the application of a prohibition cannot be considered as a mere discretion, thereby promoting the imposition of an infraction of the kind that would result from the treatment of prohibited merchandise at the request of an import.
Aspects that merit a review channel regarding the provisions that frame Resolution 549/2021, and perhaps, preventively, administrative and/or judicial actions to avoid situations that may hinder the due normal exercise of international commercial operations. Especially when faced with situations such as the one in question, the re-labeling system could be applied, releasing the merchandise without the right to use until its due compliance and inspection by the customs service, without the need for restrictive measures of a prohibitive nature.
Consequently, if there is a prerequisite for importation, it cannot mutate into the presence of prohibited merchandise simply because of its absence, since its entry is not prohibited.
Guillermo Felipe Coronel is a lawyer specializing in Customs Law. Head of the Guifecor and Associates Law Firm
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.
