1.- Several months having passed since the start of the application of General Instruction No. 7/2022 by the customs service and taking into account that the context of shortage of foreign currency continues and will continue for some time, we allow ourselves to make the following reflections on it.
2.- In this regard, it should be remembered that said general instruction established a "customs" control system for exporters who do not enter and settle the foreign currency linked to their exports, establishing the following procedural guidelines:
(i) The Customs Administrators, during the first 10 days of each month, will control the entry and liquidation of foreign currency for the export operations of the goods corresponding to the operations registered in their jurisdiction and will inform the General Subdirectorate on which they depend, who will consolidate the information once a month for its subsequent referral to the General Subdirectorate of Customs Control.
(ii) The General Subdirectorate of Customs Control will send a monthly communication to the Central Bank of the Argentine Republic and to the Secretariat of Agriculture, Livestock and Fisheries, dependent on the Ministry of Economy or to the area of the Federal Administration of Public Revenue that is competent, in order to request them to report whether the exporters whose non-compliances were reported, made the effective entry of the foreign currency corresponding to the referred operations.
(iii) If, based on the response provided by the aforementioned authorities, the actual non-compliance is verified, the Administrator of the customs office of registration will notify the exporter to, within a period of 10 days, proceed to liquidate the corresponding foreign currency or guarantee its entry, if applicable.
(iv) Once the period specified in the previous point has expired without the entry of foreign currency having been made or guaranteed, the Customs Administrator – by means of a reasoned resolution and based on the particularities of each case – will proceed to apply the preventive suspension, in accordance with article 97 of the Customs Code, making the necessary communications through the respective hierarchical channel, all without prejudice to any other disciplinary sanctions that may apply. Likewise, if deemed appropriate and separately respecting tax secrecy, the Administrator may request the customs risk profile of the exporter in question from the Risk Management Directorate.
Thus, although the customs service does not have the responsibility of controlling the entry of foreign currency linked to exports, which is the responsibility of the Central Bank of the Argentine Republic ("BCRA"), through the Instruction in question, customs began to verify such matters and even ordered precautionary measures and possible sanctions for cases of non-compliance.
3.- Despite the criticism that this Instruction received from authoritative doctrine ([1]), the truth is that the customs service effectively applies it by urging several exporters to enter the foreign currency, ordering the opening of disciplinary proceedings and also the effective preventive suspension of the registry for those who did not comply with such summons.
In this regard, in order to justify such measures, he argued that “Such breaches affect the operation of foreign trade as a whole, so it is considered that the alleged misconduct committed by the Importer/Exporter is a serious fault in the exercise of its activity in the terms of section 2 of article 97 of the Customs Code... in virtue of the above, it is clearly noted that the only arm of the State that has within its powers to analyze the disciplinary responsibility of importers exporters with a view to mitigating and/or interrupting disvaluable conduct that seriously affects fiscal income, is the customs service. This, since it is the one that exclusively exercises the government of the registration of the subjects in treatment ... ".
4.- Now, even though we share the reasonableness of trying to avoid the abuses referred to in the regulation, the truth is that the preventive suspension provided for in art. 97 of the Customs Code should not be applied automatically, but, as expressly recognized by said Instruction, it is necessary to analyze the particularities of each case ([2]).
Thus, given the harmful consequences that it entails, an analysis of the conduct of the exporter subject to disciplinary proceedings is required, as well as of the "need", the "gravity", and the danger to the “customs service security” that such conduct could generate in the future.
Thus, as the rule expressly indicates, the authorization to exercise this power depends on compliance with the conjunction of the following prerequisites: that the resolution is “founded”, that said foundation is based on the "gravity" of the lack in relation to the “customs service security” and that this suspension be “necessary”.
This being so, for it to be possible to maintain that there is a conduct reaction for customs service security, it is not enough to prove that the exporter did not enter the foreign currency, since the control of this issue is in the hands of the BCRA and therefore, it cannot be the basis of the aforementioned summary (the opposite has already been expressly rejected by our Supreme Court in the leading case "Legumes" ([3])). It is also unreasonable to require it to guarantee the effective entry of such currencies.
That is to say, for it to affect the customs service, it must be about issues that are linked precisely to its role as exporter, being able to analyze, for example, whether or not it responds to the request sent by customs or if, when giving explanations, it can prove that it is a company that has solvency and economic capacity (in relation to this point, it can be verified how this lack of income affects its future operations, if it carried out collection procedures, etc.).
It should be noted that the fact that customs appears to be the "only arm of the State that has within its powers to analyze the disciplinary responsibility of importers/exporters" is not sufficient reason to extend customs sanctions regarding situations not expressly foreseen, since this would imply a clear affectation of the principle of legality (art. 18 of the Nat. Const.).
5. For all the above, although we agree that customs has the power to analyze the disciplinary responsibility of importers/exporters, and may even suspend them preventively, the object of the summary should be limited to disvalued conduct that affects the functions of the customs service and not others.
[1] See in this regard what was stated in this same medium by Dr. Guillermo Sueldo, in an article entitled “An early warning system that exceeds powers and violates constitutional guarantees”, stating that “… If an administrative regulation calls for the use of actions within its functions, but in order to subject them to controls outside its authority, it would be attempting to arrogate or extend powers over a matter that is not within its protection in terms of the Law... Consequently, an instruction that can establish sanctions and/or measures, even preventive ones, such as the suspension of registration, motivated by non-compliance outside the control of the customs bodies and demand guarantees of such compliance, is to move away from the premises established by the National Constitution and Laws dictated by the Congress of the Nation headed by the Customs... ". https://aduananews.com/un-sistema-de-alerta-temprana-que-excede-facultades-y-viola-garantias-constitucionales/
[2] Although the rule states that once the period provided for in the previous point has expired without the entry of foreign currency having been made or guaranteed, the Customs Administrator "will proceed to apply the preventive suspension", it also clarifies that it must be arranged "by means of a reasoned resolution and based on the particularities of each case" and therefore, demonstrating that it is not a "no-brainer" application.
[3] CSJN ruling L.119 XXII “Legumbres SA and others s/ smuggling”, with a note by Spolansky, Norberto “Smuggling, foreign currency and theft. Common aspects: the protected legal asset and the National Constitution", Law 1991-A, p. 73 et seq.
Lawyer. Specialist in Criminal Law from the Universidad Austral. Professor of Customs Criminal Law at various public and private universities. Author and contributor to books and articles on this specialty. Currently, he is a partner at the Durrieu Abogados law firm, in charge of the Customs Criminal Law Department.
