On Sunday, October 22, Argentines will be exercising their constitutional right to elect their national authorities for a new term of government, an opportunity to also evaluate the events of foreign trade from 2019 to the present and to consider the necessary changes.
According to the facts, the measures designed for the area of foreign trade have caused a greater source of legal disputes, even more so, taking into account their poor implementation or the lack of criteria and clear rules for their application, which corner the petitioners to the point of being forced to resort to the Judiciary. In other words, the activity of international trade has been judicialized; and not due to aspects specific to its exercise in the customs framework, but due to political decisions designed through what were the SIMIs and later the SIRAs, in addition to the interventions of other organizations, such as the Central Bank.
In the customs field, litigation has increased, in some cases, due to incorrect criteria for considering crimes and infractions, which generates a greater number of summaries and lawsuits, many of which end up being dismissed, whether at the customs office, the Tax Court or the Judiciary. It must be understood that not every discrepancy in a customs declaration necessarily leads to the configuration of a crime or an infraction; it is necessary, at least sometimes, to take into account the subjective element of a conduct for its qualification.
This is not about questioning the policies of a government, since that is not the issue in question in this note or in this medium., but only what concerns the legal criteria involved in the activity.
The above is categorical in the facts, since it is inconceivable that the "authorization" or not of certain import volumes can be left to an official on duty. Under what legal protection can an importer be imposed on the amount that he is authorized to bring into the customs territory? It is logical that someone increases his import volumes if his company expands. These situations are generating serious economic consequences for the petitioners, which can undoubtedly result in significant legal actions. At some point, some official, even if only temporary, will have to take responsibility for the legal consequences, jointly with the State.
This is clearly a key issue to be taken into account for the next period of government, given the accumulation of legal conflicts that have plagued the courts due to the systematic violation of constitutional rights that have severely affected foreign trade operators. On this subject, there are many statements made in this and other media about the curtailment of rights through the applied systems (SIMI and SIRA) and other restrictions that form an absolutely illegal tariff barrier.
In addition to presenting what is already widely known, it is worth pausing to consider some considerations to collaborate in the improvement of the customs service and foreign trade, such as:
1) Organizational restructuring of the customs service
2) The legislation and regulation of its functions in a new framework of action, independent of the AFIP. Customs is not a tax collector.
3) Reorganization and training of personnel.
4) Computerization and streamlining of procedures
Accordingly, the objectives would be the following:
1) Computerize activities such as loading and unloading, customs declaration, valuation, control of entry and exit of vehicles, designation of verifiers, etc., although in some cases they are already done, but then they continue with old systems.
2) Simplification of procedures.
3) Facilitating access to information.
4) Streamline customs control.
5) Access a real-time statistics mechanism.
As a result of this assessment, the following must be sought:
1) Facilitation of foreign trade, with increased levels of marketing and tax collection.
2) Adequacy of the legal framework
3) Reorganization and optimization of the customs service
4) Reduction in times for customs procedures and customer service.
5) Adaptation and modernization of facilities, for the benefit of the public and customs service workers.
Conclusions
The aim is to reduce certain chaotic and anachronistic aspects, where responsibilities and functions overlap and conflict, correctly determining which ones correspond to each one, simplifying and speeding up procedures and controls. Of course, the controls must have as their main objective the fight against smuggling and trademark fraud. Without a doubt, the adoption of new technologies is a very important instrument to provide greater effectiveness to the customs service, reducing arbitrariness and possible cases of corruption; thus achieving greater quality of service and speed in procedures.
Obviously, this is accompanied by the banishment of gross, absolutely unconstitutional tariff measures, of arbitrary interventions by the Central Bank in relation to the transfer of foreign currency for imports and the use of the customs service to follow up on cases linked to the so-called financial "caves", since this is the power of the Central Bank with application of the penal exchange regime. It is welcome that from a new period of government, the framework of the pertinent legality that foreign trade requires can be resumed.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
