The sanction applied by the WTO to the Argentine Republic in 2015, following the complaint by the European Union, the United States and Japan, for the use of the Advance Import Declaration (DJAI) to delay the entry of merchandise from abroad, led the AFIP to repeal General Resolution 3823/2015 that regulated the DJAI and implemented the new Comprehensive Import Monitoring System (SIMI). Resolution 5/2015 gave rise to the system of Automatic and Non-Automatic Licenses. Later, this regulation was replaced by Resolution 523/2017. Likewise, the repealed Resolution 3823/15 was replaced by the Joint General Resolution of the Ministry of Productive Development and AFIP E 4185/2018.
Modification of criteria
It did not take long for the procedure to obtain import licenses to mutate once again into a restrictive tool for the entry of products into the national territory. Thus, from 2018 to the present, the PEN has decided to apply different regulatory frameworks in order to proceed with the processing of automatic or non-automatic licenses for import, seeking to sharpen the channels with a series of prior requirements that lead to greater delays.
En August of the 2018, the “Financial Economic Capacity System” -CEF- is approved (i) as one of the instruments for risk management in tax, customs, and social security administration.
En September 2021, by Joint General Resolution 5070/2021 (ii), the deadline for issuing a SIMI declaration is extended to 60 days.
En January of the 2022, the “Comprehensive System for Monitoring Payments Abroad” is implemented
of Services” -SIMPES – (iii), which operates in accordance with the guidelines set out
set to the extent.
En March 2022, the Central Bank of the Argentine Republic (BCRA) begins to be part of the intervention in the allocations in the Comprehensive Import Monitoring System (SIMI), giving rise to the categories SIMI A, SIMI B, SIMI C, establishing different schemes for the purposes of payments abroad - withdrawal periods, advance limit, SIMI quotas.
En June 2022, the BCRA is deepening measures to access the exchange market for payments for imports, both of goods and services. Thus, it is extending terms to 180 days and 365 days for some luxury products.
Court decisions on SIMI
In this context, given the impossibility of obtaining SIMI due to exceeding the reasonable period
which is taken by the Administration without informing any reason, another problem is added: access to the Free Exchange Market (MULC). This measure is implemented since the BCRA (iv) prohibits access without the SIMI exit status. So not only was it impossible to dispatch the merchandise to the market, but the corresponding payments could not be made. In short, a double restriction on foreign trade.
Faced with delays in SIMI approval – in most cases unfounded – the
importers found themselves having to resort to the courts. In this way, the Federal Justice It determined in different cases that "the above indicates that the applicant was unable to expedite its processing, since there was no record, either in paper format or on the website created for this purpose, of what the "observations" formulated by the competent body consisted of (or, where appropriate, what requirements the importer must comply with and/or complete), which entailed -prima facie- an administrative de facto action (see article 9 of law 19.549), which affected its right of defense by implying in fact a prohibition -even temporary- on importation, without legal basis and, as can be seen, without any support or justification in specific circumstances linked to the importing subject or to the operations observed; especially considering that the objectives pursued by the regime established by the contested regulations and their similar ones respond to the obtaining of data for informational purposes only, in order to evaluate the commercial flow of the products included (conf. Sala II Cámara Contencioso Administrativo Federal, in autos 16.165/2020 ¬ Baires Flooring SA c/ EN¬M Desarrollo Productivo ¬ Secretaría de Industria, Economía del Conocimiento y Gestión Externa et al. s/ medida Autónoma” of 7/05/2021, among others)” (v).
SIRA and the impact on the right to defense
Since the intervention of Justice, which begins to observe -in SIMI- a process
denatured to restrict imports, with a clear impact on the guarantees of
the subjects, the PEN decides to expand new requirements for the processing and obtaining
a license.
In this regard, the Joint General Resolution is published on October 12, 2022
5271, which gives rise to the procedure called "Importation System of the
Argentine Republic” (SIRA), creating a Monitoring and Evaluation Committee, made up of the Federal Public Revenue Administration (AFIP), the Secretariat of Commerce (SC) and the Central Bank of the Argentine Republic (BCRA). The regime maintains similar measures to those implemented until then by the SIMI - replaced by the SIRA - but adds a particular review of the "profile" of the importer. To this end, the rule established that, once the data requested by the system has been entered, in order to generate the SIRA declaration, the Federal Public Revenue Administration will analyze two issues (vi):
to situation of the subject to from the information available in its records. In the case
If non-compliance or formal irregularities are detected, they will be requested
be corrected, in order to advance the processing of the SIRA declaration.
b) The Risk Profile Considering, among other elements, whether the importer has made
overbilling, underbilling operations or has distorted the regime with
abusive practices in the process of investigation in the imposition of measures
administrative or judicial in relation to the operations.
From here on, the new regulatory framework in force to obtain the authorization of
import -subject to the approval of the license-, will depend on the profile of the subject. Which,
Beyond the CEF, it will be a priority not to have carried out actions aimed at obtaining
administrative or judicial measures in relation to the operations, in an “abusive” manner.
Such a regulatory framework denotes a limitation to the guarantee of defense in court by transferring to the administration the discretionary quality of taking the right to regulate the exercise of defense of the administered parties. To the point of imposing -on the importer- the duty to report the causes that may be a part, having to desist from these, in order to be able to make use of the
SIRA procedure, without guaranteeing the issuance of the corresponding license.
Justice confirms violation of defense in trial
The particularity of this requirement, which curtails the right to defense, was necessary to be brought to the attention of those who have the duty to safeguard the guarantees of citizens, and so it was that recently the Justice (vii) issued an opinion through a judgment that determined with immense clarity that: “It can be observed that the plaintiff is unable to access the SIRA, since it would be included in the case provided for in art. 7, inc. b) of Joint RG 5271. However, the reports provided by the co-defendants do not reveal, even minimally, the reasons that could justify such a blockage. Only the BCRA has made reference to the existence of a “considerable number of proceedings” initiated by the plaintiff. However, the generic invocation of alleged legal proceedings initiated by the importer cannot be considered sufficient reason to raise its risk profile and block access to SIRA.
And he clarified: "Especially when none of the co-defendants explains, and even less proves, any fraudulent or illegitimate situation that allows us to consider, even prima facie, some of the conduct provided for in section b) of art. 7 of the aforementioned resolution (that is, overbilling, underbilling operations or, alternatively, distorting the regime with
abusive practices in the process of investigation in the interposition of administrative or judicial measures in relation to the operations). In this sense, it is not admissible that the mere fact that the importer has opportunely promoted judicial actions challenging the licensing regime instituted by RGC 4.185 and Resolution ex SC 523/17, constitutes per se a fraudulent or abusive practice that justifies the blockage reported in these proceedings. Considering the initiation of legal actions as an abusive practice per se and urging the plaintiff to desist from such actions, under penalty of being prevented from accessing the SIRA, violates his right to effective judicial protection, defense in court and due process, enshrined in the National Constitution (see art. 18)".
For all the above, Justice resolved to "Grant the requested precautionary measure in the terms of this notice and, consequently, after compliance with the sworn bond, to order the suspension of section b) of art. 7 of resolution 5271/2022 with respect to the plaintiff, and order the AFIP – General Directorate of Customs and the intervening agencies to adopt the pertinent measures in order to guarantee that the firm TODO BUJES SRL can continue with the registration of the SIRA declarations; without costs, as long as the production of the report provided for in art. 4 of law 26.854 did not imply the bilateralization of the process.”
Conclusion
Own Juan Bautista Alberdi knew how to point out (viii): “Indeed, could a law protecting industry by means of restrictions and prohibitions be appropriate, when Article 14 of the Constitution grants all inhabitants of the Confederation the freedom to work and to engage in any industry? Such restrictions and prohibitions would be a means of attacking that principle of the Constitution by the protectionist laws that contained them; and this
This is precisely what the Constitution wanted to avoid when it said in Article 28: “The principles, rights and guarantees recognised in the previous articles may not be altered by the laws that regulate their exercise. This provision closes the door to the sanction of any protectionist law, in the sense that is ordinarily given to this word, prohibitive or restrictive.”
Furthermore, the Supreme Court of Justice of the Nation He has said that the Constitution must be analyzed as a harmonious whole, within which each of its provisions must be interpreted in accordance with the content of the others or, in other words, the constitutional norms must not be interpreted in an isolated or disconnected manner, but as parts of a systematic structure considered in its entirety (Rulings: 167:121; 190:571; 194:371; 240:311; 296:432).
In this understanding, it is recommended to keep in mind that administrative bodies cannot act at their discretion, deviating from the legal precepts applicable in all procedures, and their decisions must always be reasonable within the legal limits. Remembering that the principle of legality – enshrined in the National Constitution – implies that in the face of administrative acts that are far from the applicable legal precepts, they must always be reviewed in conjunction with the universe of constitutional legal norms and principles in order to avoid causing harm, not only to the citizen, but also to the legal security that must prevail and is also part of the general interest (ix).
Finally, the limitation of conduct aligned with freedom in the exercise of the
guarantee of defense, cannot in any way be curtailed, or even limited in its
possibility. It is eloquent that Article 7 of Joint General Resolution 5271/2022 contradicts basic constitutional principles, since it does not withstand legal logic or the possibility of remaining within positive law.
In view of this, we trust that this point will be reversed by the same authority that ordered it. Otherwise, the Justice will continue to give its opinion through its sentences.
i AFIP General Resolution 4294/2018 (BO14.082018)
ii Joint General Resolution 5070/21 (BO 17.09.2021) – “ARTICLE 4°. – The information registered in the Comprehensive Import Monitoring System (SIMI) will be made available to the organizations comprising the Argentine National Single Window Regime for Foreign Trade (VUCEA), including those covered by General Resolution No. 3.599 (AFIP) and its amendment, for the purposes of their intervention within the scope of their respective powers. To do so, they may request the Federal Public Revenue Administration to include the complementary information they deem necessary. The aforementioned Organizations must make a statement within a period of no more than SIXTY (60) days, counted from the registration
in the Comprehensive Import Monitoring System (SIMI).
iii General Resolution 5135/2022 (BO 7.01.2022).
iv Point 3 of Communication “A” 7138 of the Central Bank of the Argentine Republic prohibits financial entities from granting access if they do not have the “exit” status of SIMI.
v Minoil SA v/Afip – General Directorate of Customs-Ministry of Productive Development-Sec. Industry and others s/ Autonomous Precautionary Measure -(file no. 14240/2021).
Article 7 of Joint General Resolution No. 5271/22 (BO 12.10.22/XNUMX/XNUMX).
vii Judgment 23.02.2023/5/60347 – Federal Administrative Litigation Court No. 2022 – Case No. 116897232/22, Autos.Todo Bujes SRL v. EN-M PRODUCTIVE DEVELOPMENT-SECRETARY OF KNOWLEDGE ECONOMY INDUSTRY AND EXTERNAL COMMERCIAL MANAGEMENT-FILE XNUMX/XNUMX AND OTHERS s/KNOWLEDGE PROCESS.
viii Juan Bautista Alberdi, T. IV, p.180.
ix SIMIS, a restriction that is strengthened despite precautionary measures By Dr. Guillermo F. Coronel – Dr. Guillermo Sueldo and Dr. Felipe Coronel De La Torre Published in «Practical Guide to Foreign Trade and Advances of the Customs Tariff Nomenclature» Number 432 of June 30, 2021, page 3 – Tariff.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
