Recently, with Joint Resolution 5271/2022, the import regime that was carried out with the procedures through SIMI (Comprehensive Import Monitoring System) was modified by the new method called SIRA (Import System of the Argentine Republic) and its correlative SIRASE (Import System of the Argentine Republic and Payments for Services Abroad).
In reality, the supposed change does not modify the restrictions or the tariff barrier that its implementation implies, but rather changes the name and consolidates a greater participation of the State in authorizing or not an international purchase of merchandise from abroad. In other words, it only adjusts a previous system with new characteristics, deepening the State's arbitrariness over the legal activities of importers.
Importers must provide the information through their import license requests, which will only be approved when the status is “Departure”, in order to obtain approval for the currency transfer with the status “Approved”.
Similar to the previous system (SIMI), in SIRA, the organizations that must issue a permit will have a period of 60 calendar days from their registration in the system.
When entering the system, the declaration will be officially registered and, if there are no observations, it will be placed in the “Out” status. However, the same thing will happen as with the SIMI system, since they will begin with the “Observed” status when some organization considers it necessary to supposedly have more information, which, as has been seen in previous cases, observations are extended with indefinite pendency. This is followed by the “Canceled” status, when the declaration has been totally or partially affected by some observation not satisfactorily clarified. Thus, it will then be “Annulled”.
Meanwhile, the importing subject will be evaluated in terms of its economic financial capacity (CEF), which is also arbitrary because it is based on a calculation unilaterally arranged by the AFIP, then it will be evaluated by Customs to determine possible “abusive legal actions” to obtain licenses not granted in the SIMI system. That is, the consideration of the “abusive” precautionary measures becomes the absolute control of the arbitrariness of the State itself that was previously sued. The threat to those who have sought effective judicial protection, violating conventional and constitutional principles, rights and guarantees, becomes normatively effective. And of course, the famous “bottleneck” because the system will collapse again.
Regarding the legality of this system (SIMI) and now SIRA, I have already had the opportunity to elaborate in previous notes in this same medium (The customs legal regime and the National Constitution 14/09/2022; Customs seeks to reach the Court for a precautionary measure on Simi 17/08/222; The constitutional framework for restrictions on international trade 14/07/2021; among others)
Now there is also an additional issue, since a number of precautionary measures initiated prior to the issuance of the new regulation are still pending resolution. What criteria will be adopted? Undoubtedly, the State seeks to have these cases declared abstract, since they are situations that “are no longer covered by a current regulation.” But that, in the personal opinion of the undersigned, would put the citizen in double harm again, since he already had it with the SIMI system, so he had to resort to the Judiciary and he would have it again, since he would have to submit a new file with the SIRA system and wait for the time that the agencies take to issue a ruling. In addition, it would be considered that the principle of non-retroactivity of the regulation would be violated.
Pending situations under the previous regime must be resolved in accordance with said regime, since the appearance of a new rule does not improve the situation or modify it, and therefore it could never be considered something abstract. The power to legislate by incorporating past events is not unlimited, because the new rule cannot incorporate acquired rights. And it becomes an acquired right for the citizen to resolve the situation that motivated his claim in said terms, not in a new, different one. Otherwise, a clear violation of arts. 17 and 18 of the CN would be consecrated, since it constitutes a loss of the right to property and due process.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
