Preliminary considerations
Since the promulgation of DNU 70/2023, much has been written about the new regime involving the professional activity of Customs Brokers; in addition to questioning the constitutionality of said instrument.
To this end, I refer to the note that I wrote for this same medium dated 22/12/2023, entitled "Deregulation in the professional practice of the Customs Broker" (https://aduananews.com/desregulacion-en-el-ejercicio-profesional-del-despachante-de-aduana/)
On the other hand, it is also worth considering what has been written and debated many times before, regarding the correct configuration in customs infraction matters. This is so, since for the correct configuration of an infraction, not only the material configuration of the fact is required, but also the subjective element of it, that is, the participation of its author, since the opposite would give rise to a dangerous, merely objective responsibility that is only determined by the consequence of a result. Within the framework of the Customs Code and customs practice in this area, objective liability is based on the fact that Customs is responsible for investigating and judging only on facts, almost disregarding the intentional element of the perpetrator of the act. However, the code itself places liability on the fulfillment or non-fulfillment of certain duties imposed as a determining condition for considering whether or not a specific regime has been complied with. But this is in no way an obstacle to exempting oneself from the sanction provided for in light of the subjective element and in virtue of certain circumstances.
The Supreme Court has understood in various rulings that in the judgment of infractions it is appropriate to follow the same line as for crimes, which implies moving within the general principles of criminal law; which means that this should be the rule despite the specificity of customs matters, since the opposite would imply a violation of the general principles of criminal law, given the punitive nature of the sanction imposed in customs violations.Errors: 311:2779; 303:1548; 297:215; 310:1822).
About the ruling
Once these concepts were agreed upon, in a recent ruling by the Federal Administrative Litigation Chamber (Chamber III File 17257/2021), an appeal by a professional Customs Broker has been brought before said Court, who is appealing a sanction imposed by Customs for an alleged serious offense, based on the administrative authority's disciplinary powers granted to it for this purpose by the Customs Code between articles 42 to 47; but which have been repealed by effect of DNU 70/2023 (21/12/2023).
The ruling states among its recitals: “However, and as it is more relevant here, it is not possible to ignore the impact that the decree of necessity and urgency 70/2023 (BO 21/12/2023) projects on the species, which, although it has maintained the text of the aforementioned art. 53 of the CA without modification, has suppressed the Registry of Customs Brokers and repealed and modified the concordant regulations (see art. 101 of the DNU, which repeals arts. 42 to 46 of the CA and arts. 102 and 103 of the DNU, which modify arts. 47 and 51 of the CA, respectively).)”
In the particular case of this ruling, a sanction imposed by application of art. 44 of the Customs Code, repealed by DNU 70/2023, was being appealed. To this end, Chamber III of the Court expressed itself by stating: “VI.- That, at this point, it must be taken into account that the principle of legality in matters of sanctions requires that the sanctioned conduct be defined explicitly and precisely by the applicable regulations. The principles of criminal law are applicable with their own nuances to the field of customs violations: such is the case, in particular, of the principle of legality according to which “[n]o inhabitant of the Nation may be punished without a prior trial based on law prior to the fact of the process” (art. 18, National Constitution).
The interesting thing about the ruling in question is that it determines the absence of a case, since it considers that since the article relevant to the situation in question has been repealed from the Customs Code, the analysis of the appeal becomes abstract. This is how the ruling states: “That, under the stated conditions, it should be remembered that it is the doctrine of the Supreme Court of Justice of the Nation that the sentences must take into account the situation existing at the time of the decision (Rulings: 216:147; 243:146; 244:298; 259:76; 267:499; 298:33; 304:1649; 311:870, 312:555, among others), so that it is evident that there does not exist in the sub examine a current and concrete dispute between the parties that constitutes a "case" susceptible to being submitted to the judges (conf. CSJN, Fallos: 328:2440 and its citations).. Therefore, it is not appropriate to issue any pronouncement regarding the illegitimacy or arbitrariness of the administrative resolutions appealed by the customs broker, based on a repealed rule, since, precisely, the circumstances supervening the appeal filed are determining the futility of elucidating the claims articulated herein (arg. CSJN doctrine of Fallos: 276::207; 278:357; 279:30 and 302:721), since this Court is prohibited from ruling on claims that have become abstract (cfr. this Chamber, in re, exptes. Nos. 38821/2022 "Minera Minimalu SA c/EN-AFIP-DGI-File 1043349/22 s/precautionary measure (autonomous)", dated 10/11/2022, and 57617/2022 “Oilstone Energía SA c/EN-AFIP-resol 5248/22 s/precautionary measure (autonomous)”, dated 7/03/2023).”
Conclusion
Although the judgment addressed the situation as appropriate, it could have perhaps gone a little further, given that for the analysis and decision, they have evaluated the current conditions, to arrive at the absence of a case. And that “going further” that was not stated in this case, would be that based on these same considerations, the Customs Brokers can no longer continue under administrative judgment, since there is no longer a “law prior to the fact” to apply; even, for the files still in process, since there is no longer a sanctioning figure in this regard and they would be investigating an accusation that no longer exists. And as it has been pointed out at the beginning of this note, the Supreme Court of the Nation held that in the judgment of infractions it is appropriate to follow the same line as for crimes, which means that this should be the rule despite the specificity of the customs matter, since the opposite would imply a violation of the general principles of criminal law, given the punitive nature of the sanction imposed in customs infractions.Errors: 311:2779; 303:1548; 297:215; 310:1822).
In view of this, the cases substantiated based on a certain disciplinary regime not only find themselves in conflict with some new, more lenient norm, but such norm no longer exists. Consequently, if it is abstract to consider an appeal on a norm that has ceased to be in force, with greater reason it should end with the continuation of files in which at the time of justifying a sanction (remember, taken as an infraction), the Customs will not find a norm that supports it to exercise that sanctioning power, since such norms have been repealed. Furthermore, it should be noted that such repeal has emanated from the will of the National Executive Power, on which the General Directorate of Customs depends; therefore, it represents a contradiction that an agency of the National State does not comply with something that exceeds the framework of a simple Resolution, since it is nothing less than the repeal of substantive norms on which they should be based for the application of sanctions, on a Registry that, in addition, and by virtue of such repeal, no longer exists; While DNU 70/2023, like it or not, is in force.-
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
