THE ACTION OF AMPARO

Although we traditionally know the amparo action regulated by Law 16.986, the Customs Code regulated a similar institute in its articles (section 14, Procedures, title 3 "Resources"; chapter 3, "Procedure before the National Tax Court") , and more specifically still in its articles 1160 and 1161, which presents very few variations in terms of its wording compared to what is regulated by law 11,683.

Such rules establish that a person who, in the normal exercise of his right or activity, was the victim of an unwarranted delay in the conclusion of a procedure or diligence by the customs service, may appeal to the Tax Court.

In such case, said Court may request from the customs service the reports it deems pertinent to know the cause of the delay, then taking the resolution of the case. This, said so in honor of brevity.

It should be noted that the wording of article 1160 speaks of recourse as a procedural remedy for the satisfaction of a violated right. However, in accordance with the constitutional reform of 1994 (where amparo as its own action - through article 43 - without the need to demonstrate the inexistence of another suitable means to assert a violated right that is presented as current, imminent and manifest) it has come to have a different meaning, in that it becomes a complement to the constitutional right of amparo, establishing a way of exercising it, but losing the term resource, which is not a small thing, because in the amparo, as an action The possibility of judicial review of the acts considered harmful cannot be violated, since the opposite means forbidding the possibility that the judges exercise control over the legality of certain acts, even more so the administrative ones, which implies a subjugation of effective judicial protection.

Although the purpose of the amparo, as regulated in articles 1160 and 1161 of the Customs Code, lies in the protection of those administered "in the area where they are scheduled" (Catalina García Vizcaíno, "The procedure before the Tax Court of the Nation and its superior instances ”, page 460); and that, obviously, it maintains a certain coherence due to the matter in question, in light of what Article 43 of the National Constitution establishes, we do not consider it appropriate to prohibit the possibility of direct own action before the Judicial Power, arguing for this the imposition of articles 1125, 1140, 1160 and 1161 of the Customs Code.

The state in a republic

We are facing decisions that emanate (or should emanate, in the case of delay) from the public administration (that is, from the State) for which we must consider the role of a State in a republic. In this regard, there are two theories; that of the end-state and that of the middle-state.

For the first, the role of the State is exhausted in itself; that is to say, the State serves itself. This is the concept that totalitarian states have taken in political science. Whereas for the theory of the State-means, this one exists to achieve certain ends outside its own existence that, obviously, is contrasted with the first concept. In this current, the State is a servant of the common good; In this sense, it is at the service of the administered, its actions have a sense of a helpful role along with its powers. In other words, a state structure separated from such parameters loses its essence and its raison d'être, also losing its power to impose on society the obedience of a certain order; being the recipient of this role of the State, the taxpayer citizen.

Although there are regulations that impose negative behavior on an official, that is, an omission (article 19 of the Constitution), in other cases the duty to act within certain periods is required, therefore, in those cases there is duty of pronouncement. In this regard and as Néstor P. Sagües points out (Constitutional Procedural Law, "Action for amparo", Ed. Astrea), the maximum period in which a State must pronounce can be conjectured with foundations, understanding that a republican State does not have the privilege of silence .

Another author, Linares, also maintains that the amparo is an instrument to obtain decisions when the administration exceeded the deadline for denial due to silence (Juan F. Linares, “Resources and claims systems in the administrative procedure; p. 36-37) .

It may be argued that these latter citations correspond more to Administrative Law than to Customs; but at the end of the day, Customs is part of the public administration of the Nation; Although there are specific regulations in this regard, they must yield to the highest hierarchy, no less than the National Constitution in its art. 43. And here the previously mentioned reappears when the fact of the relevance of the term resource used by the CA was mentioned, compared to the action referred to in art. 43 CN, that is, the very wording of the aforementioned articles of the AC, speak of recourse, as a simple procedural remedy, for delays or omissions of the customs service; but they are subtypes of protection, specific within a legal body that mentions them only as "resources"; understanding that the term amparo must be reserved for that last action (which does not have to do with simple complaints or procedural claims) and within the constitutional hierarchy that it has expressly in art. 43 of the Constitution.

In summary, given the complexity and almost multiplicity of times that the amparo is mentioned, be it in Law 11,683 and in the Customs Code itself, I do not believe that an affected citizen can be required to exhaust these "resources" and then file in court the action proper to the protection mentioned in art. 43 of the National Constitution, still less, when in such own action the constitutional legitimacy or illegitimacy of an injurious act can also be discussed. For this reason, I do not intend to minimize the importance of what is regulated by the AC, but rather locate the different situations that may arise within their own context and in accordance with what is regulated by what is established in the most hierarchical norm at the national level. Perhaps some adjustment is needed in the lower hierarchy, but that is already a legislative task.

The author is a lawyer and director of Estudio Sueldo-Abogados

Serious ICC complaint

The International Chamber of Commerce (ICC) denounced the misuse of customs valuation databases by some members of the World Trade Organization (WTO), in violation of the latter's regulations when establishing minimum prices. for import declarations.

"The misuse of databases is increasingly leading to delays, uncertainty and higher commercial costs for international trade companies," highlights the statement from the chamber, after adding: "Adherence to rules and regulations International is vital to an environment that encourages cross-border trade and investment, particularly for SMEs, which are often disproportionately affected by rising trade costs. ”

The use of valuation databases to set reference and minimum prices is prohibited by Article 7 of the WTO customs valuation, a practice that also affects customs that must guarantee the correct valuation of imported products.

SOURCE: THE NATION