For a long time, the task of proving compliance with direct shipping in order to enjoy tariff benefits within the framework of the MERCOSUR Agreement has been a challenge, especially if it involves requesting access to tariff preferences after the numbering of the customs declaration, since the analysis of each requirement will be more rigorous by the customs authority.
For the MERCOSUR member countries (Argentina, Brazil, Paraguay and Uruguay), in the texts relating to the origin regime, it has been established in article 14° (1) that in order for the originating goods to enjoy preferential benefits, they must be shipped directly from any member country of origin to the MERCOSUR member country of destination.
As can be seen, as a first premise, the origin regime establishes the obligation of direct shipment so that originating goods enjoy tariff benefits. However, that same article establishes that in the event that direct transport is not going to be carried out, that is, if the goods have transited or transshipped through a country that is not part of MERCOSUR, the importer must prove compliance with certain conditions, so that direct shipment is understood to have been fulfilled.
These conditions are the following:
- The transit was justified by geographical reasons or by considerations relating to transport requirements.
- They were not intended for trade, use or employment in the country of transit.
- Do not undergo, during transport or storage, any operation other than loading, unloading or handling to keep it in good condition or ensure its preservation.
Regarding conditions ii) and iii), MERCOSUR is clear and concise regarding the security and control of goods while they have transited or been transshipped in a country that is not part of MERCOSUR, and they must not undergo any type of different or unusual operation and they must not be marketed.
However, for condition i), MERCOSUR fails to establish how or to what it means that transit is justified by geographical reasons or by considerations relating to transport requirements. In this regard, the MERCOSUR texts do not establish a definition of “geographical reasons” or “requirements relating to transport”.
Since there is no definition in this regard, this condition could be interpreted in different ways by the customs authority on the one hand and by the importer on the other. The above could cause a contingency, since the customs authority could not consider some documents or arguments of the importer as suitable regarding geographical reasons or requirements related to transport.
Geographical reasons could be understood as that action in which the carrier does not carry out direct transport because geographically, it is not possible to carry out direct transport from the country of origin to the country of destination. That is, necessarily due to the geography of the world, the transport must necessarily transit through a country that is not part of MERCOSUR.
On the other hand, justifications related to transport could be interpreted as those decisions that are taken by the carrier (shipping line) to transit through a country that is not part of MERCOSUR as a consequence of various occurrences such as congestion in ports, bad weather, abnormal seasickness, among others.
It is clear that these interpretations or definitions, as they are not expressed in the MERCOSUR texts, may lead to customs authorities understanding them differently, which results in, in many cases, the importer not being able to prove the conditions described above, resulting in the importer not being able to enjoy tariff benefits.
As can be seen, MERCOSUR is somewhat ambiguous regarding these conditions, which are essential to prove compliance with direct shipment when transiting or transshipping through a country that is not part of MERCOSUR.
It should be noted that the burden of proof falls on the importer, which means that he is the only one who must prove with documents (in the case of non-direct transport) that the goods were in transit for geographical reasons or due to transport-related requirements.
In practice, this ambiguity can be a problem with major consequences, since it not only undermines the facilitation of foreign trade, but also harms the importer by not being able to comply with the direct shipping requirement and, therefore, not enjoying the tariff benefits.
In the case of Peru, which is a country associated with MERCOSUR, the original texts of the agreement maintain the same wording regarding these conditions (2), so that importers who fit into this situation experience the same problems and ambiguities, since it is arbitrary and disproportionate that the importer is required to comply with the accreditation of the carrier's decisions when performing a different section, making it unlikely that a shipping line will give explanations about the sections it performs internationally, especially if it is at the request of a party and not of the Customs Administration itself.
In these situations, we can take as a reference the actions of the Peruvian customs authority -SUNAT-, which, faced with this type of dispute, takes advantage of this regulatory vacuum and interprets these provisions in its favor, with the purpose of not considering suitable the documents that the importer presents to prove that the non-direct transport was due to geographical reasons or justifications related to the carrier, resulting in the non-granting of tariff preferences.
It should be noted that since there is no list of documents or the way in which such conditions are met, the importer is free to provide documentary proof of the direct shipping requirement with all the documentation in his possession and that he has been able to collect through the dispatch participants, that is, the carrier, port managers, among others.
A similar case occurs in the agreement between Peru and Chile (3), which, within the texts of said agreement, the same conditions have also been established to prove the direct expedition when it was transited or transshipped through a country not part of said agreement. However, curiously on 11/03/2024 in the Official Gazette El Peruano, DECISION 11 of the Administrative Commission of the Free Trade Agreement between the Government of the Republic of Peru and the Government of the Republic of Chile (4) was published, which modifies and replaces the ACE No. 38, its annexes, appendices, protocols and other instruments that have been signed under its protection, which approves the modification of
Articles 4.7 (On the Dispatch, Transport and Transit of Goods) and 4.9 (Issue of Certificates of Origin) of Chapter 4 (Origin Regime) of the Agreement.
In said DECISION 11, the article that regulates direct expedition in the Agreement between Peru and Chile has been modified, the modifications being in force since 01/05/2024 where the conditions of geographical reasons and requirements relating to the carrier have been eliminated.
Therefore, as of 01/05/2024, for those goods that will be imported transiting through a country that is not part of the agreement between Peru and Chile, it will not be necessary for the importer to prove geographical reasons or considerations related to transportation requirements.
In view of this, it can be seen how the same negotiators have chosen to eliminate these conditions, for the simple fact that for a long time it has been exaggerated and disproportionate when proving compliance, so that as of 01/05/2024 it ceased to be a mandatory requirement, with direct transport being accredited with the presentation of the transport document.
Returning to MERCOSUR, the new MERCOSUR origin regime having been published, approved by Decision MERCOSUR/CMC/DEC No. 05/23 (5), which will come into force on 18/07/2024, we can see that in its article 18, the criteria regarding whether transit is justified by geographical reasons or by considerations related to transportation requirements have been eliminated, leaving it as follows:
The elimination of these conditions results in greater flexibility and facilitation of trade in terms of access to tariff preferences, granting the importer greater ease in complying with the direct shipping requirement, so that the Argentine customs authority and that of all member and associated countries of MERCOSUR will be able to benefit from this as of 18/07/2024.
? "Retroactivity of the act.
ARTICLE 13.- The administrative act may have retroactive effects - provided that acquired rights are not violated - when it is issued in substitution of another revoked or when it favors the administrator.
As can be seen, the same Law provides for the possibility that an administrative act may take effect retroactively, provided that this new provision, among other things, favors the administered party.
In the present case, MERCOSUR/CMC/DEC Decision No. 05/23 is not only an administrative act, but also a supranational norm that has legal status for all member and associate countries of MERCOSUR, so any modification or repeal will affect all the corresponding administered countries.
Having said this, There is no legal impediment so that once the new regime comes into force, the importer who is undergoing a claim procedure or is in the judicial stage regarding the acceptance of tariff preferences in application of direct expedition based on article 14 of the MERCOSUR Origin Regime, requests the application of article 13 of the Administrative Procedure Law, so that the customs or judicial authority evidences the elimination and new article of direct expedition, so that the customs authority applies the tariff preferences and it will not be necessary for the importer to prove geographical reasons or considerations related to transportation requirements.
- https://normas.mercosur.int/simfiles/normativas/41030_DEC_001-2009_ES_FERR3_R%C3%A9gimen%20de%20Origen.pdf
- https://www.acuerdoscomerciales.gob.pe/En_Vigencia/Mercosur/Documentos/Anexo_V_Regimen_de_Origen.pdf
- https://www.acuerdoscomerciales.gob.pe/En_Vigencia/Mercosur/Documentos/Anexo_V_Regimen_de_Origen.pdf
- https://busquedas.elperuano.pe/dispositivo/NL/2268784-1
- https://normas.mercosur.int/simfiles/normativas/95567_DEC_005-2023_ES_Regimen%20Origen%20MCS.pdf
Lawyer graduated from the César Vallejo University, specialized in customs and foreign trade with more than 8 years of experience in customs and international trade matters, currently working at the Thorne, Echeandía & Lema Law Firm. During his experience he has worked in the provision of advisory services, auditing and representation in litigation related to customs regimes, acceptance of tariff preferences and in contentious administrative procedures related to refunds of tariff duties, among others. Among his latest works, he has served as a speaker in various institutions on customs (IDEM EDUCATION, B&T, CEFODA, VOCANTY), as well as has collaborated in the publication of various books and articles in customs magazines (ICDT of Colombia, COMEXPERU, THEMIS, ADUANANEWS of Argentina).
