The Honorable Chamber of Deputies of the Nation will once again discuss a bill for the registration of customs brokers, this time under No. 2073-D-2014. The bill reproduces in its entirety the treaty under file No. 0722-D-2012 that lost legislative status at the end of last year.
It will be studied by the Budget and Finance Committees, General Legislation (the only one to be issued, with reforms, in 2013) and Economy (responsible for the customs regime by the HCDN regulations).
Membership has a laudable and even essential meaning for those who have made sacrifices in pursuit of a qualifying title. However, many customs brokers (myself included) believe that it would have no reason to exist if the project is not accompanied by the repeal of some provisions of the Customs Code that oppose it, especially those established in Section 3 of Article 37. This section enables importers and exporters to hire people who, without a qualifying title as customs brokers and under the provisions of Annex I of RG AFIP 333, can act as if they were.
The activity of these individuals without a qualifying title constitutes -currently- unfair competition and this would be aggravated if the necessary modifications were not made to the project. Without these reforms, these "pseudo-clearers" would be outside the strict supervision that the College would apply to clearers; thus, the path would be smoothed even more for them to continue operating apart from the efficiency and knowledge necessary to assist the customs service. It would be incongruous that, once the College is implemented, these individuals continue acting as if they were customs clearers, formalizing destinations through a computerized advantage created especially for them: "IMEXDE333/99".
Given the length of the project, this brief analysis can indicate, from a perspective based on years of experience, only a few other inconsistencies that could occur if it were to become law without modifications. It arises from Section g) of Article 4 that it would be the responsibility of the College to “supervise the activity” carried out by the associated members and “control their good professional performance, having to, where appropriate, inform the AFIP-DGA”. In addition, according to Section h) of the same article, it would also be its responsibility to protect the inviolability of the professional practice, “… preventing and impeding the performance of the functions of Customs Brokers by persons without a qualifying title or not registered…”.
With regard to the first of the powers that is intended, without doubting the morality of the dispatchers who could ever exercise supervision over the activity of other dispatchers, it should be kept in mind that on many occasions, both could share the same client and, therefore, compete for services and fees. It would be seen as even more incongruous that dispatchers monitor the activity of other dispatchers, taking into account that Law 22.415 contemplates strict precepts from which it follows that it is the customs service that must exercise supervision of the activity carried out by both. Furthermore, it would not help the profession at all to have a double control of the activity, especially if it is carried out by the College. can create conflicts of interest or the appearance of a conflict of interest.
In relation to Section h) of Article 4, it would be valid One might ask: How could the College prevent persons without a qualifying title, authorized by importers and exporters, from acting as customs brokers if Section 3 of Article 37 of the CA remains in full force and continues to protect the Advantage? “IMEXDE333/99”?
With respect to Section f) of Article 12, and despite the fact that the General Legislation Committee left it aside in the previous project, the possibility of accessing the profession for persons who at the time of the sanction of the law do not hold the status of customs broker is again insisted upon if they prove a real and effective performance of at least two years as general representative of a customs broker.When the General Legislation Commission abolished such incorporation in 2013, it based its decision on the fact that representatives did not have to demonstrate the same knowledge as a customs agent and, also, on the fact that, having the opportunity to have studied to become customs management professionals, they decided not to do so.
Special mention should be made of Section e) of Article 38 of the project, which establishes the causes that may result in disciplinary sanctions for customs brokers by a Court created for this purpose. This Court could apply sanctions to its colleagues for the "rFrequent delay or negligence, or manifest ineptitude, or serious omissions, in the performance of their professional duties." In this regard, cIt should be noted that the correct professional practice of a customs agent could only be "inspected" by his colleagues if the latter had access to the documents and any other information that the former presented to the DGA. The project does not contemplate that such access is prohibited by the AFIP. In Opinion No. 1713/98 (DALA) it is stated that the customs service cannot provide to individuals (and therefore not to other customs agents who form part of the disciplinary tribunal of a possible College) the name, surname or CUIT of a customs agent associated with a foreign trade operation “because this would violate the limitations established by Article 10 of Law 17.622 regarding statistical secrecy”. It would then be appreciated that the College's authorities cannot force other customs agents to make customs documentation available to them.
Those who read the extensive project will also be able to appreciate that it does not include the repeal of the regulations that support the unacceptable and unconstitutional differentiation that the DGA makes between “reliable” customs brokers and those that, due to regulatory exclusion, it does not consider reliable. It does not consider that for some time (more clearly based on the provisions of DGA External Note No. 37/09 and DGA General Instruction No. 37/13), a large number of AFIP-DGA officials collaborate to qualify and classify customs brokers in risk categories. Those brokers that are subjectively considered by these officials to have a low risk of committing illegal acts or errors, obtain an enormous number of benefits in customs management, benefits that are highly appreciated by importers and exporters since they provide speed in procedures and, therefore, savings in clearances. In this vein, it would also be inconsistent if the project did not consider putting aside this absurd and illegal discrimination between “trustworthy and untrustworthy” dispatchers.
The legislative committees responsible for the project will have the obligation to review and legitimize it. In their hands is the possibility of making the wish of all customs brokers come true, respecting constitutional rights and guarantees, as well as other laws that regulate the professional practice. Therefore, it is worth highlighting that these committees continue the democratic tradition of receiving and listening to institutions and/or individuals who understand and can offer their support to improve or correct all types of projects. The doors are open…( HCDN Mails: [email protected]; [email protected]; [email protected]).
Project 0722-D-2012 CREATION OF THE PUBLIC COLLEGE OF CUSTOMS CLEARERS OF THE ARGENTINE REPUBLIC.
Author: Jorge R. Safe, Customs Broker, Customs Transport Agent, former Advisor to the Presidency of the Economic Commission of the HCDN (1995-2003)
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