With an auditorium at full capacity, the Customs Law Congress was held last Monday at the Austral University, located in the City of Buenos Aires.
Unlike the first part, the second part of the congress The focus was on customs control, with particular emphasis on the experiences of Uruguay, Chile and Peru. In addition, this topic was analysed in light of the interpretation of case law.
To this end, panels 3 and 4 were comprehensively addressed, with the participation of representatives from abroad and from Argentina.
Before continuing with our coverage, we recommend reading the previous edition of CUSTOMS NEWS. This will allow you to maintain continuity and better understand the development in the next paragraphs.
Below are the highlights of the exhibitors invited for this occasion.
3 panel : «Customs Control – International Panel”
Jaime Borgiani – Uruguay
Jaime Borgiani, Director of the Uruguayan Customs, opened the panel with a speech focused on “Security in ports”, highlighting in particular the strategic role of the port of Montevideo in regional logistics. He underlined the challenges that this port has faced since 2019, when contaminated containers were detected in transit to Europe. As a result, the fight against drug trafficking and contamination of shipments is prioritized.
Borgiani explained the measures implemented, which included international cooperation with various customs administrations within the framework of MERCOSUR, as well as the modernization of controls with the incorporation of technology. Uruguay, in collaboration with Argentina and Paraguay, has made progress in the exchange of images and customs information, allowing for better management of transits and controls. In 2023, an agreement was signed with Argentina (AFIP) and Paraguay to access cargo scan information, thus improving risk analysis.
“We have made significant progress in integrating online images, and also optimising the exchange of customs records with the International Transit Information System (SINTIA). This allows us to access detailed information on the operators involved in each operation,” Borgiani said.
In his words, “the problem of drug trafficking does not fall solely on customs, it is not only the responsibility of customs… We must raise awareness among all operators. As a country, our goal must be for everyone to do their part in the fight against this scourge.” Thus, to improve risk analysis, Uruguay requires advance cargo information from 2021, incorporating new control procedures in transit, transshipments and reshipments, electronic notification of the assignment of controls, to name a few measures applied in operations with foreign merchandise.
Additionally, since October 2024, new scanning equipment has been installed in the port of Montevideo, which allows up to 80% of cargo to be inspected. “We understand that foreign trade cannot be hindered, but we cannot sacrifice controls either.” With these words, Jaime Borgiani concluded his presentation.
Cristian Calderon – Peru
Calderón has been General Manager of the Business Consulting and Marketing Firm - Estudio CCR since 2016. His analysis of customs control in Peru was in line with Uruguay's approach, highlighting that the debate in this area revolves around the duality between trade facilitation and tax control.
Since 2000, Peruvian customs has implemented a trade facilitation process, driven primarily by the Trade Facilitation Act of 2010, which is part of the Free Trade Agreements with the United States and Chile of 2006. In addition, it was noted that the Free Trade Agreement with China of 2009 includes a chapter dedicated to customs cooperation. This agreement is currently being reviewed and is expected to be signed next November.
Calderón highlighted the Authorized Economic Operator (AEO) Program as a facilitation measure, stressing that Peru has been working on risk management for 25 years, since 1995, strengthened by years of improvements. “Currently, artificial intelligence is being incorporated to optimize tariff classifications and work is being done with blockchain for the export of minerals to China, which is our main market.”
What is the main benefit of the AEO operator? he asked. The main benefit of the Authorized Economic Operator is the reduction of costs and times in customs controls. Although the law establishes a maximum of 15% of control in the red channel, this percentage can be reduced even further thanks to transmission agreements and mutual recognition, allowing companies to access the blue channel, which offers additional facilities. However, he pointed out that drug trafficking represents a significant challenge for Peru, affecting the effectiveness of these benefits. He commented that control has been strengthened in the north of the country, especially in Paita, the main port of departure for drugs to Europe, with Spain being its main destination.
He also mentioned other issues related to customs control, highlighting that -as regards imports- public finances have deteriorated. Traditionally, the fiscal deficit in Peru was zero, but it has now reached -3%. This has generated concern about the impact of the fiscal deficit on credits and has led customs to take preventive measures. 50% of Peru's tax revenue comes from VAT, which is the value-added tax. VAT generates almost 55-60% and of that percentage almost 65% is generated by imports and of that 65% almost 80% is generated by maritime customs.
After detailing the situation and status of AEO companies in Peru, with approximately 300 certified importing companies, Calderón said: “Today we are witnessing a return to the dynamics of the 80s, where customs once again play a crucial role as a tool of fiscal policy.”
In this context, Calderón referred to an article by a professor that addresses the new international order and explains how, by combining the commitment of companies that operate under customs certification, it is essential to comply with customs regulations. This process must be accompanied by the commitment of customs administrations to simplify procedures and digitalize procedures, thus facilitating more efficient and secure trade.
In this regard, he said that the proposed customs model is based on the guidelines of the World Customs Organization to encourage compliance through flexible rules but with strict application. This approach, which has been worked on since 2022 in the customs administration, includes the simplification and digitalization of processes, as well as the use of risk management and the Authorized Economic Operator.
Instead of traditional control, which includes channels such as green (quick release) or red (physical inspection), the use of a blue channel is proposed. This allows companies with a high compliance profile to carry out operations with less intervention, which reduces clearance times and facilitates trade. Customs control for certified AEO companies focuses on trust in companies, with a model based on risk management, incentivizing the most compliant operators while those with a low profile face stricter controls. This system, applied in countries such as Canada and New Zealand, classifies operators into four compliance profiles, and in Peru work is being done on implementing these regulations; they are expected to be ready by the end of 2024, according to Calderón.
Dr. Juan Jose Perez Cotapos – Chile
Pérez Cotapos is a member of the International Academy of Customs Law and addressed the issue of customs control in Chile, beginning with an explanation of the current regulatory framework.
As he explained, the customs regulatory framework in Chile is based on the Organic Law of the National Customs Service (Decree 329 DFL 329 20-JUN-1979), which grants officials all the powers and functions necessary for the control and supervision of foreign trade, a function of customs. In addition, there is the Customs Ordinance (Decree with force of law No. 30 of the Ministry of Finance), which regulates fundamental aspects such as customs destinations, infractions and customs agents. This regulation grants customs the power to monitor and supervise the passage of goods across borders and coasts, as well as the collection of import taxes and other special charges, such as VAT. In addition, customs plays a key statistical role by collecting data on trade, essential for the customs and economic management of the country.
Pérez Cotapos explained the structure of the Customs in Chile, with its 16 regional directorates and customs administrations, in addition to 2.000 officials. A deployment that extends to the 111 control points distributed nationwide. What is remarkable is the continuous operation, 24/7, throughout the year, supported by automated systems.
However, customs control in Chile faces multiple challenges, including the growth of e-commerce, arms trafficking, the massive volume of data, cigarette smuggling, organized crime, environmental protection, increased sophistication in concealment methods, counterfeiting and intellectual property infringements, as well as mining traceability, among others.
In this context, Pérez Cotapos elaborated on the risk management implemented by Chilean Customs, describing it as “a decision-making process in an environment of uncertainty about future actions and the possible consequences derived from them.” This process is essential, as it allows Customs to identify and prioritize risks associated with suspicious transactions, establishing integrated control and oversight mechanisms.
After detailing the Chilean Customs selectivity system, the academic warned that the context represents a great challenge, since we are facing a significant change. "We can say," he said, "that facilitation is giving way to the need for greater control." This implies that countries must develop adequate intelligence to formulate a public policy that allows them to face this new reality.
4 panel – "Customs Control in the light of jurisprudential interpretation. Evolution, conflicts, need for reform of customs criminal offenses?"
Mariano Borinsky – Criminal Cassation
Dr. Borinsky is a judge of the National Chamber of Criminal Cassation, the highest criminal court in the country. Together with Pablo Nicolás Turano, a prosecutor of the Attorney General's Office, he has written the book "El crimen de contrabando" (The Crime of Smuggling), published by Rubinzal-Culzoni.
Using clear language, Dr. Borinsky began his presentation by highlighting the issue of the legal right protected in the area of customs control. He explained that the crime of smuggling deals with imports or exports, which may correspond to definitive or suspensive customs destinations, and may be presented in a consummated or attempted form, and in a simple or aggravated and doubly aggravated form. In short, it will always be a criminal offense or infringement of merchandise that goes to… or comes from…
He also highlighted the clearly differentiated customs areas, which frame general or special systems. When talking about customs areas, we are referring to systems; in both of their variables, they have to do with the protected legal asset, since they are linked to taxes, export incentives and prohibitions, which may eventually be established in each area. In relation to prohibitions, he pointed out that they are related to the protection of the specific legal asset linked to customs control, but also to alternative legal assets, such as the protection of national security, public health, national economic planning; in short, with certain legal assets that are also protected in a complementary manner, in addition to the protection of due customs control.
He also noted that in this basic function of control exercised over these differentiated geographic areas, the object is the merchandise that is being moved, which must be susceptible to being subjected to control, and must comply with basic conditions for this. He referred to the currency as a controversial element, from the different positions, that is, whether or not it is merchandise in terms of import or export.
Borinsky also referred to customs control that is exercised in areas specifically established for this purpose, where circulation is limited and, therefore, customs powers are strengthened. He added that it is correct to speak of customs service, and not Customs, when referring to customs control, given that there are other agencies that can exercise such a function, for example, the Gendarmerie in border areas, the BCRA, among others.
Based on these definitions, he indicated that in situations where this control is affected, it may then be considered that a customs case will be involved, which may be a customs criminal case or a customs infraction.
The judge recalled that the protected legal asset has to do with criminal law, which, based on a social interest, the legislator takes it and creates criminal protection for such legal asset (in this case, customs control). He observed that everything that is not criminal can be administrative, for which he considered the distinction of criteria, between qualitative and quantitative, to be fundamental.
At the end of his presentation, Borinsky announced the Progress in drafting the new Penal Code, in which he participates as a member of the Commission responsible for this work. He stressed that this new regulation will include a Title of Customs Law, which will contemplate the Crime of Smuggling, maintaining a formulation very similar to the current one. On the other hand, he clarified that the Customs Code is not repealed, but the aim is to transfer the provisions of the crime of smuggling to the Penal Code, as a special law. In this way, the Penal Code incorporates smuggling: arts. 354 to 359, the culpable acts that enable smuggling and the improper use of documents: arts. 360 to 361, attempted smuggling: arts. 362 to 363, concealment of smuggling: arts. 364 and 365, accessory sanctions: arts. 366 to 375 and general provisions: arts. 376 to 378.
Hector Vidal Albarracin
Dr. Vidal Albarracín, co-editor of the Customs Code and advisor to the CDA, began his presentation by alluding to the fact that economic criminal law, customs criminal law, has always been in coalition with common criminal law. He recalled that economic criminal law has special characteristics, but must operate within the scope of common criminal law in accordance with the principle of legality. He also stressed the need for the due right of defense to be protected under the principle of legality with all those principles that are applicable in criminal matters.
Referring to customs control, he noted that this is carried out on incoming and outgoing merchandise; but later it began to expand, taking on other actions, such as the inspection of prohibitions.
Based on this, he considered the importance of the Customs Code, a law that is more than forty years old and whose objective was precisely to create an integrative, systemic and harmonized law. This objective was neglected with the different modifications that have been introduced, as "patches”, causing contradictory situations that have generated conflicts. This is evident, among other aspects, such as the determination of whether in situations where the object turns out to be money, there is smuggling or not, and discrepancies in criteria are observed from the Justice Department at the time of resolving, depending on who the decision is based on, referring to disparate resolutions between the Chambers themselves.
Thus, Vidal reaffirmed the importance of considering respect for the harmonization of customs legislation, recalling that the essence of clearance in confidence lies in trusting the person who documents and who has the capacity to act in this regard. He observed that Decree 70/23, by introducing the declarant as a possible figure to act in the operation - destination - has neglected this particular issue of suitability, and with it the purpose of what has been understood as clearance in confidence. And from there the Importance of a trained customs broker, although now, in light of the latest reform, it is no longer mandatory.
In the face of new reforms that may be introduced - such as the new Penal Code - Vidal considered that there must be a connection with the Customs Code and its terms, in order to clarify what is meant by merchandise, customs territory, as well as to incorporate those issues that have already been resolved. Articles that should not be kept in the wording can be left aside, such as article 864 inc. b of the Customs Code. This aspect has been addressed in the project proposed and presented in 2019 by the private sector, headed by the Argentine Institute of Customs Law, in addition to other aspects of singular value.
Facundo Sarrabayrouse
Dr. Facundo Sarrabayrouse is a lawyer from the Faculty of Law of the Universidad Austral and a member of the Law Firm of Doctors Roca & Sarrabayrouse, a firm dedicated exclusively to various specialties of Criminal Law. When he took the floor, he focused his presentation on the concept of the legal asset protected in customs matters, considering that it perhaps deserves some criticism from a constructive position.
From this point, the lawyer wonders about the importance of customs control, taking into account that it is not exercised in a comprehensive manner; this, on the basis that it is not presented in a constant manner, being a derivation of the trust office. On the other hand, he referred to situations where control is given over control itself, which should not be in force.
In this way, Dr. Sarrabayrouse considered that the legal asset fails in the function of criteria to be applied, and recalled different jurisprudence that observes these discrepancies. To do so, he estimated that the analysis of the legal asset should be deepened, considering that with globalization and the evolution of controls, it may change with respect to what the notion of the protected legal asset could serve.
Going on to indicate three cases, where the analysis of the protected legal asset served to delimit the crime of smuggling.
Thus, he first referred to attempted smuggling, regulated in art. 871 of the CA, whose norm establishes a penalty equal to the completed crime, pointing out that this is an anomaly for the Argentine criminal offense that reduces the penalty for attempted cases. He added that this discussion was held for several years, in which there were disparities in resolutions by the courts, but that it was settled by the Court by holding that it is irrelevant if the merchandise was detained, as it is irrelevant if damage to health or economy was caused. And that the attempt is to begin to obstruct, while to complete is to have obstructed; he considered that this issue of applying the same penalty is not foreign to the Penal Code. Therefore, Dr. Sarrabayrouse reflected on whether it is worth establishing this attempted crime, when facing a crime of danger for him; he asked himself what happens if it is not: in the same way, one would be facing a crime. Thus, discussions that took a long time were resolved.
He then referred to the crime figure established in art. 864 inc. b of the Customs Code and the customs infraction, noting situations of divergence between both types, based on whether they are with intent or not, how the subjective aspect is treated, among other points. He added that the majority position criticizes this figure due to the difficulty of establishing the criminal type. He aligned himself with Dr. Héctor Vidal Albarracín on the elimination of art. 864 inc. b). In addition, he considered that, with the advance of technologies and intelligent controls, a certain degree of identity in the conduct must be required, which does not mean that if the conduct does not enter into the ruse or deception it is not atypical, but there may be other areas for its treatment.
Finally, the lawyer referred to those cases where the scope of the extinction due to the moratorium and money laundering was debated, and where the analysis of the protected legal asset has been useful. He detailed a case where there was a clandestine export of a work of art and the subject agreed to pay the export duty according to the law - moratorium - and a discussion arose as to whether, having regularized such taxes, the rule should be applied. At first it was considered not, but when it was appealed, it was decided on the basis that the law - moratorium - does not establish a limit to this type of crime, entering into the analysis of the legal asset, therefore there is no reason for not applying the benefit granted by this rule for this type of crime, if it is regularized.
Finally, Dr. Sarrabayrouse concluded that, in his opinion, the relevance of the legal interest will be less decisive in the way in which the relationship of the criminal type is configured. He also expressed his hope that, in the coming years, the notion of legal interest will require less academic debate.
Virginia Alapont – DGA
Alapont obtained her law degree from the University of Buenos Aires and currently works as Director of the Customs Legal Department. She is also the coordinator of the Diploma in Customs Law at the Catholic University of Córdoba. She closed the event by observing the need to make changes to the law so that the sanction meets the intended purpose.
He began by pointing out that sanctions and fines for violations are imposed based on the trust office, as established in the well-known ruling Bunge and BornThis concept of “trusted office” is based on the reliability of the statements supported by the corresponding documentation. All of this is designed to prevent maneuvers that distort the import and export regime. Coinciding with the speaker from Peru, the lawyer said that this mechanism, by itself, is not enough. It is necessary to implement sanctions that “repress with an instructive character” in order to prevent this unlawful conduct.
In its beginnings, the customs had a purely tax collection purpose. However, over time, the faculty of control, which has become not only a faculty but an essential function of the customs. It was based on rulings, such as the one in the case Humberto Gordon of 1966, in which smuggling was documented due to the attempt to import prohibited goods. This smuggling was carried out through small imports, which together contribute to the setup of the illegal operation. Therefore, smuggling was considered “documented smuggling”. The ruling highlights that the incrimination of smuggling as a crime has an economic basis and is essentially related to the protection of norms established for reasons of public order. In this sense, the legal asset of the crime of smuggling is constituted by the control function exercised by customs.
Alapont also indicated that customs, in its control function, has responsibility for internal taxes, referring to the ruling "Masi, Mauro c/ Sanford SACIFI and A. and others s/ Ordinary«. He quoted Dr. Héctor Vidal Abarracín, who has expressed that this issue should be treated as a tariff regime rather than as a fiscal treatment, arguing that internal taxes are part of the customs taxes related to import and export. This position is specified in article 985, which establishes that those goods owned for commercial or industrial purposes would not be subject to the payment of fiscal taxes.
Additionally, the lawyer argued that the customs exercise the function of control in matters of income and expenditure of foreign currency. She cited the ruling against the Aznaiz Group, in which under-invoicing was detected due to the recording of FOB values higher than the actual value of the merchandise.
In addition, another objective of customs is also to control and prevent the iEntry and exit of counterfeit or pirated goods. In this regard, Alapont referred to Dr. Ricardo X Basaldúa, who emphasizes that customs have the obligation to prevent this type of illegal activities for the protection of brands and copyrights. This control is framed within the regulations of the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
“Customs also exercises guardianship over legal assets, as mentioned by Dr. Juan Manuel Francia in relation to issues of drugs, terrorism, trafficking of species and cultural assets,” he added.
In this context, Alapont highlighted "the need" to carry out a reform of the Customs Code and review certain related standards.
In this regard, I would like to point out that the established amounts have become outdated. In addition, the jurisprudence has raised the possibility of applying the regulations retroactively, invoking the principle of the most lenient law. These regulatory modifications have been made in certain cases; however, in situations such as the case of Camaronera Patagónica SA against the Ministry of Economy and others, as well as in the case of Romero Gauna, the updating of the amounts has not been permitted. This is because article 953, which provided for the annual updating of the amounts based on price indexes, was abolished together with the legal norm after the implementation of the convertibility law.
Furthermore, he continued, it is necessary to modify the amounts established in articles 994 and 995, since the fundamental thing is that the fines have a repressive character. It is not only about collecting taxes, but also about their repressive and exemplary function. With the repeal of article 926, the fines have become outdated with respect to current values. Therefore, it is imperative that articles 995 and 994, as well as 880 and 920, be reviewed to update the amounts applicable to the merchandise.
The lawyer proposes modifying Article 865 on smuggling, paragraph I, which establishes a fixed amount of 3 million pesos. She argues that all amounts must be reviewed, since inflation devalues and depreciates these fixed figures, preventing them from fulfilling the objective that society seeks.
He also pointed out that the delay in the administration and appeal process of offences, even in cases of self-reporting under Article 917, prevents the immediate imposition of fines. This process can take years, and in the end, the resulting amounts are so high that the AFIP, except in cases of accumulation of causes, can hardly enforce them.
Alapont said that the current system generates a considerable effort of human resources in the courts and customs to manage procedures that, in the end, do not result in the effective collection of fines. For this reason, he suggested that an update of the process is needed, since “an industry is created that does not benefit customs.” In addition, he mentioned that, in many cases, the complaints cannot be dismissed due to the lack of documents by those involved, which further complicates the administrative procedure and leads to the situation being brought before the tax court.
“In short, time is wasted that could have been used to collect the fine or dismiss the complaint, resulting in the judgment remaining unenforced,” he concluded.
We would like to highlight the excellent coordination of the four panels, led by Mag. Santiago A. Alais, Santiago Dulce, Horacio F. Alais and Sp. Juan Pablo Borgna.
Last but not least, we report that the congress closed with words of thanks to the attendees and to the brilliant speakers of the four panels. Among the numerous registrants to the event, which included 350 online participants and 88 in person, it is worth highlighting the presence of Oscar Horacio Dhers, representative of the Customs Brokers Center at the International Association of Customs Professionals (ASAPRA); Dr. Stella Maris Ruiz, member of the Customs Brokers Center; Dr. Miguel Ángel Galeano, Argentine specialist in Merchandise Valuation; Dr. Mateo Mc Cormack, President of the Argentine Institute of Customs Studies and Member of the International Academy of Customs Law; as well as representatives of private law firms and VASA Vidriería Argentina, the leading company in the manufacture of flat glass in Latin America, in addition to students from the Universidad Austral.
And so, we conclude this extensive coverage and hope that it will be read as a significant double edition on “ facilitation and control ". We want to remind you of the words of the “Middle Ground"Aristotle's words, which were first spoken by Dr. Hector Juarez, and which invite us to moderation. The practice of this virtue distances us from the two vicious extremes in which our existence is often expressed: excess and lack, both equally harmful.
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
