THE ARBITRATION OF THE DJAI (ADVANCE IMPORT SWORN DECLARATIONS) AND ITS POSSIBLE LEGAL SOLUTIONS.

In these times, importers of goods know and live the operational difficulties they have in their daily activity. Specifically, the DJAI, implemented through General Resolution 3252/12 of the AFIP DGI, make their activity complex and difficult.

These formal requirements are transformed in many cases into true situations of arbitrariness that virtually prevent companies from operating –trade freely-, which is not an aspiration of desires but a constitutionally protected right.

Importers face regulations of a lower hierarchy that establish collections that the laws do not allow or face the silence of the Administration as well as unmotivated decisions. As is known, the motivation for any administrative act lies in the State’s duty to the company to show the reasons why the author of the administrative act decided the way he did. In other words, the administrator must know why he cannot import merchandise.

Faced with this discouraging, frustrating and in many cases paralyzing panorama of the industrial activity that requires the importation of goods, Judges increasingly resolve the situation and neutralize this arbitrariness, silence or anomaly of the regulations that prevent the normal business operation. That is, they dictate the applicable law.

In this way, a large family of rulings are beginning to be known that decide that “… the Advance Sworn Declaration of Importation -D.J.A.I.- provided and regulated in the RG of the AFIP DGI No. 3252.”

These fair decisions dismantle the fact that the importing companies ask the Ministry of Internal Trade (which adhered to the RG No. 3252 of the AFIP DGI through Resolution SCI No. 1/2012) the reasons why their presentations are observed. and the Justice weighed that these petitions -since they were not answered by said Secretary of Domestic Trade- cause damage to the Company.

The legal arguments that the Judges have taken into consideration for the admission of these measures filed by the Companies are based on:

1. That the objective of the DJAI does not imply creating an authorization to import, since this is a constitutional right, but rather it is a simple acknowledgment action in favor of the Administration by the administered party. That is, it consists of a mere formal presentation but on which the right to import does not depend.
2. That the requirement to process the DJAI as a collection for the release of the merchandise to the market appears, for jurisprudential decisions, as arbitrary and unreasonable, since it is not justified in any fact and less in the applicable Law with entity to subject said entry to compliance of the procedure foreseen in the RG of the AFIP DGI Nº 3252.
3. The requirement of the DJAI represents a true non-tariff barrier that causes a restriction, at least temporary, on the importation of goods, thus vitiating the purpose of the act that seeks to obtain information on import flows of a certain industrial sector.
4. The Company is also harmed by the high storage costs derived from the non-release of imported merchandise in a timely manner.
5. Finally, to admit these measures, the Justice regularly orders the constitution of a real surety by the Administrator.

Based on these arguments, those who need to import merchandise to carry out their commercial activity have a legal channel to dismantle the arbitrary and para-tariff barriers -according to the decision made by the Justice- that the action of the Ministry of Internal Trade exercises to through RG No. 3252 of the AFIP DGI and SCI Resolution No. 1/2012.

Once again the famous expression of American legal realism coined by O. W. Holmes is crystallized: Law is what the judges say it is.

Alejandro C. Altamirano