In re "El Brujo" the Argentine Supreme Court of Justice upheld the non-automatic licensing system established by the Executive, but has not completely dismissed the possibility of a court waiving the requirement of the Import Certificate, if sufficient evidence of an actual damage to the importer is found to justify the declaration of unconstitutionality of the Import Certificate requirement in a specific case.
In 2004, Argentina introduced a non-automatic licensing procedure that created an Import Certificate for Textiles. An importer of a product subject to an Import Certificate cannot import the product without obtaining the Import Certificate prior to entering the product to Argentina. The Import Certificate for Textiles covered products in 29 tariff code positions. The Import Certificate for Textiles was soon followed by an Import Certificate for Domestic Appliances, in 2004, and an Import Certificate for Footwear and for Toys in 2005. As from today, Argentina has 18 different Import Certificates in place covering products in almost 650 tariff code positions.
The importers of products subject to Import Certificates face long delays, since the authorities may take months after the application is filed to grant the licenses, even if all the information and documents requested have been submitted. Moreover, in many cases, the authorities take no decision on the application. As more products become subject to Import Certificates and the delays in granting them increase, the Import Certificates became a pressing issue to a larger number of importers. Many importers filed legal actions to address this situation. Several strategies and courses of action were followed by importers to obtain authorization from the courts to import their products without an Import Certificate. The courts, almost unanimously, have sided with the importers and granted hundreds of injunctions allowing importers to import their products without Import Certificates.
Until now, the Supreme Court remained silent on this matter. However, recently the Supreme Court in re. "El Brujo" upheld the non-automatic licensing system in a decision which may result in importers having an increased burden of proof to obtain a favorable outcome. The Supreme Court held that the WTO Agreement on Import Licensing Procedures grants the right to any country to impose non-automatic licenses to establish quantitative restrictions on imports and that the requirements for obtaining the Import Certificate for toys, in this case, were not burdensome. In the Supreme Court´s view, the Administrative Court of Appeals held that the importer suffered substantial damages as result of the delay in obtaining the Import Certificates but no evidence of actual damages was provided by the importer. The Supreme Court considered that the Administrative Court of Appeal's decision was arbitrary, since it declared the unconstitutionality of a regulation which was within the scope of the powers of the Administration and which imposed requirements that were not burdensome, without evidence of actual damage suffered by the importer, important enough to show the disproportion of the regulation.
The Supreme Court's decision holding that the Import Certificates are lawful poses a limit on the ability of the court to allow the import of products without the required Import Certificate. However, the Supreme Court has not completely dismissed the possibility of a court waiving the requirement of the Import Certificate, if sufficient evidence of an actual damage to the importer is found to justify the declaration of unconstitutionality of the Import Certificate requirement in a specific case. As result of this decision, importers may find it harder to obtain remedies in case of delays by the authorities to issue the Import Certificate.
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