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05 August 2020
In 2019 a number of airlines challenged fines issued by the Immigration Authority (DNM) – in particular, fines relating to the so-called 'reciprocity fee' (for further details please see "Airlines challenge fines by immigration office").
The reciprocity fee was an entrance tax imposed by the government in 2008 on US, Canadian and Australian citizens in exchange for the entrance taxes that said countries collect from Argentine citizens for entry into their territories. The DNM imposed significant fines on airlines when US, Canadian and Australian passengers arrived in Argentina without having paid the reciprocity fee beforehand based on its understanding that the airlines had failed in their duty to check passenger travel documents required to enter Argentina for proof of payment of the entrance fee despite the fact that passengers could pay the fee when they entered the country.
The DNM's fines were possible only because:
The courts previously delivered decisions that provided an opportunity to discuss the conceptual approach towards immigration fines; more recently, the courts have delivered other favourable decisions which reinforce the previous conclusions.
A number of recent decisions revoked fines imposed by the DNM on airlines for their alleged failure to check whether passengers had paid the reciprocity fee, making important points about the generic infringement of transporting passengers under irregular conditions.
In British Airways PCL (19 June 2020 (File 6071/18)), Judge Rodolfo Eduardo Facio of Court of Appeals 1, with jurisdiction in administrative matters, pointed out that Article 38 of Law 25,871 – which sets out airlines' responsibility for transporting passengers under irregular conditions – must be complemented with other regulations that concretely establish what constitute 'regular conditions'.
In the judge's wording, how such an infringement is defined by the law must be considered. The punitive effects of generic infringement cannot be applied if there are no specific regulations in that regard. Thus, if the DNM has not clearly established airlines' specific duties, it cannot claim their non-compliance.
This statement is important as it serves as a reminder that the DNM is also subject to the principle of legality and cannot impose fines on airlines based only on its discretional definition of 'irregular conditions'.
In Air Canada (9 June 2020 (File 5182/19)), Judge Esteban Furnari of Court 10, with jurisdiction in administrative matters, stated that complementary regulations must define the 'regular conditions' under which non-compliance is punished and respect the legal principle of the hierarchy of norms.
The judge revoked the fine imposed by the DNM for a failure to check whether payment of the reciprocity fee was indicated in passenger travel documents. The judge argued that even if the DNM had invoked airlines' alleged duty to check documents based on its claim that passengers had to pay the reciprocity fee before entering Argentina, in reality, the hierarchy of norms established the possibility of paying the entrance fee on arrival (as most passengers did in this case and as most passengers do in practice).(3)
To that effect, the judge emphasised that regulations of a lower status must comply with superior norms, declaring that the DNM's regulation was inconsistent with constitutional principles.
Under the Argentine legal system, the Constitution and international conventions take precedence over laws issued by Congress.(4) As a result, Judge Clara María Do Pico's decision in British Airways PLC, which emphasised the validity and enforceability of the Chicago Convention, is auspicious.
The precedents mentioned above may lead the way towards a new conceptual approach by the Argentine courts regarding the fines that the DNM regularly, and often incorrectly, imposes on airlines.
For further information on this topic please contact Elizabeth Mireya Freidenberg or Alejandro Daniel Calise at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991) or email (email@example.com or firstname.lastname@example.org). The Freidenberg Freidenberg & Lifsic website can be accessed at www.estudiofreidenberg.com.
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Elizabeth Mireya Freidenberg
Alejandro Daniel Calise