Assessing the Constitutionality of Mexico's National Customs Agency

By Goodrich, Riquelme y Asociados

Assessing the Constitutionality of Mexico's National Customs Agency

On January 16, 2024, a Collegiate Court in Administrative Matters of the First Circuit issued a judgment in favor of the plaintiff, Grupo Alianza Estratégica Portuaria, granting them the protection of Federal Justice against acts carried out by the National Customs Agency of Mexico, considering the process of creating said entity unconstitutional. 

This determination was reached, fundamentally considering that the National Customs Agency was established through an executive regulation published on December 21, 2021, as an auxiliary body of the Tax Administration Service (SAT). However, the SAT Law, which holds higher legislative hierarchy than executive regulations, acknowledged customs control and clearance as an exclusive faculty of the SAT, as granted and designated by the Congress of the Union to said entity. Therefore, it could not delegate these faculties to any auxiliary body, much less transfer them exclusively to a third party through a regulation.

The creation of the National Customs Agency, therefore, to exercise exclusive faculties granted by Congress at the federal law level to the SAT, is contrary to the Political Constitution of the United Mexican States, specifically to the principle of hierarchy of norms and separation of powers. As the regulation contains a de facto delegation of faculties exclusively conferred by federal law by Congress to another entity, said regulation is considered illegal for exceeding the scope that an Executive Regulation can have in relation to faculties exclusively granted through federal law to the SAT.

It is worth remembering, however, that this ruling in the amparo instance applies specifically to the plaintiff who obtained it, under the principle of the relativity of the amparo judgment. Additionally, it should be noted that by Constitutional mandate, the declaration of General Unconstitutionality is not applicable in tax matters. However, it could be applicable to merely administrative actions of the Agency.

Nevertheless, this criterion sets an important precedent to consider when presenting a defense for individuals against customs infractions imposed by said entity based on said Regulation or against actions carried out by the same in the clearance of goods, such as the requirement of payment of Customs Processing Fee and Foreign Trade Taxes, as an example.

At this moment, we await to know whether the Customs of Manzanillo, considered the responsible authority, will challenge the commented judgment through a review recourse, as such challenge could lead to new effects of this pronouncement.

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