Court of Appeals Orders Argentine Central Bank to Issue Decision on Request for Access to Foreign Exchange Market

On December 6, 2022, Chamber 4 of the Federal Court of Appeals in Administrative Matters issued its ruling for the case “Sirhan, Mariel Débora c/ Banco Central de la República Argentina y otro s/amparo ley 16.986”. There, the court partially admitted an action for constitutional protection of fundamental rights (amparo), filed by Ms. Mariel D. Sirhan, that had been rejected in the first instance.

The amparo focused on three main issues. The first of them was the unconstitutionality of the Argentine Central Bank (BCRA) Communication "A" 6770 on Foreign Exchange regulations, and of the Tax for an Inclusive and Solidary Argentina (PAIS), established by articles 35(a) and 39 of Law No. 27541, among other regulations.

The second issue was the application of the BCRA Communication "A" 4662, following which the prior approval of the BCRA for purchasing foreign currency and transferring it abroad was not necessary when the transactions were carried out in the context of an inheritance proceeding and in accordance with the declaration of heirs.

The third issue was that she was not treated as a consumer, according to the Consumer Protection Law No. 24240.

The first instance judge rejected the amparo on the grounds that Ms. Sirhan had not proved she had complied with the procedure expressly established by the BCRA. The judge also dismissed the claim of unconstitutionality arguing that "the regulation issued by the BCRA in this matter was motivated by technical and economic criteria and, therefore, was an exercise of technical discretion, given the specificity of the matter involved". Thus, "its content could not be -as a principle- questioned or substituted by the courts of justice, except in the case of arbitrariness, or violation of the plaintiff’s fundamental rights ". Finally, the court rejected the application of Communication "A" 4662 for not being in force at the time of the facts.

Ms. Sirhan appealed and the court of appeals, following the opinion of the coadjutor Prosecutor, partially granted the request, revoking the first instance judgment and ordering the BCRA to issue a grounded reply for the plaintiff's request.

To decide in this way, the court held that, notwithstanding the fact that it is the BCRA's power –as authority in matters of foreign exchange, monetary, and financial policy– to determine the circumstances in which the foreign exchange market may be accessed, such power should be exercised ensuring the plaintiff’s right to due process and, especially, her right to receive a decision regarding her request within a reasonable period of time. The BCRA did not comply with this, since Ms. Sirhan did not receive a reply for nine months, in spite of the repeated submissions and subsequent motions for immediate ruling, which the Court qualified as manifestly arbitrary and as illegitimate omission.

Finally, the court stated that its decision does not imply a judgment on the merits of the substantial claim of the plaintiff, nor does it imply a pronouncement on the validity of the application of the regulations involved to the specific case, which may eventually be debated and decided in case the petition is finally dismissed.