Arguing that:
→ “… different situations would have been observed and multiple complaints have been received related to possible unjustified hoarding of raw materials, unreasonable refusals to sell supplies and final goods as well as the discontinuance in the production of goods and provision of services with no specific reasons” and that
→ likewise, “… from different sectors and value chains unreasonable and unjustified increases of prices of supplies and final goods have been reported”.
The Resolution of the Secretariat of Domestic Trade N° 237/2021 (issued on 3/15/21 and published in the Official Gazette on 3/17/21), has created a new mechanism for the prices control, called – with the marked vocation and the undoubted talent of this administration for the usage of euphemisms[1] – “Informative System for the Implementation of Policies for the Economic Recovery” (SIPRE) (Resolution 237/2021, section 1st).
As set forth in section 2nd of said Resolution 237, all the companies of the trade and industry sectors that during 2019 had total sales in the domestic market exceeding the sum set forth by means of the Resolution of the former SECRETARIAT OF ENTREPRENEURS AND OF THE SMALL AND MEDIUM ENTERPRISE 220/2019 and amendments thereof[2], shall inform on a monthly basis in the “SIPRE” the prices in force and the quantities sold of all their final goods or intermediate goods, until after the emergency declared by Act 27,541 is maintained (said Act declared the public emergency on economic, financial, tax, administrative, social security, rates, energy, health and social issues).
Consequently, we understand that the companies who are compelled to submit information belong to the trade sector which total sales to the domestic market have exceeded in 2019 the sum of AR$ 2,602,540,000,- (Two thousand six hundred and two millions five hundred and forty thousand Argentine Pesos) and those of the industry sector which total sales to the domestic market have exceeded in 2019 the sum of AR$ 2,540,380,000,- (Two thousand five hundred and forty millions three hundred and eighty thousand Argentine Pesos).
For the purposes of the resolution under analysis, “total sales in the domestic market” is equal to the value of the sales carried out within the Argentine National Territory, excluding the Value Added Tax and the Excise Tax that may be applicable.
The supply of the information required by the regulation shall be made on a monthly basis, through the information repository of the MINISTRY OF PRODUCTIVE DEVELOPMENT, the first ten (10) running days of each calendar month (Resolution 23, section 3rd).
In view of the fact that the resolution is in force since 3/17/21, it may be interpreted that the first presentation of the information shall be made on the first days of the next month of April, 2021.
The companies reached by the duty to inform, in their first presentation shall inform, in addition, prices and quantities produced and/or sold, as well as the stock of all their products, during January 2021 and February 2021 (Resolution, section 5th, amended by Resolution SCI 238/2021, issued on 3/16/21 and published in the Official Gazette, like its similar Resolution N° 237, on 3/17/21).
According to the regulation of section 4th of Resolution 237, the information supplied shall contain, at least, the following data:
a) Taxpayer Identification Number (CUIT) of the company;
b) Name of the product;
c) EAN Code or equivalent product sectorial;
d) Price per weight unit, quantity or measure of the product;
e) Quantities produced and sold; and
f) Report, if applicable, on the scarcity, shortage or non-delivery of necessary supplies or services for the production of the products included in the measure, as applicable.
The regulation declares the confidential nature of the information required by the resolution, which – it states – may be used only to comply with the purposes expressed in the whereas clauses of the (Resolution, section 6th); for example “investigate and prevent infringing behaviors”, which in certain cases strikes me as breaching the guarantee set forth in section 18 of the National Constitution, that sets forth, as regards what concerns us here, that “No one may be forced to testify against himself …”.
The Enforcement Authority of Resolution 237/2021 is the UNDERSECRETARIAT OF POLICIES FOR THE DOMESTIC MARKET, to which powers are delegated to regulate its implementation and enforcement.
The companies reached by the duty to inform set forth in section 4th of Resolution 12/2016 (that provides: “SECTION 4th —All retailers that sell any of the products determined pursuant to the regulation, except for Micro, Small and Medium Enterprises, as set forth in Act N° 25,300 and amendment thereof, are comprised within the stores that are compelled to comply with this resolution, under the terms of the preceding section, and it is optional for said enterprises to include themselves into the “Electronic System of Argentine Prices Publishing” (Sistema Electrónico de Publicidad de Precios Argentinos -SEPA) and section 2nd of Resolution N° 448/ 2016 (which, in turn, provides that: SECTION 2nd — All the wholesalers that sell massive consumption products and have showrooms are comprised within the stores that are compelled to comply with this resolution, under the terms of the preceding section, except for Micro, Small and Medium Enterprises, as set forth in Act N° 25,300 and amendment thereof, and it is optional for said enterprises to include themselves into the “Electronic System of Argentine Prices Publishing” (Sistema Electrónico de Publicidad de Precios Argentinos -SEPA), both from the former SECRETARIAT OF TRADE, shall submit to the Informative System for the Implementation of Policies for the Economic Recovery” (SIPRE) only the information related to quantities and stock (Resolution 237, section 8th).
Non-compliance with the duty to inform set forth by the measure shall be punished with very serious penalties provided for infringements typified in the so-called Supply Act Nº 20,680 (Resolution 237, section 9th), that provides, for example, the closure of the establishments for a maximum term of ninety (90) days, confiscation of the infringing goods and the imposition of fines; penalties that, in addition may be imposed independently or jointly, “depending on the circumstances of the case”.[3]
For the fixing of every kind of penalties, either monetary or personal, Act 20,680 provides, in its section 7th, that that the following shall be borne in each case:
a) The economic size of the company, business or exploitation, paying special attention to working capital;
b) The infringer’s position in the market;
c) The effect and socio-economic importance of the infringement;
d) The profit generated with the punished behavior and its temporal duration; and
e) The damage caused to the market or consumers.
Resolution 237/2021 came into effect on March 17, 2021, date of its publication in the Official Gazette.
Buenos Aires, March 17, 2021.
[1] For those who do not remember, “Euphemism”, according to the definition of the term in the Dictionary of the Spanish Language (Royal Spanish Academy, online Edition), means: “A soft or dignified representation of ideas which straight and open expression would be harsh or rude.”
[2] Said Resolution 220/2019 sets forth the following limits of total annual sales expressed in Argentine pesos (AR$).
| Category | Construction | Services | Trade | Industry and Mining | Agriculture and Livestock |
| Micro | 19,450,000 | 9,900,000 | 36,320,000 | 33,920,000 | 17,269,000 |
| Small | 115,370,000 | 59,710,000 | 247,200,000 | 243,290,000 | 71,960,000 |
| Medium Tranche 1 | 643,710,000 | 494,200,000 | 1,821,760,000 | 1,651,750,000 | 426,720,000 |
| Medium Tranche 2 | 965,460,000 | 705,790,000 | 2,602,540,000 | 2,540,380,000 | 676,810,000 |
[3] The Supply Act provides the imposition of the following penalties:
SECTION 5TH — The following penalties shall be imposed upon those who incur in the acts or omissions provided for in section 4th:
a) A fine ranging from five hundred Argentine Pesos (AR$ 500) to ten million Argentine Pesos (AR$ 10,000,000). This last limit may be increased until reaching three times the income obtained in infringement
b) Closure of the establishment for a term of up to ninety (90) days. During closure, and for another equal period, neither the going concern nor the affected assets may be transferred;
c) Disqualification of up to two (2) years for the use or renewal of credits granted by public entities subject to Act 21,526 of Financial Institutions and amendments thereof
d) Confiscation of the goods and products subject matter of the infringement;
e) Special disqualification of up to five (5) years to engage in trade and to exercise public duties;
f) Suspension of up to five (5) years in the register of the Government’s Suppliers;
g) Loss of concessions, privileges, tax or special credit regimes enjoyed by them.
The penalties set forth in this section may be imposed independently or jointly, depending on the circumstances of the case.
(Section substituted by section 4th of Act N° 26,991 Official Gazette 9/19/2014).
SECTION 6TH — In case of recidivism the maximum limits of the amounts set forth in subsection a) of section 5th and the terms of its subsections b), c), e) and f) may be raised up to two times of the original penalty.
(Section substituted by section 5th of Act N° 26,991 Official Gazette 9/19/2014).