This chapter discusses the current legal and institutional arrangement of the Government of Argentina to pursue a regulatory policy, including any policy statements and programmes that help implement the policy of regulatory quality. It also describes the policies and practices followed by Argentina to implement international regulatory co‑operation.
Regulatory Policy in Argentina
Tools and Practices for Regulatory Improvement
OECD Reviews of Regulatory Reform
Chapter 2. Policies and institutions for regulatory policy in Argentina
Abstract
Preliminaries
Regulatory quality and regulatory policy
Regulations can have a positive or negative impact on the performance of an economic sector or an economy. A specific regulation can open or close markets, can promote the elimination or creation of monopolies, can produce entry barriers, or can reduce or boost the incentives for innovation or entrepreneurship. Hence, it is important to review and improve the process followed to issue, implement and assess regulations, to ensure that they are “fit for purpose”, they effectively address the underlying policy problem them, the benefits for society generated by regulations outweigh the cost and their goals contribute to social welfare and inclusive growth. In other words, it is important for governments to pursue a policy that promotes regulatory quality (see Box 2.1).
Box 2.1. What is regulatory quality?
Pursuing “regulatory quality” is about enhancing the performance, cost-effectiveness, and legal quality of regulations and administrative formalities. First, the notion of regulatory quality covers processes, i.e. the way regulations are developed and enforced. These processes should be in line with the principles of consultation, transparency, accountability and evidence. Second, the notion of regulatory quality also covers outcomes, i.e. whether regulations are effective, efficient, coherent and simple. In practice, this means that laws and regulations should:
1. Serve clearly identified policy goals and are effective in achieving those goals.
2. Be clear, simple and practical for users.
3. Have a sound legal and empirical basis.
4. Be consistent with other regulations and policies.
5. Produce benefits that justify costs, considering the distribution of effects across society and taking economic, environmental and social effects into account.
6. Be implemented in a fair, transparent and proportionate way.
7. Minimise costs and market distortions.
8. Promote innovation through market incentives and goal-based approaches.
9. Be compatible as far as possible with competition, trade and investment facilitating.
Source: OECD (2015[1]), OECD Regulatory Policy Outlook 2015, http://dx.doi.org/10.1787/9789264238770‑en; OECD (1995[2]), OECD Recommendation on Improving the Quality of Government Regulation, https://legalinstruments.oecd.org/en/instruments/128 (accessed on 9 February 2019).
The objective of regulatory policy is to ensure regulatory quality. Regulatory policy addresses the permanent need to ensure that regulations and regulatory frameworks are justified, of good quality and “fit for purpose”. As an integral part of effective public governance, regulatory policy helps to shape the relationship between the state, citizens and businesses. An effective regulatory policy supports economic development as well as the rule of law, helping policymakers to reach informed decisions about what to regulate, whom to regulate, and how to regulate. It has a social as well as an economic dimension. Evaluation of regulatory outcomes informs policymakers of successes, failures and the need for change or adjustment to regulation so that it continues to offer effective support for public policy goals (OECD, 2011[3]).
Both OECD and non-OECD countries have acknowledged the importance of regulatory policy. These recognitions led OECD countries to the development of the Recommendation of the Council on Regulatory Policy and Governance (OECD, 2015[1]) (see Box 2.2).
Box 2.2. Recommendation of the Council on Regulatory Policy and Governance
The recommendation sets out the measures that governments can and should take to support the implementation and advancement of systemic regulatory reform to deliver regulations that meet public policy objectives and will have a positive impact on the economy and society. These measures are integrated into a comprehensive policy cycle in which regulations are designed, assessed and evaluated ex ante and ex post, revised and enforced at all levels of government, supported by appropriate institutions.
1. Commit at the highest political level to an explicit whole-of-government policy for regulatory quality. The policy should have clear objectives and frameworks for implementation to ensure that, if regulation is used, the economic, social and environmental benefits justify the costs, the distributional effects are considered and the net benefits are maximised.
2. Adhere to principles of open government, including transparency and participation in the regulatory process to ensure that regulation serves the public interest and is informed by the legitimate needs of those interested in and affected by regulation. This includes providing meaningful opportunities (including on line) for the public to contribute to the process of preparing draft regulatory proposals and to the quality of the supporting analysis. Governments should ensure that regulations are comprehensible and clear and that parties can easily understand their rights and obligations.
3. Establish mechanisms and institutions to actively provide oversight of regulatory policy procedures and goals, support and implement regulatory policy, and thereby foster regulatory quality.
4. Integrate regulatory impact assessment (RIA) into the early stages of the policy process for the formulation of new regulatory proposals. Clearly identify policy goals and evaluate if regulation is necessary and how it can be most effective and efficient in achieving those goals. Consider means other than regulation and identify the trade-offs of the different approaches analysed to identify the best approach.
5. Conduct systematic programme reviews of the stock of significant regulation against clearly defined policy goals, including consideration of costs and benefits, to ensure that regulations remain up to date, cost justified, cost-effective and consistent, and deliver the intended policy objectives.
6. Regularly publish reports on the performance of regulatory policy and reform programmes, and the public authorities applying the regulations. Such reports should also include information on how regulatory tools such as Regulatory Impact Assessment (RIA), public consultation practices, and reviews of existing regulations are functioning in practice.
7. Develop a consistent policy covering the role and functions of regulatory agencies in order to provide greater confidence that regulatory decisions are made on an objective, impartial and consistent basis, without conflict of interest, bias or improper influence.
8. Ensure the effectiveness of systems for the review of the legality and procedural fairness of regulations and of decisions made by bodies empowered to issue regulatory sanctions. Ensure that citizens and businesses have access to these systems of review at reasonable cost and receive decisions in a timely manner.
9. As appropriate, apply risk assessment, risk management, and risk communication strategies to the design and implementation of regulations to ensure that regulation is targeted and effective. Regulators should assess how regulations will be given effect and should design responsive implementation and enforcement strategies.
10. Where appropriate, promote regulatory coherence through co‑ordination mechanisms between the supranational, the national, and subnational levels of government. Identify cross-cutting regulatory issues at all levels of government, to promote coherence between regulatory approaches and avoid duplication or conflict of regulations.
11. Foster the development of regulatory management capacity and performance at subnational levels of government.
12. In developing regulatory measures, give consideration to all relevant international standards and frameworks for co‑operation in the same field and, where appropriate, their likely effects on parties outside the jurisdiction.
Source: OECD (2012[4]), Recommendation of the Council on Regulatory Policy and Governance, http://dx.doi.org/101787/9789264209022-en.
Policies and institutions for regulatory policy: Evidence from OECD and accession countries
For regulatory policy to take hold, governments need to adopt and develop the policy principles of regulatory quality within their own national legislative framework. Indeed, recognising this need, OECD countries have demonstrated a strong in-principle commitment to regulatory management via the widespread publication of regulatory policy documents. According to the latest flagship publication OECD Regulatory Policy Outlook 2018, OECD and accession countries1 continue to invest in their whole-of-government approach to regulatory quality (Figure 2.1). The vast majority of them have adopted an explicit regulatory policy promoting government-wide regulatory reform or regulatory quality (OECD, 2018[5]).
Figure 2.1. Whole-of-government approach for regulatory quality
Note: Data for OECD countries is based on the 34 countries that were OECD members in 2014 and the European Union. Data on new OECD member and accession countries in 2017 include Colombia, Costa Rica, Latvia and Lithuania.
Source: Indicators of Regulatory Policy and Governance Surveys 2014 and 2017, in OECD (2018[5]), OECD Regulatory Policy Outlook 2018, http://dx.doi.org/10.1787/9789264303072-en.
Additional to have an explicit policy on regulatory quality, Principle 3 of the 2012 Recommendation calls for countries to “establish mechanisms and institutions to actively provide oversight of regulatory policy procedures and goals, support and implement regulatory policy and thereby foster regulatory quality”. The 2012 Recommendation outlines a wide range of institutional oversight functions and tasks to promote high-quality, evidence-based decision making and enhance the impact of regulatory policy. These tasks and functions include: quality control; examining the potential for regulation to be more effective; contributing to the systematic improvement of the application of regulatory policy; co-ordination; training and guidance; and strategies for improving regulatory performance (OECD, 2018[5]).
These functions need not be carried out by a single institution/body. De facto, countries have reported a wealth of organisations responsible for the variety of oversight functions provided for in the 2012 Recommendation at different locations. The flagship publication OECD Regulatory Policy Outlook 2018 shows clear signs that countries invest in regulatory oversight in line with Principle 3 of the 2012 Recommendation (OECD, 2018[5]) (see Figure 2.2). Figure 2.2 shows that all jurisdictions covered reported to have bodies in place that cover at least one of the regulatory oversight functions identified in the 2012 Recommendation. In particular, virtually all countries have in place a body responsible for RIA quality control. Quality control of stakeholder engagement and ex post evaluation, while not uncommon, is less widespread (59% of bodies report having a body responsible for scrutinising stakeholder engagement, and less than half of all jurisdictions have a body responsible for the quality control of ex post evaluation). Similarly, only about three‑quarters of countries have established a body responsible for identifying areas where regulation can be made more effective, and for co-ordinating regulatory policy (Figure 2.2).
Figure 2.2. Coverage of regulatory oversight functions in countries
Note: This figure is based on information available for all OECD countries, as well as Colombia, Costa Rica, Lithuania and the European Union.
Source: Survey questions on regulatory oversight bodies; Indicators of Regulatory Policy and Governance Survey 2017, in OECD (2018[5]), OECD Regulatory Policy Outlook 2018, http://dx.doi.org/10.1787/9789264303072-en.
The rest of the chapter discusses the current legal and institutional arrangement of the Government of Argentina to pursue a regulatory policy, including any policy statements and programmes that help implement the policy of regulatory quality.
Legal instruments to promote and implement regulatory policy in Argentina
This section identifies the main legal instruments of the national government of Argentina that establish provisions and elements consistent with regulatory policy. It provides a brief description of each instrument, as a deeper discussion of most of the instruments is included in the thematic chapters. A more comprehensive list of legal instruments related to regulatory policy in Argentina can be found in Annex 2.A.
Constitution of Argentina
The Constitution of Argentina establishes the nature of the national government of Argentina, being a federal republican representative. It also establishes the form in which the country should be administrated, foreseeing the division of powers in legislative, executive and judicial, noting their functions, conformation and faculties. The legislative branch is composed of two chambers, of Deputies of the Nation and of Senators of the provinces and of the city of Buenos Aires. The executive branch will be represented by the President of the Argentine Nation. The judicial branch is represented by the Supreme Court of Justice and by the other lower courts. Likewise, the constitution establishes the different levels of government: federation, provinces and municipalities. As supreme law, the constitution also establishes fundamental rights.
Administrative Procedures Law
Law No. 19.549 of Administrative Procedures rules the processes that must follow the centralised and decentralised national administration, with the exemption of military organisations, defence and security. For instance, the law defines the general guidelines of the administrative acts, as the periods of procedures, the expiration dates and its exceptions; establishes the requirement of the administrative acts; and the judicial impugnation process.
A relevant statement of the law is the declaration of the principles of the government formalities. These are celerity, economy, simplicity and efficacy.
Law of Right to Access Public Information
Law No. 27.275 of Rights to Access Public Information has the objective to guarantee access to public information, promote the citizens’ participation and the transparency of the public administration. The foundations of the law rely on the principles of publicity, transparency and maximum disclosure, maximum access, opening, dissociation, no discrimination, maximum haste, free of charge access, control, responsibility, limited exemptions, easement and good faith.
Thus, the law considers public all the information obtained, generated, transformed, controlled or retained by the central public administration and decentralised bodies, the legislative power, the judiciary power, the Ministry of Fiscal Affairs, the Ministry of Defence, the Council of the Magistrate, the state firms, concession holders of public services, unions, politic parties, etc.
In order to assure the implementation of the objectives and principles of the law, it created the Agency of Public Information Access, as a self-governed body with operational independence within the range of the national executive power.
The law also defines the communication channels and procedures with public intuitions to request information or summit complains.
Law of Digital Signature
The objective of Law No. 25.506 of Digital Signature is a formal recognition and promotion of the usage of the digital and electronic signature, as well as the recognition of its legal efficacy. The law makes a reference to the electronic certificates, which are documents electronically signed by a certifier.
The law also provides the institutional framework of the digital signature policy and the bodies with attributions, responsibilities and rights granted in the law, as the Chief of Cabinet, which is the authority in the application of the law. The Advisory Commission of the Digital Signature Infrastructure is the body in charge of providing recommendations about technological standards, a system to register the digital certificates, the storage of the information, amongst others. The licence certifier, on the other hand, is the issuer of digital certificates.
Decree of Good Practices in Simplification
The Government of Argentina published Decree 891/2017 of Good Practices in Simplification, as a first effort in promoting a cross-sectional basis of tools for administrative simplification within the public administration. The decree recognises the necessity to develop practices in simplification to reduce burdens, improve the efficiency and upgrade the quality in the government services. The decree includes general provisions for practices in simplification and other regulatory management tools such as the continuous improvement of processes, the evaluation of the implementation of rules, citizens’ participation, digital government, cost-benefit analysis, silent-is-consent rule, the creation of registries and the efficient communication within public entities.
The decree is mainly a declaration of the need to implement regulatory management tools within the government, but their application and oversight are not spelled out. The decree makes a short description of the tools without developing them or providing guidelines for their application.
Decree De-bureaucratisation and Simplification
Decree 27/2018 of De-bureaucratisation and Simplification of formalities was issued with the aim to abrogate and substitute specific articles of regulations and norms in Argentina. The aim was that the government could provide an efficient and quicker response to citizens and firms’ demands.
The range of modifications in the decree comprise societies, ports, energy, agro-industry, credit access, consumer rights, transport, intellectual property, electronic administration of documents, job promotion, state-assets administration, art, amongst others.
This instrument was issued as an urgency decree through an executive order that needed to be ratified by National Congress. As a response, congress published 3 laws in substitution of the decree in 2018: Law 27.444 of Simplification and De‑bureaucratization for the Productive Development of the Nation, Law 27.445 of Simplification and De-bureaucratization for the Development of Infrastructure and Law 27.446 of Simplification and De-bureaucratization of the National Public Administration.
Guidelines for the Drafting and Production of Administrative Documents
The Guidelines for Drafting and Production of Administrative Documents were published in Decree 336/2017. These brief guidelines focus mainly on the format that public documents should adopt. For instance, they provide some indications about styling when quoting public buildings or properties, names of public officials and institutions, etc. The guidelines include directions for formalities, messages for law projects, administrative acts, amongst others.
Modernisation of the State Plan
The President of Argentina approved and published the modernisation plan of the central administration, the decentralised bodies, the self-governed organisations and the firms and societies of the state in Decree 434/2016.
The objective of the plan is to build a public administration oriented towards citizens’ service and according to the principles of efficiency, efficacy and quality. The objective of the modernisation plan arises from the design of flexible public organisations that focus on results.
The plan has five branches:
Technology and digital government.
Integral administration of human resources.
Results oriented administration and public commitments.
Open government and public innovation.
Digital-country strategy.
The co‑ordination of all the actions originated in the plan relies on the Chief of Cabinet of the Government Secretariat of Modernisation (former Ministry of Modernisation), who must execute all the actions created from the plan and promote them in provincial and municipal governments, as well as in the City of Buenos Aires. Besides, the Government Secretariat of Modernisation must elaborate the documents related to the implementation of, the procedures guidelines for its instrumentation of the plan, promote the plan and launch training programmes related to such duties.
This plan provided the overarching policy for the e-government objective of a paperless government, in which all government processes are based on information and communications technology (ICT) tools. This policy benefited citizens and business through the reduction of administrative burdens by allowing them to submit or receive information on permits and licenses to the government.
From this plan, other legal instruments were issued in order to introduce a system of electronic management of files (through Decree 561/2016), or implement remotely conducted administrative procedures (Decree 1063/2016, and Decree 733/2018). These and other instruments related to the e-government policy of Argentina are discussed in Chapter 4.
Decree No. 894/2017 of Approval of the Administrative Procedures Bylaw
The Argentinian government updated the Decree of Administrative Procedures in November 2017. Given that the Administrative Procedures Law dates from 1972, it does not include many of the technological advances of recent years; especially it does not take into account all the digitisation efforts of the federal government in the last two years.
The new instrument includes the use of ICT tools in the public administration and requires centralised and decentralised entities of the public administration to use digital files through the System of Electronic Management of Files. It also encourages ministers, secretaries and heads of decentralised bodies to promote the use of this system by the institutions, entities and organisations below them in the administrative hierarchy.
Decree 1.172/2003 of Access to Public Information, which contains the Bylaw of Public Hearings
Public hearings are one of the most common ways of involving stakeholders in the regulatory process. The decree establishes the rules that must be followed by the organisations, entities, enterprises and institutions that belong to the executive branch of the government. It includes a description of the characteristics that should be taken into account in a public hearing as well as the scope of the comments and opinions submitted by stakeholders. Moreover, the decree specifies the capacities and obligations of the president of the audience and goes over the legal requirements that the organising institution must comply with each stage of the hearing.
Decree 1.172/2003 of Access to Public Information, which contains the Bylaw for the Participative Drafting of Standards
The decree also includes the Bylaw for the Participatory Elaboration of Regulations. This instrument enhances public participation in the elaboration of rules that the executive branch of the government submits to the legislative branch. It is worth mentioning that, as in the case of public hearings, the comments and opinions submitted by stakeholders, either formally or informally (through mail), are not binding. If the institution carrying out the consultation includes opinions or proposals form the stakeholders in the final draft of the regulation, it must register them in the file of the consultation.
Decree 1.172/2003 of Access to Public Information, which contains the Bylaw of Open Meetings of the Regulators of Public Services
The decree refers to the open meetings that regulators of public services must hold. As in the bylaws described previously, the one on open meetings specifies the requirements, participants and procedures that must be followed to ensure a valid consultation. It also describes three kinds of meetings besides the standard ones; urgent meetings, secret meetings and null meetings. These meetings are particularly important for economic regulators as they are subject to sudden changes in the economic environment or manage sensitive information.
Main government agencies to promote and implement regulatory policy in Argentina
This section describes the main government agencies whose responsibility it is to promote and implement policies aimed at implementing and promoting regulatory quality in the national government of Argentina. In Annex 2.B, an attempt is made to include a more comprehensive list of government institutions which have relation to regulatory policy in Argentina.
Legal and Technical Secretariat of the Presidency
The Legal and Technical Secretariat of the Presidency (SLyT) sits at the centre of the government. According to Decree 78/2000, one of its main functions is to perform the legal scrutiny of all draft primary laws and subordinate regulations that require the sign off by the President or the Chief of Cabinet. This includes the laws pre-approved by both the chamber of deputies and senators of the Congress of Argentina.
The SLyT performs a gatekeeping role because it has the power to return or modify the legal instruments that are not consistent with the current legal framework. However, this role is formally restricted only to the draft instruments to be signed by the President or the Chief of Cabinet.
Once legislation or regulation is officially in force, if requested by senior officials, the SLyT is also in charge of drafting the corresponding subordinate decrees or other legal instruments.
Other relevant functions performed by SLyT include:
Provide legal advice in cases in which the Chief of Cabinet, or any other agency of the Presidency of Argentina without legal support, has to be involved according to the legal framework.
Assess draft regulation or prepare draft legal texts, when requested by agencies of the public administration.
In the latter case, the SLyT is regularly consulted by other agencies, but by no means the SLyT reviews all the flow of regulation issued by the public administration of Argentina. In these cases, the opinion of the SLyT is non-binding; although in practice, ministries and agencies who request the advice and support of the SLyT seldom deviate from the guidance received.
In practice, the SLyT is a committed promoter of regulatory management tools. For instance, it was reported that senior officials from the SLyT regularly identify which agencies or ministries comply with or disregard the provisions set in Decree 891/2017 Good Practices in Simplification, and communicate this performance in cabinet and other high-level meetings. The SLyT was also in charge of co‑ordinating the work that made possible the publication of Decree 27/2018 of De-bureaucratisation and Simplification, which represented an exercise of ex post assessment of regulation in Argentina (see Chapter 4). It also partners with the Government Secretariat of Administrative Modernisation (former Ministry of Modernisation) to champion the policy on e‑government that seeks to have paperless government procedures, which includes both internal processes and formalities for businesses and citizens. All these activities are carried out by the SLyT without having an explicit legal mandate to do so.
The Government Secretariat of Modernisation (former Ministry of Modernisation)
The Government Secretariat of Modernisation was first created as a ministry by Decree 13/2015, and later one changed to secretariat by Decree 801/2018. In the area of improvement of government processes, it has the following functions (Decree 13/2015):
Intervene in the definition of strategies and standards on information technologies, associated communications and other electronic information processing systems of the national administration.
Design, co‑ordinate and implement the incorporation and improvement of processes, technologies, IT infrastructure and systems and management technologies of the national public administration.
Propose designs in the administrative procedures that facilitate their simplification, transparency and social control and develop the corresponding computer developments.
Act as the enforcement authority of the regulatory regime that establishes the digital signature infrastructure.
Intervene in the development of technological systems with a transversal scope, or common to the agencies and entities of the national, centralised and decentralised public administration.
On the area of regulatory policy, the Government Secretariat of Modernisation is in charge of one of the flagship programmes of the current Argentinian government: improving and streamlining all types of government processes through digitisation, both internal and external, which include formalities for businesses and citizens.2 For this purpose, the Government Secretariat of Modernisation oversees that ministries and agencies comply with the obligations on digitisation, including the obligation that all new formalities for business and citizens are “born electronically”. Therefore, additional to the obligation of enforcing the e-government policy, the Government Secretariat of Modernisation also plays an important role of in the process of issuing new regulations, as it acts as “gatekeeper” to ensure the electronic creation of formalities for business and citizens.
Ministry of Production and Labour
Within the Ministry of Production and Labour (MPT) there is the Secretariat of Productive Simplification. In general terms, the objective of this secretariat is to promote and implement the use the regulatory management tools in order to boost the quality of regulations that have an impact on the productive activities. Among the tools promoted are the ex ante and ex post assessment of draft regulation, and administrative simplification and stakeholder engagement strategies. Decree 174/2018 Approval of the Administrative Structure to be applied in the National Central Administration, including Under-Secretariats, specifies some of these functions:
Assist the Ministry of Production and Labour in the formulation of policies, proposals, implementation, evaluation, comprehensive review of regulatory frameworks and control of processes and procedures that affect the productive sector, industry, commerce and investment, directly or indirectly.
Co‑ordinate actions with agencies of the national public sector, in order to simplify norms and processes within the framework of the ministerial competencies, which affect the productive sector in burdens or costs, hindering entrepreneurship, investment, production, competitiveness and commerce.
Design and execute technical and/or financial assistance programmes aimed at national, provincial and local agencies for the implementation of measures to simplify procedures that affect the productive sector.
Promote transversal public policies to the national public sector, and to the provincial, municipal or local sectors, protecting the strategic interaction between the state and the productive matrix, destined to integrate all levels of government in a single policy of simplifying procedures for the productive sector.
Promote the application of Decree 891/17 of Good Practices in Simplification, and international standards in terms of simplification and de-bureaucratisation of procedures related to the productive sector, in order to maximise economic growth and facilitate the competitiveness and productive development of the country.
The MPT has made operational a programme to implement the regulatory impact assessment for draft regulation to be issued by offices and units belonging to this ministry. Administrative Resolution 229/2018 of the Ministry of Production obliges these offices to submit to the Secretariat of Productive Simplification an ex ante evaluation for draft regulations that generate burdens or costs to the regulated entities a “factual report”, along with the draft regulation. In turn, the Secretariat examines the fact report and issues a statement defining which elements of Decree 891/17 for Good Practices in Simplification are being met and which ones require further development, see Chapter 3 for more details.
Although the Secretariat of Productive Simplification does not have the legal powers to block draft regulation from the MPT because of divergence with regulatory quality criteria, in the first few months of operation of the programme, MPT units and agencies have complied with its recommendations.
On the other hand, the Direction of Technical Regulations and Quality Promotion carries out the design, follow-up and impact assessment of technical regulations and promotion of quality aimed at enhancing competitiveness, with the purpose of carrying out an adequate strategic control regarding its instrumentation.
In this regard, on 31 July 2018, Resolution 299/2018 was published in the Official Gazette, which establishes the process for the preparation, review and adoption of technical regulations and conformity assessment procedures. This resolution is mandatory for the units of the Ministry of Production and Labour and its deconcentrated and decentralised organisms, being the Directorate of Technical Regulations and Promotion of the Quality of the Under-Secretariat of Internal Commerce of the Ministry of Commerce the one in charge of carrying out the elaboration and review of these instruments.
This resolution is issued in order to comply with the provisions of the Agreement on Technical Barriers to Trade of the World Trade Organization, in order to implement policies related to the promotion of quality and technical compliance of goods and services aimed at improving the competitiveness of the member countries.
In Chapter 4, the activities carried out by the MPT in the simplification of formalities that affect the productive sectors are described.
Body of Lawyers of the State
The body of lawyers of the state has its origins in Law No. 12.954 of Creation of the Body of Lawyers of the State. One of its main functions is to provide legal advice to the executive power and to all agencies of the national public administration and to defend them before tribunals. The Body of Lawyers belongs to the office of the fiscal prosecutor and it represents a group of public officials specialising in law and litigation, who have specific rules for hiring, training and performance.
Regarding regulatory policy, the Body of Lawyers of the State has the obligation to conduct professional studies to improve the laws and regulations in force in the public administration.
Policies and practices on international regulatory co-operation in Argentina
The multi-level mechanisms of co-ordination aim to promote quality of regulation and to avoid duplication, both at the regional and international level. The past decades have witnessed rapid globalisation of economic activity which has significantly changed the outlook of the world economy. Globalisation has impacted countries and the everyday lives of citizens and businesses. The progressive emergence of an open, dynamic and globalised economy has put some light on the importance of the internationalisation of rules as a critical issue. As countries are increasingly connected across borders, regional and multilateral regulatory frameworks have emerged in a context of the increasing internationalisation of flows of goods, services, capital and people (OECD, 2013[6]; OECD, 2016[7]).
Governments can maximise the benefits of globalisation by eliminating unnecessary regulatory divergences and barriers and ensuring greater co-ordination of regulatory objectives. The 2012 OECD Recommendation of the Council on Regulatory Policy and Governance recognises that countries can learn from international experience. Principle 12 of the recommendation, therefore, recognises:
“In developing regulatory measures, give consideration to all relevant international standards and frameworks for co-operation in the same field and, where appropriate, their likely effects on parties outside the jurisdiction.”
OECD highlights the different ways in which a country may approach regulatory co‑operation (OECD, 2013[6]). Countries may take unilateral steps to avoid regulatory divergences, notably in their domestic rulemaking procedure, for example by considering foreign and international standards in domestic rulemaking, assessing international impacts in the RIA procedures, or engaging foreign stakeholders on regulatory developments. This is a foundational step towards regulatory quality and coherence and one that is likely to facilitate the development of more ambitious international regulatory co-operation (IRC) approaches. IRC also provides the opportunity for countries to develop common regulatory positions and instruments with their peers, be it by participating in bilateral, regional or multilateral frameworks for co‑operation.
International instruments3 may serve as a basis when developing new regulations, to align approaches with foreign countries. Particularly, the adoption of international standards into domestic regulations is usually recommended to reduce unnecessary barriers to trade when developing new regulations. Across OECD countries, legal requirements to consider international instruments when developing new laws and regulations are quite widespread (see Figure 2.3). Indeed, the consideration of international standards, in particular in domestic legislation, has significant potential to lower costs of international trade, and it supports the harmonisation of technical specification of products across export markets (OECD, 2017[8]).
Argentinian law does not set a legal requirement for regulators to consider international instruments when developing new domestic regulations or revising existing ones. This may be due to the lack of a horizontal strategy on regulatory policy that includes IRC. However, some punctual agencies such as the National Electricity Regulator have mandates to consider international standards when developing technical regulation.
Engagement with foreign stakeholders may offer evidence on unintended impacts that draft regulations have on trade. In particular, notifications of draft regulations to international fora may inform foreign governments and interested stakeholders of the existence of new drafts. This is particularly the case of the transparency framework set up under the World Trade Organization, under the agreements on Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary Measures (SPS Agreement). Both agreements require that World Trade Organization (WTO) Members notify other members of the draft mandatory regulations which may have a significant effect on trade and are not based on international standards.
Figure 2.3. Number of jurisdictions with a formal requirement to consider international instruments in rulemaking (left) and the types of instruments considered (right)
Note: Data for OECD countries is based on the 35 OECD member countries, the European Union, and 3 accession countries.
Source: Results from the 2017 Indicators of Regulatory Policy and Governance (iREG) Survey in OECD (2018[5]), OECD Regulatory Policy Outlook 2018, http://dx.doi.org/10.1787/9789264303072-en.
Argentina’s Ministry of Production and Labour is in charge of notifying draft measures to the WTO Technical Barriers to Trade Agreement and the National Service of the Food Quality and Health notifies the WTO, which opens the opportunity for feedback from WTO members or interested parties. Comments are incorporated into the draft technical regulation, if applicable (see Table 2.1).
Table 2.1. Number of regular notifications since 2010
Source: WTO (2018[9]), Regular TBT Notifications – Technical Barriers to Trade, http://tbtims.wto.org/en/Notifications/Search?ProductsCoveredHSCodes=&ProductsCoveredICSCodes=&DoSearch=True& ExpandSearchMoreFields=False¬ifyingMember=Argentina&DocumentSymbol=& DistributionDateFrom=01%2F01%2F1995&DistributionDateTo=31%2F12%2F2017&Searc (accessed on 25 July 2018); WTO (2018[10]), Search Notifications – Sanitary and Phytosanitary, http://spsims.wto.org/en/Notifications/Search?DoSearch=True¬ifyingMember=Argentina& NotificationFormats=1¬ificationFormats=7¬ificationFormats=200¬ificationFormats=201¬ificationFormats=202& NotificationFormats=203¬ificationFormats=8¬ific (accessed on 25 July 2018).
Argentina engages in co-operation efforts, whether bilaterally, regionally and multilaterally. For example, at the international level, Argentina contributes to the International Labour Organization, the World Health Organization, International Organization for Standardization, to name a few. Argentinian regulators also participate directly in transgovernmental networks of regulators such as the International Organization of Securities Commissions or the International Association of Insurance Supervisors.
Argentina is particularly active at the regional level, driven by objectives of trade facilitation and economic integration (see Table 2.2). In particular, it participates in the MERCOSUR and leads the technical regulation commission where there are efforts to harmonise regulation. MERCOSUR is a multilateral agreement on trade between Argentina, Bolivia, Brazil, Paraguay, Uruguay and Venezuela (MERCOSUR, 2018[11]). The agreement was signed in 1991 and came into effect on 1 January 1995. According to Ouro Preto Protocol, “The States Parties undertake all the necessary measures to ensure, in their respective territories, compliance with the decisions adopted by the MERCOSUR entities”. MERCOSUR has regional regulation to implement mechanisms to promote the compliance of developing domestic rules based on approved regional regulations (see Decisions 023/2000 and 035/2008 of MERCOSUR).
Argentina’s economic co-operation across the globe happens mainly via MERCOSUR, which has concluded agreements with other Latin American countries, i.e. Bolivia, Chile, Colombia, Mexico, Peru and beyond, i.e. Egypt and India (FTIS, 2018[12]), and is currently negotiating a trade agreement with the European Union (European Commission, 2018[13]).
Table 2.2. Landscape of international organisations to which Argentina is party
Note: This list is not comprehensive but gives an overview of major international organisations in which Argentina participates that may have an impact on domestic regulation.
References
[13] European Commission (2018), Mercosur - Trade - European Commission, http://ec.europa.eu/trade/policy/countries-and-regions/regions/mercosur/ (accessed on 20 July 2018).
[12] FTIS (2018), SICE: Countries: Argentina: Trade Policy Documents, http://www.sice.oas.org/ctyindex/ARG/ARGagreements_e.asp (accessed on 20 July 2018).
[15] Gobierno de la Ciudad de Buenos Aires (n.d.), Boletín Oficial del Gobierno de la Ciudad de Buenos Aires (Official Bulletin of the City of Buenos Aires), https://boletinoficial.buenosaires.gob.ar/ (accessed on 29 January 2019).
[16] Gobierno de la Provincia de Buenos Aires (n.d.), Boletín Oficial de la Provincia de Buenos Aires (Official Bulletin of the Province of Buenos Aires), https://www.gba.gob.ar/boletin_oficial/noticias (accessed on 29 January 2019).
[11] MERCOSUR (2018), MERCOSUR, http://www.mercosur.int/ (accessed on 16 July 2018).
[19] OECD (2019), Digital Government Review of Argentina, Accelerating the Digitalisation of the Public Sector, Key Findings, OECD, Paris, http://www.oecd.org/gov/digital-government/digital-government-review-argentina-key-findings-2018.pdf (accessed on 10 February 2019).
[5] OECD (2018), OECD Regulatory Policy Outlook 2018, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264303072-en.
[20] OECD (2018), Review of the Corporate Governance of State-Owned Enterprises: Argentina, OECD, Paris, http://www.oecd.org/countries/argentina/oecd-review-corporate-governance-soe-argentina.htm (accessed on 9 February 2019).
[8] OECD (2017), International Regulatory Co-operation and Trade: Understanding the Trade Costs of Regulatory Divergence and the Remedies, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264275942-en.
[17] OECD (2017), OECD Economic Surveys: Argentina 2017: Multi-dimensional Economic Survey, OECD Publishing, Paris, https://dx.doi.org/10.1787/eco_surveys-arg-2017-en.
[7] OECD (2016), International Regulatory Co-operation: The Role of International Organisations in Fostering Better Rules of Globalisation, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264244047-en.
[1] OECD (2015), OECD Regulatory Policy Outlook 2015, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264238770-en.
[18] OECD (2014), Recommendation of the Council on Effective Public Investment Across Levels of Government.
[6] OECD (2013), International Regulatory Co-operation: Addressing Global Challenges, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264200463-en.
[4] OECD (2012), Recommendation of the Council on Regulatory Policy and Governance, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264209022-en.
[3] OECD (2011), Regulatory Policy and Governance: Supporting Economic Growth and Serving the Public Interest, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264116573-en.
[2] OECD (1995), OECD Recommendation on Improving the Quality of Government Regulation, OECD, Paris, https://legalinstruments.oecd.org/en/instruments/128 (accessed on 10 February 2019).
[14] Presidencia de la Nación Argentina (2018), Infoleg – Información Legislativa y Documental (Infoleg - Legislative and Documentary Information), Ministerio de Justicia y Derechos Humanos de la Nación, http://www.infoleg.gob.ar/ (accessed on 3 November 2018).
[21] Rodrigo, D. (2016), Capacidades para la Gestión Regulatoria en Argentina (Capacities for Regulatory Management in Argentina).
[9] WTO (2018), Regular TBT Notifications - Technical Barriers to Trade, http://tbtims.wto.org/en/Notifications/Search?ProductsCoveredHSCodes=&ProductsCoveredICSCodes=&DoSearch=True&ExpandSearchMoreFields=False¬ifyingMember=Argentina&DocumentSymbol=&DistributionDateFrom=01%2F01%2F1995&DistributionDateTo=31%2F12%2F2017&Searc (accessed on 25 July 2018).
[10] WTO (2018), Search Notifications - Sanitary and Phytosanitary, http://spsims.wto.org/en/Notifications/Search?DoSearch=True¬ifyingMember=Argentina¬ificationFormats=1¬ificationFormats=7¬ificationFormats=200¬ificationFormats=201¬ificationFormats=202¬ificationFormats=203¬ificationFormats=8¬ific (accessed on 25 July 2018).
Annex 2.A. Legal instruments related to regulatory policy in Argentina
Annex Table 2.A.1. Legal instruments related to the regulatory policy in Argentina
Source: Presidencia de la Nación Argentina (2018[14]), Infoleg – Información Legislativa y Documental, http://www.infoleg.gob.ar/ (accessed on 03 November 2018); Gobierno de la Ciudad de Buenos Aires (n.d.[15]), Boletín Oficial del Gobierno de la Ciudad de Buenos Aires, https://boletinoficial.buenosaires.gob.ar/ (accessed on 29 January 2019); Gobierno de la Provincia de Buenos Aires (n.d.[16]), Boletín Oficial de la Provincia de Buenos Aires, https://www.gba.gob.ar/boletin_oficial/noticias (accessed on 29 January 2019).
Annex 2.B. Government institutions related to the regulatory policy in Argentina
Annex Table 2.B.1. Government institutions related to the regulatory policy in Argentina
Note: The name of some institutions may have changed due to administrative changes in the Central Government of Argentina as well as in the Provincial Governments.
Notes
← 1. At the time, accession countries were Colombia, Costa Rica and Lithuania.
← 2. Chapter 4 presents in detail these activities and the legal framework that supports them. Some of the legal instruments are also mentioned in the previous section.
← 3. For the purpose of this review, international instruments cover legally binding requirements that are meant to be directly binding on member states and non-legally binding instruments (including technical standards) that may be given binding value through transposition in domestic legislation or recognition in international legal instruments. This broad notion therefore covers treaties, legally binding decisions, non-legally binding recommendations, model treaties or laws, declarations and voluntary international standards, for example.