Currently, in our country, a foreign exchange regime has been in effect since 2003, whereby the Central Bank of Venezuela has been centralizing the purchase and sale of foreign currency, limiting to individuals the possibility of acquiring foreign currency without the participation of said Institute, either directly or through its exchange operators, within the scope of a foreign exchange market arranged by the competent authorities and by mandate of the Law.
However, based on the Exchange Regime Law and its crimes of 2014, the possibility of an alternative currency market was opened, which is maintained in the current Decree with the Status, Value and Force of Law of the Foreign Exchange Regime and its of December 29, 2015, published in the Official Gazette of the Bolivarian Republic of Venezuela on December 30, 2015, GO 6.210 Extraordinary.
To reach a fairly satisfactory answer on this matter, it is necessary to examine the content and scope of Article 11 of the aforementioned Decree Law, (Foreign Exchange Market), as well as the spirit, purpose, object and nature of the Decree Law.
The first part of the aforementioned article establishes: "Without prejudice to access to the mechanisms administered by the competent authorities of the Foreign Exchange Administration regime referred to in this Decree with the Status, Value and Force of Law, natural and legal persons claiming of foreign currency, may acquire them through foreign currency transactions offered by:
Natural and legal persons of the private sector.
Petròleos de Venezuela, S.A,
3 Central Bank of Venezuela, and
4 State Banks. (Underlined and bold our)
Now, if we make an exegetical interpretation of article 11, that is, literally, but also critically, we can infer that, without prejudice to the Exchange Market provided by the competent authorities, where bidders and buyers concur, a modality or alternative market, which in essence allows the purchase and sale of foreign currency between natural and legal persons, leaving it safe, that is, without damage or without prejudice to the conventional market regulated by the authorities of the foreign exchange administration.
However, the previous wording, the second part of the aforementioned regulation, establishes that: "Such transactions will be carried out in the terms set forth in the exchange agreements issued for this purpose between the Central Bank of Venezuela and the National Executive, as well as to the regulations that in their development establish the terms, requirements and conditions that govern the participation in said market, and the prudential regulations dictated by the competent Superintendencies in banking and securities matters for such purposes ".
According to the provision above supra transcribed, there are some questions, including: If a natural or legal person has in his possession foreign currency not granted by the exchange administration of Venezuela, for example, someone who brought to the country less than $ 10,000 or its equivalent in another currency, -a quantity that is not mandatory to declare-, according to Article 15 ejusdem, and in turn, want to offer them directly to another natural or legal person must go to the organs of the exchange administration to perform the operation?
At the beginning of this writing, we had mentioned that the Law in comento, authorizes individuals to acquire foreign currency in an alternative market -distinct- to the mechanisms administered by the competent authorities of the foreign currency administration regime, (art.11 "Without prejudice of access ... "). That being the case, how to understand, that the legislator (Authorized Executive), intends to channel said operations through the referred organisms ?. Or is it that they are entities different from those provided for in the Law? Does this rule stand up as a mess, a contradiction or nonsense with respect to the text and spirit of the Law ?.
The explanatory statement of the mentioned Decree Law, bases the existence of the same, in addition to the "economic war, in" the economic freedom, by means of different protection mechanisms .. ". Note that the controls are established for the sake of ECONOMIC FREEDOM, not to restrict by restricting, or sanction for events that are not clearly defined as illegal or infractions, then, it must be understood that the penalties and penalties are restrictive interpretation.
On the other hand, if we take into account the object and nature of the Law contained in Article 1, we can conclude that the Law has three well-defined purposes: 1) Regulate the terms and conditions in which the bodies and entities with competence in the regime