First approach
Few decisions through legal instruments have had legal consequences such as those adopted with the aforementioned Decree.
I begin by recalling what was written for Aduana News in October 2024 under the title "The importance of the Budget Law in international trade" 1
There I referred to the fundamental requirement of having a Budget Law approved by the National Congress, which empowers the Executive Branch to make decisions within the parameters established by law for determining import and export duties.
In this regard, our Fundamental Law is crystal clear on the subject. In addition to stating that these taxes are allocated to the National Treasury, as indicated in Article 4, Article 17 (Property Rights) expressly states that only Congress has the power to impose these taxes. And if further clarity were lacking, Article 75 (Powers of Congress) expressly establishes the power to set import and export duties. Furthermore, the National Constitution itself clearly prohibits the Executive Branch from issuing tax regulations on its own.
That is why in the reference note, I stated that since there is no Law of
Current budget (as long as there is a second consecutive extension),
"The claim of illegality regarding a tax requirement would be exposed."….even with logical claims of unconstitutionality in the application of tax consequences".
Second approach
Based on what has been stated, we all know the background which turns out to be a
An icon of Constitutional Law and Customs Law, the 2014 ruling on the Patagonian Shrimp Farm issued by the Supreme Court of Justice of the Nation. This ruling is constantly cited in subsequent rulings, such as that of the Federal Administrative Litigation Chamber, which held that:The guidelines established in 'Camaronera' […] Article 755 of the Customs Code is not sufficient, from its constitutional aspect, to establish, on its own, a clear legislative policy. And, at the time of the issuance of Decree 793/2018, there was no formal law that would clearly and unequivocally establish the guidelines of the clear legislative policy to which the Executive Branch should adhere.”The same ruling continues saying: “Only with the enactment of Law 27.467 did the legislator grant legal status to the content of Decree 793/2018 […] and determined the parameters of the powers delegated by Article 755, with maximum limits on the rates that the Executive Branch may temporarily establish. It is concluded that "this law cannot be assigned a ratifying effect for an event that occurred before its entry into force and, therefore, it is appropriate to declare the unconstitutionality of the export duty established without legal basis by Decree 793/2018, which was liquidated and paid by the plaintiff firm.". And orders the reimbursement of the export duties paid in pesos plus interest from the presentation of the document by which the repetition was claimed until its effective payment. 2
In another case, the Fourth Chamber of the Federal Administrative Litigation Court,
declared "The constitutional invalidity of Decree 133/15, since it created a tax burden and established an export duty rate without a clear legislative policy or sufficient basis for delegation, thereby incurring the National Executive Branch in a matter reserved exclusively for the National Congress.3
Third question
Despite the foregoing, on September 22, 2025, it was published in the Official Gazette
Decree 682/2025. There the Executive Branch decided to set “ZERO PERCENT (0%), the Export Duty (ED) rate for merchandise included in the tariff items of the COMMON NOMENCLATURE OF MERCOSUR (NCM) listed in the ANNEX (IF-2025-105011355-APN-SCP#MEC) which is an integral part of this decree, until October 31, 2025, inclusive, or until the end of the day on which the sum of registrations of Foreign Sales Affidavits (DJVE) is reached for an amount equivalent to SEVEN BILLION UNITED STATES DOLLARS (USD 7.000.000.000), whichever occurs first.” Then, in the second paragraph of art. 2 says the Decree "Once the term referred to in article 1 has expired, or if the provisions of the previous paragraph are not complied with, the export duty rate corresponding to the tariff item in question, in force on the day prior to the entry into force of this measure, must be paid.”. 4
Legal dilemma
In view of the above, it could be considered that the Decree
682/2025 is null and void, as it has ruled on a matter in which
which the Executive Branch alone lacks the powers. Now, in view of the
Regulated by Law 26.122, the Decree was not observed by the National Congress
with which, it produced legal effects by granting a tax benefit. And they arise
So several questions. Can the Executive Power, on its own and once granted
That benefit, remove it and restore the previous zero percent tax? Above all,
in such a short timeframe. Should not this Decree, even questioning its
principle of legality in tax matters, having adhered solely to the
granting of the tax benefit without the possibility of removing an acquired right?
violated some principle of equality before the law by not allowing producers
could enjoy the tax benefit? This question is based on considering that in
In some cases, exporters benefited from a tax reduction only with
an Affidavit without having yet acquired the product; and therefore, without the
Producers, who are part of the chain, could also be reached by the
effects of tax reduction.
Consequently, the question arises: will exporters and producers be able to challenge the restitution of the tax prior to the issuance of Decree 682/2025? The path to pursuing this option may be narrow, but I believe the door is open.
- https://aduananews.com/la-importancia-de-la-ley-de-presupuesto-en-el-comercio-internacional/
- National Chamber of Appeals in Federal Administrative Litigation, Chamber I, case no. 13061/2022, “Newsan SA (TF 9748062-A) c/ General Directorate of Customs s/ Direct appeal from external body”, from the “G” Chamber of the National Tax Court.
- 3.National Chamber of Appeals in Federal Administrative Litigation, Chamber IV, case no. 25930/2025, “Molino Cañuelas SACIFIA (TF 21102329-A) c/ General Directorate of Customs s/ Direct appeal from external body”.
- Argentine Republic, Decree 682/2025 (DECTO-2025-682-APN-PTE), referring to the Export Right.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
