Export rights and MERCOSUR
The national government has decided to reduce export duties on exports. In the words of the presidential spokesman, it was reported that lowering the taxes, as promised during the campaign, is restoring the value of the presidential word. Now, just as in the most prosperous times of our nation, cultivating the soil, gentlemen, is serving the country, highlighting that, based on the fiscal effort of Argentines as well as the rigorous orthodox economic plan led by Minister Caputo, the conditions have been created for the announced reduction of export duties on the main crops on a temporary basis and the elimination for regional economies on a permanent basis.
Thus, through Decree 38/2025, it is established that the export duty rate for goods included in the tariff items of the NCM listed in Annex I, part of the decree, is to be set at zero percent. And until June 30, 2025, inclusive, the export duty rate, indicated in each case, for goods included in the tariff items of the NCM listed in Annex II.
In addition, the Executive Branch of the Nation itself has indicated that "it is necessary to strengthen this export drive, boosted by the measures adopted by the National Government in terms of simplification, de-bureaucratization, reduction of procedures, facilitation of trade, elimination of distorting taxes, opening of new markets and greater international positioning." Considering that this measure of reduction and elimination of the export duty "pursues the objective of promoting an increase in sales to foreign markets, improving the income level of producers and processors, as well as their interaction network, strengthening the roots, the development of regional economies and also tending to improve the quality of the products."
This calls us to reflect on whether we might not be facing a time when, based on the clear concepts that the Government has conveyed regarding the fact that the export duty is an immoral tax that is applied in few countries, as well as regarding respect for the law, by proclaiming "everything under the law, nothing outside of it", this tax is being repealed, in accordance with the Asunción Agreement.
Scope of export rights
It should be remembered that the export duty is, by legal nature, a tax within the set of taxes. Thus, the Federal Chamber of Appeals in Administrative Litigation, when dealing with the issue, ruled that, “the customs duty is a tax”, while the Supreme Court of Justice of the Nation determined that, “it is an ex lege obligation and that the nature of the tax is indubitable, without prejudice to the characteristic of this type of tax, which may have a revenue-raising purpose or an economic policy purpose.”
As with any tax, the Law must clearly distinguish which action generates the obligation to pay it, allowing the citizen to identify, prior to becoming a taxpayer, the taxable event that generates the requirement for a tax. This is a constitutive requirement of the principle of legality that governs tax matters. In exports, the event that causes the obligation to pay the tax recognized as an export duty is precisely the conduct of extracting a good from the customs territory for consumption. The taxable event is defined as a legal and not an economic event.
This action, which starts from a subject -exporter-, to the extent that it externalizes all the budgets established by the norm, will constitute a taxable event, with its consequent tax obligation.
The absence of a taxable event should not be confused with a tax exemption that may be established by law, since the event will be present with the taxable effects provided by law, but the law may partially or totally neutralize such tax requirement by means of the exception of requiring payment for a particular case. Non-subjection is different, where the subject's conduct will not be subject to the imposition of a tax, in short, there will not be a taxable event. As an example, exports for consumption are taxable events not subject to VAT imposition - Law 20.631 (Official Gazette 27.12.1973) -, while imports for consumption, by law, are subject to the obligation to pay this tax. However, it may happen, as a result of a law, that such imports as a taxable event have an exemption from VAT payment, as is the case with certain regimes.
In a sort of mirror, the Law establishes the concept of taxable event in the same definition as for the taxable event of the import duty and, as it happens in this, article 724 of the Customs Code, although it clearly defines what action will be reached with the export duty, indicating the export for consumption, it is necessary to recognize the budget that refers to "consumption". Consequently, and to identify the taxable event in export, the article here object of comment (724) is not enough, but it must be combined with article 725. Thus, it is evident that the legislator, when indicating the fact that generates the tax obligation for export for consumption, defines it as the extraction from the customs territory for an indefinite period. In such an event, it is necessary to combine both mentioned articles to be able to identify the two legal budgets, which must be present for the presence of a taxable event that imposes the tax.
International Conventions
Article 756 of the Customs Code establishes a limit to the powers of the National Executive Branch when exercising the action granted by Article 755 of the same legal complex, in terms of being able to tax, deduct or modify the export right, and must do so in compliance with current international agreements.
Now, by means of the Decree of Necessity and Urgency 70/23, among the different articles of the Customs Code that have been repealed, there is precisely the aforementioned art. 756. But, despite this abolition, this legal precept, that is to say the duty to be bound by International Agreements, does not mean that it has vanished in the face of the decisions taken by the Executive Branch, who by virtue of the National Constitution, in accordance with the principle of hierarchy of norms has the duty to comply and therefore, must always be the object of sensitive care when making a resolution that may put into conflict what has been agreed between the major parties.
The Asunción Agreement and the right to export
The Asunción Agreement that gave rise to MERCOSUR forbade the imposition of taxes, including export duties. They cannot be admitted for export operations for consumption destined for countries that make up this customs union.
Indeed, despite the decision of the Supreme Court of Justice in the Whirlpool Puntana SA ruling of 2014, we do not agree with the basis that has served to support the aforementioned decision, considering the absence of a technical legal basis for such decision.
It should be noted that when the Treaty of Asunción was signed in 1991 between Brazil, Argentina, Uruguay and Paraguay, each of the States Parties defined the implementation of a Common Market, for which, among other fundamental characteristics, is that of joining customs, forming a common customs territory with all that this implies.
For its part, the General Agreement on Tariffs and Trade (GATT), in its Article XXIV, section 8, states: A customs union shall be understood as the substitution of two or more customs territories by a single territory. Its members eliminate customs duties and other trade restrictions for the essential part of the exchange of products originating within the zone, and the duties and other regulations applied by the States Parties in their trade with actors outside the zone shall be substantially identical.
In the case of the Treaty of the European Community, it states that the Customs Union covers all trade in goods and that it will implement the prohibition among Member States of import and export customs duties, as well as the adoption of a common external tariff in their relations with third countries. In short, duties and other restrictions on intra-zone trade on products originating in the entire single customs area are eliminated, as well as on products from outside the zone that have fulfilled their obligations.
Although a Customs Union is not necessarily a Common Market, the latter, that is, a Common Market, must always result in a Customs Union. The Court also held that, “the Treaty for the Establishment of a Common Market between the Republic of Argentina, the Federative Republic of Brazil, the Republic of Paraguay and the Oriental Republic of Uruguay, known as the Treaty of Asunción (Article 23 of the Treaty), approved by Law 23.981, is an agreement in the terms of Article 2, paragraph 1, section a, of the Vienna Convention on the Law of Treaties, that is, an international agreement concluded in writing between States and governed by international law, and which, therefore, is part of the legal system of the Nation with supralegal rank (Articles 31 and 75, paragraphs 22 and 24, of the National Constitution)” (according to CSJN Ruling 11.12.2014, autos Whirlpool Puntana SA v. General Directorate of Customs).
In this regard, the SCJN has pointed out that, through this instrument, the States Parties, after indicating that the expansion of the current dimensions of their national markets, through integration, constitutes a fundamental condition to accelerate their processes of economic development with social justice, agreed to establish a Common Market, called the Common Market of the South (MERCOSUR), which was to be established by December 31, 1994, (art. 1, first paragraph, of the Treaty).
That same article stated that this implied the free circulation of goods, services and productive factors between countries, through, among others, the elimination of customs duties and non-tariff restrictions on the circulation of goods and any other equivalent measure. And also the establishment of a common external tariff and the adoption of a common trade policy in relation to third States or groups of States; and the coordination of positions in regional and international economic-commercial forums. Likewise, the cited article 1 indicates, with implications for the aforementioned common market, the coordination of macroeconomic and sectoral policies between the States Parties: foreign trade, agriculture, industry, fiscal, monetary, exchange and capital, services, customs, transportation and communications and others that are agreed upon, in order to ensure adequate conditions of competition between the States Parties and the commitment of these to -harmonize their legislation in the pertinent areas, to achieve the strengthening of the integration process-.
Despite the guidelines established in the Treaty of Asunción and expressed by the Supreme Court of Justice of the Argentine Republic, the Common Market still does not constitute a fully consolidated customs union. This is evident when observing the failures that have occurred over the years, some of which still persist, due to an improper interpretation that has deviated from its precepts.
It is enough to recall the imposition, in the 90s, of a 10% statistical tax on all imports into Argentina, including those within the intra-zone. But with Resolution 11 of 2002, the export duty was implemented on the entire universe of merchandise exports made from Argentina, in addition to Decrees 793/18 and 1201/18, which imposed export duties on all exports, without any exception for those destined for MERCOSUR. Undoubtedly, these examples show a lack of compliance with the limitation, which implies a lack of knowledge of the International Agreements.
Thus, the Supreme Court of Justice of the Republic of Argentina itself, when deciding whether or not export duties should be applied to intra-zone operations, compared the constitutive framework of MERCOSUR with that of the EUROPEAN UNION, stating: "In this regard, one cannot fail to notice the difference between the Treaty of Asunción and the Treaty establishing the European Economic Community (Treaty of Rome of 1957), since the latter expressly provided for the prohibition among Member States of quantitative export restrictions, as well as all measures having equivalent effect, and obliged them to abolish those that existed upon the entry into force of that Treaty 'at the latest, at the end of the first stage' (art. 34). As can be seen from the above, the Treaty of Asunción did not include a clause equivalent to that adopted by the European Community”, concluding that it considers the application of withholdings within MERCOSUR to be possible, even though it is claimed that we are dealing with a Common Market with its character as a Customs Union.
Ultimately, the defence of MERCOSUR will only make sense to the extent that criteria regarding its true nature are standardised and that it is put into practice with a vision that coincides among the Member States. This implies respecting the essence of the trade integration process, the bases of which lie in tax and customs harmonisation. Consequently, within a territory conceived as a customs union, in accordance with the Treaty of Asunción, the application of customs duties, including, obviously, the export duty, is not appropriate. But, more importantly, it is the duty of the Executive Branch not to deviate from its obligation to respect the signed Agreements.
Conclusion
The Government has now indicated that the export duty is an immoral tax, which highlights its clear need to be eliminated. Decree 38/2025 has acknowledged this intention, initiating what may perhaps be the final concretisation of putting a stop to this tax that distorts the purpose of any export incentive policy.
Meanwhile, and despite the ruling Whirlpool In the light of the Court's decision, the Executive Branch still has room to correct the erroneous application of the export duty within MERCOSUR. In this regard, it can revalue the Asunción Agreement and guarantee compliance with international commitments, aligning its implementation with the objective of removing this tax from the core of commercial operations abroad, starting with the express elimination of the export duty for intra-zone destinations.
A decision of this nature would position Argentina in line with its claim to offer full predictability, legal certainty and transparency. This is complemented by its constant declaration that the export duty is a tax present in few countries in the world, and as established by Decree 38/2025 itself, its elimination would contribute to strengthening the export drive, favoring the elimination of distorting taxes, the opening of new markets and greater international positioning.
At a time when the world is looking at Argentina, the first thing we need to do is to make clear, without question, that there is a national conduct of respect for the law. At the international level, this is reflected in the compliance with the agreements signed by the country.
- Decree 38/2025 (BO 27.01.2025) -Considerations and foundations-.
- CACAF – Chamber II – ruling 23.09.2008 – Gallo Llorente, Santiago and another v. National State.
- SCJN - ruling of April 15, 2014 in the case Camaronera Patagónica SA S/Amparo v. Ministry of Economy of the Nation.
- SCJN ruling 11.12.2014 Whirlpool Puntana SA v. General Directorate of Customs.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
