Although an old debate has been revived, it is certainly pointless, given the clarity with which the issue is treated from the basis of our legal system, that is, the National Constitution.
I have already had the opportunity to express myself on this subject through this medium, but in light of this debate that is being revived time and again, it is appropriate to once again provide clarity on such an important issue for foreign trade.
In order to move directly to the issue, as regards the historical background of export duties, I refer to the article “Import and export duties: the powers delegated in the Customs Code and the National Constitution” published in Aduana News on November 17, 2021.
But it happens that in the legislative field, the National Congress did not approve the latest Budget law. In this bill, it was contemplated to extend the powers of the Executive Branch to set export duties, in accordance with the provisions of the Customs Code (art. 755) and in accordance with what was previously agreed in the previous Budget Law (27.571). But that law expired on December 31, 2021, hence the importance of having a law to replace it, which did not happen.
In the previous law, the effects of which have expired, the limits for the establishment of export duties by the Executive Branch were established, previously approved and as appropriate, by the National Congress. However, in the absence of a new law, the Executive Branch opted to extend export duties by Decree; and did so through Decrees 831, 832, 852 and 908, all from 2021, extending the validity of the duties established in the previous law (27.571).
However, and in accordance with the provisions of the National Constitution, this extension by Decree is absolutely unconstitutional.
The National Constitution, in its art. 4, establishes import and export rights on an equal footing with “other contributions imposed by the National Congress.” In its art. 17, linked to the right of property, it states that “only Congress imposes the contributions referred to in art. 4”; that is to say that such taxes are the power of the National Congress. Then, when art. 52 states that “the Chamber of Deputies is exclusively responsible for initiating laws on contributions,” it is a reaffirmation of the exclusive power of Congress, indicating the Chamber of origin.
But even more so, since in art. 75 (Powers of the National Congress) the National Constitution says there in section 1 “Legislate on customs matters. Establish import and export duties.” There is no longer any doubt then that it is up to Congress to set these taxes and only a parameter for setting rates by means of a Law is delegated to the Executive Branch.
For its part, art. 76 states “Legislative delegation to the Executive Branch is prohibited, except in specific matters of administration or public emergency, with a fixed term for its exercise and within the bases of the delegation that Congress establishes." Therefore, since there are no bases for delegation established by Congress nor a term of duration for it, any other means to try to enforce what has already expired is totally unconstitutional and its intended application is invalid.
Finally, Article 99, paragraph 3 expressly prohibits the Executive Branch from issuing legislative provisions on tax matters, even in cases of necessity and urgency.
Likewise, the jurisprudence has issued a forceful ruling (Camaronera Patagónica), in which the Supreme Court of Justice of the Nation has stated that“Only Congress has the power to set taxes, declaring the unconstitutionality of resolutions 11/02 and 150/02 of the Ministry of Economy” This also involved sub-delegated powers from the EP to the Ministry of Economy.
There is no doubt that both import and export duties are taxes and, as such, only Congress is responsible for setting them. Since there is no law that has validity, limits, parameters or deadlines, constitutional principles and guarantees are undoubtedly violated by wanting to extend by Decree a Law whose effects have a deadline and which has expired. This can only be remedied by a new law that grants the Executive Power specific powers, with specific parameters and deadlines.
Based on the above, it is more than clear that the aforementioned Decrees suffer from illegality, manifest arbitrariness and frank unconstitutionality, since there is no current law that supports it, setting maximums, minimums or any term. Therefore, the export duties allegedly imposed with the aforementioned decrees, since the law expired on December 31, 2021, are unconstitutional and enable the judicial route for their challenge.
Guillermo Sueldo, lawyer, member of the Customs Law and Foreign Trade Institute of the Argentine Association of Constitutional Justice
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
