Based on the constitutional principle that states that all taxes must be levied by laws passed by the Federal Congress, the Supreme Court of Justice held that both Ministerial Resolutions and Presidential Decrees (Executive Orders) issued by the Executive Branch, whereby the Federal Government attempted to establish export duties without the approval of the Federal Congress, are unconstitutional.
This ruling was rendered on April 15, 2014, in a case in which the Company “Camaronera Pantagónica” challenged resolutions issued by the Ministry of Economy in 2002 that had established export duties applicable to the export of fish and crustaceans. The Ministry of Economy had enacted these resolutions with reference to provisions of the Customs Code that empowered the Executive Branch to issue regulations on this matter.
Five of the Court’s members made a strict application of the Constitutional provision that states that the Legislative Branch (not the Executive) is the branch of government empowered to legislate on customs matters, and hence, to establish export duties. Thus, it rejected the constitutional validity of the delegation of powers invoked by the Ministry of Economy.
At the same time, a majority of four Justices endorsed the validating effect of laws passed by Congress approving or ratifying -even in a generic way- regulations enacted by the Executive Branch and the Ministries, including resolutions that established or increased export duties. It is worth noting that this validating effect was acknowledged in order to uphold the establishment of these taxes as of the date that the ratifying law came into force, without having retroactive effect.
According to the principles laid down by this precedent, export duties that are currently collected by the Customs Service lack legal basis, insofar as they were established by a Presidential Decree or by a Ministerial Resolution that has not been ratified by Congress. In this respect, and notwithstanding the effects of any other ratifying laws that could provide for specific situations, it is worth mentioning that the Court’s ruling refers to Law Nos. 25,148, 25,645, 25,918 and 26,135 and recognizes that they grant legal status to regulations fixing export duties that were enacted up to August 2006, with reference to powers delegated on the Executive Branch by laws passed before the 1994 constitutional amendment.
Pursuant to this doctrine, Presidential Decrees or Ministerial Resolutions creating or increasing export duties are null and void. Nevertheless, such provisions would become valid if they are approved by the Legislative Branch.
Since these constitutional rules are equally applicable to import and export matters, the aforementioned also applies to import duties.