Argentina’s first request for a consultative opinion to the Permanent Court of the Mercosur
On October 6, 2009, the Supreme Court accepted the motion filed by Sancor Cooperativas Unidas Limitada (“Sancor”) and requested the Permanent Review Court of the Mercosur a consultative opinion, in order to determine whether the Treaty of Asunción –which created the Mercosur- imposes to the State Members the obligation to refrain from levying export rights to merchandise originated in one of them and exported to another State Member.
This is the first request for a consultative opinion made by a National court.
With regard to the facts of the case, Sancor opposed to pay a 5% export right charged by the Argentine Customs to the export of powder milk to
Sancor requested the Supreme Court to declare the unconstitutionality of the Resolution 11/2002 of the Ministry of Economy, which established the export rights, on the grounds that they violated the Treaty of Asunción. The Federal Revenue Administration (“AFIP”) argued that the Treaty of Asunción was programmatic and, consequently, that it has no direct and immediate effects on the Signatory Parties, unless domestic legislation adopting it is passed. The AFIP also alleged that should the Treaty of Asuncion be directly applicable to State Members, it does not expressly prohibit them to levy export rights.
The National Tax Court dismissed Sancor´s lawsuit and ruled in favor of the AFIP. Afterwards, the Court of Appeals in administrative matters overruled the decision issued by the National Tax Court and accepted Sancor´s arguments. The AFIP appealed that decision before the Supreme Court, which without deciding the matter, requested first a consultative opinion to the Permanent Review Court of the Mercosur. The consultative opinion although it is not binding, has a great value since it is issued by a supranational court that is specialized in international matters.
This decision is of great importance since it is the first time a National Court asks for a consultative opinion to the Permanent Review Court of the Mercosur, and likewise, because of the relevance of export rights in the tax collection of the Argentine Government.
For further information on this topic please contact Jorge I. Mayora