Introduction
Highlighting the importance of international trade for economic activity is almost like highlighting the importance of water for human beings, especially when this activity is also relevant to a serious national development plan.
In light of this, the clarity of the legal instruments available for international trade activities is also significant, which involves international and local contracts, the respective customs controls and the tax consequences of the operations, among other issues.
The impact and significance of the Budget Law
Having anticipated this, it is then appropriate to consider the impact and significance of the Budget Law on the activity and development of international trade, as well as its consequences, given that said legal instrument reflects what the State plans for its next fiscal year, granting predictability both for the State itself and for private entities.
According to the project that was submitted to the National Congress, a 2025% increase in the export of goods and services is projected for the year 9 compared to the previous period, resulting in a figure of 104.030 million dollars, compared to 95.414 in 2024, and, with respect to imports, the increase would be 13,4% for the period 2025, with a final amount of 83.282. That is, the balance would be positive for the trade balance by 20.748 million dollars.
The same project foresees a collection of Export Duties (obviously measured in millions of dollars) of 10.712, higher than the 570 of 5.344; and for Import Duties, a collection of 904,6 is projected against 2024. Which implies a greater collection in the concept of Import and Export Duties. (4.325.071,1)
Let us now turn to the subject of the “cepo”. Curiously, the project does not mention the subject, as if avoiding the situation. But it is clearly of utmost importance for international trade operations.
Without further discussion, it is unquestionable that the Budget Law is crucial for the economy in general and for international trade in particular, taking into account the government plans and the legal tools relevant to this, within the framework of the National Constitution, as a guarantee of legal security. To this end, it is necessary to bear in mind some issues regarding the issuance of the Budget Law and the possibility of an extension of the one set for the previous period.
Constitutional analysis
First of all, it is important to keep in mind how our political system is configured, since it is through it that the State exercises its functions in a context of clear and concrete rules. In our case, the National Constitution establishes this very clearly from its first article, when it declares that “The Argentine Nation adopts the representative, republican and federal form of governmentl”. That is to say, sovereignty resides in the people, who are governed by representatives in a republican system, in which the division of powers, the periodicity of mandates, the publicity of government acts, the accountability and responsibility of public officials prevail. And it is within this framework of division of powers that the National Constitution itself grants each branch of the State its pertinent function.
This is why, as regards the issue of approving the budget of resources and expenses of the Nation, it is precisely delimited by the sovereignty of the people and republican representation. Consequently, the organs that make up the State will have the resources that are assigned to them through the Budget Law. And this is mainly through the tax collection that is established, following the principle of legality. This is clear in our Constitutional Law, in that it considers that the budget is… “an instrument approved by law of Congress which annually foresees the expenses that the administration will incur and the resources of the administration and the resources that must be obtained to cover them(2) It is then in such a character that the budget becomes not only an assessment of what is predicted, but also a tool of intergovernmental control, because by making resources possible, it simultaneously enables controls, in accordance with the precepts that emanate from art. Art. 75, inc. 2°, paragraph 3°, of the National Constitution, which in turn refers to what is known as the "budget clause", of article 75, inc. 8°, of the National Constitution. Which means that the budget is set by the National Congress according to the guidelines mentioned in the third paragraph of subsection 2. Because it is prepared by the Executive Branch, but it is set by the National Congress, in accordance with our republican system of government.
Let us also remember that art. 4 of the National Constitution refers to the fact that Import and Export Duties are part of what is destined to cover the nation's expenses. That art. 17 (Property Rights) establishes that only Congress is responsible for their determination, this added to the aforementioned paragraphs of art. 75, plus the express prohibition of regulating taxes through a DNU, as mentioned in art. 99 inc. 3; and art. 76 which prohibits legislative delegation, except in cases of public emergency, for a determined time and in accordance with the bases of delegation that Congress establishes, within the framework of what has already been indicated regarding limitations that the same Constitution imposes.
The Budget Law, commonly referred to as the “law of laws”, is a legal instrument that orders and plans the economic activity of the State for the next fiscal period, in such a way that it directly affects all such activity and, of course, international trade.
Therefore, it is the Executive Branch that designs and projects it, sends it to the National Congress for its consideration, just like any other law, and then, it is the Executive Branch that executes that law. And following the legislative process for its consideration, it is subject to what the National Constitution determines for that purpose on the formation and sanction of laws. That is, Congress has the power to make modifications in the treatment of the project. After the sanction of the law, the Executive Branch can promulgate the law or exercise the veto, partial or total, with the consequent return to Congress to approve the veto or insist on the sanction.
But the constitutional problem can arise when Congress does not approve the budget. Law 24.156 (Financial Administration Law) provides in its article 27 that “If the general budget is not approved at the beginning of the financial year, the one in force the previous year shall apply, with the following adjustments that the National Executive Branch must introduce in the budgets of the central administration and of the decentralized agencies:
1.- In resource budgets:
a) Eliminate items of resources that cannot be collected again;
b) Eliminate income from authorized public credit operations, in the amount in which they were used;
c) Exclude surpluses from previous years corresponding to the previous financial year, in the event that the budget being executed had provided for their use;
d) Estimate each of the resource items for the new fiscal year;
e) It will include resources from public credit operations in progress, the collection of which is expected to occur during the fiscal year.
2. In the expenditure budgets:
a) Eliminate budgetary credits that should not be repeated because the purposes for which they were intended have been fulfilled;
b) Include the budgetary credits essential for debt service and the quotas that must be paid under commitments arising from the execution of international treaties;
c) It will include the essential budgetary credits to ensure the continuity and efficiency of the services;
d) Adapt the objectives and the quantifications in physical units of the goods and services to be produced by each entity to the resources and budgetary credits resulting from the previous adjustments.(3)
Nevertheless, it must be kept in mind that the budget law must be subject to the principles of legal reserve (since it is up to Congress to determine it), unity of law (since it represents a government plan), principle of universality (since its destination is in general expenses and resources) and principle of specificity (because the purpose must be indicated precisely).
Conclusion
The Budget Law is enacted so that it is in force from January 1st of each year until December 31st of that same year. That is its period of validity. That is why before the end of each year, the law for the following year must be approved. But as already noted, Law 24.156 provides that if it is not approved, the existing budget of the previous period may be extended to give continuity to the State's activity and the predictability of economic activities, such as international trade. But when an extension is already underway and the Executive Branch does not agree with the new law, is it constitutionally possible to extend what was already extended?
Based on our representative and republican system, which undoubtedly includes citizen control through the representatives of the National Congress as a counterweight to the Executive Branch, the progressive nature of constitutional rights and guarantees (as opposed to a regressive interpretation) in accordance with the Human Rights Treaties of constitutional hierarchy and the subsequent control of the constitutionality of the law, a second extension of a previous extension, using as an excuse art. 27 of Law 24.156, would undermine constitutionality; therefore, the credibility and legal security of the nation. In addition, the claim of illegality regarding a tax requirement would be exposed. And with this, an activity as essential as international trade would be harmed, even with logical claims of unconstitutionality in the application of tax consequences. It would not be healthy for the republic, for legal security or for international trade.
- Ministry of Economy
- BADENI,GREGRIO (2006),Treaty on Constitutional Law, 2nd, updated and expanded ed., Buenos Aires, La Ley, Vol. II, p. 1546.
- 24.156 / 1992
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
