Exportation rights and their application in transactions within the MERCOSUR

1. Background

Tribunal V of the Federal Administrative Court of Appeals has ruled in favor of the company, rendering without effect the resolutions of the Santa Fe Customs Bureau that were objected by Sancor.

Tribunal V held that the enforcement of exportation rights is not admissible within “intra MERCOSUR” transactions, since the basic underlying rule in the creation of such Common Market, as set by Section 1 of the Asunción Treaty, is the free circulation of goods, services, and factors of production among its members, allowed by the elimination of customs rights and other restrictions.

The Tax Authority (the National Customs Bureau) filed an extraordinary federal appeal (recurso extraordinario federal) against such sentence, which was granted to it. The case is currently under review by the Argentine Supreme Court.

3. The Supreme Court decision

The Supreme Court accepted a request from Sancor, by means of which it ordered recently the request of an advisory opinion to the MERCOSUR Permanent Review Court. The advisory opinion poses the following question:

Does the Asunción Treaty impose on the members of MERCOSUR the obligation to refrain from setting exportation rights of goods from their countries and destined to the other member States?

It is important to point out that the request for advisory opinions to the MERCOSUR Permanent Review Court is encompassed within the Regulation of the Olivos Protocol for the Disputes Settlement within the MERCOSUR and that the advisory opinion issued by the Permanent Review Court is not binding to the party that requests them.

It is stated in the Olivos Protocol that advisory opinions required by the Superior Courts of the Member States with national jurisdiction – as in this case – must exclusively refer to the judicial interpretation of the MERCOSUR regulations and must be related to judicial claims that are under the analysis of the Judiciary Power of the requiring Member State.

4.Additional comments

Since its creation in 2004, the MERCOSUR Permanent Review Court has only issued three advisory opinions (one of which was requested by the Supreme Court of Paraguay and the other two were requested by the Supreme Court of Uruguay). In all cases, the advisory opinions were issued within a year as of their request date.

It seems reasonable to interpret that the decision of the Supreme Court, by requesting such advisory opinion from the MERCOSUR Permanent Review Court, increases the chances that the sentence that will be ultimately issued will be against the enforcement of exportation rights in “intra MERCOSUR” transactions