Parâmetros para o controle de constitucionalidade de tratados e instrumentos internacionais em matéria tributária e aduaneira: OMA, ALADI e MERCOSUL

Abstract

This dissertation examines the constitutionality, under Brazilian law, of the domestic incorporation process for treaties and other instruments produced within international organizations (IOs), with a specific focus on acts concerning tax and customs matters. As illustrative case studies, it analyzes instruments developed by the World Customs Organization (WCO), the Latin American Integration Association (LAIA), and the Southern Common Market (MERCOSUR). Framed around the research question of which judicial-review (constitutional-review) parameters should govern the incorporation of international instruments, binding and nonbinding, consensual and nonconsensual, the study identifies relevant express and implied constitutional norms and argues that the constitutionally required incorporation process varies according to the subject matter addressed by the international act. In tax matters, requirements associated with formal legality predominate. As a general rule, constitutional incorporation requires approval by the National Congress, and the use of executive agreements is, in principle, prohibited. Moreover, regardless of the incorporation pathway, all constitutional constraints on the taxing power apply – including principles and tax immunities – which, as a general matter, preclude dispensing with congressional approval. In the customs–administrative domain, congressional approval of the treaty is an indispensable constitutional starting point. Once a treaty has been duly approved, it may, by expressly authorizing subsequent supplementation, confer authority on the Executive Branch to enter into later executive agreements capable of modifying customs-administrative regulation related broadly to customs control (including non-tariff barriers in general). In the customs–tax dimension, congressional approval of the treaty is likewise indispensable. Delegation to the Executive is constitutionally permissible only to incorporate, via executive agreement, international acts that deal exclusively with changes to the rates of the Import Tax (II) and the Export Tax (IE), provided that the congressionally approved treaty authorizes subsequent supplementation in that specific matter.