Through Official Gazette Supplement 583 of November 24, 2011, the Environmental Promotion Law became effective. This law introduced a number of changes to the national tax system, introducing taxes such as the environmental tax on vehicle pollution, the redeemable tax on non-returnable plastic bottles, and modifying existing taxes.
In turn, the purpose of the Environmental Promotion Law is not only to collect taxes, but also to encourage responsible ecological, social and economic behavior. However, from its very name and its explanatory memorandum, the Environmental Promotion Law was presented as a law that sought to generate incentives for raising awareness on environmental protection. However, in addition to the taxes that are effectively in line with the environmental theme of this law, the Executive made arbitrary reforms to regulatory bodies that were not related to this theme.
As an example, one of the several reforms inconsistent with the objective of this law was the increase of the Foreign Exchange Outflow Tax from 2% to 5%.
It is for this reason that since 2011, several individuals and associations have filed unconstitutionality actions against the Environmental Promotion Law. However, after so many years, and with the coming of a new governmental regime, our Constitutional Court has finally declared the unconstitutionality of the Law through judgment No. 58-11-IN/22. In the aforementioned sentence, our constitutional control body has thoroughly delineated the latent violation of the principle of unity of matter that the Environmental Promotion Law constitutes; even concluding that as a normative body it is a reformatory law in its entirety.
It is essential to take into consideration the importance of this declaration of unconstitutionality, since it represents the advent of a tax regime that attracts foreign investment. However, although the impacts of this declaration of unconstitutionality may open doors to a positive development of the fiscal policy of our new government, the Constitutional Court has determined that the immediate effects of this ruling would cause an abysmal vacuum in the tax regime.
Therefore, it has considered that the most opportune thing to do is to give the Executive the opportunity to promote the legislative reforms that will replace the aforementioned law until 2023, the year in which the Environmental Promotion Law will cease to be in force in its entirety.
Finally, there is no doubt that Ruling No. 58-11-IN/22 provides a new approach to tax development in Ecuador. However, its effects go beyond what is directly expressed in it. Since such unconstitutionality implies that hundreds of Ecuadorians have been paying taxes arising from an unconstitutional law. It should now be clear that it is the duty of the new administration to redress this injustice with a “friendly” fiscal policy that promotes the development of internal and external trade as a method of economic development of the State.
Salomon Larrea Carcache
Student of UEES Law School
