Published on March 12, Provisional Measure 1,340/26 (MP 1,340/26) authorizes the granting of economic subsidy for the commercialization of diesel fuel for road use in the national territory and institutes Tax of Export on gross petroleum oil and diesel fuel.

Economic subsidy for diesel

The provisional measure authorizes the Federal Government to grant an economic subsidy to producers and importers of diesel fuel for road use, worth of R$ 0.32 per liter, as of March 12, limited to December 2026. The subsidy is subject to a comprehensive ceiling of R$ 10 billion. If this amount is reached before the end of the term, the benefit will be terminated in advance.

The beneficiaries are the economic agents authorized by the National Agency of Petroleum, Natural Gas and Biofuels (ANP) to carry out activities of production of petroleum by-products, as well as the foreign trade agents and distributors of liquid fuels qualified to import diesel fuel.

The operationalization, calculation and payment of the subsidy are the responsibility of the ANP, which will establish the procedures in regulation.

To be entitled to the benefit, economic agents must voluntarily join the program, signing a term of adhesion jointly with the ANP, committing to trade diesel for road use at a price equal to or lower than the reference price defined by the agency, minus the amount of the subsidy.

The qualification is contingent order to the authorization for sharing tax information between the Federal Revenue Service of Brazil and the ANP, for the purposes of monitoring and inspection.

Export Tax on oil and by-products

The provisional measure establishes the incidence of the Export Tax on crude petroleum oils or bituminous minerals (NCM 2709) at the rate of 12% on the aggregate amount of exports. This rate may be reduced by an act of the Executive Management Committee of the Chamber of Foreign Trade (Gecex/Camex), to meet the objectives of the foreign trade policies and the national energy policies.

And while the economic subsidy for diesel lasts, a rate of 50% of the Export Tax on diesel fuel is established (NCM 2710.19.21). The measure aims, evidently, to discourage the export of the derivative during the period of validity of the internal subsidy program.

Amendments to Law 9.847/99 – Infractions and penalties

The provisional measure also introduces two new administrative infractions in Law 9,847/99, applicable to the fuel business.

The first typifies as an infraction the abusive increase in the prices of fuels, biofuels and petroleum by-products, with an aggravation of the penalty in situations of geopolitical conflicts or calamity. The fine ranges from R$ 50 thousand to R$ 500 million.

The second penalizes the unjustified refusal to supply these products, with a fine in the same range of values, aggravated proportionally to the economic gain obtained by the violator.

Points of attention

MP 1,340/26, although presented as an energy policy and price control measure, raises constitutional and tax order questions.

Firstly, the institution of the Export Tax on gross oil and, especially, the 50% rate on diesel exported during the period of validity of the subsidy raise doubts as to its adequacy to the constitutional regime of the Export Tax (Section 153, II, of the Constitution Federal).

This is because the primary function of this tax is extrafiscal and regulatory, and not collection or financing of sectoral policies. The use of the tax as an instrument to fund the subsidy may constitute a deviation of purpose and be questioned before the Judiciary.

It is worth noting that MP 1,340/2026, with regard to the taxation of petroleum exports, bears similarity to Provisional Measure No. 1,163/2023, which established a 9.2% export tax rate on crude petroleum oils or bituminous mineral oils. The legitimacy of this Provisional Measure remains under judicial discussion to this day.

In addition, the typification of "abusive price increase" as an administrative infraction, without clear objective parameters for its characterization, may violate the principles of validity and legal certainty. It can also generate insecurity for business agents about the criteria for inspection and application of penalties. The open concept of "abusiveness" and the amplitude of the value of the fines (from R$ 50 thousand to R$ 500 million) deserve extra attention from market operators.

Finally, as it is a provisional measure, the rule hinge on conversion into law by the National Congress within 120 days, under penalty of loss of effectiveness, which adds uncertainty as to the continued occupation of the rules it establishes.

In view of the scenario presented, we consider that Provisional Measure 1,340/26 is quite questionable from a legal point of view, especially with regard to:

• institution of the Export Tax as a mechanism for financing subsidies; and
• typification of infractions with indeterminate concepts and very high fines.

We recommend that our clients carefully follow the matter in the National Congress and evaluate any appropriate legal measures to hold harmless against their rights.

We remain at your disposal to advise you on the analysis of the specific impacts of this measure on your operations and on the adoption of the necessary measures.