Amendments to the Federal Law on Administrative Procedure

The Bill “Bases and Starting Points for the Freedom of the Argentine People” includes a major update and reform of different aspects of the Federal Law on Administrative Procedure 19549 (FLAP), which—as stated in the message the Executive branch sent to the Congress—capitalizes on the experience of its more than fifty years of validity.

Among the main amendments proposed, it specifies the FLAP scope of application: it will apply to the centralized and decentralized agencies, but also to the Legislative Branch, the Judiciary Branch, the Federal Public Prosecutor's Office when it exercises administrative functions, and to non-governmental organizations that carry out public functions.

The Bill incorporates new principles applicable to the administrative procedure, such as effective administrative protection, legitimate expectations, bureaucratic efficiency, good faith, and gratuity.

Further clarifications are also included in the provisions referring to procedural terms, providing for greater flexibility and longer terms.

The suspensive effect of the request to access the administrative files, until now limited to administrative challenges or claims, is broadened to include a wide range of situations (filing defenses in administrative procedures, replying to summons, etc.). It is also clarified that filing administrative challenges or claims will have the effect of tolling all applicable legal and regulatory terms, including those relating to statutes of limitations.

The Bill specifies the validity requirements for administrative decisions and notifications formalities. It explicitly introduces a consultation procedure for rules relating to public utilities’ tariffs and regulations.

It also states that, in cases of requests of authorizations or administrative clearance required by law as a condition to perform certain activity or act, if the Administration does not issue a decision within the applicable term, this will imply approval. This tacit approval is excluded of matters regarding public health, environment, provision of public services, or rights over public property, except when if otherwise provided in the specific applicable law.

The Bill includes new rules regarding the effects of the judicial annulment of administrative decisions. In this sense, rulings holding that an administrative decision is null and void will have retroactive effects, unless the court decides otherwise for reasons of equity, provided that the party benefited from the annulled decision had not incurred in willful misconduct.

The Bill prohibits revoking administrative decisions if their purpose has been wholly fulfilled. Further, the Administration could not order to suspend the effects of administrative decisions held to be null and void when their revocation by administrative authorities is not allowed. Revoking for reasons of public interest will be compensated, and the damages will also include the loss of profits duly proved.

The Bill regulates on the statutes of limitations to seek the annulment of administrative decisions, establishing a 10-year term for acts that are absolutely null and a 2-year term for acts that are voidable.

Standing to sue is broadened to include the protection of interests, and the rule requiring exhaustion of administrative remedies is waived when:

1. the challenge is based exclusively on the unconstitutionality of the law on which the administrative decision is based,
2. the exhaustion requirement would imply futile bureaucratic ritual
3. a writ of protection (amparo) is filed or
4. the Administration disobeys a court ruling with final effect.

New basic rules on exhaustion of administrative remedies are also established. The Bill lists the decisions that have the effect of exhausting the administrative stage. It is also provided that the term to file administrative appeals may not be shorter than 30 business days. The Bill raises to 180 judicial business days the term to seek judicial review of administrative decisions.

At the same time, the it establishes that administrative decisions issued during the performance of a governmental contract may be judicially challenged up to 180 days after the termination of the contract, provided that the relevant decision was duly challenged through an administrative remedy within 30 days since its notification.

Regarding administrative decisions that must be challenged in court and in which a monetary sanction has been imposed, the Bill establishes that complying with this sanction cannot be required as a condition for the admissibility of the judicial appeal.

Likewise, the Bill introduces amendments in the rules providing remedies against review of agencies’ delays or their failure to render a decision (amparo por mora).

Finally, the Bill provides for some exceptions to the rule requiring the filing of an administrative claim (reclamo administrativo) prior to filing a lawsuit.

In conclusion, the Bill introduces important principles and reflects the views presented by the most modern case law and legal doctrine, and it aims at strengthening the guarantees of private parties before administrative agencies.