Amendments to the Administrative Procedure Law

 

1. Main amendments

Among the main amendments the Law of Bases and Starting Points for the Freedom of the Argentine People 27742 (Bases Law) makes to the Administrative Procedure Law 19549 (APL), the following stand out:

• Scope. The APL now applies not only to the centralized and decentralized Federal Public Administration but also extends to the Legislative Branch, the Judiciary Branch, and the Public Ministry when they have administrative functions. Additionally, if no other specific law applies, it will apply supplementarily to nonstate public entities, non-state public law entities, and private entities, when they haver public functions. However, the APL does not apply to companies and corporations of the Federal Government or its financial or banking entities, which are governed by private laws in their relations with third parties.

 

• General principles. The amendments enshrine fundamental principles such as effective administrative protection (procedural due process), legitimate expectations, good faith, rule of law, reasonability, proportionality, transparency, administrative simplification, and good administration.

 

• Illegitimacy complaints. An "illegitimacy complaint" is a remedy used when the deadline for filing specific administrative challenges has elapsed. The new Law establishes a maximum of 180 days from the date of notification of the relevant administrative decision for filing this sort of complaints.

 

• Suspensive effect of the request of access to administrative files. The Lae extends the suspensive effect of requests of access to administrative files concerning deadlines in progress (excluding those related to the statute of limitations) to a broader range of situations, including deadlines to file administrative challenges,  depositions, defenses, summons replies, etc.

 

• Interruptive effect of administrative challenges and claims. The Bases Law clarifies that filing administrative challenges or claims interrupts the course of applicable legal and regulatory terms, including those related to administrative expiration periods and statute of limitations.

 

• Validity requirements of administrative decisions. The Law clarifies validity requirements and grounds for invalidity of administrative decisions.

 

• Notification formalities. It also establishes the invalidity of notifications in breach of the required formalities.

 

• New prohibited conducts. The Administration is prevented from:

 

1. establishing electronic, computerized, or other mechanisms that, through the omission of alternatives or other technical defects, prevent the performance of legal conducts,
2. imposing measures that require a prior court decision, such as seizures, raids, and searches or similar actions on the domicile or property of private parties.

 

• Positive silence. The Basis Law provides that in certain situations the Administration's lack of decision is deemed as a positive decision. Specifically, if an administrative authorization is required for private parties to carry out certain activity under a regulated legal framework (i.e., as opposed to a legal framework which provides broad discretionary powers for the Administration), and the Administration does not issue a decision within the prescribed term, the lack of decision will be considered an approval. This rule does not apply to matters related to  public health, environment, rendering of public services, or rights over public domain, unless the applicable law explicitly grants positive effect to the silence on those matters. Implementing regulations may establish additional exceptions.

 

• Effects of judicial annulment of administrative decisions. The amendments to the APL reach the effects of judicial annulment of administrative decisions. A judgment annulling an administrative decision will have retroactive effects to the date the relevant decision was issued, unless the courts decide otherwise based on specific circumstances, considering whether it is an absolute or relative nullity.    

 

• Prohibition to revoke administrative decisions whose purpose has already been fulfilled. The Basis Law prohibits revoking administrative decisions in administrative proceedings if their purpose has already been fulfilled.

 

• Inadmissibility of suspending certain administrative decisions at the administrative venue. The effects of administrative decisions deemed null and void cannot be suspended by administrative authorities if their revocation is not allowed, i.e., administrative decisions which have been served to the relevant private party and granted individual rights which are being fulfilled.

 

• Compensation for revoking administrative decisions for public interest reasons. When revocation occurs for reasons of opportunity, merit, or convenience, damages caused to private parties will be compensated according to the implementing regulations to be enacted. Compensation will include the loss of profits duly evidenced.

 

• Compensation for the repeal of administrative regulations. Rights acquired under administrative regulations (decisions of general scope) that are later abrogated are protected. The right to compensation for damages effectively suffered is recognized.

 

• Statute of limitations. The statute of limitations to sue for the annulment of an administrative decision of particular scope is explicitly provided. The term is ten years in cases of absolute nullity and two years in cases of relative nullity. These terms will be counted as from the date the relevant administrative decision was notified.

 

• Extension of legal standing in judicial courts. The Law clarifies that judicial challenges are admissible whenever interests are affected.

 

• Exhaustion of administrative challenges. The need to exhaust administrative challenges is excluded when the challenge is based exclusively on the invalidity or unconstitutionality of the disputed regulation of legal hierarchy that the administrative decision applies, when exhaustion of administrative challenges constitutes useless ritualism, when an action for constitutional protection (amparo) or other urgent proceeding is filed, or when the Administration does not abide to a final court decision.

 

• Minimum term for hierarchical challenge. The term for filing appeals that exhaust administrative challenges (currently the hierarchical challenge) cannot be less than 30 days from the valid notification of the challenged decision.

 

• Extension of the administrative expiration period to file a lawsuit. The deadline to file a judicial challenge against a decision that expressly denies a challenge or claim that exhausts the relevant administrative proceeding is extended to 180 court business days.

 

• Challenges of decisions rendered during the performance of contracts. Administrative decisions issued during the performance of government contracts may be challenged in court up to 180 days after termination of the relevant contract if they were previously challenged in an administrative venue within 30 days of their notification.

 

• Repeal of the solve et repete principle. The requirement of prior payment of fines for the admissibility of judicial challenges is eliminated,  and the principle of gratuity of administrative proceedings reinforced.

 

• Remedies against delays or failure to render administrative decisions (amparo por mora). The remedies against delays or failure to render administrative decisions are strengthened by providing that the appeal against the judgment granting the remedy does not have suspensive effects.

 

• Administrative claim exceptions. The Law includes exceptions to the filing of administrative claims as a condition to file a lawsuit against the Federal Government are included.

 

2. Final considerations

The amendments to the APL include principles and interpretations postulated by modern case law and legal authors, aiming to strengthen the rights of private parties vis-a-vis the Administration.