Introduction
It often happens that affected individuals appeal administrative resolutions through the channels regulated for such purposes. This is so because it is necessary to have an appropriate regulatory framework for the relevant cases brought before the Public Administration. This is logical within a framework of the rule of law, always based on the prerogatives of the Public Administration and, obviously, also on the rights of taxpayers. Excessive use of the power of the State implies a clear abuse of the law. This clearly indicates the existence of an exercise of law contrary to what the law itself prescribes, due to an excess in its execution, causing an improper use of certain legal powers. That is, a “unfair, undue, improper or excessive use of a power that the law or authority has granted us” (1) This can be understood in that norms must be interpreted according to their purposes, which will never be to grant undue supremacy to one party over another, according to the values of the legal system itself; in good faith, the guiding ethical principle of society, understanding that morality is expressed as an ethical-legal value, with the norm being the legal expression of respect for one's neighbor, affecting social morality and, therefore, public order. These principles go beyond the scope of private law, as they constitute principles of the entire legal framework, consequently encompassing the exercise of State prerogatives and, consequently, the application of the norms that regulate administrative proceedings.
In very common practice, the State usually alleges the criteria of opportunity, merit and convenience for its actions, but these criteria can never be outside the control of legality by the Judicial Branch, without this implying the substitution of functions. (2)
Case and Jurisprudence
The case in question for comment in this prestigious specialized medium concerns a claim filed with the National Public Administration (General Directorate of Customs) regarding a recourse proceeding in which a declaration of unconstitutionality was raised against the Decrees against which the taxpayer was bringing its action. Thus, the DGA considered that administrative channels should be exhausted before bringing the issue of the unconstitutionality raised before the judiciary. Although it is burdensome to continue debating issues that have already been resolved and about which much has been written, regarding the fact that the exhaustion of administrative channels cannot become an impediment to obtaining a timely and proper resolution when the public administration's refusal to do so is evident, even less can it be valid to claim such a requirement as ritualistic in the face of a clear and concrete claim of unconstitutionality, which also requires effective judicial protection for its treatment, since it is the judiciary that holds that power. In the specific case discussed (3), the Federal Administrative Litigation Appeals Chamber alludes to the fact that “lThe Supreme Court of Justice has said that the declaration of unconstitutionality of laws and/or decrees must be addressed through the appropriate means, the administrative one not being suitable” (4). In the same case, the Chamber made reference to a previous ruling from 2021 5, in which it was specifically held that the action of unconstitutionality “Its purpose is not to challenge the illegitimacy of an administrative act”; So what "The depletion "The administrative procedure serves no practical purpose, since the only consequence would be the postponement of the intervention of the Judiciary, the only body empowered to resolve such a claim. In other words, it would entail excessive formal rigor to require individuals to unavoidably and extremely follow the administrative procedure, especially if it is considered that the matter cannot be resolved in an administrative forum, since only the Judiciary is empowered to rule on the constitutional validity of the norms.".
Conclusion
Situations like the one discussed in this article arise constantly and repeatedly, with the Public Administration insisting on imposing the prior administrative remedy and exhausting it, even resorting to a claim of unconstitutionality. This evidently represents a clear abuse of the law in the interpretation and purported enforcement of current regulations, incompatible with the proper principle of due process. This is even more so when such ritualism is useless and represents an unacceptable burden on the republican guarantee of access to justice.
And this does not call into question any authority to issue administrative regulations or their execution, but rather the reasonableness and legality of their exercise and implementation under our legal system and its normative hierarchy; since the laws and other regulations enacted are enacted as a consequence of the supremacy not only of regulations but also of republican principles and the progressive criteria of rights and guarantees emanating from the National Constitution. And this is not a mere romantic statement about the republican system and the rule of law; it is based on a system of guaranteed defense that prevents obstruction of access to justice with the use of formal instruments.
It should be noted that, since the 1994 constitutional reform, the constitutional hierarchy of international treaties included in the text of the National Constitution has been enshrined (Article 75, paragraph 22). Therefore, the classic rule of exhaustion of administrative remedies has become obsolete and borders on unconstitutionality when such a rule is imposed in a way that creates an obstacle to access to effective judicial protection. Therefore, maintaining the criterion of exhaustion of administrative remedies in a case such as the one discussed here fails a constitutional test. And so it has been determined by the Federal Administrative Litigation Chamber, with a clear, concise, and representative ruling.
- National Chamber of Appeals in Civil and Commercial Matters, Chamber II, vote of Dr. Etchegaray, to which Dr. Ehrlich Prat adheres, judgment of December 4, 1970, The right, t. 41, p. 185.
- Errors 308:2246; 311:2128; 314:1234; 323:3139
- Frigorífico Lamar SA c/ EN – AFIP – Decree 793/18 s/ Knowledge Process, National Chamber of Federal Administrative Litigation, Room II.
- Errors 315:1854
- ISACOVICH, Daniel Osvaldo and another v. National State – Ministry of Finance and Public Finance and others s/ Knowledge process
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
