Having seen the files: «Malma Trading SRL v. National State - Ministry of Economy and Public Works and Servo Publ. s/ knowledge process».
Considering:
1) That the plaintiff -Malma Trading SRL (hereinafter "Malma")- brought a claim against the National State (Ministry of Economy, Public Works and Services) in order to be compensated for damages and losses arising from the latter's "illegitimate" decision not to authorize the importation of a certain quantity of used motorcycles. In a subsidiary manner, it based its claim on the State's liability for its legitimate activity.
2) According to the records of the case, on 16/06/92, under the protection of Resolution No. 6 of the former Secretariat of Domestic Trade, Malma entered into a contract of sale of 6.000 used mopeds with the Japanese firm Sanka Industries Ca. Ltd. (see pages 13 et seq. of administrative file 622.358/92). Within this framework, it delivered US$ 42.000 as an advance payment, money that was to be charged to the last shipment (page 11 of administrative file 603129/93 added). On 25/06/92, the first shipment of 1.144 mopeds was made, which generated a payment of US$80.000 by the plaintiff (see payment receipt on page 6 of administrative file 603.374/74 added and also page 28 of administrative file 603.129/93 added).
Subsequently, the Ministry of Economy issued resolution 790/92, prohibiting the import of used motorcycles or mopeds. On 12/08/92, the Ministry issued resolution 956/92, establishing exceptions to the prohibition. In this context, the plaintiff company requested that it be included among the established exceptions. It alleged that, given the delay of the Administration in responding to the presentation made in this regard, it requested authorization to import at least 2.800 mopeds.
The request for the exception was rejected by resolution 99/93 of the Secretariat of Domestic Trade, which, in turn, was confirmed by resolution 293/96 of the Ministry of Economy (pages 112/113 of the file).
administrative cited), circumstance that motivated the filing of the lawsuit in this case.
3°) That the Fourth Chamber of the National Court of Appeals in Federal Administrative Litigation, by partially reversing the first instance judgment, rejected the claim (pages 572/579).
4°) That against said ruling, the plaintiff filed an ordinary appeal (pages 590/590 back), which was granted on pages 592 and which is formally admissible, since it was filed against a final judgment in a lawsuit in which the National State is a party and the value ultimately disputed exceeds the minimum established by article 24, paragraph 6, section (a) of decree-law 1285/58, modified by law 21.708 and readjusted by resolution 1360/91 of this Court.
5°) That when presenting the memorial provided for in the second paragraph of article 280 of the Civil and Commercial Procedural Code
of the Nation, the appellant states: (a) with regard to the State's liability for its illicit activity, that the court a quo did not specifically and correctly analyze the arguments that support the defects of the administrative act and the violation of the principle of equality, especially the "demonstrated circumstance that the Administration failed to rule on the subsidiary request made on 17/09/93, to import 2800 motorcycles" (pages 603 back/604) and the lack of a prior legal opinion regarding this issue (pages 605 back and ff.); (b) regarding the State's liability for its lawful actions, that the court did not consider the evidence submitted to the case, a circumstance that, in its opinion, demonstrated that the plaintiff had suffered special damage and that she had no legal duty to bear the damage (pages 614 back/615 et seq.).
6°) That with respect to the grievance indicated in point (a), the appeal court established that the appellant had not duly proven that the administrative resolutions in question constituted illegal acts.
In this regard, he stated that "from the administrative proceedings attached to the case it appears that the act in question was not issued in an illegitimate, arbitrary or unreasonable manner (...)
[A]yes, the Secretary of Commerce and Investment based resolution 99/93 on the fact that the number of motorcycles and bicycles that were intended to be imported implied a distortion of the prohibition that had been established by resolution MEyOSP 790/92, in whose recitals he expressly indicated that the rules that tended towards economic opening should meet the necessary conditions to avoid unfairly overwhelming local manufacturers.
(fs. 577).
Based on these arguments, the a quo concluded that the absence of the elements of the administrative act as indicated by the appellant was not noted. In the same sense, it considered that there was no defect in the object of the act or in the procedure.
With regard to the violation of the principle of equality - since, according to the plaintiff, the Administration had authorized imports to the companies "Navarro Torres, José" and "Ramonda Vehículos SA" - the Court stated that Malma had not proven that it was on equal terms with the importers mentioned, and therefore there was no violation of the principle of equal treatment, understood according to the jurisprudence of the Court, as equality under equal conditions (pages 577 back).
7°) That in its memorial of grievances before this Court (pages 598/621 back) the plaintiff does not formulate - as is essential - a specific and reasoned criticism of the grounds developed by the a quo to rule out the configuration of a supposed responsibility of the State for its illegitimate actions, circumstance that leads to declare the desertion of the appeal in this aspect (art. 28 of the Civil and Commercial Procedural Code of the Nation, Rulings: 310:2914; 311:1989 and 312:1819, among others)
Indeed, the reasons developed in said memo are not sufficient to refute the factual and legal arguments expressed above and which were given by the chamber to reach the contested decision (Rulings: 304: 1444; 308:818 and 317:1365).
8°) That such defects in the foundation are evident in that the arguments of the appeal only constitute a mere restatement of the objections already formulated in the previous instances or, at best, simple discrepancies with the criteria of the a quo, but they are far from containing a specific criticism of the grounds that inform the judgment.
In this regard, it should be noted that the appellant merely stated that the court had failed to "specifically and correctly analyse the grounds set out (oo.) when raising the defects that hindered the validity of the act issued by the administrative authority." In particular, it argued that the a quo incorrectly dealt with the grievance referring to the fact that the Administration had failed to rule on the subsidiary request made - dated 17/09/93 - to import 2.800 mopeds, which, in its opinion, would entail demonstrating the violation of the principle of equality.
As previously stated, the Court gave grounds to conclude that the administrative act in question did not contain defects in its essential elements. It also established that administrative file 622.358/92 did not show that the plaintiff had made a new request for fewer units; it stated that, when filing the appeal for reconsideration, Malma had expressly referred to the circumstance of having requested, as a second option, the import of "2.800 units." In this context, the a quo established that "even if this statement were considered valid, it should be noted that this request exceeded by four hundred (400) units those granted" to the other companies, therefore, it concluded, there was no violation of the principle of equality.
Finally, he added that the administrative file did not show the lack of an opinion and technical reports to which Malma referred in his appeal (page 577).
It follows from this that it can be stated that, contrary to what was stated by the appellant, the court gave reasons
to reject the conviction sought in this respect, which the plaintiff should have specifically complained about and did not do so.
9°) What different temperament should be adopted in relation to the grievance (b) of the ordinary appeal: liability
of the State for its lawful actions. In this regard, the Court established that the plaintiff had not proven - when establishing the State's liability for its lawful activity - the absence of a legal duty to bear the damage alleged, nor the existence of individualized damage from which the other importing companies operating at the time of the issuance of resolution MEyOSP 790/92 would have been exempt (pages 578 back).
10) That this Court has stated that the admission of the doctrine of State liability for damages arising from its lawful activity is not to be understood as being aimed at establishing in this area a regime of liability of an objective nature, according to which the mere accreditation of the existence of a sufficient causal link between the legitimate activity of State bodies and the damages - of any kind - experienced by individuals would be sufficient to give rise to the obligation to compensate them (Judgments: 317: 1233; 330: 2464) • In this regard, it is necessary to remember that the injury to private rights susceptible to compensation under the aforementioned doctrine does not include damages that are normal consequences of the lawful activity carried out, since the rules that legitimize State activity producing such damages imply general limitations on the exercise of all individual rights singularly affected by said activity. Therefore, it only includes damages that, by constituting abnormal consequences - that is to say, that go beyond what is reasonable to admit in terms of limitations to the exercise of property rights -, mean for the holder of the right a true unequal sacrifice, which he is not obliged to tolerate without due economic compensation, by virtue of the guarantee enshrined in article 17 of the National Constitution others). (Rulings: 308:2626 and 317:1233, among others.
11) That in the development of this doctrine this Court referred to the singularity of the damage by stating that "it is essential to this kind of liability that the administrative activity constitutes an efficient cause of damage."
"particularly in order to achieve -through it- purposes of general or collective interest" (Rulings: 312: 2266; 316: 397). He also stated that the State's activity must have caused harm to a legally protected situation (Rulings: 318:1531).
12) That, based on the above, the claim to be compensated based on the aforementioned doctrine requires the appellant to demonstrate that the damages it claims to have suffered constitute an unequal sacrifice, which exceeds the normal consequences derived from the exercise of the lawful state activity carried out.
In this case, the statement of grievances shows that the appellant has only proven the specialty status with respect to the item "unrecovered advance payment" (US$8). Indeed, the records of the case show that the company Malma Trading paid 42.000% of the full value of the contract on account of the total price and as a start of execution (see page 10 of administrative file no. 11/603.129-93, added to page 000 of administrative file no. 124/622.358 and page 92 response no. 324 of the files), which was not recovered by it, insofar as the contract could not be fully executed. This "unrecovered advance on account" meets the necessary special conditions, since it is a damage suffered specifically by this importer, without there being a legal obligation on its part to bear it, which is why and without the need to resort to legal principles that govern other
administrative contracts, the plaintiff's right to compensation must be recognized to the extent that the damage has arisen from the execution of the contested resolution and meets the conditions indicated.
Consequently, the claim must be upheld for the amount of pesos equivalent to US$ 42.000 according to the exchange rate corresponding to the day of actual payment; this amount must be paid in accordance with the terms of the consolidation regime. 13) That, on the contrary, the rest of the damages that the appellant claims to have suffered, in the form of consequential damages (investments in advertising, investments in infrastructure) constitute risks inherent to the business activity, a circumstance in the face of which the principle according to which in our legal system there is no acquired right to the maintenance of laws or regulations or to their inalterability takes on greater validity (Judgments: 267:247; 268:228; 291:359; 300:61; 308:1361, among many others). It follows from this that it can be stated that both with respect to these items and the alleged loss of profits, the status of specialty in the terms of the aforementioned doctrine is not proven.
14) That Judge Highton de Nolasco states that, in accordance with the grounds developed in her vote in the case "El
Jacarandá» (Rulings: 328: 2654), the claim for compensation for lost profits must be rejected; furthermore, it adds that, in this case, such claim must also be dismissed because the specialty condition mentioned in the previous recital has not been demonstrated.
Therefore, it is resolved: 1) to declare void the ordinary appeal filed in relation to the grievance identified in letter (a); 2) to declare partially admissible the ordinary appeal filed with respect to the grievance identified in letter (b) and to allow the claim in the terms indicated in recital 12. In light of the manner in which it is decided, the costs are imposed 80% on the plaintiff and the remaining 20% on the defendant (art. 71 of the Civil and Commercial Procedural Code of the Nation). Notify and, in due course, return.
ENRIQUE S. PETRACCHI
ELENA 1.HIGHTON de NOlASCO
Carlos S. Fayt
-//-TO MR. PRESIDENT DOCTOR DON RICARDO LUIS LORENZETTI
Considering:
1°) That the plaintiff -Malma Trading SRL (hereinafter "Malma")- filed a claim against the National State (Ministry of Economy, Public Works and Services) in order to be compensated for damages and losses arising from the latter's "illegitimate" decision not to authorize the importation of a certain quantity of used motorcycles.' Alternatively, it based its claim on the State's liability for its legitimate activity.
2) According to the records of the case, on 16/06/92, under the protection of Resolution No. 6 of the former Secretariat of Domestic Trade, Malma entered into a contract of sale of 6.000 used mopeds with the Japanese firm Sanka Industries Ca. Ltd. (see pages 13 et seq. of administrative file 622.358/92). Within this framework, it delivered US$ 42.000 as an advance payment, money that was to be charged to the last shipment (page 11 of administrative file 603.129/93 added).
On 25/06/92 the first shipment of 1.144 mopeds was made, which generated a payment of US$ 80.000 by the
plaintiff (see payment receipt on page 6 of administrative file 603.374/74 added and also page 28 of administrative file 603.129/93 added).
Subsequently, the Ministry of Economy issued resolution 790/92, through which it prohibited the importation of used motorcycles or mopeds. For its part, on 12/08/92, the said ministry issued resolution 956/92, through which it established exceptions to said prohibition. Within this framework, the plaintiff company requested that it be considered among the established exceptions. It alleged that, given the delay of the Administration in responding to the presentation made in this regard, it requested to be authorized to import at least 2.800 mopeds. The request for the exception to be granted was rejected by resolution 99/93 of the Secretariat of Domestic Trade, which, in turn, was confirmed by resolution 293/96 of the Ministry of Economy (pages 112/113 of the administrative file cited), a circumstance that motivated the filing of the lawsuit in this case.
3rd) That the Fourth Chamber of the National Court of Appeals in Federal Administrative Litigation, by partially reversing the first instance judgment, rejected the claim (pages 572/579)
4) That against said ruling, the plaintiff filed an ordinary appeal (fs. 590/590 back) which was granted on fs. 592 and which is formally admissible, since it was filed against a final judgment in a lawsuit in which the National State is a party and the value ultimately disputed exceeds the minimum established by article 24, paragraph 60, section (a) of decree-law 1285/58, modified by law 21.708 and readjusted by resolution 1360/91 of this Court.
5°) That when presenting the memorial, the appellant provides for the second paragraph of article 280 of the Civil and Commercial Procedural Code of the Nation: (a) with regard to the responsibility of the State for its illicit activity, that the court a quo did not specifically and correctly analyze the arguments that justify the defects of the administrative act and the violation of the principle of equality, especially the "demonstrated circumstance that the Administration failed to rule on the subsidiary request made on 17/09/93, to import 2800 motorcycles" (pages 603 back/604) and the lack of a prior legal opinion regarding this matter (pages 605 back and ff.); (b) regarding the State's liability for its lawful actions, that the court did not consider the evidence submitted to the case, a circumstance that, in its opinion, demonstrated that the plaintiff had suffered special damage and that she had no legal duty to bear the damage (pages 614 back/615 et seq.).
6°) That with respect to the grievance indicated in point (a), the appeal court established that the appellant had not duly proven that the administrative resolutions in question constituted illegal acts.
In this regard, he stated that "from the administrative proceedings attached to the case it appears that the act in question
It was not issued in an illegitimate, arbitrary or unreasonable manner (..).
[T]his Secretary of Commerce and Investment based resolution 99/93 on the fact that the number of motorcycles and bicycles that were intended to be imported implied a distortion of the prohibition that had been established by resolution MEyOSP 790/92, in whose recitals he expressly indicated that the rules that tended towards economic opening should meet the necessary conditions to avoid unfairly overwhelming local manufacturers" (page 577).
On the basis of these arguments, the a quo concluded that the absence of the elements of the administrative act as indicated by the appellant was not noted. In the same sense, it considered that there was no defect in the object of the act or in the procedure. With regard to the violation of the principle of equality - since, according to the plaintiff, the Administration had authorized imports to the companies "Navarro Torres, José" and "Ramonda Vehículos SA" - the chamber stated that Malma had not proven that it was in equal conditions with the importers mentioned, so that there was no violation of the principle of equal treatment, understood according to the jurisprudence of the Court, as equality in equal conditions (pages 577 back).
7°) That in its memorial of grievances before this Court (pages 598/621 back) the plaintiff does not formulate - as is essential - a specific and reasoned criticism of the grounds developed by the a quo to rule out the configuration of a supposed responsibility of the State for its illegitimate actions, circumstance that leads to declare the desertion of the appeal in this aspect (art. 280 of the Civil and Commercial Procedural Code of the Nation, Rulings: 310:2914; 311:1989 and 312:1819, among others)
Indeed, the reasons developed in said memorial are not sufficient to refute the factual and legal arguments expressed above and which were given by the chamber to reach the contested decision (Rulings: 304:1444; 308:818 and 317:1365).
8°) That such defects in the grounds are evident in that the arguments of the appeal only constitute a mere restatement of the objections already formulated in the previous instances or, at best, simple discrepancies with the criteria of the a quo, but they are far from containing a specific criticism of the grounds that inform the judgment. In this regard, it should be noted that the appellant limited herself to stating that the chamber had failed to "concretely and correctly analyze the grounds set forth (oo.) when raising the defects that hindered the validity of the act issued by the administrative authority." In particular, she argued that the a quo incorrectly treated the grievance referring to the fact that the Administration had failed to rule on the subsidiary request made - dated 17/09/93 - to import 2.800 mopeds, which, in her opinion, would entail demonstrating the violation of the principle of equality.
As noted above, the chamber gave grounds to conclude that the administrative act in question did not
contained defects in its essential elements. Likewise, it established that from administrative file 622.358/92 it did not arise that the plaintiff had made a new request for fewer units; it stated that, when filing the appeal for reconsideration, Malma had expressly referred to the circumstance of having requested, as a second option, the importation of "2.800 units." In this context, the a quo established that "even if this statement were considered valid, it exceeded by four hundred (400) units those granted" to the other companies, so, it concluded, there was no violation of the principle of equality. Finally, it added that the administrative file did not show the lack of opinion and technical reports to which Malma referred in its appeal (page 577).
It follows from this that it can be stated that, contrary to what was stated by the appellant, the court gave reasons
to reject the conviction sought in this respect, which the plaintiff should have specifically complained about and did not do so.
9°) What different temperament should be adopted in relation to the grievance (b) of the ordinary appeal: liability
of the State for its lawful actions.
In this regard, the Court established that the plaintiff had not proven - when establishing the State's liability for its lawful activity - the absence of a legal duty to bear the damage alleged, nor the existence of individualized damage from which the other importing companies operating at the time of the issuance of resolution MEyOSP 790/92 would have been exempt (pages 578 back).
10) That this Court has stated that the admission of the doctrine of state liability for damages arising from its lawful activity should not be understood as directed at establishing a liability regime in this area, in accordance with which it would be sufficient to merely prove the existence of a sufficient causal link between the legitimate activity of state bodies and the damages - of any kind - experienced by individuals, to give rise to the obligation to compensate them (Rulings: 317:1233; 330:2464).
In this regard, it is necessary to remember that the injury to particular rights susceptible to compensation under the aforementioned doctrine does not include damages that are normal consequences of the lawful activity carried out, since the rules that legitimize the state activity that produces such damages imply general limitations to the exercise of all individual rights singularly affected by said activity. Therefore, it only includes damages that, because they constitute abnormal consequences - that is to say, that go beyond what is reasonable to admit in terms of limitations to the exercise of property rights -, mean for the holder of the right a true unequal sacrifice, which he is not obliged to tolerate without due economic compensation, by virtue of the guarantee enshrined in article 17 of the National Constitution (Rulings: 308:2626 and 317:1233, among others).
11) That in the development of this doctrine this Court referred to the singularity of the damage by stating that "it is essential to this kind of liability that the administrative activity constitutes an efficient cause of a particular damage in order to achieve - through it - purposes of general or collective interest" (Rulings: 312: 2266; 316: 397). It also stated that the State's activity must have caused an injury to a legally protected situation (Rulings: 318:1531).
12) That, based on the above, the claim to be compensated based on the aforementioned doctrine requires the appellant to demonstrate that the damages it claims to have suffered constitute an unequal sacrifice, derived from an abnormal consequence of the exercise of the lawful state activity carried out.
In this case, the statement of grievances shows that the appellant has only proven the specialty status with respect to the item "unrecovered advance on account (US$ 42.000). Indeed, the records of the case show that the company Malma Trading paid 10% of the full value of the contract on account of the total price and as a start of execution (see page 11 of administrative file No. 603.129/93-000, added to page 124 of administrative file No. 622.358/92 and page 324, response No. 4 of the files), which was not recovered by it, insofar as the contract could not be fully executed. This "unrecovered advance on account" meets the necessary special conditions, since it is a damage specifically suffered by this importer, without there being a legal obligation on its part to bear it, which is why, and without the need to resort to legal principles that govern other administrative contracts, the plaintiff's right to be compensated can be recognized to the extent that the damage has arisen from the execution of the contested resolution and meets the indicated conditions.
Consequently, the claim must be made for the amount of pesos equivalent to US$ 42.000 according to the exchange rate corresponding to the day of actual payment; an amount that must be paid in accordance with the terms of the consolidation regime.
13) That, on the contrary, in spite of the exceptional nature of this type of liability, the rest of the damages that the appellant claims to have suffered (investments in advertising, investments in infrastructure) constitute risks inherent to the business activity.
14) That in the present case there is a specific case of State responsibility for lawful acts, which requires weighing two principles. The first is the one traditionally recognized, both in our legal system and in comparative law, referring to the fact that there is no acquired right to the maintenance of laws or regulations or to their inalterability (Rulings: 267:247; 268:228; 291:359; 300:61; 308:1361 among many others). The reasonableness of this is evident because, otherwise, the law could not adapt to changes nor would governability be possible. The second implies that decisions, even legitimate ones, must have a sufficient degree of generality so as not to affect particular interests with an unequal distribution of public burdens. Equal treatment in the face of the sacrifices that governability demands is a constitutionally accepted rule. In addition, when abrupt changes occur that affect ongoing commercial transactions, legal certainty is affected. In this sense, governance requires a minimum of predictability so that citizens act on the basis of trust, reducing transaction costs and benefiting consumers.
Therefore, it is resolved: 1) to declare void the ordinary appeal filed in relation to the grievance identified in letter (a); 2) to declare partially admissible the ordinary appeal filed with respect to the grievance identified in letter (b) and to allow the claim in the terms indicated in recital 12. In light of the manner in which it is decided, the costs are imposed 80% on the plaintiff and the remaining 20% on the defendant (art. 71 of the Civil and Commercial Procedural Code of the Nation). Notify and return in due time.
RICARDO LUIS LORENZETl1
-//-PARTIAL DECLARATION OF MR. MINISTER DOCTOR ENRIQUE SANTIAGO PETRACCHI
Considering:
1) That the plaintiff -Malma Trading SRL (hereinafter "Malma")- brought a claim against the National State (Ministry of Economy, Public Works and Services) in order to be compensated for damages and losses arising from the latter's "illegitimate" decision not to authorize the importation of a certain quantity of used motorcycles. In a subsidiary manner, it based its claim on the State's liability for its legitimate activity.
2°) According to the records of the case, on 16/06/92, under the protection of Resolution No. 6 of the former Secretariat of Domestic Trade, Malma entered into a contract of sale of 6.000 used mopeds with the Japanese firm Sanka Industries Ca. Ltd. (see pages 13 et seq. of administrative file 622.358/92). Within this framework, it delivered US$ 42.000 as an advance payment, money that was to be charged to the last shipment (page 11 of administrative file 603.129/93 added). On 25/06/92, the first shipment of 1.144 mopeds was made, which generated a payment of US$80.000 by the plaintiff (see payment receipt on page 6 of administrative file 603.374/74 added and also page 28 of administrative file 603.129/93 added).
Subsequently, the Ministry of Economy issued resolution 790/92, prohibiting the import of used motorcycles or mopeds. On 12/08/92, the Ministry issued resolution 956/92, establishing exceptions to the prohibition. Within this framework, the plaintiff company requested that it be included among the established exceptions. It alleged that, given the delay of the Administration in responding to the presentation made in this regard, it requested authorization to import at least 2.800 mopeds.
The request for the exception was rejected by resolution 99/93 of the Secretariat of Domestic Trade, which, in turn, was confirmed by resolution 293/96 of the Ministry of Economy (pages 112/113 of the file).
administrative cited), circumstance that motivated the filing of the lawsuit in this case.
3°) That, by partially reversing the first instance decision, Chamber IV of the National Chamber of Appeals in Federal Administrative Litigation rejected the claim (pages 572/579).
Against this ruling, Malma Trading SRL filed an ordinary appeal, which was granted at fs. 592. At fs. 614/621 the appellant submitted its memorial, which was answered by the defendant at fs. 624/640.
4) That the appellant is aggrieved because it understands: (a) with regard to the responsibility of the State for its activity
unlawful, that the court a quo did not specifically and correctly analyze the arguments that support the vices of the administrative act and the violation of the principle of equality, especially, the "demonstrated circumstance that the Administration failed to rule on the subsidiary request made on 17/09/93, to import 2.800 motorcycles" (fs. 603 back/604) and the lack of a prior legal opinion regarding this issue (fs. 605 back and ff.); and (b) in relation to the State's liability for its lawful action, that the court did not consider the evidence in the file, which - in its opinion - demonstrated that the plaintiff had suffered special damage and that it did not have a legal duty to bear the damage (fs. 614 back/615 and ff.).
5°) That the ordinary appeal filed by the plaintiff is, in principle, formally admissible since it was filed against a final judgment in a lawsuit in which the National State is a party, issues are discussed that directly affect the State's assets, and the value ultimately disputed exceeds the minimum established by art. 24, inc. 6°, ap. a, of decree-law 1285/58, modified by law 21.708 and readjusted by resolution 1360/91 of this Court.
6°) That notwithstanding the formal admissibility indicated above, the appeal must be dismissed because the appellant does not formulate - as is essential - a specific and reasoned criticism of the grounds developed by the a quo, a circumstance that leads to declaring the desertion of the ordinary appeal (art. 280, ap. 2 of the Civil and Commercial Procedural Code of the Nation, and Rulings: 310:2914; 311:1989; 312:1819; 313:396, among others).
This lack of justification is noted in that the appeal arguments only constitute a reissue of the objections already formulated in the previous instances or, at best, simple discrepancies with the criteria of the a quo, but do not contain a specific criticism of the grounds that inform the appealed judgment.
7°) That, in effect, when basing its grievances against the decision of the chamber in relation to the lack of configuration of a case of State responsibility for its illegal activity, the appellant claims that, when issuing resolution SCI 99/93 - by which its request for inclusion in the exception contemplated in resolution MEyOSP 956/92 was rejected -, the administration omitted to expressly address the subsidiary request made by it to import 2.800 motorcycles, instead of 4.800 as arose from the original request. It considers that the foregoing determines the nullity of the aforementioned act, due to defects in the cause, in the object and in the procedure followed for its issuance (arts. 7° and 14 of decree-law 19.549/72). The Court also maintains that the administration's action in the manner in which it did violated the principle of equality, since other importers in the same condition as its client were authorized to import 2.400 motorcycles and, consequently, benefited from the exceptional regime referred to. However, such arguments are not sufficient to refute the central grounds of the appealed judgment in this regard. This is so because they do not take into account that, in order to conclude that resolution scr 99/93 was legitimate and - consequently - that the "lack of service" necessary to establish a case of State liability for its illicit activity had not been demonstrated in the proceedings, the Court considered that: a) it does not appear from administrative file 622.358/92 that the plaintiff made a new request for fewer units, nor has such a circumstance been proven in the sub-case, and that it was only in the reconsideration appeal that Malma Trading SRL made mention of this request as a second option; and b) that "even if that statement were considered valid, ... that request exceeded by four hundred (400) units those granted" to the other companies, which in its opinion ruled out the violation of the principle of equality (pages 577 back). Regarding the first point, the appellant does not take into account that the express treatment of its subsidiary request by the application authority, presupposed the existence of a presentation in that sense in the administrative file, an extreme that - as arises from the above - the chamber considered not proven (pages 577 back). Regarding point b), the appellant limits itself to maintaining that if "the criterion of dispersion of
3.000 units set by the Secretariat of Industry and Commerce and the Association of Motorcycle Manufacturers, which appears from the technical report on page 107", its subsidiary petition should have been admitted, since it did not exceed the guideline established therein. However, the plaintiff does not take responsibility for the conclusion of the a quo regarding the fact that the contested measures were adopted in the exercise of "discretionary powers" and on the basis that the quantity of motorcycles and bicycles that were intended to be imported had to meet the necessary conditions to avoid unfairly overwhelming local merchants (pages 577 and 577 back), which is equivalent to saying - as it states in its appeal - that each importer had the right to a quota of 3.000 units.
9°) That, on the other hand, Malma Trading SRL does not make a well-founded criticism of the reasons given by the a quo to rule out the configuration of a case of State responsibility for its lawful action. Specifically, it fails to take into account that the new regulatory regime by which it was established that, from a certain date, imported motorcycles and bicycles had to be "new", expressly contemplated a regime of exceptions for
The cases - such as that of the plaintiff - in which there were contracts in the process of execution (MEyOSP resolutions 790/92 and 956/92), to which its party could not access by virtue of an act whose illegitimacy it could not prove either (resolution scr 99/93). It should be noted that the appellant neither challenged the validity of that regime nor questioned the scope of the exceptions established therein. The above reinforces the argument of the a quo in the sense that in the proceedings it has not been demonstrated that MEyOSP resolutions 790/92 and 956/92 have caused the appellant damages that, by constituting abnormal consequences - that is to say, that go beyond what is reasonable to admit in terms of limitations to the exercise of property rights -, mean a true unequal sacrifice, which the holder of the right does not have the right to make.
obligation to tolerate without due financial compensation.
In this regard, it should be recalled that this Court has stated that the admission of the doctrine of state liability for damages arising from its lawful activity should not be understood as aimed at establishing a liability regime in this area, in accordance with which the mere accreditation of the existence of a sufficient causal link between the legitimate activity of state bodies and damages of any kind experienced by individuals would be sufficient to give rise to the obligation to compensate them (Rulings: 317:1233; 330:2464).
Under these conditions, the statements of the appellant constitute mere dogmatic discrepancies with the decision of the court a quo and, therefore, are insufficient to adequately justify the appeal filed. Therefore, the ordinary appeal granted is hereby declared void (art. 280, section 2 of the Civil and Commercial Procedural Code of the Nation). With costs. Notify and return the files.
ENRIQUE S. PETRACCHI
Ordinary appeal filed by Malma Trading SRL, plaintiff in this case, represented by Dr. Tomas HF Young.
Transfer answered by the National State – Ministry of Economy and Public Finance, defendant in this case, represented by Dr. María Elisa Turus, with the legal representation of Dr. Anunciación Irene Marziano.
Court of origin: National Chamber of Appeals in Federal Administrative Litigation, Chamber IV.
Previously involved courts: National Court of First Instance in Federal Administrative Litigation No. 2, Secretariat No. 3.
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
