Argentina: Congress To Consider Initiative Regarding Precautionary Measures Against The Government

Last Updated: 4 May 2012
Article by María Lorena Schiariti

The bill was submitted by congressmen of the ruling party. It seeks to introduce amendments to the rules applicable to precautionary measures requested against agencies or entities of the Federal Public Sector.

A bill which seeks to set forth new rules governing the requests of precautionary measures against agencies or entities of the Federal Public Sector has been filed in the Chamber of Deputies by congressmen from the ruling party (the "Bill").

The Bill includes a series of amendments to the Federal Code on Civil and Commercial Procedure (the "FCCCP") and to the "Amparo" Law No. 16,986 (the "Amparo Law").

Below is a brief summary of the main provisions of the Bill.

1. Amendments to the FCCCP

a) Scope of Application

The Bill seeks to amend the rules applicable to requests of precautionary measures filed against any "of the agencies or entities included in Section 8 of Law No. 24,156". This provision sets forth that the Federal Public Sector ("FPS") is composed of:

  1. The centralized and decentralized administration;
  2. Companies or corporations in which the Government has the majority of the capital stock or exercises control of the entity;
  3. Organizations other than companies or corporations in which the government has the majority of the entity's patrimony or controls the entity's decisions; and
  4. Trusts composed in their majority or entirely by goods or funds belonging to the Federal State.

b) Prior Hearing

The Bill exempts requests for precautionary measures against agencies or entities of the FPS from the general principle set in the FCCCP pursuant to which requests for precautionary measures are granted or denied without hearing the defendant.

According to the Bill, in these cases the Judge shall call the parties and potentially affected third parties to a hearing, urgently and prior to ruling on the request for the granting of a precautionary measure (the "Prior Hearing"). The Prior Hearing must be held before the Judge in person within a 72-hour term as from the filing of the request.

The Prior Hearing is mandatory, except when the requested precautionary measure seeks to protect the life, dignity, health, physical and mental integrity, liberty or personal safety of the petitioner, or if it seeks to protect the environment, and in these cases the Judge shall decide whether or not to conduct the Prior Hearing. In addition, in cases of precautionary measures that involve "collective rights", the Judge may call for a public hearing.

The Prior Hearing does not imply an opportunity for the defendant to reply to the request for a precautionary measure or to file preliminary motions, although the defendant as well as the potentially affected third parties may file documents and arguments to be considered by the Judge at the hearing.

c) Procedure after the Prior Hearing

According to the Bill, once the Prior Hearing has been held, the Judge shall proceed to rule on the request for the precautionary measure, unless he or she considers that a preliminary measure must be ordered first, before ruling on the precautionary measure.

d) Permitted Precautionary Measures

The Bill does not amend the current rules, according to which any precautionary measure may be issued against the agencies and entities of the FPS, unless it (i) attaches funds or financial means allocated to the execution of the budget of the FPS; (ii) affects, hinders, compromises, modifies the destination or in any other form has a negative impact on the Federal Government's resources; or (iii) imposes personal monetary charges on public officials.

e) Requirements that must be met to obtain precautionary measures

The Bill sets forth new requirements for the granting of precautionary measures against agencies or entities of the FPS. In this regard, it provides that the following conditions must be met:

  1. The fulfillment of the requirements set forth in Section 230 of the FCCCP: (a) a plausible right has to be invoked; (b) there has to be a danger in the delay; and (c) the protection of the rights involved may not be achieved by any other precautionary measure.
  2. The danger of irreparable harm.
  3. The manifest illegality or arbitrariness of the act or conduct challenged by the petitioner.
  4. The precautionary measure must affect the public interest or cause more damages than those that would arise if it were not granted.
  5. The granting of the precautionary measure must not affect the responsibilities and prerogatives of the other branches of Government.

f) Requests for precautionary measures filed by members of one of the branches of the Federal Government

The Bill seeks to regulate the cases in which a member of one of the Branches of the Federal Government's files a request for a precautionary measure invoking a standing based on the exercise of her public duties. In these cases, the petitioner must provide evidence of having fulfilled the constitutional procedure to pursue his or her petition within the Branch of the Government he or she is a member of. The precautionary measure shall only be granted if a guarantee over in rem rights is provided by the petitioner.

2. Amendments to the "Amparo" Law

a) Permitted Precautionary Measures

The Bill provides that within the framework of an "Amparo" procedure all precautionary measures (of any sort) which are necessary to ensure compliance with the final ruling may be petitioned and granted.

Nowadays, the "Amparo" Law only provides expressly for the granting of orders to maintain the status quo ex ante ("medida de no innovar") or to suspend the effects of the challenged act.

In addition, Bill sets forth that requests for precautionary measures filed within the framework of an "Amparo" procedure, before or during it, shall be governed by the FCCCP's rules.

b) Effects of the appeals against precautionary measures

The Bill modifies the effects of appeals against precautionary measures granted within the framework of an "Amparo" procedure, providing that appeals will not suspend the effectiveness of the precautionary measure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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