Decree No. 201/2017 established a new protocol applicable to proceedings between the Federal Government and parties related to the President or other authorities of the Executive Branch of the Federal Government.
On March 22, 2017, Decree No. 201/2017 was published in the Official Gazette, establishing a special protocol for proceedings "of any nature" between the Federal Government and individuals or legal entities related to the highest authorities of the Executive Branch of the Federal Government.
The Decree applies to proceedings involving a "Federal Public Sector" entity, as defined by Section 8, Law No. 24,156 (i.e., the federal administration (central administration and de-centralized entities), state-owned companies and corporations, public entities, and trust funds formed in or all (or in a majority) by the Federal Government's assets and/or funds).
As per the "whereas" section of the Decree, pursuant to the Argentine Public Ethics Law No. 25,188, and the Administrative Proceedings Law No. 19,549, "public officers have a duty to refrain from being involved in matters whereby they (or parties that are particularly related to them) have a direct and substantial interest."
Regarding the highest authorities of the Executive Branch, "it is necessary to determine the cases whereby a personal relationship exists between such public officers and the individuals or legal entities that are parties to a process against the Federal Government. These cases may create doubts regarding whether they are managed appropriately, and thus, must be treated with the highest standards of institutional responsibility, transparency and consideration of the defense of public interest."
1. New protocol
The new Decree provides that the Federal General Counsel (Procurador del Tesoro de la Nación) (the "General Counsel") must represent and/or advise the Federal Government in the proceedings in which parties (or their legal representatives or legal advisors in the process (letrados patrocinantes)) are related to the President, the Vice President, the Chief of Cabinet of Ministers, or any other Minister of the Federal Executive Branch or authority of similar rank.
2. When are parties considered to be related to the authorities of the Federal Executive Branch?
Under the Decree, the parties are deemed related to the highest authorities of the Federal Executive Branch in the following circumstances:
a) family ties within the fourth degree of consanguinity and the second of affinity,
b) company or community,
c) pending legal proceedings,
d) being a debtor or creditor,
e) having received important benefits,
f) publicly known friendship evidenced by a familiar and frequent treatment,
g) in the case of legal entities, any of the abovementioned relationships in connection with a director, shareholder, or partner entitled to form the entities' will or that exercises a dominant influence as a consequence of its share, quota, or membership interest holding.
In the case of companies subject to public offering (under Law No. 26,831), the relationship must be construed regarding any shareholder or partner that holds a percentage exceeding 5% of the corporate capital.
As to Ministers and equivalent authorities, the relationship must be assessed regarding proceedings within their area of competence.
Regarding the scenarios mentioned above, the Decree does not provide further specifications to clarify their scope.
3. Information and disclosure
In addition, General Counsel must comply with certain information and disclosure obligations regarding the above mentioned proceedings:
i. Information on the proceeding
The General Counsel must publish and update the following information on its website:
a) List of judicial proceedings and other processes subject to the Decree, providing the file name, number, court, and link to the digital file of the Judicial Branch of the Federal Government.
b) Updated information on status of the proceedings and hearings or meetings to be held, according to the rules and exceptions governing access to public information.
ii. Give prior warning to control entities
Prior to carrying out certain acts (e.g., waiving rights, granting waivers, entering into settlement or termination agreements) (the "Acts"), the General Counsel must notify these Acts to certain government control entities (Oficina Anticorrupción, Sindicatura General de la Nación, and the Comisión Parlamentaria Mixta Revisora de Cuentas de la Administración of the Federal Congress). This notice must be rendered 10 business days prior to the submittal or execution of such acts.
iii. Public report
Prior to carrying out any of the Acts, the General Counsel must publish a public report including:
a) detailed analysis of the facts, and, if applicable, the control entities' opinions; and
b) basis of the legal position adopted.
iv. Annual report to the Federal Congress
The General Counsel must deliver a report informing compliance with the terms of the Decree to the Federal Congress annually.
Lastly, the President and other authorities must refrain from taking any action in connection with the cases set forth under the Decree. This disposition is in line with the provisions of the Public Ethics Law No. 25,188
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.