The "nullity claim" is the administrative judgment which the Federal Court of Tax and Administrative Affairs (FCTAA) prosecutes and resolves, as a legal remedy against decisions issued by administrative authorities like the Mexican Institute of Industrial Property (MIIP). Up to December 2005, it was ruled by the Taxation Code, however, due to the recent enacted Federal Law of Contentious and Administrative Proceedings (FLCAP) valid since January 2006, it is ruled by this new regulation.
In a general scenario after the publication of this law, the nullity claims which started before January 2006, whose corresponding resolutions are still pending, will be prosecuted and decided under the Taxation Code. The nullity claims which started since January 2006 will be prosecuted and decided according with the new FLCAP dispositions.
Under this new law the nullity claim shall consequently face some relevant modifications in its original structure Thus, it will only be possible to evaluate the effects of said amendments in the practice directly with the application of this law in a case by case basis.
As a result of the amendments of 2001 to the Federal Law of Administrative Proceedings administrative decisions, like the ones issued by the MIIP, were appealed by the nullity claim contained in the Taxation Code, which, in turn, was not originally created for every administrative matter but was specifically created for taxation matters.
As a result , once this Court started to study and decide nullity claims derived from administrative decisions, the Taxation Code did not comply with all the requirements needed to prosecute and decide claims deriving from administrative proceedings (e.i. IP proceedings) because of their different nature from taxation matters, which was originally the only matter it decided.
Therefore, the main objective in creating this new law was to adequate the nullity claim firstly established in the Taxation Code to the requirements of the administrative issues, namely IP litigations.
In this regard, there are relevant modifications in this new FLCAP which the IP Litigation attorneys must consider. One of the important amendments in the nullity claim under the new FLCAP is the inclusion of preliminary injunction measures, which might be requested by the plaintiff in the initial brief, or once the judgment is already initiated (A specific moment was not established ). The FCTAA is entitled to grant every kind of preliminary injunction measures in order to maintain the object of the nullity claim unless it harms public policies.
Should the FCTAA deem it necessary, the plaintiff must post a bond in order to guarantee the defendant the payment of the damages that might occur if the measures are imposed. By the same token the defendant is entitled to post a counter-bond in order to suspend these preliminary injunction measures.
As other significant amendment in the "nullity claim", the authority which issued the appealed administrative decision, as well as the plaintiff who appeals the administrative decision are able to claim damages. Administrative authorities would be able to claim damages when they demonstrate that the nullity claim was filed by the plaintiff in order to delay the execution of the administrative resolution, and in turn, the plaintiff would be able to claim the payment of these damages when the administrative decision is evidently groundless.
The above mentioned are just two of the important amendments of the nullity claim prosecuted under the new FLCAP. Nevertheless, there are additional important amendments which must be studied and explored in the practice in order to know and evaluate the general impact of the new FLCAP in its application on the nullity claim prosecuted before the FCTAA. However, we can only know all of its consequences once this Court stars to prosecute and decide nullity claims under this new law.
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.