Mexico: Administrative Litigation Review 2017
By Fernando de Salvidea de Miguel and Rocío González-Alcántara Lammoglia of De Salvidea y González Alcántara
Effective judicial protection against arbitrary actions of any government is an ideal that every state should aspire to fulfil. Although, in Mexico, the very idea of the rule of law generates varied responses, such system cannot exist without some basic elements that allow an adequate system of justice – one that should be easy to access and free of unnecessary formalities.
Fernando de Salvidea | Rocío González
In this sense, 2016 has been a year of statutory developments in the field of administrative justice in Mexico. Most notable is the publication, on 13 June 2016 in the Official Gazette of the Federation, of a decree that amended, added and repealed various provisions of the Federal Law on Contentious Administrative Procedure (the Amended Statute).
It is fair to say that the Federal Court of Administrative Justice has been expanding its jurisdiction in various matters, not only from its origins as a tax specialised court at federal level but across its entire history – and even recently, having experienced changes in its own denomination reflecting a newly broader scope. As we have previously reported in past reviews, the Court has even worked on streamlining the procedure through the implementation of the online proceeding, as well as on the availability of a summary trial in matters of relatively low monetary quantity, and simplification of service of process.
However, in practice, while important efforts have been made to date, there is still room for improvement if the aforementioned ideal is to be achieved. For example, the Court's heavy workload tests the effectiveness of the latest legislative changes and the responsiveness of the justice administration body; in our daily practice litigators find significant delays to the lengthy periods in which cases are usually resolved; this is costly and often frustrating for individuals coming to the Tribunal in the pursue of administrative justice.
As a result, the Amended Statute aims to simplify and expedite administrative litigation, both for the benefit of individuals and authorities. However, this purpose may only be fulfilled if it is accompanied by important budgetary support in order to facilitate the creation of a larger number of ordinary and specialised courtrooms.
While the task of explaining all matters covered by the Amended Statute exceeds the limitations of this article, we hereby briefly mention the changes we consider the most significant.
Electronic Notifications in a Traditional Trial
The Amended Statute provides for electronic service in the “traditional trial” (ie, the regular “non-online” proceeding), by means of messages sent to the designated email address of each party – this being the content of said message, notified by a Jurisdictional Bulletin (which in turn replaces the previous designation of the Electronic Bulletin), with the aim of increasing its use as a means of regular notification. In this regard, the plaintiff is required to give his or her e-mail address in his or her first writ to the Court, on the understanding that if he or she does not supply such address then the claimant cannot be sent the electronic notice referred above.
The Amended Statute also sets forth the obligation on governmental bodies, agencies or authorities whose acts or resolutions may be challenged before the Court, so that they register institutional e-mail addresses for similar purposes.
A relevant factor within these reforms, which underpins the importance of notifications through the Jurisdictional Bulletin, is the reduction in the number of cases involving service “in person”, or through certified mail with acknowledgment of receipt.
In this sense, apart from only three very specific cases, all notifications must be made through the Jurisdictional Bulletin. This change should give legal certainty and speed to the procedure. Notwithstanding the general principle, the Amended Statute provides that the magistrate in charge may exceptionally order personal service of process.
The main developments are simplification of the procedure, and distinctions made regarding the specific provisions applicable to, on the one hand, precautionary measures, including “positive” ones; and on the other hand, those applicable to “stay” orders.
Indeed, the drafters of the law considered it appropriate to make this distinction, stating that positive precautionary measures are aimed at preventing the litigation from either being devoid of material cause to the controversy or else causing irreparable damage to the parties. The stay order, meanwhile, aims to maintain the situation throughout the proceeding, generally speaking, in order to avoid an adverse effect on the plaintiff caused by the challenged authoritarian act, rule or regulation.
On the other hand, an important step forward is that the deadlines to be met insofar as stay orders are concerned are homologated with the respective provisions of the Amparo Statute (the Constitutional Review Act); as a result, the interim resolution must be pronounced by the Court within 24 hours following the request of such measures.
A new item is also provided in connection to the amount of the counter-guarantee offered by the counterparty to compensate for damages and losses that could be caused to the plaintiff if the stay order is released. This includes expenses incurred for its constitution. Finally, it is worth noting that the authority is likely to be obliged to compensate for damages caused to the individual by a failure to dictate the measure, so that, in case of a final ruling against the defendant authority, such party must be ordered to pay the corresponding "administrative compensation".
A summary trial is now the suggested route in more cases, since the previous economic threshold is being raised to matters totalling a higher amount, taking as a reference point the amount of final resolutions at the time of issuance. Likewise, the deadline for submitting the claim through this route is changed to 30 working days, as is the case on the “traditional” proceeding. The Amended Statute enables challenges or resolutions in breach of jurisprudence previously issued by the Supreme Court of Justice, or by the Plenary of the High Chamber of the Administrative Justice Court itself.
Reduction of Deadlines in the Traditional Administrative Trial
As stated, in order to accelerate access to administrative justice, the deadline for filing and responding to the claim is reduced from 45 to 30 working days. Also, the deadline for filing an extension of the claim (valid once only) is reduced from 20 to 10 working days.
The Amended Statute provides an obligation for the experts to render their opinion clearly stating the reasons and grounds on which it relies. It is forbidden to rely on a statement the expert of one party has made in order to justify his or her opinion, which clearly departs from the pre-reform legal regime. In our view this is a positive change, because it not only ensures independence but also stresses the scientific knowledge required for the release of expert evidence, in order to assist the judge in clarifying the technical issues discussed. The Amended Statute also empowers the magistrate to convene a meeting of experts in which the corresponding opinions can be clarified, which should contribute to an effective and better assessment.
Among other changes, the deadline for judgment is reduced from 60 to 45 working days following the deadline of five working days granted to the parties to submit their written pleadings. In reality, legal deadlines for rulings are rarely met by the Administrative Justice Court, due to the aforementioned backlog of case – therefore, although we believe that the change is positive, it is yet to be seen whether it will be accompanied by other structural changes that allow for more courts to be open, Otherwise it will end up as no more than a good-faith intention of the drafters of the law.
Enforcement of Judgements
Although the decree does not offer novelty in this area, it does specify that when the judgment orders the authority to perform a certain action or to initiate a procedure, such an order must be fulfilled within a month in the case of Summary Judgment.
The minimum quorum of magistrates is reduced from 10 to seven, to decide by majority the binding ruling by means of a jurisprudence that must prevail in case of contradiction of judgments. This may be denounced either by the same magistrates of the Court or by the parties themselves.
Magistrates are empowered to impose fines in cases where the parties or persons related to the trial are not conducted with probity and respect between themselves and with the judicial staff. Also, the magistrates may also impose fines to those who file lawsuits, appeals or promotions rendered as notoriously frivolous and ungrounded.
The Amended Statute provides the possibility that entities and corporations opt to use their advanced electronic signature, or the advanced electronic signature of their legal representative, for the purposes of filing, clarifying that in the first case the holder of the certificate of signature will be the entity or corporation.
On the other hand, it establishes the presumption (unless there is evidence to the contrary) that the filing of lawsuits through the online trial system using the advanced electronic signature of an entity or corporation was carried out by the sole administrator or the chairman of the board of directors of said entity. (Under Mexican Commercial Law the latter officer is not actually a legal representative of a corporation, although there are some isolated judicial opinions that support said representation.)
The Amended Statute came into force on 14 June 2016, although the trials pending before the Administrative Justice Court at that date and until their conclusion will continue to be governed by the provisions in force at Presentation of the claim.
Last but not least, the minimum wage ceases to be considered, as a measure under the procedural law, to determine the amount of the matters to qualify for litigation under summary proceedings, as well as the fines imposed in violation of the Law as amended. Instead, the new measure is effective once a new regulatory law enters into force, as per a decree published in the Federation Official Gazette on 7 January 2016, which amends the Mexican Constitution.
In conclusion, the central objective that motivated the approval by the Federal Congress of the Amended Statute was to procure more agile administrative judgments, while guaranteeing the human right to effective judicial guardianship that assists the justiciables. It is still too early to say if these amendments will actually acomplish such goal. Litigators specialised in administrative litigation have an important responsibility to contribute to the viability of some of the reforms; however, as is often the case, time will tell if the changes really worked out.
Lastly, it is worth mentioning that a recent initiative by the Executive Branch, of further amendments to the Federal Law on Administrative Litigation, was submitted to the Mexican Federal Congress in addition to the reform discussed in this article. In this new initiative, the goal is to prioritise the study of material breaches of the law, instead of becoming lost in the analysis of formalities. However, the scope is limited only to tax matters and does not extend to other administrative law violations. Said initiative provides that, at the moment of filing the relevant lawsuit, the individual may choose that the Court only analyses issues related to the core of tax obligations subject to controversy, and disregard the study of any breach of technicalities, through an expedited procedure which gives priority to oral hearings – an absolute novelty as far as administrative law litigation is concerned. Likewise, as per the initiative, it is expected that the stay of the resolutions of authority may be obtained without guarantee, until the conclusion of the trial. So far this initiative has not been approved, but if so, it will represent another advance in the matter. It will remain to be seen if more proposed changes are going to be discussed in the legislature within the coming months; in any case, we expect a very active new year in this field.