Broad Rejection of National Courts to the “Levinas” Ruling

In the ruling issued on February 11, 2025, in the cases “Cavero Claudia[MF1]  Marcela y ot. c/Obra Social de los Empleados de Comercio s/Daños y Perjuicios” and “Peña, Alicia María c/ Peña Carlos Alberto y ot. s/Impugnación/Nulidad de testament,” the National Court of Appeals in Civil Matters (en banc[MF2] ) unanimously decided that the rulings of national judges in civil matters cannot be appealed before the Superior Court of Justice of the City of Buenos Aires (TSJ).

The ruling rejected the application in the national civil jurisdiction of the recent Argentine Supreme Court (CSJN) ruling “Levinas”, where the CSJN—by majority—had concluded that the TSJ is the competent court to hear extraordinary appeals filed before the National Ordinary Justice seated in the city of Buenos Aires.

In its decision, the Civil Court of Appeals en banc emphasized that the rulings of the CSJN have a mitigated binding effect and that, as a lower court, it may depart from the decision in the “Levinas” case because, on the one hand, there is a series of arguments not considered or refuted in the CSJN’s majority opinion and, on the other, there are procedural and argumentative errors of such magnitude that they prevent granting binding effect to the ruling.

The Civil Court of Appeals mentioned that the majority opinion in the “Levinas” ruling included these (among other) formal defects:

• It exceeded the scope of article 24, subsection 7 of Decree-Law 1285/58.
• It created judicially a remedy not provided by federal laws governing the operation of national courts of appeals, in violation of the principle of legality established in article 18 of the National Constitution.
• It imposed a local court as an appellate body over the national courts of appeal without prior notice to the Federal State, thereby violating the right to due process of the Federal State and the public interest.
• It violated the guarantee of the natural judge under article 18 of the Argentine Constitution.
• It failed to apply certain federal laws (article 8 of Law 24588, article 1 of Decree-Law 1285/58, article 6 of Law 4055, and articles 1, 256 and subsequent of the National Code of Civil and Commercial Procedure  (CPCCN)) and ruled against their provisions without declaring their unconstitutionality.
• It overlooked the existence of a temporary injunction issued in a case initiated by the Association of Magistrates of the National Judiciary (AMFJN) against the Government of the City of Buenos Aires, previously ruled by the National Court on Federal Administrative Litigation matters, which suspended the application of the City of Buenos Aires Law 6452 to the extent that it seeks to regulate the possibility of filing an unconstitutionality appeal before the TSJ against final rulings issued by national judiciary courts.

Regarding the substantive issue, the Civil Court of Appeals highlighted that:

• The CSJN distorted the doctrine of its precedents “Strada” and “Di Mascio” by using them to judicially create a remedy not provided by Congress.
• The CSJN lacks constitutional authority to create remedies or to mix local and national jurisdictions.
• The City of Buenos Aires, within Argentina’s constitutional system, is not equivalent to a province.
• The City of Buenos Aires has its jurisdictional power limited by Law 24588, enacted by Congress under article 129 of the National Constitution, to protect the interests of the State, which does not have a “transitional vocation” and remains in effect as long as the City of Buenos Aires is the  capital of Argentina.
• There is no “inaction” by national authorities failing to comply with constitutional provisions, but rather a conscious decision of the Congress to maintain the national judiciary in the interest of the Federal State, as evidenced in article 8 of Law 24588.
• Even if, hypothetically, the opposite were accepted, it does not follow that there is a constitutional mandate to transfer the national judiciary to the City of Buenos Aires; but rather that any such transfer should involve a jurisdictional reassignment to avoid conflicting with the principle of judicial immovability, which is foundational to the republican system of government.
• Therefore, the highest court in a case before the national judiciary, for the purpose of article 14 of Law 48, is the respective Court of Appeals, created by Congress, and not the TSJ.

The “Clavero” plenary has already been applied by different chambers of the Civil Court of Appeals to reject in limine unconstitutionality appeals against its rulings. Specifically, we refer to:

• The ruling issued by Chamber H on February 14, 2025, in the case “V R y R R Q et al. v. Cervecería y Maltería Quilmes SAIC et al. on Damages”,
• The ruling issued by Chamber L on February 17, 2025, in the case “P W, E N v. Z T, L on Damages (Traffic Accident Resulting in Injury or Death).”

Aligned with the Civil Court of Appeals’ ruling, on February 12, 2025, the National Court of Appeals in Labor Matters (en banc) rejected the “Levinas” ruling and held that its decisions that exhaust the ordinary procedure can only be appealed via extraordinary federal appeal before the CSJN, pursuant to article 155 of Law 18345. On the same day, the National Court of Appeals in Criminal and Correctional Matters—convened in a general agreement—also rejected the “Levinas” ruling, stating that establishing the TSJ as an appellate body over national courts amounts to “a new institutional configuration that disregards the appeal procedures expressly provided by law” and that the local unconstitutionality appeal exceeds the mandate of article 432 of the National Code of Criminal Procedure, thereby infringing upon the Congress' legislative domain. On February 20, 2025, the National Court of Appeals in Commercial Matters, en banc and unanimously, resolved as a legal doctrine that “the judgments of national judges in commercial matters cannot be appealed before the Superior Court of Justice of the City of Buenos Aires.” The Commercial Court of Appeals applied similar grounds to those outlined by the Civil Court of Appeals, to which it added:

• the omission to consider article 90 of Law 1893, which expressly grants national courts of appeals the character of “the highest court” for the purposes of article 14 of Law 48,
• the impropriety of numerous commercial matters of national scope being examined by a local court,
• the “Levinas” ruling preventing the Public Prosecutor's Office from fulfilling its legal and constitutional functions and affecting the time and manner of intervention of the Public Prosecutor’s Office regarding minors and persons with disabilities.

Furthermore, on February 7, 2025, the TSJ, through Ruling 1/2025, suspended the commencement of the filing deadline for all remedies provided under Law 402 within cases processed in the national ordinary courts of the City of Buenos Aires from February 3 to February 14, 2025, inclusive, with deadlines resuming on February 17, 2025. On February 19, 2025, the TSJ promptly dealt with the unconstitutionality appeal filed in the “Levinas” case and, although it was rejected, the ruling implied the Court’s adherence to the CSJN’s standard regarding the jurisdiction of the TSJ.

Finally, it is important to note that the CSJN is beginning to confront the resistance described above. Indeed, on February 18, 2025, the CSJN issued two new rulings reaffirming the “Levinas” doctrine:

• It rejected the reconsideration appeal filed by AMFJN against the ruling in the “Levinas” case. The CSJN held that, as a general principle, “those who are not legitimate parties in the process cannot file a federal extraordinary appeal, even if they claim to be harmed by the ruling,” which applied to the reconsideration request. Additionally, the CSJN reiterated that, in principle, its rulings cannot be modified through reconsideration or nullity appeals.
• In the case “Recurso de hecho deducido por la parte demandada en la causa Asociación de Magistrados y Funcionarios de la Justicia Nacional c/ GCBA s/ inc. de apelación,” the CSJN overturned the ruling that had temporarily suspended the application of article 4 of the City of Buenos Aires Law 6452, which had been referenced in the “Clavero” en banc ruling.

In this dynamic context, the situation continues to generate significant uncertainty among litigants and requires ongoing adaptation of procedural strategies.