The Ordinary Appeal to the Supreme Court Was Declared Unconstitutional

In a recent ruling, the Federal Supreme Court limited its jurisdiction by declaring the unconstitutionality of the Ordinary Appeal to the Supreme Court that is provided for in cases in which the Federal Government is a party and where the disputed amount is significant.

On August 20, 2015, in the Andon, Tomás Salvador c/ Comisión Nacional de Comunicaciones s/Despido case, the Federal Supreme Court of Justice (“SCJ” after its acronym in Spanish) declared the unconstitutionality of the Ordinary Appeal provided for in Section 24, Subsection 6, a) of the Decree-Law No. 1285/58 (the ‘Ordinary Appeal to the SCJ’).

The Ordinary Appeal to the SCJ is intended for cases in which the Federal Government is a party and where the amount in dispute exceeds AR$10,890,000 (ten million eight hundred and ninety thousand Argentine Pesos), about USD 1,000,000 (one million United States Dollars) at the current exchange rate.

The SCJ’s decision was signed by the judges Lorenzetti, Highton de Nolasco and Maqueda, who voted unanimously.

The SCJ stated that its decision will not apply to the cases in which the Ordinary Appeal to the SCJ had already been filed or such remedy was available at the date of this ruling.

1.  Reasoning of the SCJ’s Ruling

The main reason put forward by the SCJ is that nowadays the existence of the Ordinary Appeal has become unreasonable, as it prevents the SCJ from attending to its primary role as the ultimate interpreter of the Constitution and guardian of the declarations, rights and guarantees set forth therein.

In particular, the SCJ held that its work is generally limited by parameters of “importance” related to its constitutional role, which at present the Ordinary Appeal to the SCJ does not fulfill.

This is because the two requirements for its admissibility —i.e. that the Federal  Government is a party to the litigation and that the disputed amount is significant— are unreasonable, as they give priority for certain cases and a restriction for others, and this does not harmonize with the SCJ’s constitutional role.

Furthermore, the SCJ stated that the Ordinary Appeal to the SCJ is not necessary to protect the Federal Government’s resources, since that protection is sufficiently assured by other instances of review, even by the Extraordinary Appeal to the SCJ in the cases where it occurs.

2.  Context and Final Comments

The SCJ’s ruling is consistent with a pattern that has been taking place in recent last years, where the SCJ has applied a restrictive criterion to decide on the admissibility of the cases that come to its attention, in order to limit its workload.

It is expected that the new criterion established by the SCJ will contribute to reduce the number of cases that it handles every year.

Moreover, this ruling will undoubtedly have a significant impact on the judicial control of the activity of the Federal Government.

First, both private parties and the Federal Government will have one instance less for the judicial review of administrative action. From now on, the Courts of Appeals will have the final decision on these matters, which will only be subject to review by Extraordinary Appeal to the SCJ, if the applicable requirements are met.

Secondly, it is expected that the time extension of the cases in which the Ordinary Appeal to the SCJ was applicable would be considerably reduced.