Appeal Against the Sanctions of the Water Authority of the Province of Buenos Aires

As a consequence of an administrative appeal filed by the firm “La Tomasita” against a fine imposed by the Water Authority of the Province of Buenos Aires (the “ADA”), the Court of Appeals in Administrative Matters of Mar del Plata resolved that the sanctions imposed by ADA must be challenged under the procedural rules set forth in Sections 162 of Law No. 12,257 (the "Water Code") and 164 of its implementing Decree No. 3,511/07, and before the First Instance Courts in Administrative Matters. (1)

In this case, ADA imposed on the appellant a fine of AR$ 26,964.28, plus the obligation of submitting a readjustment plan of the effluent treatment system, due to infringements to Sections 13 and 37 of the implementing regulation of Law No. 5,965 (Decree No. 2,009/60, amended by Decree No. 3,970/90) and to ADA Resolution No. 336/03. The company challenged said ruling through an administrative motion for reversal with a supplementary appeal under the terms of Decree 3707/1998, rule applicable in default to misdemeanors or infringements of provincial and/or national laws and regulations lacking of specific procedures.

The ADA granted the motion for the appeal filed and referred the proceedings to the correctional Court based in the city of Tres Arroyos (according to Section 5 of the mentioned decree), which decided to uphold the penalty and reduced the imposed fine. This decision was appealed by the company, and the case was submitted to the Court of Appeals in Administrative Matters of Mar del Plata.

In its judgment, the Court of Appeals of Mar del Plata held that the Water Code and its implementing Decree clearly determine the procedural ritual to be followed to challenge any decision issued by the ADA, as well as the competent Court for the treatment and resolution of disputes arising from its punitive administrative acts. Given the clarity and limitation of the challenge regime there foreseen, the Court of Appeals stated that the application of Decree 3,707/98 had to be dismissed, since such rules only govern judicial challenges of misdemeanors or infringements of the laws and regulations that have not established a determined way for judicial review of administrative acts.

For such reasons, the Court decided on a lack of competence of the first instance Court to intervene in the case and declared the judgment null. Notwithstanding, in order to avoid establishing a solution which would infringe the principle of continuous and effective judicial protection (Section 15 of the Provincial Constitution), the Court considered the motion made by the plaintiff as a lawsuit for challenging the sanction imposed by ADA (Section 12, Subsection 1, of the CPCA), and allowed the Court of First Instance No. 1 in Administrative matters from the Judicial Department of Bahía Blanca to intervene.

Finally, the Court of Appeals notified the decision to ADA, to allow ADA to modify its criteria when dealing with this type of appeals.

This judicial precedent clarifies the appeal applicable in cases of sanctions imposed by the ADA. For many years there has been ambiguity regarding the appropriate way to apply this appeal and the Court has now clarified this situation with this precedent for future cases.