On August 4, 2020, the Public Prosecutor before the Supreme Court of Justice of the Nation, Dr. Laura Monti, issued an opinion referring to the original jurisdiction of the Supreme Court to resolve claims against local regulations related to essential activities during the mandatory social, preventive, and isolation period. The case analyzed concerns an amparo action filed by a company domiciled in the Province of Chaco against the Province of Corrientes for prohibiting two of its employees from entering and leaving the country pursuant to a decree regulating essential activities during the mandatory social, preventive, and isolation period. The Public Prosecutor maintained that the dispute fell within the original jurisdiction of the court because the defendant is a province and the dispute concerns federal matters.
Background
The company Licores Nordeste S.R.L. (the “Company”), domiciled in the Province of Chaco, filed an amparo action before the Federal Court of First Instance of Resistencia against the Province of Corrientes (the “Province”). The plaintiff’s claim was to obtain free transit, circulation, and access to the city of Corrientes for its employees.
To this end, the Company stated that its industrial and commercial headquarters were located in the city of Barranquillo, Chaco Province, and its corporate purpose was the production, marketing, and distribution of soft drinks. The Company also indicated that one of its employees lived in the city of Resistencia, Chaco Province, and was required to perform supervisory duties at its branch in the city of Corrientes, Corrientes Province. It also stated that another of its employees, a resident of Corrientes, was required to relocate to Barranqueras to perform supervisory duties.
It should be noted that the Company’s activity is included in the list of essential activities established by DNU No. 297/2020 (the “Decree”). Specifically, point 12 of Article 6 establishes “food industries, their production chain, and inputs” as essential activities. It is worth noting that Article 10 of the Decree authorizes the provinces, the Autonomous City of Buenos Aires, and municipalities to dictate the necessary measures for its implementation. Pursuant to this authorization, the Province issued Decree No. 790/2020, establishing the procedure for obtaining a circulation permit within its territory.
Finally, the company maintained that its employees complied with the administrative requirements established by the Province. However, despite compliance with local regulations, both employees were prohibited from entering or leaving the premises.
Incompetence of the Federal Court
Once the action was initiated, the federal judge declared herself incompetent. This was because she considered the requirements for the original jurisdiction of the Supreme Court of Justice of the Nation to be met: (i) the claim was against a province; (ii) the matter was of a federal nature.
dictum
On the incompetence of the trial judge
First, the Public Prosecutor held that the federal judge’s declaration of incompetence was not premature. To this end, she referred, for brevity, to the grounds of the July 20, 2006, ruling in the case “A.F.I.P. v. Neuquén, Province of the case regarding tax enforcement” (Rulings 331: 793).
Indeed, in that precedent, the then Public Prosecutor, Dr. Esteban Righi, analyzed the scope of the term “exclusive” in Article 117 of the National Constitution. In this regard, the Public Prosecutor maintained that the term had been defined by the Supreme Court in the ruling “Telecor S.A.C. and I.V. Province of Catamarca” (Rulings 311: 1812). On that occasion, the Court stated that exclusive jurisdiction should be understood as meaning that “such jurisdiction is not extendable to the other federal courts.” Its extension was accepted only for provincial judges, in accordance with paragraph 4 of Article 12 of Law 48.
He also indicated that provinces “should” and “may” only be sued in “federal jurisdiction” before the Supreme Court, whether the latter proceeds on the basis of person or subject matter. Based on the foregoing, the Public Prosecutor held that when the dispute does not involve matters of a federal nature and there is no distinct residence or foreign status, the provinces must be sued before their own judges. This is evident from Article 121 et seq. of the Supreme Law. This same interpretation governs disputes in which there is a distinct residence or foreign status and a province is sued, but the dispute concerns matters of local law.
He also stated that the exercise of local jurisdiction was not incompatible with the exclusive nature of original jurisdiction. This is true given that this section originates from Article 75, paragraph 12, of the National Constitution, which provides that in cases governed by common law, local and federal jurisdiction shall be concurrent. Regarding federal jurisdiction, an express reservation is made in Article 116 of the Constitution.
Notwithstanding the foregoing, the Public Prosecutor explained that, pursuant to the precedent “Feliciano Reinaldo Flores et al. v. Province of Buenos Aires et al.,” (Judgments 315:2157), the Court recognized that the privilege of provinces to be sued exclusively before it could be extended in favor of federal first-instance judges. This could be done both tacitly and expressly, and provided that such jurisdiction is granted by virtue of the ratione personae requirement being met. That is, when there are no “institutional or federal reasons, or conflict between the Nation and the province, that require the application of a restrictive principle of interpretation, such as that arising from Article 117 of the National Constitution.”
From the foregoing, the Public Prosecutor concluded that original jurisdiction ratione materiae is absolute. That is, when one of the parties is a province and a federal matter is being discussed. Original jurisdiction ratione personae is relative. These cases would be those in which the following circumstances apply: i) a neighbor from a foreign territorial jurisdiction or a foreigner in a civil case; ii) the National State or a national autonomous entity; iii) another province or provinces; and iv) a foreign State. Thus, the Court applied the same rules to its original jurisdiction as to federal jurisdiction, ignoring the existence of the term “exclusive” in Article 117.
This circumstance would be further aggravated by the ruling “Ontivero, Ariel Adolfo v. Buenos Aires, Province of, and others s/preliminary measures and advance evidence” (Case O. 393 XLI). This is because the Court would convert the exception formulated in “Flores” into a general rule.
After this exegesis of the term “exclusive” and considering the state of the Court’s doctrine for resolving its original jurisdiction, the Public Prosecutor argued that it was necessary to reformulate the applicable doctrine. In this regard, he maintained that the “extension” provision should be made compatible with the constitutional principles at stake and the jurisdiction rules established by the Civil and Commercial Procedure Code.
Regarding the declaration of lack of jurisdiction, the Public Prosecutor recalled that the Code of Procedure requires the plaintiff to file the complaint before a competent judge. Furthermore, if the judge is found to be incompetent, the law imposes an obligation on the magistrate to withdraw “ex officio” at the earliest opportunity.
In light of the doctrine established in the “Ontivero” ruling, which established that the submission of the local State to the original jurisdiction of the Supreme Court is a prerogative of the province and that the province is the only one that may invoke Article 117, the Public Prosecutor held that this prerogative cannot be opposed to federal judges. This is because they must apply the Constitution and the laws of the Nation.
In light of the foregoing, the Public Prosecutor considers that the extension of the Court’s original jurisdiction should be interpreted restrictively. In this sense, for such an extension to be admissible, the following conditions must be met: i) the province must agree, in a written agreement, to submit to the lower federal courts; ii) the province, as the plaintiff, must decide to file the claim before a federal trial judge; and iii) when the province is the defendant, in which case the extension will arise on the condition that the local State submits the plea to the Court, its “constitutional judge,” as occurred in the “Flores” case.
This means that “there must always and inevitably be an express or tacit will on the part of the province to waive its prerogative and never be subject to the requirement of having to request it once the trial has been filed before the lower federal court.”
About the background
In the first instance, the Public Prosecutor addressed the admissibility of the action brought. In this regard, she argued that the amparo (protection of constitutional rights) is an acceptable means of accessing the original jurisdiction of the Supreme Court. This is provided that the requirements established in Articles 116 and 117 of the National Constitution are met.
The Public Prosecutor then proceeded to verify the existence of the material element necessary for the Court’s jurisdiction. That is, “when the claim filed is based directly and exclusively on national constitutional provisions, laws of Congress, or treaties with foreign nations.”
In this regard, she maintained that this hypothesis is met in the case. To this end, the Public Prosecutor indicated that the lawsuit challenges local provisions—Provincial Decree No. 790/2020—considering it contrary to the provisions of Emergency Decrees No. 260/2020, 297/2020, and their successive extensions and amendments. The lawsuit is also based on a violation of Article 31 of the National Constitution.
Thus, the Public Prosecutor stated that, although the lawsuit arose from local regulations and acts, the core of the argument requires analyzing whether the Province, by issuing Decree No. 790/2020, invaded a sphere that belongs to the Nation. This would verify compliance with the requirements of Section 1, Article 2 of Law 48, which makes the national courts competent to hear the case.
Under these circumstances, the Attorney General maintained that there is no doubt that the issue under discussion is of a federal nature. This is because the gist of the matter requires unraveling the meaning and scope of the aforementioned federal provisions and verifying a constitutional violation.
Finally, the Court held that the issue in this case was not analogous to the cases “Crescia” (No. 475/2020) and “Borges” (No. 476/2020), in which the court’s original jurisdiction was rejected. The difference noted by the Public Prosecutor between those cases and the present one was that they challenged provincial regulations that established certain conditions for staying and traveling within the territorial scope of the defendant provinces. In the present proceedings, the dispute concerns the Province’s power to refuse entry into the province to authorized persons because they were involved in essential activities.
Conclusion
The outbreak of the COVID-19 pandemic led to a significant institutional breakdown. In this regard, it is worth remembering that during the first few months, the National Congress was not allowed to hold sessions. The judiciary also found itself in the same situation. However, despite the fact that these constitutional powers were suspended, serious limitations on citizens’ rights and freedoms were imposed.
It is in this context that the institutional gravity of Decree No. 790/2020 issued by the Province of Corrientes must be understood. Having already completely restricted the freedom of movement of a large portion of the population, the Province has further restricted its citizens, imposing restrictions within its borders and creating entry barriers for other residents.
It is also vitally important to note that the Province’s stance is not isolated from that of other local states. Similar measures prohibiting the entry of certain residents of other provinces have been adopted throughout the country, including the ban on Neuquén residents crossing into the Province of Río Negro.
It is in these times when the word “emergency” serves as a basis for justifying the actions of the Administrations, where strict compliance with our Supreme Law must be most ensured.
The opinion of the Public Prosecutor is available in the file “LICORES NORDESTE S.R.L. C/ PROVINCIA DE CORRIENTES AND ANOTHER S/AMPARO LAW 16,986 – (DIGITAL FILE)” (File No. 1674/2020, FRE jurisdiction).
This report should not be considered as legal or any other type of advice by Allende & Brea.
