We invite you to read the column written by our associate of the Public Law and Regulated Markets Group, Francisco Alarcón, on the external control of the administration and abstention in litigious matters.
Last November 6, the Comptroller General of the Republic issued an opinion on the deadline for generating legitimate confidence in contracts, which received a strong reaction from different agents in the public discussion at the labor, financial and administrative levels.
In this brief column I will address the administrative effects linked to the Comptroller’s Office’s power to issue rulings and the scope of the “litigious matter” ground for abstention.
As a preliminary matter, it is indeed possible to find in the spirit of the opinion laudable and good service reasons that lead to take this decision, decongesting the administrative headquarters and standardizing the application of the law on this matter. However, as we shall see, the matter is not free of problems from the point of view of public law.
Opinion No. 561.358-2024 begins by stating the traditional jurisprudence in the comptroller’s office, which is that the continuous renewals of contracts – at least since the second contract – generate in the employees the legitimate trust that such practice will be repeated in the future. That is to say, the application of legitimate trust occurs after two renewals in office, which usually coincides with two years.
Then, it states that, although in the past this criterion was also taken up by the Supreme Court, the matter changed as from rulings of the same court in 2022 and 2023, establishing that legitimate trust only operates after five years have elapsed. The opinion attributes to these rulings the character of unifying jurisprudence. However, they were all issued in connection with appeals for protection filed by individual officers.
The opinion goes on to cite the ground of abstention by which the Comptroller’s Office should not intervene or report on matters that by their nature are of a litigious nature, or subject to the knowledge of the courts of justice. It also clarifies that the mere fact of dealing with aspects that may be debated in court does not constitute a basis for necessarily attributing such a character to the Comptroller’s Office. This seems logical, since it is the only possible interpretation that gives room for the application of the auditing authority’s authority to issue rulings.
However, according to the opinion, in view of the current and reiterated criteria of the Supreme Court and the (contrary) jurisprudence of the Comptroller’s Office, the applicable term to generate legitimate trust -two or five years- has become a litigious matter. The litigiousness would stem from the claims at stake in these cases. On the one hand, the appellants seek a declaration of legitimate expectations to remain in their contract, while on the other hand, they seek a declaration of legitimate expectations to remain in their contract, while on the other hand, the appellants seek a declaration of legitimate expectations to remain in their contract.
As we have already mentioned, this decision implies a series of practical and legal effects in different areas.
A short time ago, an academic article was published that foresaw some of the questions that are being raised today in connection with this ruling. Some of these questions are related to (i) an eminently practical matter, associated with the administrative instance before the Comptroller’s Office taking the place of the jurisdictional instance, a matter which, in fact, does occur; (ii) a theoretical issue, consisting of the fact that the Comptroller’s Office, as an administrative body, will, in most cases, define the meaning and scope of the “litigious matter”, and, finally, (iii) a consideration associated with the principle of legality and delimitation of competences, which means that the head of the body will determine part of its own scope (Cisternas Matar, 2023, p. 294). 294).
Regarding the former, any operator of the system can verify today that there are two institutional channels for challenging a decision not to renew a contract, the Comptroller’s Office and the courts of justice, the latter being accessed, as a general rule, through appeals for protection.
This phenomenon, which has developed with the practice of the operators, finds its original problems in the normative deficit that exists in the definition of the indeterminate legal concept of “litigious matter”. The issue is complex and critical for the system of distribution of competences of administrative control, given that it is the legal definition of a cause for abstention from knowledge for the main external administrative control body. This design generates a frustrated clear division between administrative and jurisdictional powers, as other important scholars in the area have warned (Navarro Beltrán, 2021, p. 295).
On this point, the opinion of the Comptroller’s Office chooses to close this duality and concentrates all future discussion on the legitimate trust of this statutory regime in the courts of justice. This decision, in a way, is aligned with what was already stated in 2012 by the Supreme Court, in order to emphasize that the Comptroller “must lean against the jurisprudence of the courts, which is fundamental for the institutional order and particularly valid when it is uniform and permanent in time” (CS N°2.791-2012).
As for the second, the question is eminently interpretative: when are we really facing a litigious matter? In this opinion, the Comptroller’s Office links it to the existence of a “current and reiterated criterion of the Supreme Court”, in contrast to what had been resolved in the past.
However, the problem lies in the fact that the jurisprudential change in this opinion was built on the contrast of five sentences, which are shown as contradictory, but which correspond to the same roles (this, logically, is a typographical error), without really accounting for the referred jurisprudential change in the basis of the act.
Moreover, the modification of the Supreme Court’s criterion does not take more than two years, which generates uncertainty as to the magnitude of the reiteration in time that the controlling entity will require to satisfy the actuality and reiteration of the criterion on which it builds the previous judicial jurisprudence that motivates the change.
Third and lastly, we are effectively faced with an opinion that unilaterally determines the scope of the competencies of the Comptroller’s Office itself, removing its participation in this type of matters with effects into the future.
Beyond the opinions that may be given on the level of completeness and satisfaction of the indeterminate legal concepts at stake, what is certain is that the existence of self-determined powers exempt from review in our system does not seem convenient, especially when they define the design of the system of control of administrative acts with general scope.
It is ambitious to try to answer all these questions and problems in the context of a column, but it is certainly worthwhile to put them on the table now.
Column written by:
Francisco Alarcón | Associate Public Law and Regulated Markets Group | falarcon@az.cl
