Administrative

The Administrative Procedure in Mexico

Although public administration applies dissimilar regulations due to its technical nature, it has one thing in common: the rules for acting as a governing body. These rules are stipulated in the Federal Law of Administrative Procedure, which essentially regulates how an administrative act arises and ends, what an administrative act is, and what its main grounds for annulment are, among other aspects.

In this sense, just as we did at the state level with the entry «Administrative Procedure in the State of Chihuahua,» it is now time to analyze this institution at the federal level. This is based on the most important precedents on the subject and the applicable regulations.

Without further ado, let’s begin:

List of Contents

Translation

This entry is a translation of what I wrote on El procedimiento administrativo en México.

1) Application of the Law

While the Federal Law of Administrative Procedure seeks to regulate the actions of the centralized federal public administration and decentralized public bodies of the parastatal public administration in a similar manner, there are certain matters so unique that the legislator preferred to govern their actions based on special regulations in the following areas:

I.- Taxation.

II.- Responsibilities of public servants (which are governed by the General Law of Administrative Liabilities, which I wrote about in Administrative Liability of Public Servants in Mexico)

III.- Agrarian and Labor Justice.

IV.- Actions of the Public Prosecutor’s Office.

V.- In general, matters of economic competition, unfair international trade practices, and financial practices.

2) The Administrative Act

According to the illustrious Margáin Manautou (Mexican scholar), an administrative act is understood as: «that by which the administrative authority exercises, in a general or specific manner, the powers granted to it by the legal system to fulfill the powers vested in its administrative unit and to demand their compliance^[1].» In this sense, an administrative act can be a license, permit, concession, authorization, pension, or a general agreement issued by the public administration, among others.

On the other hand, the elements and requirements of an administrative act in Mexico are:

I.- It must be issued by a competent body through a public servant and, if said body is collegiate, it must meet the formalities required by law or decree to issue it.

II.- It must have an object that can be the subject matter of the act; determined or determinable; precise in terms of the circumstances of time and place, as well as those provided for by law.

III.- Comply with the public interest purpose regulated by the regulations in which it is specified, without any other purposes being pursued.

IV.- Be recorded in writing and signed by the issuing authority, except in cases where the law authorizes another form of issuance.

V.- Be substantiated and reasoned.

VI.- Be issued in compliance with the provisions relating to the administrative procedure.

VII.- Be issued without error regarding the object, cause, or motive, or the purpose of the act.

VIII.- Be issued without any malice or force in its issuance.

IX.- Mention the body from which it is issued.

X.- Be issued without error regarding the specific identification reference of the file, documents, or the full name of the persons.

XI.- Be issued indicating the place and date of issuance.

XII.- In the case of administrative acts that must be notified, the office where the respective file is located must be mentioned, and the file may be consulted.

XIII.- In the case of appealable administrative acts, the appropriate appeals must be mentioned.

XIV.- The decision must be issued expressly resolving all the points raised by the parties.

A) Validity of General Administrative Acts

General administrative acts, such as regulations, decrees, agreements, Mexican official standards, circulars, and forms, as well as guidelines, criteria, methodologies, instructions, directives, rules, manuals, and provisions that establish specific obligations when conditions of competition do not exist, and any similar acts issued by decentralized agencies and bodies of the federal public administration, must be published in the Official Gazette of the Federation to have legal effect.

B) Nullity and Annulment of the Administrative Act

The omission or irregularity of the elements and requirements previously required will, as the case may be, result in the nullity or voidability of the administrative act.

Nullity

An administrative act is null and void when any of the elements mentioned in the previous section, from numbers I to X, are missing. Nullity will be decreed by the hierarchical superior of the authority that issued it, unless the challenged act originates with the head of a department, in which case the nullity will be declared by the same.

In this sense, an administrative act declared legally null and void will be invalid; it will not be presumed legitimate or enforceable; it will be correctable, without prejudice to the possibility of issuing a new act. Furthermore, individuals will not be obliged to comply with it, and public servants must state their opposition to executing the act, providing the reasons and justifications for such refusal. Finally, the declaration of nullity will have retroactive effect.

Annullability

Regarding annullability, an administrative act that lacks the elements indicated in the previous section, numbers XI to XIV, will render the administrative act voidable.

In this sense, an act declared voidable will be considered valid; it will enjoy a presumption of legitimacy and enforceability; and it will be rectifiable by administrative bodies through full compliance with the requirements established by the legal system for the act’s full validity and effectiveness. Therefore, both public servants and private individuals will be obligated to comply.

C) Effectiveness of the Administrative Act

An administrative act will be valid until its invalidity has been declared by an administrative or judicial authority, as the case may be. Therefore, a valid administrative act will be effective and enforceable from the moment the legally issued notification takes effect.

D) Termination of the Administrative Act

An individual administrative act is automatically extinguished for the following reasons:

I.- Fulfillment of its purpose.

II.- Expiration of the term.

III.- When the formation of the administrative act is subject to a condition or suspensive term, and it is not carried out within the period specified in the act itself.

IV.- Occurrence of a resolutory condition.

V.- Renunciation by the interested party when the act was issued for the exclusive benefit of the interested party and is not detrimental to the public interest.

VI.- By revocation, when the public interest so requires, in accordance with the relevant law.

3) The Administrative Procedure

Having explored the concept of an administrative act and addressed the treatment given to it by the lawmakers in the law, it’s now time to understand how this administrative act arises or what precedes it, which, in this case, is the administrative procedure. In this sense, by administrative procedure we must understand: «the set of methodically articulated acts with the specific purpose of regulating the intervention of those who may participate in the formation or challenge of any declaration of will of a public authority in the exercise of its administrative function, intended to produce legal effects regarding specific individual cases^[2].»

That said, it must be noted from the outset that these steps for the issuance of the administrative act can be initiated at the request of a party or ex officio, the latter being the rarest form of initiation.

A) Initiation at the Request of a Party

When the administrative procedure is initiated at the request of a party, the motions must be submitted in writing, specifying:

I.- The name, business name, or company name of the person(s) filing the motion and, where applicable, their legal representative.

II.- Address for receiving notifications, as well as the name of the person(s) authorized to receive them.

III.- The petition being made.

IV.- The facts or reasons giving rise to the petition.

V.- The administrative body to which the petition is addressed.

VI.- Place and date of issue.

Finally, the motion must be signed by the interested party or their legal representative, unless they are unable to sign, in which case their fingerprint will be printed. Finally, the motion maker must attach to their motion the documents proving their legal status, as well as those required in each case by the respective legal systems.

B) Resolution of Administrative Procedures

As a general rule, the time required by the department or decentralized agency to resolve the appropriate administrative procedure may not exceed 3 months. After the applicable period has elapsed, resolutions will be deemed to be negative for the petitioner—a fictitious negative—unless otherwise provided in another general legal or administrative provision.

In this regard, at the request of the interested party, a certificate of this circumstance must be issued within 2 business days following the submission of the respective request to the person responsible for the decision. The same certificate must be issued when other provisions stipulate that, after the applicable period has elapsed, the resolution must be deemed positive.

C) Precautions

When the documents submitted by the interested parties do not contain the necessary information or do not comply with the applicable requirements, the corresponding agency or decentralized agency must notify the interested parties in writing and only once, requesting that they correct the omission within the period established by the agency or decentralized agency, which may not be less than 5 business days from the date the notification takes effect. If the corresponding period elapses without addressing the precaution, the procedure will be dismissed.

D) Initiation and Processing

Although the law states that documents addressed to the Federal Public Administration must be submitted directly to its authorized offices, post offices, by courier, or by fax, except in the case of the initial challenge document, which must be submitted specifically to the corresponding administrative offices; The Supreme Court of Justice of the Nation reasoned that this violated the fundamental right of access to justice, the fact that the request must be filed directly at the offices and not by mail, for example. See the criterion: ADMINISTRATIVE PROCEDURE. ARTICLE 42 OF THE RELATIVE FEDERAL LAW, IN PROVIDING THAT THE INITIAL REQUEST WRITTEN MUST BE FILED DIRECTLY IN THE OFFICES OF THE ISSUING AUTHORITY OF THE ACT, VIOLATES THE GUARANTEE OF ACCESS TO JUSTICE ^[3].

On the other hand, when a document is submitted to an incompetent body, said body will forward the motion to the competent body within 5 days. In such cases, the date of submission will be considered the date of receipt from the incompetent body, unless the latter notifies the individual that their motion is being received only for the purpose of being forwarded to the competent authority.

Likewise, with regard to the processing of the administrative procedure, the acts necessary to determine, understand, and verify the facts based on which a decision must be issued will be carried out ex officio by the body processing the procedure.

However, regarding the evidence, all of which must be admitted, with the exception of the authorities’ testimony, requests for reports from administrative authorities regarding facts contained in their files or documents attached to them will not be considered to fall within this prohibition. However, the authority may obtain any evidence it deems necessary, with no limitations other than those established by law.

Finally, the evidence offered and admitted will be reviewed within a period of no less than 3 and no more than 15 days, counting from its admission.

E) Termination

The administrative procedure ends with:

I.- Resolution of the procedure.

II.- Withdrawal.

III.- Waiver of the right on which the request is based, when such waiver is not prohibited by law.

IV.- Declaration of lapse.

V.- Material impossibility of continuing the procedure due to supervening causes.

VI.- Agreement between the parties.

4) Inspection Visits

Administrative authorities, in order to verify compliance with legal and regulatory provisions, may carry out verification visits. These may be ordinary or extraordinary; the former may be carried out on business days and hours, and the latter at any time.

A) Authorization For Inspectors

Inspectors, in order to conduct inspections, must be provided with a written order with a handwritten signature issued by the competent authority. This order must specify the location or area to be inspected, the purpose of the inspection, its scope, and the legal provisions that justify it.

B) Duty to Allow Entry

The owners, managers, or occupants of establishments subject to inspection are required to allow access and provide facilities and information to inspectors for the performance of their work.

C) Conduct of the Verification Visit

At the beginning of the verification visit, the verifier must present a valid photo ID issued by the competent authority that accredits them to perform said function, as well as the express order to carry it out, a copy of which must be left to the owner, manager, or occupant of the establishment.

Furthermore, detailed minutes must be kept of every verification visit in the presence of two witnesses proposed by the person with whom the procedure was conducted, or by the person carrying it out if the person refused to propose them.

The minutes of the account shall record:

I.- Name, company name, or business name of the person visited.

II.- Time, day, month, and year the procedure begins and ends.

III.- Street, number, town or neighborhood, telephone number or other available means of communication, municipality or delegation, postal code, and state where the place where the visit is being conducted is located.

IV.- Number and date of the commission letter that motivated it.

V.- Name and position of the person with whom the inspection was conducted.

VI.- Name and address of the persons who acted as witnesses.

VII.- Information regarding the action.

VIII.- Statement of the person inspected, if they wish to make one.

IX.- Name and signature of those involved in the inspection, including those of the person who carried it out. If the person inspected or their legal representative refuses to sign, this will not affect the validity of the report, and the verifier must record the reason for doing so.

Finally, those inspected for whom an inspection report has been issued may make observations during the inspection and offer evidence regarding the facts contained therein, or, in writing, exercise this right within 5 days of the date on which it was issued.

5) Administrative Infractions and Sanctions

Administrative sanctions must be provided for in the respective administrative laws and may consist of:

I.- Reprimand with a warning.

II.-Fine.

III.- Arrest for up to 36 hours.

IV.- Temporary or permanent, partial or total closure.

A) Sanction Procedure

To impose a sanction, the administrative authority must notify the offender in advance of the initiation of the procedure so that the offender may present any relevant legal representations and, where appropriate, provide any available evidence within 15 days.

Furthermore, the sanctioning authority shall base and justify its decision imposing sanctions, considering:

I.- The damages that have occurred or may occur.

II.- The intentional or unintentional nature of the action or omission constituting the infraction.

III.- The seriousness of the infraction.

IV.- Repeat offenses by the offender.

In this regard, once the offender has been heard and the evidence offered and admitted has been presented, the appropriate written resolution will be issued within the following 10 days, which will be notified in person or by certified mail.

Finally, it is worth noting that the authority’s power to impose administrative sanctions expires after 5 years. The statute of limitations will be continuous and will be counted from the day the administrative offense or infraction was committed if it was consummated, or from the date it ceased if it was continuous.

6) Administrative Review

Interested parties affected by the acts and resolutions of administrative authorities that terminate an administrative procedure, an application, or resolve a case may file a legal remedy called ‘administrative review’ or, where appropriate, pursue the corresponding judicial process. However, the resolving authority must inform the governed of the admissibility of both these legal remedies.

A) Deadline

The deadline for filing an administrative review shall be 15 business days, counted from the day following the day on which the notification of the resolution being appealed takes effect.

B) Requirements

The written administrative review must be submitted to the authority that issued the challenged act and shall be resolved by the hierarchical superior, unless the challenged act originates with the head of a department, in which case it shall be resolved by that same authority. Said written review must state:

I.- The administrative body to which it is addressed.

II.- The name of the appellant, and of the injured third party, if any, as well as the designated place for notification purposes.

III.- The grievances against them.

IV.- If applicable, a copy of the contested resolution or act and the corresponding notification. In the case of acts that are deemed denied due to not having been resolved in a timely manner, the writ of initiation of the procedure or the document on which no resolution has been issued must be attached.

V.- The evidence offered, which is immediately and directly related to the contested resolution or act, and the supporting documentation must be included, including evidence proving legal status when acting on behalf of another party or legal entities.

C) Suspension of the Challenged Act

The filing of an administrative review will suspend the execution of the challenged act, provided that:

I.- The appellant expressly requests it.

II.- The administrative review is admissible.

III.- There is no harm to the social interest or violation of public order provisions.

IV.- No damage or harm is caused to third parties, unless these are guaranteed in the event of a failure to obtain a favorable resolution.

V.- In the case of fines, the appellant guarantees the tax credit in any of the ways provided for in the Federal Tax Code.

D) Dismissal

The administrative review will be deemed not filed and will be dismissed when:

I.- It is filed out of time.

II.- The documentation proving the appellant’s legal status has not been submitted.

III.- It is not signed by the person who should have done so, unless it is signed before the deadline for filing the appeal expires.

E) Inadmissibility

The administrative review will be dismissed as inadmissible when:

I.- Against acts that are the subject of another appeal and are pending resolution, filed by the same appellant and the challenged act itself.

II.- Against acts that do not affect the legal interests of the appellant.

III.- Against acts that have been irreparably consummated.

IV.- Against acts expressly consented to.

V.- When an appeal or legal defense filed by the appellant is being processed before the courts, which could have the effect of modifying, revoking, or nullifying the respective act.

F) Resolution of the Administrative Review

The resolution of the administrative review will be based on law and will examine every one of the issues asserted by the appellant, with the authority having the power to invoke well-known facts; however, when one of the issues is sufficient to undermine the validity of the challenged act, an examination of that point will suffice.

On the other hand, administrative acts may not be revoked or modified in part not challenged by the appellant.

Finally, the authority may rescind a requirement or sanction, ex officio or at the request of an interested party, when it involves a manifest error or the individual demonstrates that they have previously complied.

By Omar Gómez

Mexican Tax, Administrative, and Constitutional Attorney

Partner at belegalabogados.mx

Contact me at hola@ogomezabogado.com

^[1] Margáin Manautou, Emilio. Introducción al estudio del derecho administrativo mexicano. Porrúa. México, D.F 2011. Page 99.

^[2] Fernández Ruiz, Jorge. Derecho Administrativo. Instituto de Investigaciones Jurídicas de la UNAM. Ciudad de México, 2016. Page 155.

^[3] Thesis: 2a./J. 41/2011 (10a.) Second Chamber of the Mexican Supreme Court of Justice. Tenth Judicial Epoch. Binding Precedent. Digital Registration: 2000264.