Law Regulation of the Bases Law Regarding State Reform
Public Law Department report | Law Regulation of the Bases Law Regarding State Reform
On August 5, 2024, Decree No. 695/2024 (“Dec. 695/24”) was published in the Official Gazette of the Argentine Republic, through which the National Executive Power approved the regulation of Title II (“State Reform”) of Law No. 27,742, the Bases and Starting Points for the Freedom of Argentinians (“Bases Law”).
Specifically, Dec. 695/24 regulated those legal provisions related to administrative reorganization, the privatization of public companies, administrative procedures, and public employment.
Below, we detail the most relevant aspects:
Administrative Reorganization
a) The Ministry of Economy will propose to the National Executive Power the modification, transformation, unification, liquidation, or dissolution of public trust funds.
b) The Ministry of Economy is empowered to issue the necessary complementary regulation for the implementation of administrative reorganization.
Privatization of Public Companies
The procedure for the privatization of public companies authorized by the Bases Law is established.
a) The Minister or Secretary of the Presidency, under whose jurisdiction the company to be privatized operates, must submit a report to the National Executive Power with the privatization proposal, which must include: (i) Total or partial nature of the privatization; (ii) Procedural alternatives; (iii) Privatization modalities; (iv) Selection procedure and estimated deadlines; and (v) Proposal for preferences and participatory ownership program.
b) Once authorization is granted, the Minister or Secretary will initiate the privatization procedure.
c) The call for bids must be published in the Official Gazette for seven (7) days. The last publication must be thirty (30) days before the deadline for submitting bids. The advance period may be adjusted according to the complexity and scope of the procedure.
d) The call will be published on the Application Authority’s website and in international selections; the call will also be announced on a foreign website for 3 days, 45 days before the deadline.
e) The call must detail: (i) Name of the bidding body; (ii) Nature of the procedure; (iii) Existence of bases and their amount; (iv) Object of the call; (v) Place to consult the documents; and (vi) Date and place for submitting bids.
f) The valuations must be accredited in the report. The contracting of appraisers must include the background and fees of at least three candidates.
g) The company in dissolution and the State Property Administration Agency will prepare an inventory of assets and their valuations.
h) Before formalizing the contracts, the Application Authority must consult the National Treasury Attorney General’s Office and the National General Syndicate Office.
i) Upon completion of the privatization process, the Application Authority will forward the proceedings to the National General Audit Office.
Administrative Procedure
Some articles of the Administrative Procedures Regulation — approved by Decree No. 1759/72 (“RLPA”), regulatory of Law No. 19.549, National Administrative Procedures Law (“LPA”) — are amended, among which the following stand out:
a) The administrative procedure can begin ex officio or upon the request of any person invoking a legally protected right or interest, including adolescents who may intervene directly in defense of their rights.
b) The gratuity of administrative procedures is established, except for those requiring specific payment as provided by law.
c) Any initial document or one that files an administrative remedy may be submitted (i) through the Distance Procedures electronic platform (TAD); (ii) at the reception desk of the competent body or (iii) by mail.
d) The request for viewing the proceedings entails the suspension of the deadline for the proceedings conducted by electronic means, as provided in the LPA. The interested party or their representative must expressly request it.
e) The public consultation procedure provided for in Article 8 bis of the LPA will not be binding, unless a law, regulation, or call act expressly states otherwise.
f) The administrative procedures for obtaining a regulated authorization must be conducted entirely in digital format through the TAD platform or the one used by the respective body. The platforms will indicate the necessary conditions to obtain the authorization, the application of silence with positive effect, and the period for it to be considered configured.
g) The silence with a positive sense under paragraph b) of Article 10 of the LPA will not apply to specific cases determined by the National Executive Power, upon request of the Chief of Cabinet of Ministers, with a founded report from the competent areas.
h) The Chief of Cabinet of Ministers must approve the implementation schedule of silence with a positive sense in administrative procedures within fifteen (15) days.
i) Public Administration bodies must identify and update the administrative procedures affected by the silence with a positive effect.
j) Procedures regulated by special rules that include silence with a positive effect will continue to be governed by their respective rules.
k) The Chief of Cabinet of Ministers must inform the National Executive Power of the specific cases where “silence with positive effect” will not apply, prior to its effective implementation.
l) The Secretariat of Innovation, Science, and Technology must take measures to ensure the implementation of “silence with a positive sense” through digital platforms.
m) The indemnity claim for damages due to the revocation, substitution, or suspension, for reasons of opportunity, merit, or convenience of an administrative act, may proceed, at the option of the interested party, through the administrative route or directly in court.
n) The reconsideration remedy must be filed within twenty (20) days of the notification of the act before the same body that issued it.
o) When reconsideration is expressly rejected or deemed rejected due to silence with a negative sense, the proceedings must be elevated within five (5) days ex officio or at the request of the party, whether or not an express denial resolution was issued.
p) The hierarchical remedy must be filed with the authority that issued the challenged act within thirty (30) days of notification and will be elevated within five (5) days and ex officio to the Chief of Cabinet of Ministers, the Ministry, or the Secretariat of the Presidency of the Nation under whose jurisdiction the issuing body operates.
Public Employment
Several articles of Decree No. 1421, of August 8, 2002, are replaced. Among the regulatory provisions, the following stand out:
a) The Secretariat of State Transformation and Public Function of the Ministry of Deregulation and State Transformation is the governing body in matters of public employment and the authority for application and interpretation of the provisions of Law No. 25.164.
b) A General Evaluation of knowledge and competencies is mandatory to enter as a worker in the National Public Administration. The Evaluation will be regulated by the Application Authority, which will be anonymous.
c) The heads of jurisdictions and decentralized bodies will communicate to the Application Authority the restructuring measures involving the suppression of bodies, agencies, or the functions assigned to them, or staff reduction due to exceeding the optimal necessary staffing — along with the corresponding founded report — and will accompany the background justifying them and the list of personnel who have consequently been placed on availability status.
d) Upon receiving the communication, the Application Authority will incorporate the referred personnel into the Registry of Personnel on Availability Status (the “Registry”), who will maintain their administrative and disciplinary dependence in the body that decided on the availability status.
e) The following scale is established to assign the availability period to the affected personnel: (i) up to fifteen (15) years of seniority: six (6) months; (ii) more than fifteen (15) years of seniority and up to thirty (30) years of seniority: nine (9) months; (iii) more than thirty (30) years of seniority: twelve (12) months.
f) Before calling for any personnel selection system, jurisdictions and decentralized bodies must consult the Registry for the existence of personnel on availability status that meet the profile required for the position. The Application Authority may order mandatory training and job conversion activities as established by current regulations.
g) Personnel on availability status will receive, as availability compensation, a monthly amount equivalent to the remuneration assigned to their scale level achieved in the vertical and horizontal progression of the administrative career.
h) For the calculation of the indemnity provided for in Article 11 of the Annex to Law No. 25.164, the remunerations received up to the moment of availability status will be considered. This indemnity excludes any other that may be applicable due to termination and may be paid in up to three (3) monthly and consecutive installments, which will begin to be effective within thirty (30) days after the end of the corresponding availability period.
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