The Administrative Procedure and Administrative Litigation Code establishes in its Article 102 a quite innovative mechanism, which clearly adheres more to the principles of economy and celerity set forth in numerals 12 and 13 of Article 3 of the same Code, namely the Extension of Jurisprudence of the Council of State, which seeks for the administration to extend the effects of a Judgment of Jurisprudential Unification of the Council of State to anyone who demonstrates being in a similar factual and legal situation. Jaime Orlando Santofimio expresses it as follows: “…It is an instrument through which the legislator, based on the binding force that doctrine and jurisprudence proclaim of judicial precedent, formalizes it institutionally by granting it a sui generis procedure to make it effective before the administrative authority, aiming to reduce the accumulation of repetitive matters that reach judicial instances…”[1].
This mechanism was created to fulfill several purposes, including: i. Achieving a uniform and consistent application of the law. ii. Contributing to the materialization of equality before the law and equal treatment by administrative and judicial authorities. iii. Guaranteeing principles of administrative function such as effectiveness, economy, celerity, and impartiality. iv. Contributing to reducing the congestion that afflicts the administrative litigation jurisdiction in the medium and long term.[2]
Although it is considered somewhat informal, it is necessary to bring up certain aspects, since the law also establishes a series of exhaustive requirements to resort to this procedure. First, it is necessary to consider that not every judgment of the Council of State can be used within this type of request; only those of Jurisprudential Unification are applicable, which implies analyzing whether the judgment meets the characteristics established in Article 270 of the CPACA; “… of legal importance or economic or social significance, are issued due to the need to unify or establish jurisprudence; those issued when deciding extraordinary appeals and those related to the review mechanism..”. In case of a different judgment, it simply cannot be invoked and its effects will not be extendable, but this does not mean that other judgments cannot be taken into account as jurisprudential precedent[3]. Second, there is always a temporal limitation, because being an alternative method, it is necessary to inquire which other means of control can be used to challenge the administrative act and verify that its statute of limitations has not expired; it is also of vital importance to explain the similarity between the situation of the applicant and that alleged in the judgment, otherwise it would be inadmissible; the Second Section of the Council of State in its Subsection A in Case File 11001-03-25-000-2014-00528-00(1669-14) states: “…For the admissibility of the request for extension of jurisprudence, it is necessary that minimum requirements be met, including the legal and factual identity between the facts presented and what is sought with the case analyzed in the unification judgment. This prerequisite is essential since in the request, not having the nature of a judicial process, it is not permitted to carry out the study of legality of the administrative act or the analysis of responsibility of the State's action, which prevents resolving legal situations additional to those resolved in the unification judgment from which the extension is requested[4].
In the case of Entities of the National Order, the General Code of Procedure in its Article 614 establishes that a prior concept must be requested from the National Agency for the Legal Defense of the State, which must state whether it will issue it or not within a term of ten days. If it decides to issue it, the Agency will have an additional term of twenty days for its corresponding preparation, and once the concept has been issued, the term to resolve the request on the merits will begin.
Request for Extension of Jurisprudence before the Council of State:
In case of silence (which occurs sixty days from the moment of the request or from the moment the ANDJE issues the concept if it is of the national order), or upon obtaining a negative response, there is a procedure before the Council of State established in Article 269 of the CPACA, which must be carried out within the following thirty days by a licensed attorney, and must contain the same requirements as a claim for any other means of control. It should be understood that it is also a fairly mechanical exercise in which the Council of State will determine whether any of its Unification Judgments is extendable; then the Council of State will have to give notice of the brief to the defendant administration and to the National Agency for the Legal Defense of the State so that they may provide the evidence they deem pertinent. Once the term has expired, a hearing will be held within a period not exceeding fifteen days after notification of the parties; the Council of State may also dispense with the hearing if any of the essential requirements established in Article 102 or 269 of the CPACA are not met. It is worth noting that it will only become res judicata if the decision is favorable. In the event that the effects are not extended to the request, the interested party may resort to the corresponding means of control as long as the statute of limitations has not expired.
In
conclusion, this procedure could be considered more as an alternative method of conflict resolution that gives a more relevant role to jurisprudential precedent, which seeks greater procedural economy, guarantees equitable treatment, and allows structuring greater legal certainty without disregarding the primacy of substantive law. Consequently, jurisprudential precedent here not only commits the jurisdictional apparatus but also the public administration (Art. 2, Law 489); therefore, it is not superfluous that in academia greater emphasis be placed when explaining this mechanism to undergraduate students.
[1] Jaime Orlando Santofimio Gamboa. (2016). Special Administrative Procedures. In Compendium of Administrative Law (464). Bogotá: Universidad Externado de Colombia.
[2] Council of State, Second Section, Case Number 11001-03-25-000-2013-01123-00 (2647-13).
[3] Jaime Orlando Santofimio Gamboa. (2016). Special Administrative Procedures. In Compendium of Administrative Law (465). Bogotá: Universidad Externado de Colombia.
[4] Council of State, Contentious Administrative Chamber, Second Section Case File 11001-03-25-000-2014-00528-00(1669-14)
Author: Juan Camilo Jaramillo López. Consulting Attorney AZC Abogados