Peru modernizes its national governance through a simplified Administrative Proceedings Law
Peru Administrative Alert 2-2018
The proposed amendment includes important changes to the systems regarding notification of administrative acts, time barring of administrative disciplinary proceedings, ex officio nullity of acts and validity of enabling instruments, among other highly relevant aspects of Public Administration/citizen dealings.
Within the framework of the delegation of powers granted to the executive branch, Legislative Decree No. 1452 (DL 1452) was published on Sunday, September 16, 2018, amending General Administrative Proceedings Law No. 27444 (LPAG). The most salient changes, which entered into force on the following day, are as follows:
Electronic notification has been made easier, as the decree expressly refers to the Administration’s ability to assign citizens a self-managed electronic mailbox, providing each citizen gives his or her consent. Electronic notification is mandatory where so established in a sector-based Supreme Decree, based on a favorable report from the Presidency of the Council of Ministers (PCM) and the Ministry of Justice and Human Rights (MINJUS).
Dismissal by administrative silence is limited to exceptional cases only, given that, under the decree, the stated purpose of any regulations providing for it must include the technical and legal reasons justifying this exceptional nature.
Although the indefinite validity of enabling instruments remains unchanged, the decree expressly establishes that these instruments may be revoked if the essential conditions for securing them have changed. In addition, by way of exception, a Supreme Decree may establish a period of duration for such enabling instruments.
With respect to the legality of proceedings, the new decree expressly recognizes the capacity of the executive power’s technical enforcement bodies to establish administrative procedures and requirements, where so authorized by law or legislative decree. Moreover, all entities are now required to perform a regulatory quality analysis in accordance with related legislation.
The decree clarifies the outsourcing of activities, indicating that outsourcing applies to “all activities related with supervisory tasks, administrative procedures and exclusively-rendered services, other than the issue of administrative acts or any decision.”
With respect to ex officio nullity, under DL 1452, the Administration will have two years from the moment an administrative authority is notified of a final criminal conviction to declare the nullity of acts derived from criminal offenses.
According to the new decree, although an administrative act is declared time barred, both the supervisory acts and the means of evidence that cannot or need not be performed again remain effective. In addition, preventative, corrective and precautionary measures ordered shall remain in force during an additional three-month period, until the new enforcement proceedings are commenced, after which they shall elapse.
The new decree establishes measures for enabling electronic administrative case files.
Lastly, the decree repealed the third final complementary provision of the LPAG concerning the provisions to apply in cases of deficiency of regulations regarding special proceedings.