1E9Ct5D

Although Article 1 of the law attempts to define what should be understood for irregularadministrative activity, from our point of view the manner in which the law wasdrafted is not clear, and therefore it can be anticipated that, in applying the rule, this willbe a highly discussed point in the courts and it will have to be resolved by case law.In effect, the second paragraph of Article 1 of the Federal Law of State Liability establishes:“For purposes of this Law, irregular administrative activity shall be understood asan activity that causes harm to the property and rights of private parties that do not havethe legal obligation to suffer it, given that there is no legal basis or legal cause to justifythe harm in question.”As can be seen from the drafting of the above paragraph, irregular administrative activityis an activity that a private party has no legal duty to suffer, which occurs when thereis no legal basis or legal cause that justifies the administrative act involved, which in theend means that the administrative act is not grounded in law (since there is no legal basisor, in fact since the conduct does not fall under the presumption established by the law,which is to say there is no legal cause).Thus, an irregular administrative act is an act that is not grounded in law nor in factand, in this regard, an irregular administrative act is necessarily an unlawful act, whichputs in doubt that State liability is strict liability. Therefore, we insist, this is a problemthat will have to be solved by the decisions of the Mexican courts.In relation to cases in which the State is liable for damages caused to private parties,it is worth mentioning Article 20 of the law, which establishes that “the nullification ofadministrative acts by an administrative proceeding or by an administrative court proceedingdoes not presume in itself the right to the indemnification.”This article raises certain doubts about the new system of State liability.On the one hand, it clearly establishes that the liability proceeding will be completelyindependent of the nullity proceeding regarding the administrative act causing the damage.However, according to the reasoning expressed in the preceding paragraphs, the task of thejudicial body in the nullity proceeding and in the State liability proceeding is confused sincein the latter proceeding both bodies will decide whether or not the administrative act inquestion has a legal basis and if the administrative act has an adequate basis in fact.Under these circumstances, the cited article indirectly allows a double assessment ofthe same facts and simultaneously tolerates the existence of contradictory decisions,since under this article a judicial body could decide on the nullity of the administrativeact, basing its decision on a failure to ground it in fact and in law, while the judicial bodythat hears the liability proceeding could deny a right to indemnification, arguing that thechallenged administrative act was not in fact irregular because there was a legal basis anda legal cause that justified it.As can be seen, the drafting of Article 20 creates problems caused by the concept ofirregular administrative activity, which must be clarified by the Mexican courts, since331State Liability