The judicial fight between the national government and the City of Buenos Aires for the withdrawal of resources decided by the president Alberto Fernandez two years and three months ago, had a first definition of the Supreme Court of Justice in favor of the proposal made by the Buenos Aires government. In its foundations, the court reviews how historically both districts agreed to the transfer of services and the consequent sending of resources for it.
The head of government of CABA, horace rodriguez larreta, went to the highest court after the mass of co-participation resources that the National State gives it was reduced from 3.5% of the total to 2.32%, in the first instance and then to 1.4%. The decision had been adopted by the president on September 24, 2020, in the midst of a tense salary protest by the Buenos Aires police, and had a particularity: it was communicated publicly and to the authorities of the Buenos Aires government almost simultaneously. There was no negotiation or consensus attempt to redistribute resources, in case the national government considered it necessary to match the funds of the Buenos Aires force with those of the Buenos Aires police. On the contrary, the measure was directly embodied in a decree signed by the national president and his ministers.
This progress was questioned by Larreta through a precautionary measure that required the Supreme Court to suspend the effects of Alberto Fernández’s decree. 27 months after that presentation, the supreme judges, unanimously, determined that the demand of the head of the Buenos Aires government was credible and ordered the national government to resend the resources that he had failed to deliver since the beginning of the lawsuit.
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The basis for the decision of the judges can be seen in the historical background of the relationship between the national government and CABA, to which the court alludes. Both from the time it was a municipality until its transformation into an autonomous city with the constitutional reform of 1994, the Federal Capital and the national government agreed to the transfer of services and their corresponding financing through joint measures. This review was observed by the Court and became a key element. As the Buenos Aires government assumed the provision of essential services, it required the resources that the national government provided, and this relationship was the result of agreements sealed in different instances over time.
In the ruling, the judges emphasize that such powers “can only be made with a vocation of permanence since their reversal is either impractical or highly costly.” This is the case of what happened with the funds earmarked for security.
The Buenos aires city At the time, it took charge of public security in non-federal matters and the Nation transferred all the personnel, agencies, functions, powers, services and goods to it. It was during the presidency of Mauricio Macri, in 2016. At that time, the Executive increased the City’s co-participation coefficient from 1.4% to 3.75% of the amount collected. The following year it was adjusted to 3.5 percent. All these amounts were the result of an agreement between CABA and the National State. That changed in the government of Alberto Fernández.
Decree 735/2020, of September 9, 2020, unilaterally reduced the coefficient to 2.32 percent. And then Law 27,606 returned it to 1.4 percent. President Alberto Fernández invoked a decree to redistribute resources with the argument of equalizing the salaries of the Buenos Aires police, the axis of the protest at that time, but the measure was given unilaterally.
The court observed that this produced “an abrupt and substantial effect of reducing resources” and noted that it affected “an essential service for the collective life of the community and one of the main tasks that local authorities must fulfill.”
In addition, the judges of the Court warned that President Fernández’s measure broke in the middle of an exercise with the budgets already defined. The administration of Rodríguez Larreta did not have, with the fait accompli, an alternative to the cut, since ceasing to provide the security service is not an option.
On the other hand, the supreme court ruling explains that the replenishment of funds for the city of Buenos Aires will not affect the resources of the provinces since the items must come from the percentage of co-participation that remains in the hands of the National State in the primary distribution . That is, according to the co-participation law, the total mass of taxes collected is distributed in the first instance between the National State, which keeps 50%, and the provinces, which keep the other half. Of the first portion, Alberto Fernández should cede to attend to the ruling.
The president, in the last few hours, replied that these resources normally tend to be used equally in the provinces, in works carried out by the Nation, but that are carried out in the interior of the country.
The discussion has derived for these hours into a political discussion between the force that governs the National State, the Frente de Todos, Juntos por el Cambio, the space to which the head of the Buenos Aires government belongs, and the Judiciary. The manifestation of President Alberto Fernández, seconded by governors of his space, adds to the situation an institutional crisis and has generated concern about the legal uncertainty that would generate that nothing more and nothing less than the national government disobey a sentence of the highest body of justice of the Argentine Republic.
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