On April 30th, 2021, the Administrative Court of Appeals admitted the injunction requested by Telecom Argentina S.A. (hereinafter referred to as “Telecom”) in the lawsuit “TELECOM ARGENTINA S.A. c/ EN-ENACOM Y OTRO s/MEDIDA CAUTELAR (AUTONOMA)” (File No. 12881/2020), and therefore ordered the suspension of the legal enforcement of articles 1, 2, 3, 4, 5 and 6 of the Decree of Necessity and Urgency No. 690/2020 (hereinafter referred to as “Decree 690/20”), and of ENACOM’s Resolutions No. 1466/2020, 1467/2020 and 204/2021 (hereinafter referred to as “Resolutions 1466/20, 1467/20 and 204/21”), only as applicable to Telecom.
Telecom brought a lawsuit against the National Executive Branch and the National Communications Agency (hereinafter referred to as “ENACOM“), requesting an injunction to suspend the legal enforcement of the Decree 690/20, and of Resolutions 1466/20 and 1467/20. Telecom argued that these regulations had violated articles 14, 17, 19, 28, 31, 32, 33, 42, 75 subsection 22, 76 and 99, subsection 3 of the National Constitution, as well as the provisions of Article 30 of the American Convention on Human Rights.
For the matter:
- The Decree 690/20 established: (i) that Information and Communication Technologies (ICT Services) and access to telecommunications networks for and between ICT Services licensee companies and mobile phone services are public utilities services in competition; (ii) Regulated prices by ENACOM; (iii) Freezing of fares, from July 31st, 2020 to December 31st, 2020.
- The Resolution 1466/20 established restrictions (maximum percentages allowed) to increases in retail prices of ICTs Services for January 2020.
- The Resolution 1467/20 implemented the Mandatory Basic Universal Benefits for the different services, stating each of their values and establishing that the licensee companies ought to provide, as of January 1st, 2021, these basic benefits.
- The Resolution 204/21 authorized the licensee companies to increase retail prices of ICTs Services in March 2021 if they had complied with all the other regulations.
The Administrative Court of Appeals considered that, through DNU 690/20, the National Executive Branch had introduced permanent modifications in the Law No. 27,078 (Ley de Argentina Digital), granting to all ICT Services and access to telecommunications networks for and between the licensees of ICT and mobile phone services, the nature of “public utilities services in competition”. It was also considered that the DNU 690/20 had established a series of regulations that would likely affect substantially the conditions of services provision and that price and fares regulations imposed by the government would have a negative impact on the plaintiff’s incomes.
In conclusion, the Appellate Court granted Telecom’s appeal and overruled the decision of the Trial Court and, consequently, ordered the suspension of the legal enforcement effects of articles 1, 2, 3, 4, 5 and 6 of Decree 690/2020 and Resolutions 1466/2020, 1467/2020 and 204/21. Therefore, it was ruled that none of those regulations would be applicable to Telecom, for a six-month period.
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