The problem of the effects produced by the declaration of unconstitutionality of a rule of law by the Constitutional Court has been around since the first declaration of this type. Indeed, once the TC found unconstitutional Article 116 of the Tax Code by the sentence pronounced in the case Role 681-07, was presented immediately the question of what to do with all outstanding lawsuits in which he had received directed application standard.
Now, after the declaration of unconstitutionality of certain provisions of the Private Health Insurance Act also arises the question what to do with those contracts that were agreed when those rules were not challenged.
The answer to these questions is invariably linked to the legality or illegality of the action of inapplicability of the standard previously declared unconstitutional. As can be seen, if one accepts the validity of that action are inapplicable, the result of processes that Section 116 was applied will be none other than the invalidity of all the proceedings. In other words, if an ordinary trial inapplicable motivates called for the annulment of those resolutions be based on laws unconstitutional, the unenforceability will not support these resolutions so invalid be overcome. The same shall apply in respect of the contractual clause was justified in the specified Standards Act Isapres.
If, however, not accepted the validity of the action of both processes inapplicability contractual terms can not be considered void, keeping their effects over time.
this analysis should be added that the rule of Article 94 inc. 3 of the CPR expresses quite clearly that "the provision declared unconstitutional in accordance with the provisions of paragraphs 2, 4 or 7 of Article 93 shall be revoked since the publication in the Official Journal of the sentence it receives the complaint, the not produce retroactive effect. "
Initially, the response of TC on the ability to accept new non-applicability of Section 116 referred to CT was categorically denying that possibility since the rule was repealed. What happens then with the trials currently in force? For the ordinary courts shall execute the normal effects that the repeal of a rule results in the legal system, the TC can not be considered irrelevant and eliminated a rule the legal system.
So, it appeared that I had to do the regular judge was to apply retroactively the rule of law to the case to know what state were those judgments or those clauses contract before a subsequent repeal.
However, the TC has changed his mind in the decision under review. This change, I believe, is due to an incorrect answer to two questions that the TC seems to address.
The first is: How can a rule be declared unconstitutional, then continue to produce effects? This is, in general, doubt about ultractividad spoken of the TC in its recent judgments. A rule declared unconstitutional (such as to justify a specific contract clause), and subsequently repealed, it can produce effects after that repeal, it appears that the TC in the following paragraph: "If a law, in contravention the Constitution, is excluded from the legal system, being therefore invalid, can not exist either because of a contractual stipulation, since she would be concerned for the future of the same defect that led to the declaration of unconstitutionality. "
The way that meets the TC in this case falls into the manifest error of constitutional understanding that (also applicable to "unlawful") is synonymous with disability. When we say a rule is unconstitutional or illegal to do a trial of contrast. When that trial is performed by contrast institutional bodies it has legal significance. And what are the effects of that trial? It depends. In some cases, the law understands that declared unlawful by a court not produce any legal effect, as when there is a defect with very little body or inconsequential. In other cases, the effect is assigned the invalidity of the legislative (as in Germany or Spain). In other cases, as in Austria or like ours, the effect is none other than the repeal. It can be seen as unconstitutional is a trial value of the law, the repeal or invalidation are the effects that the laws set for that trial.
In this sense, there is no doubt that it is unconstitutional as well as repeal. However, when the Constitution itself indicating that declared unconstitutional a provision shall be revoked I think the purpose of the Charter is clear enough and this is not another that apply to that declared unconstitutional the statute's repeal in full.
The second question seems to be this: How is it possible that the first requesting inapplicable to gain favor and change are unsuccessful those who resort after the declaration of unconstitutionality? As can be seen, there are reasons of justice here material that encourage the judge to understand that the declaration of unconstitutionality affects everyone equally and that therefore the contract terms are zero for all and that the processes that applied Section 116 of the CT are too. The continuous intake of inapplicability resources provide long-term this effect.
However, as can be seen easily, thus completely mock not only the effects of the repeal, but the express prohibition of retroactive effect of Article 94 CPR. Thus, sufficient for the purposes of the void that every spammed their respective trial inapplicable. It would, as each trial involves costs, a "nullity paid." By contrast, the right way to understand this inequality is considered prima facie outcome retroactive to the first recurrent inapplicable as a prize (Ergreiferprämie, say the Austrians) that encourages people to denounce the unconstitutional, incentive would not exist if the ban was retroactive to all cases. The sentence Role
1552-09 is a clear effort to get where it says "repealed" means "no" and avoid at all costs the express prohibition of retroactive effect. If the option of the national system had been that the effect of the revocation was unconstitutional would achieve the same effect you get with these successive inapplicable. TC
This option is open to criticism not only be contrary to the express language of the Constitution but because their consequences in the short and medium term may be disastrous. Our
repeal constitutional option instead of setting aside as unconstitutional effect is a reasonable option that well summarizes the significant assets at stake in the control laws. What is then asked to TC is that it is, to paraphrase the words of Kelsen traditional and just a good "negative legislator."
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