In a series of recent rulings, the Constitutional Court (hereafter CT) requirements has commented on the inapplicability of Art. 116 of the Tax Code, relating to claims initiated prior to the declaration of unconstitutionality of that provision (role 681, 26/03/2007). The Court used as arguments considerations to date and are standard: the reference to the revocation of delegations made under art. 116 of the CT, and the repeal of that provision. That paragraph 7 of the sentence in role 714: "... the constitutional conflict raised by the applicant has ceased to exist, since, revoked the delegation of powers of Article 116 of the Tax Code, this rule does not receive application, especially if it is withdrawn, which is inappropriate for the judiciary to rule on the unconstitutionality of it. " TC Case says precisely that the petition be declared inadmissible inapplicable. This line of jurisprudence has addressed the dissenting ministers and Fernández Baeza Correa Sutil who stand on the one hand, the inconsistency of the argument for revocation of delegations based on the art. 116 CT in relation to cases earlier that the Tribunal met and decided the inapplicability of that provision, notwithstanding such revocation. On the other hand, point out that "... outstanding management, called the tax court officer was appointed and ceased acting role was in full force while Article 116 of the Tax Code which calls inapplicable." It is from this argument it is clear that the TC, by refusing to address the inapplicability, is giving retroactive effect to the repeal of art. 116, against the express constitutional text.
However, the central question is another: to fail in this way the TC returns the issue to court will have to solve the matter. This court is faced with a legal provision is effective with the emergence of the facts and the matter submitted to it, and therefore has to consider, but, on the other hand, knows unconstitutional, and declared as well. The judge has to resolve in this chute in which the judiciary has forced constitutional. What argument can use model?
What gives the Constitution the TC is the power to declare unenforceable a legal requirement as unconstitutional application in a case. Therefore, this option aims to relieve the body of the request, or to the respective hearing the appeal, the issue of conflict between the legislation and the Constitution. Eliminates the inapplicability to the court hearing the case, the problem of an unconstitutional provision. It is, therefore, a way to resolve the antinomy in the instance, but to prevent it. Therefore, the power granted in Art. I. 93 I No. 6 of the Constitution is not a provision which can be understood to deprive the court of an option attached to it, which is the ruling on the antinomy when it occurs. Still less could be estimated that the consecration of the appeal waiver was inapplicable to the judge of the instance of their duty to comply fully with article 6 CPR and give primacy to the Constitution on the contrary precepts. With its jurisprudence on art. 116 CT, the Constitutional Court seems to want to push the other courts of the nation to recognize its power to prevail directly the Constitution against legal precepts that have not been declared unenforceable. Who would have thought that the theory of fuzzy control, the doctrine advocated by authors such as Lautaro Ríos and José Ignacio Martínez, would find an ally at precisely the organ in which, with the 2005 reform was intended to concentrate the powers constitutional control!
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