Below, we review its main aspects and provide brief comments:
To which entities and in which cases does Law No. 31736 apply?
This law is applicable to the notification of all administrative acts and administrative actions issued by public administration entities subject to the scope of application of Law No. 27444.1 Those entities that already have a notification system via electronic mailbox must adapt and adapt their systems to Law No. 31736 within a maximum of 90 working days.
Likewise, public entities may establish internal regulatory provisions that complement the provisions of the law, without imposing less favorable conditions.
Is the use of the electronic mailbox obligatory for the administered party, and can this notification modality be imposed by the administrative entity?
No, the use of the electronic mailbox for notification purposes is not compulsory, nor can it be imposed by the administrative entity, unless the administered party has given its prior consent to that effect. Only once the person has consented to be notified by this means, this becomes the obligatory channel of relationship with the entity, which does not imply that it cannot be subsequently revoked.
In this sense, Article 4.2° of Law No. 31736 expressly states that:
Each public entity assigns an electronic mailbox to the person who requests it. From that moment onwards, the person in charge may access such electronic mailbox, which constitutes a mandatory digital address [...].
So, when does mandatory notification by electronic mailbox apply?
First of all, the person must register in the electronic mailbox system of the public entity, expressing their agreement with the terms and conditions of use. Likewise, basic data such as name, email address and contact telephone number must be provided.
Then, the mandatory nature of the notification through the electronic mailbox will be effective as from the first personal notification that the public entity makes to the person in charge, informing them of the creation of the mailbox, or when by any administrative action on their part, it is concluded that they have accessed it.
Is the deposit of the notification in the electronic mailbox sufficient to comply with the duty to notify?
No. The public entity — through its Electronic Notification System (SNE) — is obliged to send to the administrative body, under penalty of nullity of the notification, informative alert messages to its registered email address and cell phone, communicating the deposit of the notification in its mailbox.
Law No. 31736 has expressly established that these alerts are requirements for the validity of the notification of the administrative act deposited in the mailbox.
What is the procedure for notification by electronic mailbox?
Notification via electronic mailbox must follow the following order of priority:
The omission of any of these steps results in the nullity of the notification.
Can the public entity notify via electronic mailbox at any time?
No. Notifications are made only from Monday to Friday during the business hours of each entity. If the notification is made outside these hours, the administrative body is considered to be notified in the first hour of the following working day.
In addition, the computation of the periods expressed in days begins on the day on which the notification via electronic mailbox becomes effective, unless a later date is indicated in the administrative act.
What obligations does Law No. 31736 establish for both the administered party and the administration?
- Comply with the terms and conditions of use of the electronic mailbox.
- Periodically review the electronic mailbox and pay attention to the alerts about the notification deposit.
- Adopt security measures regarding the use of their credentials to access the electronic mailbox.
- Create and assign the box to the administrator.
- Provide the necessary technical advice.
- Answer queries from the administrator regarding the creation and use of the box.
- Keep the SNE operational.
- Communicate in real time and through its web page any contingency regarding the SNE, specifying the date, time and duration of the failure in the system.
What impressions does Law No. 31736 leave?
- It establishes the voluntary nature of the notification via electronic mailbox. In this sense, it delimits the acceptance of the person administered as a prerequisite for this to be mandatory and bind them.
This is a fundamental aspect that, finally recognized in a law, safeguards the right to the free electronic relationship with public entities, consolidating it as a possibility at the convenience of the administered party and not as an imposed burden.
- It imposes mandatory complementary alerts as requirements for the validity of the notification via electronic mailbox.
This provision is relevant because some public entities often limit themselves only to deposit the notification in the electronic mailbox to consider it valid and effective, regardless of whether it was actually acknowledged by the person being notified.
The complementary alerts oblige entities to play an active role in the notifications, as well as to ensure that these are truly acknowledged by the addressees, fulfilling their purpose and safeguarding the right to due process and the right of defense.
Some points to be clarified
The Acknowledgement of Receipt is not contemplated by Law No. 31736 as a genuine confirmation made by the administered party, but as an automatic record generated by the Electronic Notification System of the public entity. In fact, the law specifies that the "Acknowledgement of Receipt" is automatically generated with the electronic notification, through a time stamp.
However, Article 5.6° establishes that the party in charge must confirm receipt of the notification by means of an Acknowledgement of Receipt "during the first five (5) working days after the notification has been made."
This regulation is not clear and could generate confusion, such as the following:
- On the one hand, Article 5.6° specifies that the Acknowledgement of Receipt is automatic and is generated de facto with the deposit of the notification in the mailbox.
- However, at the same time, it also establishes that the person in charge must do so within a certain period of time, at the risk of nullity of the notification.
According to Article 5.1 of Law No. 31736, the mandatory nature of the notification by electronic mailbox is effective from the first personal notification that the public entity makes to the person in charge, informing them of the creation of the electronic mailbox, or when it is concluded that they have accessed it by any administrative action on their part.
In this regard, it is not entirely clear whether by the personal nature of the first notification, the law refers to a physical notification to the person administered.
We trust that this information will be useful for your company. Should you require legal advice on this matter, please do not hesitate to contact us.
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1 According to Article I of Law No. 27444, this law is applicable to the following public administration entities:
- The executive branch, including ministries and public agencies
- The legislative branch
- The judicial branch
- The regional governments
- Local governments; the agencies to which the Political Constitution of Peru and the laws confer autonomy
- Other entities, agencies, special projects and state programs, whose activities are carried out by virtue of administrative powers and, therefore, are considered subject to the common rules of public law, unless expressly mandated by law referring them to another regime
- Legal entities under the private regime that provide public services or perform administrative functions, by virtue of concession, delegation or authorization of the state, in accordance with the relevant regulation
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