Rejection of appeal against partial suspension of Water and Sanitation Regulation (AR-RT-SUMAAH-2023)Rechazo de recurso contra suspensión parcial de Reglamento de Acueducto y Alcantarillado (AR-RT-SUMAAH-2023)

In a similar vein, Article 91 of the Ley de la Jurisdicción Constitucional, No. 7135, provides that even judgments of annulment due to unconstitutionality, which as a general rule have retroactive effects, must set the scope of their effects in space, time, and subject matter to avoid serious dislocations of social security, justice, or peace.

Although both aforementioned rules are framed within scenarios of nullity with retroactive effects, it has been recognized that their principles are fully applicable as a broad and discretionary scope-setting power of public administrations and jurisdictional bodies when adopting precautionary measures, in accordance with criteria of necessity, adequacy, and proportionality, with the aim of preventing or containing current or potential serious damages of difficult reparation, as occurs in the present case.

In the administrative venue, the adoption of precautionary measures is not limited to the mere suspension of the act, but can validly be used as a preventive mechanism that contemplates atypical or substitutive solutions - such as the transitional application of previous rules - aimed at avoiding irreparable consequences during the proceeding, especially considering the complexity of the regulatory function. This power is based on the need to provide public entities with effective and flexible tools to face complex situations, without anticipating the merits of the case, but at the same time guaranteeing the effective protection of the rights at stake. The content of the precautionary measure and its scope-setting must be defined according to criteria of utility and proportionality, and even through measures of a positive or anticipatory nature, consistent with the principle of effective administrative or judicial protection.

This understanding has been noted by the Tribunal Contencioso Administrativo y Civil de Hacienda itself, Section VI, in resolution No. 00091-2018 at 11:40 a.m. on August 16, 2018, which provided:

"[...] it is the criterion of this Tribunal, on not a few occasions, that the protection of the purposes for which precautionary measures have been regulated requires a meticulous analysis of the need to maintain previously imposed measures or to impose scope-setting measures while the finality of that ruling occurs. It is not an automatism derived from the simple formulation of appeal measures, but rather a weighing of utility, necessity, and pertinence in each specific case, for the purposes of which an analysis of the concurrence of the various conditions that underpin this type of preventive decisions is necessary. [...]". Highlighting is supplied.

In accordance with this thesis, in case file No. 24-007738-1027-CA-0, by means of an order at 1:35 p.m. on October 20, 2024, in which an ultra-provisional precautionary measure was granted, the Tribunal Contencioso Administrativo y Civil de Hacienda ordered:

"[.] the precautionary request is admitted and the immediate suspension of the effects of resolution RE-0038-JD-2024 of May 28, 2024, published on June 18, 2024, is ordered; at the same time, given the suspension of effects ordered, the scope-setting requested by the plaintiff is granted. Given that, in accordance with the parameters of adequacy and necessity, the value of legal security requires that, while this summary precautionary process is resolved, the effectiveness of resolution RJD-004-2010 published on May 21, 2010, be maintained." Highlighting is supplied.

Subsequently, in order No. 2025002410 at 12:35 p.m. on March 11, 2025, the Tribunal confirmed said measure, ordering the suspension of the new tariff methodology and ordering that the previous methodology, which had been repealed by the act whose effects were temporarily and provisionally suspended, be given effect as a way of containing the resulting regulatory effects.

These precedents confirm that, in the face of relevant impacts to fundamental rights or significant risks to the stability of the economic and social public order, both the jurisdictional and administrative authority are empowered to apply precautionary scope-setting discretionarily as a technical and temporary containment mechanism. This power, as indicated, must operate in accordance with the principles of adequacy, necessity, and proportionality. In the specific case, the action of the Board of Directors of Aresep fully conforms to this preventive and material justice logic, being legally valid and in accordance with the current regulatory framework.

In such a way that the scope-setting ordered by resolution RE-0078-JD-2024 responds to its precautionary nature, respects the rules of legal hermeneutics, and aligns with the good regulatory practices that guide the exercise of the administrative function in the Rule of Law.

By virtue of the foregoing, it is concluded that the appellant is not correct in its argument, and, consequently, it must be rejected.

VI. ON THE REQUEST FOR ADDITION AND CLARIFICATION

As noted in the admissibility analysis section, the request for addition and clarification filed by AyA was determined to be admissible only regarding the second aspect and partially, specifically concerning the alleged lack of clarity of the term "residential units" incorporated in the Por Tantos of resolution RE-0078-JD-2024 and whether its application only extends to residential condominiums, or to other existing types of condominiums; therefore, the respective analysis on these aspects is carried out.

In the first place, regarding the term "residential units" in the operative part of resolution RE-0078-JD-2024, no lack of clarity is noted that compromises its understanding or application. From a semantic and contextual perspective, its meaning is fully deducible, as it alludes in a reasonable and commonly accepted manner to properties intended for residential use. Therefore, as established in said resolution, "residential units" must be understood as each of the autonomous spaces or properties within a condominium property intended to serve as a residence or dwelling.

It is important to keep in mind that the Administration cannot be expected to include glossaries or detailed definitions in each of its acts, particularly regarding terms whose meaning is clearly established in common language use. To claim the contrary would imply imposing a disproportionate burden, alien to the principles of efficiency and reasonableness that govern administrative action. In that line, Article 133 of the LGAP even recognizes the possibility of using indeterminate legal concepts, provided that their interpretation conforms to objective and reasonable criteria, which further reinforces the legitimacy of using widely used expressions such as "residential units".

Beyond the above, it would be understood that the argument refers primarily to the implications of employing such terms in resolution RE-0078-JD-2024 and mainly the term "residential units" in Por Tanto V, since, according to the appellant, this generates a lack of clarity regarding the application of that Por Tanto, whether solely in relation to residential condominiums or also to other existing types of condominiums.

Particularly on this last point, it must be noted that the distinction of condominiums by their use: residential, commercial, industrial, agricultural, tourist, etc.; or their type: horizontal, vertical, combined, and mixed, derives from the Ley Reguladora de la Propiedad en Condominio, Ley No. 7933, and its Reglamento, Decreto No. 32303-MIVAH-MEIC-TUR. However, said distinction was not made in the Technical Regulation "Prestación del suministro de los Servicios de Acueducto, Alcantarillado Sanitario e Hidrantes (AR-RT-SUMAAH-2023)", issued through resolution RE-0013-JD-2024, insofar as, as is clear from the definition of condominium2 contained in said Regulation, reference is made to the regulations that apply to this property regime. The foregoing, in congruence with the principle of normative self-integration established in Articles 9 and 10 of the LGAP.

2 "Condominium: Real estate susceptible to use by different owners, with common elements of an indivisible nature, constituted under the Condominium Property Law, Law No. 7933 and its amendments, as well as its Regulations and its amendments." It is for this reason that the initial definition of "Consumption Unit" provided in resolution RE-0013-JD-2024 (now temporarily replaced by the definition established in resolution RE-0078-JD-2024 within the framework of the scope-setting carried out) referred to condominiums in general terms, from which it is understood that the partial and temporary suspension ordered in resolution RE-0078-JD-2024 applies, in the same way, to condominiums under the terms established in the Technical Regulation (AR-RT-SUMAAH-2023), that is, without distinction of their use and type.

Without prejudice to the foregoing, in order to provide full certainty to AyA regarding its request for clarification on the scope of the application of "residential units" to both residential condominiums and other condominiums with other uses; the Dirección General de Desarrollo de la Regulación (DGDR)3 was consulted, via official letter OF-0258-DGL-2025, of May 6, 2025, in order for it to indicate: "1) if indeed what is provided in said resolution does not reveal what corresponds to other types of condominiums other than residential ones, 2) or if the rest of the technical regulation reveals regulations that refer to addressing said scenario, and 3) if there is no provision at all on the mentioned scenario, to technically assess the possibility or need to suggest to the Board of Directors, through the attention to the request for addition and clarification of resolution RE-0078-JD-2024, the inclusion of the provision or provisions necessary to regulate the scenario, providing a proposal of the respective text." 3 In its capacity as the competent unit in accordance with Article 21, subsection 1) of the Internal Regulations on Organization and Functions of the Autoridad Reguladora de los Servicios Públicos and its Deconcentrated Body (RIOF).

In response to the inquiry, the DGDR, via official letter OF-0150-DGDR-2025, of May 9, 2025, indicated:

"3. Clarification to RE-0078-JD-2024 Given that, as is evident from the action for addition and clarification requested by the Instituto Costarricense de Acueductos y Alcantarillados, there is insufficient clarity on the scope of what is provided in the Por Tantos, provisions III and V of RE-0078-JD-2024, it is clarified that the definition of consumption unit applies to all private units contained within a single parent property, whatever the nature of the use of the condominium may be: residential, commercial, industrial, mixed, or other. Therefore, the consumption is distributed among all the subsidiary properties that are within a single connection and meter.

In this sense, it is recommended to clarify Por Tanto V of RE-0078-JD-2024 so as to specify that it applies to all types of condominiums regardless of their nature." This being stated by the DGDR, in congruence with what is developed above, it is confirmed that, regardless of the fact that Por Tanto V of resolution RE-0078-JD-2024 refers to the expression "residential units," what is provided therein applies to all condominiums (regardless of their use and type), without it being understood as referring only to residential condominiums.

In this context, it must be noted that, in accordance with proper legal hermeneutics and in application of the principles of normative integration provided in Articles 9 and 10 of the LGAP, it is not necessary to introduce an express distinction between the different types or uses of condominiums in the operative part of resolution RE-0078-JD-2024. This is because the Technical Regulation "Prestación del suministro de los Servicios de Acueducto, Alcantarillado Sanitario e Hidrantes (AR-RT-SUMAAH-2023)," even when partially suspended, refers in its definition of condominium expressly to the regulations governing the condominium property regime, specifically to Law No. 7933 and its Regulations, Decreto No. 32303-MIVAH-MEIC-TUR. Consequently, the concepts used in the resolution must be interpreted in light of that regulatory framework, without deriving a limitation to a specific type of condominium.

Nevertheless, in response to the express recommendation made by the DGDR, the request filed by AyA is accepted, and in order to provide greater interpretive clarity, the word "residential" is deleted in Por Tanto V, in order to avoid any indeterminacy or imprecision. Consequently, said Por Tanto shall read as follows:

"V. Establish that, in accordance with the definition of consumption unit indicated in Por Tanto III, the appropriate procedure is for each consumption unit (understood as each property within a single parent property) to contribute the corresponding proportion to the subscriber's bill, determined by dividing the total consumption recorded on the meter by the number of units, in order to place the determined consumption within the current tariff structure and charge according to the respective block." Deleting the word "residential" after the word "units".

As can be seen, the provisions of Por Tanto V maintain their original meaning, such that any condominium (with conditions of internal measurement not independently registered) whose internal units do not fit within the definition of "consumption unit (Unidad de consumo)" set forth in Por Tanto III of resolution RE-0078-JD-2024 shall be governed by Por Tanto V.

That is, the decision is maintained that each property or unit within the parent property (finca matriz) shall be understood as a consumption unit that contributes the corresponding proportion to the subscriber's bill, said proportion determined by dividing the total consumption registered on the meter by the number of units.

It is considered that in the terms proposed, the fundamental decision made by the Board of Directors in Por Tanto V of resolution RE-0078-JD-2024 is maintained, and in general in the operative part of said resolution, which was adopted by the Board of Directors as part of the temporary dimensioning (dimensionamiento) resulting from the ordered precautionary measure. In such a way that the substance of what was resolved therein is not adapted, and at the same time, the pertinent clarification is made so that what is stipulated is understood in its intended sense and confusions such as that raised by AyA do not arise.

In the terms proposed, the substantial decision adopted by the Board of Directors in Por Tanto V of resolution RE-0078-JD-2024 is preserved, as well as, in general, in its operative part, issued as part of the temporary dimensioning derived from the ordered precautionary measure. Consequently, the substance of what was resolved is not modified and, at the same time, a clarification is introduced that allows for a clearer interpretation of what is stipulated in accordance with its intended meaning, avoiding inaccuracies or indeterminacies such as that pointed out by AyA.

Having said the foregoing, it is recommended to accept the petition of AyA, clarifying Por Tanto V of resolution RE-0078-JD-2024, in the terms explained.

By virtue of the foregoing, in accordance with the provisions of Article 240 of the LGAP, and the provisions of Article 23, subsections c), d), and e) of the Reglamento de sesiones de la Junta Directiva de la Autoridad Reguladora de los Servicios Públicos (Aresep) (RE-0079-JD-2023), the resolution to be issued must be published in the official gazette La Gaceta.

VII. CONCLUSIONS

Based on the foregoing, it is concluded that:

1. From a formal standpoint, the motion for reconsideration (recurso de reposición), filed by the Instituto Costarricense de Acueductos y Alcantarillados, against resolution RE-0078-JD-2024, of July 12, 2024, is admissible because it was filed in a timely and proper manner.

2. From a formal standpoint, the request for addition and clarification (solicitud de adición y aclaración), filed by the Instituto Costarricense de Acueductos y Alcantarillados, regarding resolution RE-0078-JD-2024 of July 12, 2024, is inadmissible with respect to the request to generate outreach efforts to socialize the billing and collection processes during the 12 months of suspension established in Por Tanto VI of resolution RE-0078-JD-2024 of July 12, 2024. The foregoing, by virtue of the fact that said request does not conform to the nature of the mechanism of addition and clarification, in accordance with the provisions of the applicable regulations.

3. From a formal standpoint, the request for addition and clarification, filed by the Instituto Costarricense de Acueductos y Alcantarillados, regarding resolution RE-0078-JD-2024 of July 12, 2024, is admissible with respect to the clarification of Por Tanto III, regarding the alleged lack of clarity in the terms "residential condominiums (condominios residenciales)" and "residential units (unidades residenciales)" the scope of the regulatory application to other types of condominiums.

4. In relation to the definition of "consumption unit," it is concluded that there are no inaccuracies or ambiguities. The elimination of the mention of condominiums does not modify the scope of the regulation, which remains applicable to single-family properties and individual commercial establishments. The interpretation of the regulation is not affected by this temporary variation in the definition.

5. Regarding "own installations (instalaciones propias)," the appellant has not presented elements suggesting that the concept lends itself to confusion, as it refers unequivocally to the internal installations that allow access to potable water, sewerage, and stormwater services.

6. Regarding the term "property (inmueble)" and its application to the existing property or to own installations, it is considered that the text is clear and conforms to the legal system. Resolution RE-0078-JD-2024 adequately clarifies its application to the building that receives the service, without there being confusion about the type of property to which it refers.

7. Resolution RE-0078-JD-2024 establishes a procedure following the temporary suspension of Article 124 of the Technical Regulation (Reglamento Técnico), so the legal uncertainty alleged by the appellant is not evident.

8. The precautionary provision ordered in resolution RE-0078-JD-2024 does not have retroactive effects. The refund of the amounts charged in application of the suspended articles derives from the dimensioning established by the Board of Directors as a consequence of the precautionary measure in order to avoid serious damages and dislocations to stability, legal certainty, and social peace.

9. The dimensioning is a necessary measure authorized by the legal system that grants the Administration broad and discretionary power to dimension and graduate the effects of administrative acts, including the adoption of precautionary measures, in order to avoid current and potential serious damages that are difficult to repair and imbalances in social stability and legal certainty.

10. The interpretation and application of Article 131 of the CPCA in congruence with Article 91 of the Ley de Jurisdicción Constitucional, which empowers the administration to dimension and graduate the effects of its acts, was carried out adequately in resolution RE-0078-JD-2024. There are no doubts about the legality of this procedure, which conforms to the principles of predictability, necessity, proportionality, and reasonableness established by law.

11. The Board of Directors acted in accordance with the provisions of the regulatory framework, guaranteeing that the effects of the partial and temporary suspension of the Technical Regulation were adequately managed. No violation of the principle of legality is observed, nor an impact on operators, as the refunded amounts will be recognized in the corresponding liquidation, in accordance with the provisions of Por Tanto VII of resolution RE-0078-JD-2024.

12. Regarding the request for addition and clarification, in relation to the term "residential units" in the operative part of resolution RE-0078-JD-2024, no lack of clarity is noted that compromises its understanding or application. From a semantic and contextual perspective, its meaning is fully deducible, as it alludes in a reasonable and commonly accepted manner to properties intended for residential use. Therefore, as established in said resolution, "residential units" must be understood as each of the autonomous spaces or properties within a condominium property intended to serve as a residence or dwelling.

13. Regarding the application of the regulation to other types of condominiums besides residential ones, it is clarified that the provisions of resolution RE-0078-JD-2024 must be interpreted integrally, considering the content of the Technical Regulation RE-0013-JD-2024 and the applicable regulations. Therefore, all types and uses of condominium are understood to be subject to the provisions of resolution RE-0078-JD-2024.

14. In order to provide full certainty to AyA regarding its request for clarification as to the scope of the application of "residential units" both to residential condominiums and to other condominiums with other uses, the Dirección General de Desarrollo de la Regulación (DGDR) was consulted, by means of official communication OF-0258-DGL-2025, of May 6, 2025.

15. In response to the express recommendation formulated by the DGDR in official communication OF-0150-DGDR-2025, of May 9, 2025, the request filed by AyA is accepted, and in order to provide greater interpretive clarity, the word "residential" is deleted from Por Tanto V of resolution RE-0078-JD-2024, in order to avoid any indeterminacy or inaccuracy. Without this constituting a substantial change on the merits or distorting what was ordered by the Board of Directors in the referenced resolution.

(.)"

II.That in accordance with the preceding recitals (resultandos) and considerations (considerandos), in accordance with the merit of the record and based on what was discussed by the members of the Board of Directors on this occasion, it is appropriate to 1- Declare without merit the motion for reconsideration and the request for addition and clarification, filed by the Instituto Costarricense de Acueductos y Alcantarillados, against resolution RE-0078-JD-2024 of July 12, 2024. 2- Reject the request for addition and clarification filed by the Instituto Costarricense de Acueductos y Alcantarillados (AyA), regarding resolution RE-0078-JD-2024 of July 12, 2024, with respect to the request to generate outreach efforts to socialize the billing and collection processes during the 12 months of suspension established in Por Tanto VI of resolution RE-0078-JD-2024 of July 12, 2024, and the clarification of the term "residential condominiums." The foregoing, by virtue of the fact that said request does not conform to the nature of the mechanism of addition and clarification, in accordance with the provisions of the applicable regulations. 3- Accept the request for addition and clarification filed by the Instituto Costarricense de Acueductos y Alcantarillados, regarding resolution RE-0078-JD-2024 of July 12, 2024, as to the scope of Por Tanto V over all types of condominium that meet the conditions stipulated therein. 4- Clarify and add to Por Tanto V of resolution RE-0078-JD-2024 of July 12, 2024, so that it shall henceforth read as follows: "V. Establish that, in accordance with the definition of consumption unit indicated in Por Tanto III, what is appropriate is that each consumption unit (understood as each property within the same parent property) contributes the corresponding proportion to the subscriber's bill, determined by dividing the total consumption registered on the meter by the number of units, in order to place the determined consumption within the current tariff structure and charge according to the respective block." 5- Exhaust the administrative channel. 6- Notify the party of this resolution. 7- Communicate this resolution to the Intendencia de Agua, the Dirección General de Desarrollo de la Regulación, and the Dirección General de Atención al Usuario, for the appropriate purposes, as ordered. 8- Publish this resolution in the official gazette La Gaceta, in accordance with the provisions of Article 240 of the LGAP, and the provisions of Article 23, subsections c), d), and e) of the Reglamento de sesiones de la Junta Directiva de la Autoridad Reguladora de los Servicios Públicos (Aresep).

III.That in the extraordinary session No. 45-2025, of June 13, 2025; the Board of Directors of the Autoridad Reguladora de los Servicios Públicos, based on the cited official communication OF-0310-DGL-2025, agrees with final effect to issue this resolution.

THE BOARD OF DIRECTORS OF THE AUTORIDAD REGULADORA DE LOS SERVICIOS PÚBLICOS

I.Declare without merit the motion for reconsideration, filed by the Instituto Costarricense de Acueductos y Alcantarillados (AyA), against resolution RE-0078-JD-2024 of July 12, 2024.

II.Reject the request for addition and clarification filed by the Instituto Costarricense de Acueductos y Alcantarillados (AyA), regarding resolution RE-0078-JD-2024 of July 12, 2024, with respect to the request to generate outreach efforts to socialize the billing and collection processes during the 12 months of suspension established in Por Tanto VI of resolution RE-0078-JD-2024 of July 12, 2024, and the clarification of the term "residential condominiums." The foregoing, by virtue of the fact that said request does not conform to the nature of the mechanism of addition and clarification, in accordance with the provisions of the applicable regulations.

III.Accept the request for addition and clarification filed by the Instituto Costarricense de Acueductos y Alcantarillados (AyA), regarding resolution RE-0078-JD-2024 of July 12, 2024, as to the scope of Por Tanto V over all types of condominium that meet the conditions stipulated therein.

IV.Clarify and add to Por Tanto V of resolution RE-0078-JD-2024 of July 12, 2024, so that it reads as follows: "V. Establish that, in accordance with the definition of consumption unit indicated in Por Tanto III, what is appropriate is that each consumption unit (understood as each property within the same parent property) contributes the corresponding proportion to the subscriber's bill, determined by dividing the total consumption registered on the meter by the number of units, in order to place the determined consumption within the current tariff structure and charge according to the respective block."

V. Exhaust the administrative channel

VI. Notify the parties of this resolution

VII.Communicate this resolution to the Intendencia de Agua, the Dirección General de Desarrollo de la Regulación, and the Dirección General de Atención al Usuario, for the appropriate purposes.

VIII.Publish this resolution in the official gazette La Gaceta, in accordance with the provisions of Article 240 of the LGAP, and the provisions of Article 23, subsections c), d), and e) of the Reglamento de sesiones de la Junta Directiva de la Autoridad Reguladora de los Servicios Públicos (Aresep).

PUBLISH, NOTIFY, AND COMMUNICATE.