La facultad sancionatoria de las empresas de servicios públicos The power to impose penalties on utilities public
A frequent question is whether the companies providing public services (ESP in the language of the law 142 of 1994) may impose sanctions on its users or subscribers. In some cases this possibility has been accepted (as in Case T-270 of 2004 of the Constitutional Court) while others were rejected (as in Case T-561, 2006). Much of the discussion has to do with the provisions of the Constitution of Colombia:
"Article 369, CP .- The law shall determine the duties and rights of users, the system of protection and forms of participation in the management and control of state enterprises that provide the service. Another define the participation of the municipalities or their representatives, agencies and enterprises that provide public services. "
Therefore, in 2008 the Constitutional Court finally addressed the issue in a sentence of unification: SU-1010 of that year. The discussion arises from the following situation:
"Through coaching processes under study, the various actors, in their capacity as users of public services provided by the defendants, seeking protection their rights to due process and the defense, allegedly violated by these companies, due to various irregularities in the incurred within the administrative process of technical review and forward them culminating in the imposition of penalties. Leaving aside the minor defects mentioned in the various lawsuits, the point of constitutional significance lies in the accusation that match all the actors, who question the ability of the companies providing public utilities to impose penalties under the consideration that it is not explicitly provided for by law and therefore could not be exercised by such companies. Operated institutions rejected the accusation saying the punitive process that took the lead against the actors originated the failure of these standard conditions of contract, having subjected the records to the procedure established by law and the respective contract. Regarding the latter said that according to the law, they do have the authority to impose fines when there is a breach of the standard conditions by the subscriber or user. "(Sent. SU-1010, 2008, Court Const .)
This leads to propose the following:
"having regard to the factual circumstances of the case, it is up to the Court at this time is whether the public utilities companies are either not empowered to impose financial penalties users when they violate the uniform performance contract.
To resolve the legal problem raised, the Board will refer to the following issues: (i) conceptual approach and the constitutional system of public services, (ii) statutory public utility services, (iii) a contract for public services (iv) the sanctioning authority of government, (v) the powers of the public utilities companies in relation to breach of contract under uniform conditions, (vi) constitutional jurisprudence on the power of public utilities companies to impose such sanctions pecuniary and, finally, (vii) shall consolidate the position of the Corporation as to whether the public utilities companies have power or not punitive.
This will allow the Court to solve the legal problem raised and make the analysis of issues under review. "(General Motors)
After a theoretical review of the constitutional aspects of public services, then goes on to review the Act 142 of 1994 "By which establishes the regime for public services and for other purposes", he later concentrated in the public services contract. He becomes a first conclusion:
"As mentioned, the legal relationship that arises between you and the public utilities companies are also legal and regulatory nature. This means that is driven by public law, the mandatory compliance designed to ensure quality and efficient delivery of services and ensure implementation, effectiveness and protection of the rights of users, without involving the relationship exclude the application of private law rules in respect of matters not regulated by law. " (Quoted in the same sentence)
However, the analysis, which should lead to the study the sanctioning power of the ESP, stops, and concentrated as a preamble to the sanctioning authority of the Body, which states inter alia:
"6.2. However, the exercise of sanctioning powers of the state referred to set of skills that enable different agencies to impose penalties of varying legal status, "is subject to the rules of due process. In this way, whenever the Administration intends to deploy such powers of sanctioning within the orbit of its powers is necessary for the procedure through which channel the exercise of such authority to respect constitutional guarantees of due process. " (Quoted in the same sentence)
then mentioned the importance of the principle of legality, as a precondition of that power:
"The rule of law as a fundamental pillar of governance, usually implies that" there is power, function or act to develop public servants is not specified, defined or established expressly, clearly and precisely in the law ", which is being under section 6 of the Constitution, under which authorities are responsible, not only for breaking the Constitution and laws, but also for the excess in the exercise of his functions. " (Quoted in the same sentence)
then and developed an interesting test of that principle leads to reflection on the possibility that this power may be exercised by individuals.
"Thus, the fact that administrative power penalty constitutes an instrument of achieving the goals that the letter attributed to these authorities, is precisely what justifies the possibility that she will be assigned to individuals who exercise administrative functions. Without But inasmuch as the fact that the individual exercises an authority to that effect comes from nature not only of the fact that it has been authorized by law to exercise certain public functions, this event is a need for greater specificity as legislative the possibility of exercising power in this regard and in relation to the determination of the structural elements of the offense, the penalty itself and the procedure to follow, since it is a strange power to the nature of the individual and In this sense, responding to a specific purpose: the achievement of the objectives of public administration. "(quoted in the same sentence)
With the framework proposed above, is now entering the Court to consider sanctioning powers of ESP, first with respect to the suspension of public residential arising from failure to pay the invoices after the right to make the service elcobro consumed and not checked and after charging interest on balances past due chelae users timely canceled, all powers that are in the law.
Then comes the Constitutional Court to consider whether the ESPs have the power to impose financial penalties on users against breach of the playing field. First recognized the existence of opposing views on the case and examines the jurisprudential evolution of matter (see the whole paragraph 8 of the above) and finally addressing the issue, raised the issue this way:
"9.3. In this context and in consideration of the arguments for the actions, the Board finds necessary to determine whether companies public utilities are able to impose the payment of sums of money over the cost of services for the financial penalty, either (i) as an exercise of administrative power to impose penalties of pecuniary or (ii) the way that it is the requirement of a penal clause under private law. "(quoted in the same sentence)
be seen in some time later:
" To answer this question, must be remembered that our legal system that the legislature may grant administrative authorities both as individuals performing public functions the power to impose sanctions. In this scenario, it is true that the authority determines that the public utilities companies, whether official or private nature, to punish conduct that affects the ability to ensure that all inhabitants of the country efficient service delivery and in Consequently, achieving the social objective of the State in this matter.
But, as noted, the possibility of granting this right only at the head of the legislature. Indeed, the requirement of law, founding principle of the exercise of administrative power to impose penalties, it implies that only he can establish the existence of this prerogative; addition, it is because that, by express constitutional provision, the regulation of public utilities is a matter which is reserved for the legislature, which it is intended that this is the result of a process of democratic deliberation, public, open and pluralistic participation allowing society as an expression of democratic principle. "(quoted in the same sentence)
therefore not delay in stating:
" Indeed, that statute, either expressly or impliedly, the legislator recognizes powers utilities home public to impose penalties, on account of breach of contract, and therefore not regulated a procedure to exercise that power. Therefore, Act 142 of 1994 does not show the responsibility of the utilities to impose financial penalties on users. "(Quoted in the same sentence)
Constitutional Court warns that the ESP have based its punitive power generic text-Law 142 of 1994 (Articles 140 and 142), but such standards are not sufficient.
"Such a conclusion would be unacceptable and inadmissible because it would constitute a clear infringement of the requirement of law, and specifically the principle typicality, which the legislature imposed the burden, not only have to acknowledge the power to punish, but also pointing out the conduct constituting infringement, the penalties and the procedure to be followed for its imposition, these aspects can not be left to the discretion or the definition of administrative authority.
In connection with this case, it must be remembered that the constitutional jurisprudence has been emphatic in stressing the importance of ensuring respect for human rights and fundamental guarantees of the users of public services, work by express constitutional provision it has to bear in First, the legislature by way of regulation. In this sense, if the legislature deems it necessary to grant certain powers in sanction to the public utilities companies, it was imperative that expressly established the key elements that lead to his tenure as a mechanism to ensure the protection of the rights of users. "(quoted in the same sentence) indicates
Later a precedent on this particular point is in the sentence C-1123, 2004 where in fact it was stated that such items could not derive any punitive power, and recalls that in 1151, 2007 law itself that power is specifically included, but such a rule was declared unconstitutional by any party other than the development plan, which was the subject of the law. It complements the theme well:
"The position previously exposed, is shared by the Council of State who, in a recent statement, said that only the legislature, in an exclusive and exclusionary, has the power to define what authorities can exercise punitive powers and how they should. Indeed, in a Judgement of July 30, 2008, the Third Section of the State Council decided to put forward simple nullity action against Article 54 of Resolution No. 108 of 1997, issued by the Energy Regulatory Commission and Gas , which established the right of the public utilities companies for financial penalties to users. In that Order is declared invalid mentioned standard under the consideration that the power to impose financial penalties on users and subscribers, while exercise of sanctioning powers should be legal origin. "(quoted in the same sentence) and ends
:
" In conclusion the public utilities companies have no right to impose pecuniary penalties for users, because the legislature has not empowered to do so. In this sense, the imposition of fees in that capacity has led to a violation of due process rights of users and subscribers, by ignoring the requirement of law principles, legality and criminality, in conduct, penalties and procedure report the exercise of sanctioning powers and the regulation of public utilities, should be contained in the law. "(quoted in the same sentence)
Interestingly, the Constitutional Court does not pass to the problem of freedom of contract that could shelter to the ESP in the contract of uniform conditions, a matter addressed as follows:
"It is undisputed that, under the assumption of autonomy can be expected in a contract that is part of the Administration can agree on the penalty. However, for the public services contract, because such services relating to social order and jeopardize state best interests of the community, the State is obliged to intervene, seeking to maintain the contractual balance against the privileged position that is a party. Under that understanding, the exercise of autonomy is subject to special regulation on the subject issued by the legislator, who representing the State, is responsible for the task of setting the legal regime applicable to them to services public (CP art. 150-23, 365, 367 and 369).
This view had been expressed by the constitutional jurisprudence. Indeed, by Judgement T-197, 2007, the Fifth Review of the Constitutional Court argued that, since public services are inherent to the social purpose of state, which implies that government intervention is needed in this area to regulate relations generated with providing companies and users can not redirect these decisions by the mere exercise of a power of under private law, and has not been provided in the special arrangement of public services. "(quoted in the same sentence)
So, come to close the discussion:
" A From these considerations, the Board concluded that the charges incurred by the public utilities companies can not rely on provisions within the scope exclusive private law of contracts. "(quoted in the same sentence)
Click here to download Case T-197, 2007 of the Constitutional Court.
light of the foregoing, of course with extensive reading of the sentence can understood how it ends analysis:
"9.4. Consequently, for the Court is clear that public utilities companies are not empowered to impose pecuniary penalties for users, or via the exercise of administrative power to impose penalties, nor as a result of exercising a power of those provided in private law, that, through the penalty clauses.
Accordingly, charges will have done by way of penalty leads to a clear and obvious violation of Articles 6, 29 and 210 constitutional, while constituting an abuse of the functions and powers that have been recognized by the law to the public utilities companies, regardless of its legal nature, whether public or private. These actions have led to a violation of due process rights of users, having been imposed absolute ignorance of the principles of law and subject to the principles of legality and criminality, as the conduct, the penalty and the procedure report the exercise of sanctioning powers and service regulation home public, should be contained in the law. "(General Motors: Sent. SU-1010, 2008, Court Const.)
then the Constitutional Court is dedicated to the merits of the custody action to contest the penalties imposed by the public utilities companies (section 9.5), noticing something very important: if a penalty is imposed under an interpretation illegal, there is violation of fundamental rights.
"Consequently, whenever the performance of public utilities companies users face becomes arbitrary and contrary to law, using his position of privilege, the action guardianship would be appropriate as a mechanism of protection of fundamental rights of the user in front of the inefficiency of the ordinary means of legal defense to immediately protect the rights violated.
In the cases under study operated institutions have imposed monetary sanctions of content to users in relation to breach of contract under uniform conditions. Although the majority exercised for review by the institution itself, and in some cases, appeals and complaints to the Superintendent of Public Utilities, the truth is that they were decided under the consideration that the public utilities companies itself is empowered to impose monetary penalties content, a conclusion that, according to the above, is unacceptable.
In this sense, it is clear that the administrative resources at their disposal the plaintiffs are not effective as a mechanism to seek protection of their fundamental rights, since the decider is setting an incorrect interpretation of the ordinance that governs the matter. "(Quoted in the same sentence)
Finally, dedida the Constitutional Court to examine individual cases, to some of which can not fail to mention that many of the tutelantes had missed more than five years to file a claim. Therefore raises the principle of immediacy in the exercise of supervisory action.
"Indeed, despite all the reference records companies have been carrying the invoices based on estimates of average consumption for more than five years, only now the actors express their dissatisfaction with the fact that I have not installed measuring devices without during that time have raised formal complaints to the actions, nor have requested the intervention of the Superintendency of Public Services to require the defendants compliance with the legal obligation estimate breached, putting demonstrated the cavalier attitude and passive actors that have assumed the minimum charges that they are entitled to achieve resolution of the problem.
So that if more than five years, the actors felt violated their fundamental rights or acted diligently to obtain the installation of measuring equipment can not claim now, after a long time that have remained inactive and by bringing an action for amparo, that the guardianship judge removed from their accounts for debt service have actually been consumed. "(quoted in the same sentence) and decides
following:
" Consequently, foregoing shows that the legal problem raised in the files T-1621898 T-1828809 T-1828810, T-T-1828811 and 1836549, should be resolved through ordinary mechanisms of judicial protection, because there is no reason that justifies immediate action by the constitutional court to resolve economic conflicts that have arisen users.
Therefore, since the actions for protection of reference are inappropriate to define the legal problem identified, the Board confirmed the court decisions reviewed. "(Quoted in the same sentence)
In other cases, the constitutional protection orders granted amid various orders (executive suspension, etc.)..
year 2008, there was an important ruling of the State Council, in a lawsuit aimed at obtaining a declaration of nullity of Articles 53 and 54 paragraphs 1 and 2 of Resolution No. 108 of 1997 of the Regulatory Commission Energy and Gas - CREG. Council of State wrote:
"Legal basis of the power companies providing public utilities to impose financial penalties on subscribers and users of services, Decree 1303 of 1989, in this regard, the Board notes: The 1303 Decree 19 June 1989 was issued based on Law 113 of 1928 109 126 1936 and 1938 and indeed contemplated, inter alia, in Article 20, the monetary penalties for unauthorized or fraudulent use of service eléctrico.La Law 113 of November 21, 1928, "On the technical study and use of streams and waterfalls, among other things, referred to the use, by the nation, departments and municipalities, the water power of streams and waterfalls for the purpose of electricity production, setting the exclusive use of such water power of such public entities, this is how the law authorized the Government to contract studies some streams and waterfalls and its possible use for the development of water power, and if they serve to produce electricity for meeting the needs of different regions of the country, authorized to verify the installation of plants appropriate for such services; also declared a public utility use of water power for any object permitted by law and declared the reservation of ownership in favor of the Nation, the use of water power could be developed with the waters that belonged without prejudice to acquired rights, and the use of hydraulic force provided or granted law for public companies or municipal departments before, giving it the possibility of giving the national government to municipalities or departments up to 50 years, the use of water power from its territory. Law 109 of May 11, 1936, "fees and regulations on electric utilities and pipelines at home", spoke to the legalization of operation of companies that find companies that take advantage of water for public use aqueducts service or to produce energy, whose rules and rates should be approved by the Government, so that in no case could not impose conditions or charging fees in excess of the just limits of collective convenience and commercial morality. For his part, Law 126 of October 26, 1938, dealt with "on the supply of electric light and power to municipalities, companies purchase electricity, telephone and water systems and state intervention in the provision of services companies themselves. " The article 1 of the Act, established that the power supply was an essential public service in the establishment, development and financing cooperate Nation, Departments and Municipalities, established likewise, the duty of the Nation and departments to contribute to the construction, expansion or improvement of power plants were established in the municipalities and the forms of cooperation between different authorities, for the establishment of power plants and large hydroelectric plants, as well as the primary pipeline to provide service, through this law, likewise, declared of public utility acquiring the Nation, Departments and Municipalities, businesses of production, transmission and distribution of electric power, telephone and water systems, designed to provide the public service, which would be subject National government control, and deferred to local councils to issue rules to decentralizing power plants in the municipalities. It is clear then that the said decree regulatory lost its validity, left to govern, and therefore, apart from sanctioning powers should be legal origin, the same can not be the legal basis for the alleged sanctioning authority established, as the respondent company, headed by the companies providing public services of electricity. And at this point, the attention of the Board that the CREG establish, in defense of administrative act and the power companies providing public utilities to impose monetary penalties, the existence of Decree 1303 of 1989, when she herself, in MMECREG Concept-1721 September 14, 1998, admitted the inapplicability of the Act by the express repeal of laws regulated. "(State Council, Chamber of Administrative Litigation, Third Section, Chief rapporteur SAAVEDRA RAMIRO BECERRA, Bogotá, D. C, (30) July, two thousand eight (2008), Filing Number: 11001-03 -26-000-2004-00003-00 (26,520), Actor: USERS LEAGUE CORPORATION public services in Barranquilla, Respondent: NATION - ENERGY REGULATORY COMMISSION AND GAS CREG)
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