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Analysis of the imposition of fines in case
of reluctance to comply with administrative
orders in Colombia: The case of sanctions
against Uber Colombia
Análisis de la imposición de multas en caso
de renuencia de incumplimiento de órdenes
administrativas en Colombia: El caso de las sanciones
contra Uber Colombia
Daniel Alejandro Monroy Cely
Universidad Externado de Colombia
City:
Bogotá
Country:
Colombia
Angélica Rocío Olave Guti
é
rrez
Universidad Externado de Colombia
City:
Bogotá
Country:
Colombia
Original Article (Miscellaneous)
RFJ, No. 13, 2023, pp. 223 - 255, ISSN 2588-0837
RESUMEN:
El artículo 90 de la Ley 1437 de 2011 prevé un
mecanismo para la ejecución forzada de órdenes administrativas
consistente en la imposición de multas económicas por la
renuencia de un particular a cumplir tales órdenes. Si bien, la
ley colombiana no prevé un procedimiento específico para la
aplicación del artículo, este artículo sugiere que deben cumplirse
cuatro presupuestos: (i) prexistencia de un acto administrativo
definitivo que imponga una obligación no dineraria; (ii)
renuencia del administrado a no cumplir dicha obligación;
(iii) concesión de un plazo razonable para que cumpla con
DOI 10.26807/rfj.vi.462
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la obligación, y (iv) razonabilidad y proporcionalidad de la
multa a imponer. En Colombia la aplicación de esta norma se
ha dado mayoritariamente en materia urbanística, esto es, en
casos en los cuales se ordena desalojar un predio o demoler
una construcción. Es decir, en estos casos, la administración
impone obligaciones de hacer. Sin embargo, a la fecha se
conoce un único caso en el que la administración ha impuesto
una obligación de no hacer, concretamente contra la empresa
Uber Colombia. Así las cosas, este artículo también analiza el
cumplimiento de los cuatro presupuestos en este caso concreto.
PALABRAS CLAVE:
sanciones administrativas, ejecución
forzada de actos administrativos, Uber.
ABSTRACT:
Article 90 of Law 1437 of 2011 provides a
mechanism for the forced execution of administrative orders
consisting of the imposition of financial fines for the reluctance
of a private party to comply with such orders. Although
Colombian law does not provide a specific procedure for the
application of the article, this article suggests that four conditions
must be met: (i) preexistence of a final administrative act that
imposes a non-monetary obligation; (ii) reluctance of the person
to not comply with such obligation; (iii) granting of a reasonable
period to comply with the obligation, and (iv) reasonableness
and proportionality of the fine to be imposed. In Colombia, the
application of this rule has occurred mostly in urban planning
matters, that is, in cases in which an order is issued to vacate
the property or demolish a construction. In these cases, the
administration imposes obligations to do. However, to date,
there is only one known case in which the administration has
imposed an obligation not to do, specifically against the company
Uber Colombia. Thus, this article also analyzes the fulfillment of
the four requirements in this specific case.
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KEYWORDS:
administrative sanctions, enforcement of
administrative acts, Uber.
JEL CODE:
K23, L62.
INTRODUCTION
In administrative law in general and concerning the
beginning and end of any administrative action, there is a
classic division between administrative procedural acts and
definitive administrative acts. Regarding the latter, Colombian
law, specifically Article
43
of Law 1437 of 2011 (Code of
Administrative Procedure and Administrative Litigation or
CPACA) indicates that definitive [administrative] acts are those
that directly or indirectly decide the merits of the matter or
make it impossible to continue the action.
Regarding this type of administrative action, the
contentious-administrative jurisprudence of the Council of
State (Administrative Chamber. Second Section, Radication
2014-02393. Order of September 14, 2017. C.P. Sandra
Lisset Ibarra Vélez) has stated that they are those that “...are
issued to culminate the administrative proceedings initiated
through the right of petition, ex officio or in compliance with
a legal duty [of the administration]”. Similarly, it has also
been said that these are acts that “...put a peremptory end to
the administrative action, so that in them the activity of the
administration is exhausted, or only the execution of what has
been decided remains pending” (Council of State. Contentious-
Administrative Chamber. Second Section. Radicación 2010-
00011 (0068-10) Ruling of March 8, 2012. C.P. Víctor Hernando
Alvarado Ardila). In this order of ideas, and for this article, it
is important to emphasize that final administrative acts decide,
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create, define, modify, or extinguish legal situations concerning
an administrative or private party.
For its part, concerning the acts of procedure within
the administrative action, the same Council of State IN Auto del
14 de Septiembre de 2017 has stated that:
Between the opening of the administrative action and its
conclusion, there are certain actions of the authorities
that tend to push it from one stage to another and/
or prepare the final decision, building the reasons or
legal grounds for a definitive decision on the matter
(...) These acts, [those of procedure] do not contain a
decision but an impulse to the action of the authority,
and therefore, as a general rule, they are not liable to
be judged, unless they make impossible its culmination.
Moreover, the character of impulse or preparation of the
procedural acts means that they do not have their own identity
or independence, but are, if anything, an instrument whose
existence is dependent on a definitive administrative act. In
this way it has been explicitly recognized by the administrative
jurisprudence of the Council of State, Chamber for Contentious
Administrative Proceedings, Second Section in its Ruling of
March 8, 2012, when it states that the procedural acts are:
Instrumental provisions that make it possible to develop
in detail the objectives of the administration; then the
existence of these acts is not explained by themselves,
but insofar as they are part of a sequence or series
of activities united and coherent with a spectrum of
broader scope that forms a totality as an act.
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Now, without prejudice to the jurisprudential definition
of the administrative acts of procedure, it is important to
highlight that as they are acting with instrumental character
and dependent on a definitive act, then, one of their species is
the known administrative acts of execution whose particularity
is that their existence is related to the enforceability of a
definitive administrative act, then they are after this one. This
is so not only because, according to the above definition of the
definitive act, in these “...only the execution of the decision
is pending” but also because the Constitutional Court has
explicitly recognized it (Constitutional Court. Decision SU -
077 of August 08, 2018. Case T-6.326.444. M.P. Gloria Stella
Ortiz Delgado), who based on the specialized legal doctrine
(Rodríguez, 2008, pp. 290, 298). has indicated that the acts of
execution are a kind of procedural acts, in addition, that they
are different and after the definitive acts as follows:
However, an act of execution is not an act of execution
when it is not limited to simply complying with an act
or judgment that it intends to execute and serves as a
basis for it, but rather when it eliminates elements or
introduces new ones. In this case, it is an act of apparent
execution, which constitutes a new definitive act as to
those new elements.
Having thus defined the administrative acts of
execution, it is worth noting that they have three relevant and
closely related characteristics, namely: (i) as they are a kind of
procedural acts, they are not acts that can create, define, modify
or extinguish legal situations concerning an administered party;
(ii) as they are related to the enforceability of a definitive
administrative act, they are acts whose purpose is to achieve the
material effectiveness of the act on which they, in turn, depend
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and enable it, therefore, they are a means, an instrument for
the definitive act to be effective, that is to say, for it to produce
effects; and finally, (iii) the production of these effects may
depend on the fact that the act of execution leads to an eventual
enforceable demand by the administration.
In its order, the first characteristic of the acts of
execution has been ratified by the Council of State (Contentious-
Administrative Chamber. Fourth Section. Radicación número:
68001-23-33-000-2013-00296-01(20212) Auto del 26 de
Septiembre de 2013. C.P Jorge Octavio Ramírez Ramírez) by
stating that “...the acts of execution are limited to comply with
a judicial or administrative decision, without it can be stated
that from them arise legal situations different from those of the
executed sentence or act”.
The second important characteristic of the act of
execution as a component related to the effectiveness of the
final administrative act has been highlighted by the local
administrative legal doctrine when it states that
Effectiveness, unlike validity, is projected to the outside
of the administrative act in pursuit of its objectives and
achievement of its purposes; hence institutions such
as the administrative operation or the execution of the
act are phenomena proper of this external instance
of the administrative act. (...) the effectiveness of the
administrative act can also occur by way of coercion or
forced effectiveness of the same before the opposition
of the passive subject for its acceptance and compliance.
(Santofimio, 2017, p. 562)
Finally, it should be noted that this doctrinal citation
is consistently linked to the third characteristic of the acts
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of execution related to the eventual -although not always-
requirement or forced execution of the final act on which
it depends, as stated by the Council of State (Contentious-
Administrative Chamber.
Fourth Section. Radicación número:
25000-23-27-000-2010-00169-01(20350) del 28 de Septiembre
de 2016. C.P. Martha Teresa Briceño de Valencia):
Compulsory execution requires the pre-existence of an
administrative act suitable for securing the execution,
i.e., containing an imperative mandate that constitutes
the enforceable performance, i.e., the one whose term
for compliance has expired, without the defendant
having satisfied it.
Now, when speaking specifically of the subsequent
and forced execution of a definitive administrative act as
something that is sometimes required for it to be effective,
what is being said is that some administrative acts of execution
-not all assume that the act to be executed contains a certain
obligation, to be borne by the person administered and that
this obligation is imperative in the sense that, beyond the
simple will of this person administered, it becomes enforceable
once the term for compliance has expired. In other words, by
definition, final administrative acts always contain a declaration
that creates, defines, modifies, or extinguishes legal situations,
but only sometimes, for these legal situations to materialize and
take effect, it may be necessary that the same administration,
through subsequent acts, forces the execution precisely through
acts aimed at the realization of such effects. In this way, it has
been recognized by the Constitutional Court (Decision T-152
of March 12, 2009. Case file: T-2.030.895. M.P. Cristina Pardo
Schlesinger) by stating that:
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In effect, the presumption of validity of the
administrative act and the power of self-tutelage of the
public administration constitute the main foundations
of what is known as the enforceability of the act,
according to which the administrative decision not only
has binding force against individuals but also imposes
itself against the same administration and against the
same authority that issued it. It is, therefore, due to this
attribute or quality of the administrative act that the
execution of the decision adopted unilaterally produces
all its effects even against the will of the person against
whom it is directed and can even impose the forced
execution of the same, either by the same authority that
issued it (proper enforceability or enforceability) or by
another authority with competence to do so (improper
enforceability).
Now, within these acts of forced execution as a kind
of acts of execution of a definitive act, it is worth noting that
in Colombia, Article 90 of Law 1437 of 2011 establishes an
alternative of coercive nature reserved to force the compliance
of non-monetary obligations established in definitive
administrative acts as follows:
Without prejudice to the provisions of special laws,
when an administrative act imposes a non-monetary
obligation on an individual and the latter refuses to
comply with it, the authority that issued the act shall
impose successive fines for as long as he remains in
default, granting him reasonable terms to comply with
the order. The fines may range between one (1) and five
hundred (500) legal monthly minimum wages in force
and shall be imposed with criteria of reasonableness
and proportionality.
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In other words, forced execution, of which the
administrative power of Article 90 of the CPACA is a species, is
derived from two attributes of administrative acts: enforceability
and enforceability. The first refers to the obligatory nature and
the effectiveness of the act; it is an element even external to
the validity of the act to be executed, being indifferent to the
administration the will of the administered to fail to comply
with its obligation. The second, enforceability (to which we
have already referred), refers to the power (privilege) of self-
judgment of the administration, which enables the possibility
of forcibly and directly obliging the administration to comply
without the need to go to court (heterotutela). (Sanchez, 2016,
p. 269). Due to these attributes of the act, especially the second
one, the possibility for the administration to impose fines for
non-compliance (Art. 90 of the CPACA) must be based in each
case on the fulfillment of certain requirements or assumptions,
as we will explain below.
In effect, and according to what has been indicated
so far, it is understood that if the administration intends to
force the execution of a final administrative action through
the alternative allowed by Article 90 of Law 1437 of 2011,
we consider that four assumptions must be met: (i) the first,
refers to the pre-existence of a definitive administrative act that
imposes a non-monetary obligation to the administered party;
(ii) the second refers to the reluctance of the administered party
not to comply with such obligation; (iii) the third indicates that
the administration must grant a reasonable term to the taxpayer
to comply with the obligation; (iv) and the fourth refers to that,
once the above assumptions are demonstrated, the imposition
of fines must be subject to reasonableness and proportionality
criteria by the administration.
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Thus, we will now briefly explain each of these four
suggested assumptions:
(i)
Pre-existence of a final administrative act imposing a
non-monetary obligation.
Following Article 90 of the CPACA, a mechanism has
been established for the forced execution of definitive
administrative acts that require the fulfillment of
a certain personal obligation on the part of the
administrative party, therefore, it is an obligation
that cannot be fulfilled directly by the administration
(including another public entity) or by third parties,
including individuals obliged to follow its instructions,
and this because in the definitive administrative act an
obligation was imposed that only the administrative
party to whom the act is addressed can comply with.
Furthermore, this obligation, since it is required not to
be monetary, cannot be applicable when it is a simple
administrative economic sanction. In other words, the
only options are that it is an obligation to do or not to do.
Thus, when it is a matter of acts of personal compliance
and the obligor refuses to perform them, the first
condition for imposing successive fines will be
satisfied if the obligor continues to refuse to comply
with the obligation imposed by the administration. In
other words, as long as this omissive, passive or active
conduct contrary to the order persists, the individual
may be sanctioned with subsequent fines that, it is
worth saying, in no way affect, compensate, excuse, or
transform the compliance with any of the obligations
contained in the final act, with the addition, however,
that for the application of such fines a reasonable term
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must precede him to comply with the order, which
in turn is a term independent of the one eventually
established in the final act.
(ii)
The reluctance of the individual not to comply with the
obligation imposed by the administration
The reluctance to comply with the obligation contained
in the administrative act may occur either due to
negative conduct of the person administered not to do
when the obligation is to do, or when it displays positive
conduct contrary to the obligation to do established in
the administrative act or to the obligation not to do.
In other words, the reluctance to comply may be the
result of multiple options of conduct, either omissive
or active, which depends on the type of obligation
established in the final administrative act.
Of course, such reluctance must be at least supported
by some evidence to activate the enforcement
mechanisms contemplated in Article 90 of the CPACA,
to bring to faithful compliance with the provisions
of the administrative act. This means, among other
things, that when the obligation is to do, the person
administered may be required to demonstrate the
active conduct with which he complied with the
obligation, for example, in urban planning matters, to
demonstrate that he demolished a construction that
the administration ordered him to demolish. But it
also means that when the obligation is not to do, by
the burden of proof, it is up to the administration to
demonstrate the active conduct that is opposed to the
obligation not to do, for example, in matters of consumer
law, if what was ordered was that the producer must
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refrain from promoting a certain product, the burden
of proof is on the administration itself through the
verification of an advertising piece in which, after the
final act, the producer promotes the product.
This being so, and since the verification of this
presupposition on the reluctance to comply on the
part of the administered party may certainly suggest
an evidentiary debate, this also implies that, in general,
the application of article 90 of the CPACA is not exempt
from complying with the duties of due process to
which the administration is always subject, especially
when, as we have already said, it is an expression of
the administration’s power (privilege) of self-policing,
and especially when this is another case in which the
administration is deploying its power to sanction.
(Rojas, 2020, p. 228 et seq.).
(iii)
The administration must grant a reasonable period to
the taxpayer to comply with the order.
Knotted to what has just been mentioned about the
duty of due process that is required, this is reinforced
by the fact that article 90 of Law 1437 of 2011 itself
requires the concession to the administered party of a
‘reasonable term’ so that the administered party leaves
its reluctance, that is so that it complies with the order
in the final administrative act that is the object of forced
execution. This presupposition then implies a narrowing
of the administration’s discretion, since even if the
reluctance is demonstrated, it is necessary to add to it
the concession of a term for compliance, which, since
this is an enforcement action, is an additional term to the
term of the first one. Of course, and due to the principle
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of economy, this additional term may overlap with the
eventual termination of the requirement made by the
administration for the individual to prove compliance
when the obligation is done.
(iv)
Reasonableness and proportionality of fines.
As an expression that reinforces the due process
required by the need to demonstrate the reluctance to
comply, knotted to the additional reasonable term to
achieve compliance with the obligation established in
the final act, and insofar as -it is worth insisting- it is
about the deployment of the administration’s power
of self-tutelage from which derives, in this case, the
possibility of imposing fines, then, the application of
Article 90 of Law 1437 of 2011 is also governed by the
general principles and criteria of reasonableness and
proportionality on which any type of administrative
order must be based, especially when it is of a repressive
or punitive nature. (Sarmiento, 2007, p. 443 and ff.).
In this regard, and as it has been widely recognized by
the administrative contentious jurisprudence of the Council
of State (Contentious Administrative Chamber, Third Section,
Judgment of October 22, 2012, Rad. No. 05001-23-24-000-
1996-00680-01(20738). C.P.: Enrique Gil Botero and Fourth
Section, Judgment of December 9, 2013, Rad. No. 25000-23-
27-000-2006-0046-01(18726). C.P.: Carmen Teresa Ortiz de
Rodríguez), the imposition of administrative fines, in general,
supposes by antonomasia the repressive affectation and
contrary to the will of the administered party, but in any case, it
is a legitimate affectation by the administration of an economic
or patrimonial right of the individual, thus:
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From a material perspective, it is necessary that the
legal consequence expressly qualified by the legal
norm as an administrative sanction entails a coercively
imposed evil by the Administration to the individual,
and implies, therefore, the deprivation, reduction or
affectation of a right, interest or legal situation of the
offender as a response to the performance of behavior
previously classified as an administrative infraction
or misdemeanor. The administrative sanction will
have then, by definition, a punitive, retributive sense
of the transgression committed, for which it will have
an inherent “afflictive character” and will always be
the “repressive response of the State to the breach of
obligations, duties and general mandates on the part of
its addressees.
Due to the repressive nature of administrative sanctions
in general, their reasonableness and proportionality are also
requirements derived from administrative law in general,
however, in the case of Article 90 of the CPACA, the legislator
wanted the reasonableness and proportionality of those to be an
explicit requirement, and therefore, The application of the fines
of this article 90 is not subject to the formal and general rules
applicable to the general administrative sanctioning procedure,
which has a different nature and purpose than the economic
sanction for reluctance referred to in article 90 of the CPACA.
In effect, although this or that fine coincides in affecting
an economic right of an administered party, one of their
differences is that, while the administrative sanction, in general,
may have a retributive function (in which the public interest is
implicit) the fine of article 90 has a strictly punitive function,
hence the rule punishes the reluctance and permanence in the
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rebellion of the administered party, which implies a special and
even higher scrutiny on the reasonableness and proportionality
of the fine.
In this regard, the Spanish legal doctrine (which
contains a rule like the Colombian one) offers an approach to
the nature and purpose of the fines established in Article 90 of
Law 1437 of 2011 by stating that:
The purpose of the coercive fine is to bend the will of
the administrative party reluctant to comply with the
administrative act, through the imposition of payment
of monetary amounts of the moderate amount that,
however, because they are repeated, may involve an
economic impairment in the individual sufficiently
important to compel him to comply. They lack a
retributive purpose, although in essence they are
imposed successively because of non-compliance with
the original act. Therefore, García de Enterría considers
them to be an intermediate figure between enforcement
and sanction (...). Sanctions do not have a retributive
purpose either, but rather a dissuasive purpose against
the commission of future infringements. (Sanchez,
2016, p. 280)
Now, as a final note of this introductory part of the
brief, it is important to emphasize that without prejudice to
the set of the four assumptions to which the application of
Article 90 of Law 1437 of 2011 is subject, it is important to
emphasize that such application is not and cannot be subject to
the general administrative sanctioning procedure, for both legal
and practical reasons.
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Indeed, in the framework of administrative proceedings
in general, we have already said that these are framed at a
beginning and an end, that is, they begin by a request, ex officio,
or by compliance with a legal duty of the administration, and
end with a final administrative action. In the specific case of
the administrative sanctioning procedure regulated by the
CPACA itself, this means that the administrative action may
be initiated ex officio or at the request of any person, and
then it may evolve in the procedural stages of (i) preliminary
inquiries, (ii) formulation of charges by an administrative act,
(iii) presentation of discharges and request or submission
of evidence, (iv) evidentiary period, (v) closing arguments
and (vi) finally the final decision eventually sanctioning.
(Fernández, 2015, pp. 347-349).
However, although the application of Article 90 of
Law 1437 of 2011 may result in the imposition of a fine on
the individual, it is important to emphasize that this is an act
of execution (a kind of procedural act) aimed at punishing
reluctance and forcing compliance with an obligation
established in a final act on which in turn it depends. Thus,
it would not make sense for the imposition of a fine for the
reluctance to comply with an administrative act to be subject to
the rules of the general administrative sanctioning procedure,
since this would be like opening an administrative action within
another administrative action, in which the imposition of the
fine for reluctance would have the character of a definitive act,
therefore it would no longer be an act of execution.
However, it is important to insist, on the fact that the
application of Article 90 of Law 1437 of 2011 is not subject to
the general rules of the administrative sanctioning procedure of
the same law, this does not imply disregarding the fundamental
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guarantee of due process in favor of the individual. On the
contrary, the strictly punitive nature of this fine and the
absence of a specific procedure regulated by law, suggests a
greater observance of the guarantees and high scrutiny of the
principles to which the same administration is subject, which in
addition to the reasonableness and proportionality of the fine,
also includes, according to Article 3 of Law 1437 of 2011, the
guarantee of the right of defense, the principle of contradiction
(including evidence), impartiality, morality, accountability,
transparency, among others.
Now, having a clear legal framework regarding the
application of fines in case of reluctance to comply with an
order issued by the administration, i.e., the assumptions that
must be met, to which administrative acts it applies, against
which obligations the fine can be imposed and what is the
procedure to be followed, all in light of Article 90 of Law
1437, we will analyze a specific case specific to Colombian
administrative law, to determine whether its application was
correct concerning a series of administrative acts issued by the
Superintendence of Transportation, in the framework of the
case against Uber Colombia, focusing especially on Resolution
14920 of December 18, 2019.
1. ADMINISTRATIVE ORDERS AND THEIR ENFORCEMENT
AGAINST UBER COLOMBIA
1.1. Relevant facts for the analysis of the specific case
To identify the scope of Article 90 of the Code of Administrative
Procedure and Administrative Disputes for the “administrative
orders” issued by the Superintendence of Transportation, it
is necessary to briefly review the administrative process that
resulted in such order.
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a)
On November 26, 2014, through Resolution 19712,
the Superintendence of Transportation opened an
administrative investigation against Uber Colombia,
for allegedly facilitating the provision of unauthorized
- illegal - transportation services.
b)
Said investigation culminated with Resolution No.
18417 of September 14, 2015, in which the company
Uber Colombia was sanctioned with the imposition of
a fine amounting to COP 451,045,000 equivalent to 700
legal monthly minimum wages in force (SMLMV) at
the time.
c)
The latter is a definitive administrative act in that, as
required by Article 43 of Law 1437 of 2011 it is deciding
the merits of the matter initiated with Resolution 19712
of 2014.
d)
Resolution 18417 of 2015 as a definitive administrative
act creates or defines a specific legal situation for Uber
Colombia expressible in two obligations: On the one
hand, we said
(i)
orders the payment of a monetary
obligation by way of penalty for $451,045,000. COP,
and on the other hand,
(ii)
obliges the company to
cease the facilitation of the violation of the rules on
the provision of the public service of special motorized
land transportation.
e)
Now, in an act after Resolution 18417 of September 14,
2015, specifically Resolution 40313 of August 19, 2016,
the same Superintendency ordered Uber to “
(...)
cease
facilitating and promoting the provision of unauthorized
transportation services. Through spokespersons or third
parties, or advertising or dissemination media of any kind
(whether individual or massive)
”.
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f)
Subsequently, the same entity issued Resolution 72653
of December 13, 2016, in which it imposed on Uber the
sanction established in Article 90 of Law 1437 of 2011
for the reluctance to comply with what was ordered in
Resolution 40313 of August 19, 2016. The fine imposed
was the maximum cap of 500 SMLMV effectively
allowed by Article 90 of Law 1437 of 2011.
Which to
date corresponded to a value of COP 414,058,000.
g)
Then, in December 2019, the Superintendency again
requested explanations from Uber for allegedly being
in default for not complying with the order issued in
Resolution 40313 of 2016. In the same month, and
without Uber having yet given any explanation to the
Superintendency’s requirement, the Superintendency
again sanctioned with the fine provided for in Article
90 of Law 1437 of 2011, this using Resolution 14920 of
December 18, 2019.
h)
Finally, in 2021 the same Superintendency resolved
appeals filed by Uber against Resolution 14920 of 2019
and revoked such administrative act arguing a violation
of Uber Colombia’s due process.
1.2. Analysis of the specific case
Having clear the context of our case under study, we
will proceed to analyze the legal nature of Resolution 40313 of
August 19, 2016, by which Uber was ordered to cease facilitating
and promoting the provision of unauthorized transportation
services, through spokespersons or third parties, or advertising
or dissemination media of any kind (whether individual or
massive). Likewise, we will analyze whether the sanctions
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provided in Article 90 of Law 1437 of 2011 apply to this
“administrative order”.
In this regard, note first that Resolution No. 40313
of September 19, 2016, is intended to serve as an execution of
the obligation imposed by Resolution No. 18417 of September
14, 2015. Therefore, that one is a kind of a procedural act.
This is so much so that it was ratified by the Council of State
in an order of June 29, 2018, in which, before the claim filed
by Uber Colombia against Resolution No. 40313 of 2016 itself,
the Court rejected the claim because the contested act was not
susceptible to jurisdictional control, precisely because it was
an administrative procedural decision. Specifically, the order
rejecting the claim stated that.
The censured acts are limited to ordering the company
Uber Colombia S.A.S. to cease the provision of the public
individual transportation service, which is why they are
not subject to prosecution before this jurisdiction, since
in addition to having been issued on the occasion of
the administrative decision that imposed the sanction
consisting of a fine of seven hundred (700) s.m.m.l.v.
[COP 451,045,000], their nature certainly corresponds
to the so-called preventive acts of procedure issued in
the exercise of the administrative control function.
Thus, Resolution No. 40313 of 2016 is an administrative
act of execution, and therefore a kind of procedural act,
against which jurisdictional controls did not proceed , since,
as recurrently established by the jurisprudence of the Council
of State:
Only the decisions of the Administration resulting
from the conclusion of an administrative procedure
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or the acts that make the continuation of such action
impossible are susceptible to control of legality by
the administrative contentious jurisdiction, which, in
other words, means that “the acts of execution of an
administrative or jurisdictional decision are excluded
from such control since they do not definitively decide
an action since they are only issued to materialize or
execute those decisions.
Now, as noted, through Resolution 14920 of 2019, the
Superintendence of Transportation declared Uber in reluctance
for failure to comply with the order given in Resolution 40313
of 2016, this in the terms of Article 90 of Law 1437, and
consequently in the same act imposed the highest fine allowed
by the same Article 90, i.e., five hundred (500) SMLMV. As
anticipated, this Resolution will be the specific object of our
analysis to verify the correct or incorrect application of the
article in question.
1.3. Analysis of a case of imposition of fines for non-compliance
with an administrative order by the SuperTransporte to Uber
Colombia.
As just stated, for this analysis we focus on Resolution
14920 of 2019 of the Superintendence of Transportation to
verify whether it meets the four requirements for the application
of Article 90 of Law 1437 of 2011 and that we developed in the
first paragraph of this letter, as explained below:
(i) Pre-existence of an administrative act imposing a
non-monetary obligation.
The non-monetary obligation is effectively found in the
first article of the operative part of Resolution 40313 of 2016, in
which it was indicated that
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To ensure effective compliance with the rules governing
the provision of public motorized land transportation
services, the company UBER COLOMBIA S.A.S., (...)
to cease facilitating and promoting the provision of
unauthorized services, through spokespersons or third
parties, or advertising or broadcast media or of any
kind (whether individual or mass).
Thus, the verb ceases the action is the one that
ultimately defines that we are facing a non-monetary obligation,
more specifically, it is an obligation not to do, concerning which
the doctrine has established that “(...) here the interest of the
creditor consists in that a certain situation remains unaltered,
and that the debtor is obliged not to execute (...) above all, that
the debtor by this means is restricted in his radius of action, his
initiative, his freedom” (Hinestrosa, 2007, p. 229)..
However, since Resolution 40313 of 2016, as we have
already said, is an administrative act of execution that then
depends on a previous definitive act, this is Resolution 18417
of 2015, for this reason, one could not create, define, modify
or extinguish legal situations for the administered party, or at
least, it could not make any modification, if only reiterate the
obligations not to do originally established in Resolution 18417
of 2015.
The forced conclusion of this point is that, although, in
the administrative action that is the subject of our analysis if there
is an administrative act that imposes a non-monetary obligation
to a private individual, this final act is Resolution 18417 of 2015,
and not, as mistakenly held by the Superintendency that the
obligation was established in Resolution 40313 of 2016.
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(ii) Reluctance of the individual not to comply with the
obligation imposed by the administration.
We found that concerning the reluctance of the private
individual not to comply with the non-monetary obligation
it is held that, in December 2019, the Superintendence of
Transportation, certainly requested explanations from Uber
indicating that:
As of 2017, the Superintendence of Transportation has
received different complaints which would account
for an alleged disregard of the order issued through
Resolution No. 40313 of August 19, 2016, which is
enforceable and in effect
To date, this Directorate does not have the evidentiary
support that accredits compliance with the order issued
through Resolution 40313 of August 19, 2016.
In attention to the fact that the company UBER
COLOMBIA S.A.S, is allegedly in alleged default of
complying with the order issued by Resolution No.
40313 of 2016, please submit any explanations within
five (5) working days following receipt of this request.
From the foregoing, it follows that the Superintendency
established the reluctance of Uber Colombia since it did not
prove compliance with the orders of Resolution 40313 of 2016,
whereas we have already said- the company was ordered to
cease the conduct of facilitating and promoting the provision of
unauthorized services, through spokespersons or third parties,
or advertising or broadcasting media or of any kind.
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However, as already explained, the non-monetary
obligation that should have eventually been subject to forced
execution comes from Resolution 18417 of 2015, since this is
the final administrative act that culminated the administrative
sanctioning procedure against Uber Colombia, and not
Resolution 40313 of 2016, since this is nothing more than an
administrative act executing the 2015 Resolution.
Now, regarding the analysis of the same second
assumption, it is also necessary to study the issue of the
burden of proof regarding the reluctance to not comply with
the obligation on the part of the individual, this taking into
account two facts: on the one hand, that in the aforementioned
request for explanations of December 2019 it was said that
some allegations would account for an alleged disregard of the
order to cease the action ordered in Resolution 40313 of 2016,
and on the other hand, that in Resolution No. 14920 of 2019,
the Superintendency itself supported the application of the
fine referred to in Article 90 of Law 1437 of 2011, indicating
textually “(...) what is notorious is that the company did not
accredit compliance with the order in the ten days granted
by this entity for such purpose, and since then the date, more
than two years have passed without UBER COLOMBIA having
accredited compliance with the order issued (...)”.
Bearing in mind these two factual elements, we already
said that the non-monetary obligation included both in
Resolution 40313 of 2016 and in Resolution 18417 of 2015 is an
obligation not to do, and regarding this type of obligation, the
specialized doctrine has indicated that these are fulfilled or not
fulfilled plainly (Hinestrosa, 2007, p. 232)
.
In more concrete
terms it is said that “
(...) as a general rule they are indivisible (...)
whose infringement [utilizing an action], however minimal it may
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be, implies its non-compliance (...)
” (Ospina, 1994, p. 254). In
turn, for proof of the breach of this type of obligation, the same
doctrine adds that:
For logical reasons, as well as of a practical nature,
it is not the debtor who bears the burden of proof
of performance: it is not possible to think of the
demonstration of an undefined fact, here negative,
(...) and therefore, it is the creditor who must prove
the non-performance of the debtor, by showing, with
appropriate means, the infringement incurred by the
debtor, or more precisely, the traces left by this (...).
Think first of judicial inspection, but more broadly of
confession and photographs, recordings, documents
attesting to the commission of the prohibited act and
the delays left by the infraction. (Hinestrosa, 2007, pp.
232-233)
Thus, it follows that when it comes to demonstrating
the reluctance to comply with an obligation not to do, such
as “...cease the facilitation and promotion of transportation
services...” it is not the debtor of the obligation, in our case
Uber Colombia, who had to give explanations or demonstrate
that it was not doing something, i.e. a negative fact, but, on the
contrary, in this or any other case of obligation not to do, it is
the administration who has to prove that there is a positive fact
that demonstrates the breach of the obligation.
(iii) The administration must grant a reasonable period
to the taxpayer to comply with the order.
Taking into account that in this case, the obligation
that corresponded to Uber Colombia was not to do, this implies
that in addition to the fact that the reluctance to comply in this
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case was demonstrated was not from a proof of the debtor but
the demonstration of a positive fact by the administration that
then broke the indivisibility that, as we said, is a characteristic
of the obligations of this type, then, after demonstrating such
positive fact, it was necessary to grant a reasonable term and
we also said, in addition to the term established in the final
administrative act for it to ‘stop doing what it was doing.
In the present case, the administration not only
disregarded its burden of proof related to demonstrating non-
compliance on the part of the administered party but never
gave any kind of additional term for it to stop doing what it was
‘supposedly’ doing.
(iv) Reasonableness and proportionality of fines.
As we pointed out at the time, both the procedure
and the fine for reluctance specifically addressed by Article
90 of Law 1437 of 2011 have two peculiar characteristics that
distinguish it from the procedure and eventual sanction of the
regular administrative procedure, namely: (i) that this procedure
is not subject to the formal and general rules applicable to the
administrative procedure in general, because if it were, it would
be like opening an administrative action within another; and (ii)
that the fine, in particular, has a strictly punitive function, since
what it punishes is the simple reluctance and defiance of the
defendant to comply with the obligation established in a final
act on which then the fine for reluctance necessarily depends.
As we also said, these two characteristics do not minimize but
on the contrary raise the degree of scrutiny, the guarantees of
due process, and a greater requirement to ensure compliance
with the other principles to which the public administration is
subject (Article 3 of Law 1437 of 2011).
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Now, in the specific case analyzed here of the
administrative action of the Superintendency concerning
Uber Colombia in applying Article 90 of Law 1437, it is far
from having satisfied such principles, not only because of the
three previous assumptions required by the same rule, the
administration did not comply with any of them and could have
done so, but also, even without having complied with them,
the Superintendency itself chose to impose the maximum fine
allowed by the aforementioned Article 90.
In effect, on the one hand, the conduct of the
Superintendency, even though it could have complied with the
requirements of Article 90, does not fail to generate suspicion.
Thus, (i) the Superintendency would have been able to advance
the process of forced execution concerning Resolution 18417 of
2015 and not as it mistakenly did concerning Resolution 40313
of 2016. (ii) Assuming hypothetically that it had complied with
this first assumption required by Article 90, the Superintendency
should have, since it had the burden of proof concerning an
obligation not to do, demonstrated with a positive fact of the
individual that it was reluctant to comply with the obligation,
however, the Superintendency did not do so either, or it could
have done so. (iii) Even if it had demonstrated such a positive
fact showing the reluctance to comply, the Superintendency
should have granted an additional reasonable term to comply
with the obligation, and it did not do so either, or it could have
done so.
Without prejudice to the already sufficient confusion
produced by the fact that even if all the elements were present
for the Superintendency to have been able to satisfy the
requirements for the application of Article 90, such confusion is
further deepened by the fact that it was decided to impose the
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maximum fine allowed by Article 90 of Law 1437 of 2011, which
is far from withstanding any examination of reasonableness or
proportionality.
CONCLUSIONS
From the case analyzed, it is an atypical situation of
application of Article 90 of Law 1437 of 2011, since this article
has been used mostly in administrative orders that entail an
obligation to do, for example, to vacate a property, demolish
a construction not authorized by the administration or obtain
a construction license, however, in the case under analysis the
obligation outlined in the administrative order was an obligation
not to do, therefore, the civil doctrine itself has insisted on the
reversal of the burden of proof, so it is then the administration
who must prove, through a positive fact, that the person
administered did not cease the execution of the conduct.
As could be evidenced, in this case, the administration
indeed requested explanations from the company regarding
its obligation to cease the facilitation of the violation of the
rules on the provision of public service of special motorized
land transportation, however, the question remains as to how
to prove that certain conduct was not executed, is it not the
administration who must prove that the conduct did not cease
on the part of Uber and from there initiate an administrative
sanctioning process providing the guarantees of due process?
From this question, we were able to establish that,
although article 90 does not bring a special procedure for its
application, not because of this, on the contrary, with greater
reason, the administration must respect the due process of
the individuals it intends to fine, now, in the common cases
of application of these fines in the face of the reluctance to
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comply with an administrative order there is, on the one hand,
an administrative order that contains (i) an obligation to do and
(ii) a deadline to comply with such obligation. In this case, no
special process is required, since once the term has expired, the
administration must verify whether the party in question has
accredited compliance with the obligation; if not, it may impose
the fine, the purpose of which is to complete compliance.
However, in our case under study, the obligation
contained in the ‘administrative order’ consisted in ceasing
conduct, i.e., an obligation not to do, and no specific term was
granted to cease the conduct of facilitating the provision of
unauthorized public transportation service. On the other hand,
the administration received a series of evidence indicating that
Uber continued to advance its activities regarding intermediation
for the provision of public transportation service, as well as the
dissemination through the media of such activity, counting on
such evidence, the administration requested explanations to
Uber indicating that it would prove that the conduct had ceased,
that is, it did not impose the fine contemplated in Article 90
immediately the breach of the order was accredited but created
an additional procedure, that is, a request for explanations with
a term to respond, without transferring it to Uber so that it
could know the evidence against it.
Therefore, in our opinion, the issuance of Resolution
14920 of 2019 confuses the purpose of the fines established in
Article 90 of Law 1437 of 2011, since these do not constitute a
new administrative sanction, but have exclusively a punitive and
dissuasive function so that the taxpayer who has been reluctant
to comply with the obligation imposed by the final administrative
act complies with the orders of the administration. However,
the cited administrative act is reiterative in pointing out that it
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imposes a sanction of an administrative nature, which ratifies
the erroneous interpretation of article 90 of the CPACA.
In that order of ideas, the administration should have
taken the evidence in its possession and in case of finding
merit, initiate an administrative sanctioning process in the
terms provided in Article 47 of Law 1437 of 2011, guaranteeing
the right to due process and defense of the company.
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Received:
08/15/2021
Approved:
09/16/2022
Daniel Alejandro Monroy Cely:
Lawyer, Universidad de Los
Andes (1999). Specialist in Contract Law from Universidad
Externado de Colombia (2001). Master in Economic Law
from Universidad de Chile (2004). Doctorate in Law from
Universidad Externado de Colombia (2020).
City:
Bogotá
Country:
Colombia
Email:
daniel.monroy@uexternado.edu.co
ORCID:
https://orcid.org/0000-0003-0519-7992
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Angelica Rocío Olave Gutiérrez:
Lawyer, Universidad Libre de
Colombia (2017).
Specialist in Civil Liability and Redressable
Damage from Universidad Externado de Colombia (2019).
Master in Economic Law from Universidad Externado de
Colombia.
City:
Bogotá
Country:
Colombia
Email:
angelicaolave97@gmail.com
ORCID:
https://orcid.org/0000-0003-3469-1156