Position of the Constitutional Court and emphasis on the burden of proof for affiliates seeking transfer to Colpensiones

Through press release number 13 of April 9, 2024, the Chamber of the Constitutional Court announced the sense of the ruling contained in the Unification Sentence SU-107 of 2024 regarding the rules of the jurisdictional precedent in ordinary legal claims, where the ineffectiveness of the pension transfer is sought, that is, processes where affiliates of the Individual Savings with Solidarity Regime (private funds) seek through the courts to return to the Average Premium with Defined Benefit Solidarity Regime (Colpensiones).

For a correct analysis of the statement, it should be pointed out that the basis of the ordinary proceedings where the declaration of ineffectiveness of the pension transfer is sought, lies in the effective judicial demonstration that the member at the time of transferring or affiliating to a private fund, did not have due advice that provided him with qualified and complete information about his decision and its implications.

As with any judicial decision that obeys real cases, it is necessary to remember the historical context. By 1994, the proliferation of these AFPs led to extensive advertising campaigns for mass transfers and affiliations where most of the time, with commercial eagerness and under arguments such as the alleged bankruptcy of the ISS, they did not provide citizens with complete and adequate information to make their decision.

We must also remember that, as a consequence of those transfers and massive affiliations, many citizens complained about the lack of clarity and timeliness in pension counseling for particular cases, which became public knowledge. Multiple news and complaints attested to this situation, which finally forced the Financial Superintendency in 2016 to regulate the advisory activity through the mandatory mechanism of double counseling by the AFPs and Colpensiones, necessary for their potential affiliates.

Now, as a result of this notorious fact many citizens through ordinary processes seek a judge to evaluate their case and identify if indeed the advice was conspicuous by its absence, asking the Private Fund responsible if the requirement of timeliness and clarity in the pension advice, which is of a technical nature and of null knowledge for the affiliates, was met.

In this context, the Constitutional Court ruled on the evidentiary standards that the judge must follow to determine that the private funds did not comply with their obligation of advice and good counsel. It is not true that the decision means that the processes where the ineffectiveness of the pension transfer is sought are not viable, since it is only a call to the labor judges to deploy greater demands in the evidentiary and demonstrative activity, such as a more demanding decree of evidence, which allow the justice operator to reach a greater degree of conviction.

Although it is true that the constitutional precedent must be abided by the authorities of the entire national order, it is also true that the Labor Cassation Chamber of the Supreme Court of Justice is the Closing Body of the ordinary jurisdiction - to which all are subject. the country's labor judges - and that for more than eight (8) years, has been defining a jurisprudential line aimed at identifying whether a notorious fact that was public knowledge at the national level is a burden that the member must assume or corresponds to. distort the Private Pension Fund, derived from its knowledge and specialty in pension matters.

Perhaps it is because of its criteria and pension specialty that the Supreme Court understands that since the affiliate is the weaker party in the legal relationship with respect to the private fund, it is the latter who must bear the greater burden of proof and demonstrate that the transfers were not biased, and that it provided complete and truthful advice to the person interested in transferring.

However, and as specialists in the matter, we must remember that these processes should not be carried out lightly and that the argumentative construction of the same must comply with the evidentiary rigor, to avoid that if indeed the advice was not the one that the pension fund should have provided by law, the judge can really have sufficient criteria to evaluate the effectiveness of its affiliation.

Finally, it should be emphasized that the ruling does not have immediate effects of application. Once we have the text of the ruling, we will expand on what is described in this note with all the details, scope and consequences for the ongoing processes and new claims for ineffectiveness of affiliation.

Do not hesitate to contact us if you require advice on pension and labor matters.