Constitutional Court declares Art. 135 of Law 1753 of 2015 unconstitutional.

Last Wednesday, May 22 of the current year, the Full Chamber of the Constitutional Court declared Article 135 of Law 1753 of 2015, by which the National Development Plan 2014 - 2018 "Todos por un Nuevo País" (All for a New Country) was issued, as it considered that the challenged norm violated the Principle of Unity of Subject Matter established in Article 158 of the Political Constitution. The effects of the declared unenforceability were deferred by the Court, giving the Congress of the Republic two (2) years to legislate and approve a Law that regulates the pertinent to the Base Contribution Income (IBC) of independent workers without service contract. This was reported by different media throughout the country.

It should be recalled that Article 135 of the aforementioned Law, currently repealed by the National Development Plan 2018 - 2022 "Pact for Colombia, Pact for Equity", established that self-employed independent workers with a contract other than the provision of services, had to pay monthly contributions to the Comprehensive Social Security System (health, pension and labor risks) on a minimum IBC of 40% of the monthly value of their income, without in any case such IBC could be less than 1 SMLMV, which for the year 2019 is COP $828,116.

The decision of the Constitutional Court is the result of the Unconstitutionality Lawsuit filed on September 25, 2017, by Juan Esteban Sanín Gómez and Maria Del Mar Arciniegas.

The purpose of the lawsuit filed was to contribute to overcome the uncertainty surrounding the IBC applicable to those persons who receive income without having signed a contract for the provision of services, such as, for example, capital annuitants and self-employed workers. The foregoing, understanding that, until 2015, there was a regulatory vacuum regarding the rules applicable to the IBC of this type of workers, a vacuum that was badly wanted to be overcome by including in Law 1753 of 2015 the provisions contained in its Article 135.

In this context, the arguments of the Complaint focused on demonstrating that the accused norm had no thematic, causal, teleological or systematic connection with the objectives or strategies of the National Development Plan 2018 - 2022, which seriously violates the Principle of Unity of Subject Matter.

Thus, and in the development of the process carried out by the Constitutional Court, the National Planning Department, the Ministry of Finance and Public Credit, the Ministry of Labor and the Ministry of Health and Social Protection intervened against what was claimed in the Complaint, who requested the Court to declare the ex-equality of the accused norm, since they considered that it was related to the PND, especially with respect to one of its pillars, Equity (Article 3), and one of the cross-cutting and regional strategies, Social Mobility (Article 4).

On the other hand, the Chamber of Representatives, the Association of Independent Workers, Juan Diego Buitrago and the Universidad Externado de Colombia, declared in favor of the claim of unenforceability, since they considered that the challenged norm was not directly related to any of the objectives or strategies of the PND.

In conclusion, and until the Constitutional Court's ruling is known in its entirety, we can affirm that the decision adopted does not imply immediate changes for self-employed workers with respect to the way in which they make their contributions, much less with respect to the applicable IBC. The foregoing, since the decision of the Court implies the obligation of the legislative branch to regulate the matter within two (2) years, as it has been pending since the entry into force of Law 1122 of 2007.

We hope that with this decision the Congress of the Republic, complying with the order of the High Court, will regulate the IBC applicable to independent workers without a service contract, taking into account the existing differences between such dissimilar incomes as dividends, leasing fees, financial interests, among others, and with this the rights of this special type of workers will be protected.