Motivation of consumer protection penalties for business owners

In a decision of May 23, 2019, the Supreme Court of Justice, with Dr. Ariel Salazar Ramirez as rapporteur, reaffirmed the duty of the Superintendence of Industry and Commerce (SIC) to reasonably motivate the decisions to impose sanctions on producers or suppliers in the framework of consumer protection processes, under paragraph 10 of Article 58 of Law 1480 of 2011. The recitals of this decision constitute an advance in the defense of the right to due process of the businessmen accused in processes of this nature, because the SIC had been limiting itself to impose the sanctions without any other consideration than those that had motivated the conviction in favor of the consumer, a different and autonomous matter from the imposition of the sanction. But the decision taken by means of the judgment under review does little for the effective protection of the right to due process, since it is content with a merely formal effect, as we shall see.

Let us recall that, according to numeral 10 of Article 58 of Law 1480 of 2011, "if the final decision is favorable to the consumer, [it may] impose on the producer or supplier (...), in addition to the corresponding sentence, a fine of up to 150 minimum wages (...) in favor of the [SIC]". Thus, in accordance with said provision, the "final decision" or sentence is the act that enables the possibility of sanctioning. Likewise, the aforementioned article clarifies that the sanction to be imposed is different from the "corresponding sentence" and that it is recognized through the judgment. In this sense, the rule distinguishes between the sentence in which a conviction is incorporated, and the sanctioning power enabled by such sentence and which is embodied in the imposition of the sanction. Seeing that they are different things, the final decision and the sanction, it is only natural that the motivation of each is, at the same time, different.

Despite the fact that the conclusions we reached in the previous paragraph depend solely and exclusively on the mere wording of the analyzed provision and, therefore, the referred judicial decision did nothing but state the obvious, the SIC has been acting in accordance with a different understanding, which, in our opinion, violates the due process. By virtue of such practice, the SIC carries out the consumer protection processes, exhausting the acts and procedural stages of the verbal or verbal summary procedure, and, in case of issuing a final decision favorable to the consumer, imposes, if it so wishes, a sanction, without any other consideration. The fact that the SIC sanctions only in some cases among those in which there is a final decision favorable to the consumer is indicative that the conviction alone with its motivation is not enough for the sanction to operate and, likewise, it is indicative that, when the SIC sanctions in the presence of a final decision favorable to the consumer without making explicit the reasons that move it to sanction, there is a hidden motivation that the SIC fails to make public and susceptible to be controlled by the interested parties.

In the case analyzed by the judgment of May 23, 2019, Hoteles Decamerón Colombia S.A.S. was found responsible for violating the rights of Osiris Santamaría Rodgers and Alberto Carlos Riobo Cortés as consumers and, consequently, the final decision adopted by the SIC was favorable to their interests. Immediately after imposing the sentence to Hoteles Decameron Colombia S.A.S. in favor of the consumers, according to the Court, the SIC "limited itself to express in minute 16:24 that 'finally, regarding the amount to be sanctioned or applied as a penalty to the defendant, a sum of $39'062,100 pesos equivalent to 50 SMLMV (...)'". In this regard, the Supreme Court of Justice considered that "the defendant's failure to include in the decision [to impose a penalty], the reasons that led it to justify the graduation of the penalty imposed on the plaintiff (...) violated the plaintiff's right to due process, and therefore the amparo relief requested was admissible, due to insufficient motivation in the decision".

As can be inferred by combining the preceding paragraph with the one that precedes it, the actions of the SIC as described by the Supreme Court of Justice are consistent with the abstract description that we made a moment ago and that refers to the usual practice of such entity in most of the cases in which it has sanctioned so far, under the provisions of paragraph 10 of Article 58 of Law 1480 of 2011. Evidently, it was convenient for such entity to be able to fix without motivation the amount of sanctions that were (and are) destined to its own patrimony. At this point, it would be worth asking how many of the sanctioning decisions of the SIC, taken under Law 1480 of 2011, in accordance with the aforementioned practice, are vitiated by nullity for lack of motivation and, therefore, can be reviewed by means of a tutela action, if they were filed in the last six months, or even through the eighth ground of the appeal for review, if they were filed in the last two years.

Finally, although we recognize the progress implied by the recitals of the judgment that we have been reviewing in the points that interest us, we criticize that the Supreme Court of Justice has decided to second the Superior Court of Bogotá in the decision to simply order the SIC that, "in the term of three days following the notification of the judgment, to add the judgment issued on November 15, 2018 'but only to sufficiently motivate the imposition of the fine (.... )'", since we consider that this order entails a merely formal protection of the right, since it maintained the decision and only asks the SIC to now find the reasons ex post. In our opinion, what the judge of tutela should have done in this case was to order to redo the trial regarding the sanction discussed, under the understanding that the motivation has to be concomitant or prior to the motivated act and determine its content.