The tutela action and penalties in consumer proceedings

Law 1480 of 2011 (the "Consumer Statute" or the "E. del C."), according to its first article, "has as its objectives to protect, promote and guarantee the effectiveness and free exercise of the rights of consumers, (...)". In order to achieve such purpose, the E. del C. regulates aspects such as the rights and obligations of consumers, users, producers and suppliers, while conferring administrative and jurisdictional powers to the Superintendence of Industry and Commerce (the "SIC") and regulating the procedures applicable to the proceedings before it. Within such powers, numeral 10 of article 58 of the referred Statute provides the SIC with a sanctioning power exercisable up to the amount of 150 legal monthly minimum wages in force, whenever the businessman is convicted in favor of the plaintiff, at the end of the consumer protection proceedings. The amount of the sanction imposed under this provision, its constant disproportion in relation to the amount of the right initially claimed by the consumer, as well as the prodigal manner in which the SIC has been imposing these sanctions, make it necessary to study defense mechanisms against them, which is what we propose in this article.

Paragraph 10 of article 58 of the E. del C. states that "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]". This means that, at the end of a consumer protection process, and in addition to the corresponding benefit in favor of the plaintiff (guarantee, retraction, refunds and indemnities, among others), the prosecuted businessman may be sanctioned up to the amount of $124,217,400, as of 2019. The determination of the amount of the penalty must depend, according to the same provision, on the "duly proven aggravating circumstances, such as the seriousness of the fact, the repetition in the breach of guarantees or of the contract, the reluctance to comply with its legal obligations, including that of issuing the invoice and other circumstances" and does not apply if "the process ends by conciliation, transaction, withdrawal or when the defendant agrees to the facts in the answer to the claim".

As the amount in which the amount of the proceedings is fixed only according to the value of the right claimed by the consumer, they are usually of sole instance, without any appeal being possible against the decisions with which they terminate. This practice is particularly burdensome for businessmen, since the activity of the SIC in recent years is to impose the penalty without stating the reasons on which it is based, or refer to the circumstances that have been taken into account in order to assess its amount, or repair in the fact that it is completely disproportionate to the value of the initially claimed in the process: it is not strange that in the face of consumer claims that do not exceed the amount of one hundred thousand pesos, the SIC ends up imposing penalties exceeding fifty million pesos. In the face of these absurdities, businessmen are left completely unprotected.

However, recently, the Supreme Court of Justice, in a tutelage sentence of December 23, called the attention of the SIC, reminding it that it must motivate the businessmen sanctions in consumer protection processes. In that case, Hoteles Decameron Colombia S.A.S. was found responsible for violating the rights of two consumers. Immediately after imposing the sentence in favor of the consumers, the SIC, without any other consideration, "limited itself to express in minute 16:24 that 'finally, with respect to 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 Court considered that "the defendant's failure to include in the decision [to sanction], the reasons that led it to justify the graduation of the sanction imposed on the complainant (...) violated the right to due process of the plaintiff, so that there was room to uphold the protection requested, due to an insufficient motivation in the decision".

In this way, the tutela action is revealed as a suitable mechanism to demand that the SIC observe all the regulations applicable to the case when it comes to the imposition of these sanctions, through the protection of due process in its components of application of the forms proper to each trial, the right to defense and contradiction, the principle of legality, equality, among others, depending on the case to case.