Unconstitutionality of the power to impose penalties in consumer proceedings

Paragraph 10 of Article 58 of the Consumer Statute (E. C., L. 1480/11) provides for a sanctioning power by stating 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]". The transcribed provision is of doubtful constitutionality, since it does not clarify whether the power it incorporates is jurisdictional or administrative, being uncertain the means to control it, nor the procedure that must be exhausted in order to exercise it. In practice, the Superintendence of Industry and Commerce (SIC) issues the sentence and, in the same hearing and without any other consideration or procedure, imposes the fine outright, without any appeal against it.

Initially, it could be thought that the fact that this provision is included in the article that provides special rules applicable to the jurisdictional process of consumption implies that the power incorporated therein is jurisdictional. However, this interpretation does not survive a careful reading. According to the wording, the issuance of a "final decision" is a prerequisite for the sanctioning power. Such final decision is the sentence that ends the process and in which the judge exhausts the jurisdiction. At the same time, the referred numeral alludes to the fact that the sanction is different from the "corresponding sentence", which is the object of the sentence. Therefore, the rule distinguishes between the sentence that incorporates a condemnation, vehicle and object that are jurisdictional, and the sanctioning power enabled by such sentence and that takes the form of a sanction, power and sanction of an administrative nature, especially considering that the imposition of such sanction does not state the law, nor does it resolve a litigation.

Thus, the sanctioning power incorporated to that article is of an administrative nature and of doubtful constitutionality, since the referred provision does not provide for a procedure that must be exhausted in order to impose the sanction and that protects the right to due process of the potential sanctioned, especially in its components of the principle of legality of the procedure, right to defense and contradiction, right to double instance. In the practice of the SIC, this has become a possibility to sanction outright.

Even if we consider that the power is jurisdictional, its unconstitutionality continues to prevail, since the procedure to which Article 58 refers is the summary verbal procedure of the General Code of Procedure, which is not designed for sanctioning processes and does not provide neither acts nor procedural stages aimed at guaranteeing the due process of the sanctioned party. Thus, in the framework of a verbal summary proceeding, there is no place for a statement of charges, nor for the dismissal, nor for the decree of evidence whose conduciveness, relevance or usefulness are analyzed in relation to the difference between them, nor is there room for appeal against the decision to impose the sanction. The situation of the sanctionable businessmen is aggravated under the consideration that the SIC may rule this type of proceedings extra petita, that is to say, for reasons other than those mentioned in the complaint and in respect of which the defendant defended itself, with which the SIC could impose sanctions, for facts that were not aired in the litigation and through an act that does not admit appeals.

The doubt about the nature of this provision is not a theoretical question, since it has affected the parties sanctioned so far. Thus, the SIC refuses to apply the supplementary rules of the sanctioning procedure of the Code of Administrative Procedure and Administrative Disputes (L. 1437/11, CPACA), since it considers that the power is jurisdictional. The appeal filed against the sanction is not processed, under the understanding that it is imposed in a summary verbal process of sole instance. The claims for nullity and reestablishment of the right against the sanction are rejected, with the argument that they are incorporated to a sentence and not to an administrative act. The only defense mechanism currently available to these parties is the tutela action, which, by this means, would become a general rule, contrary to its exceptional nature.

A lawsuit filed by this servant against the aforementioned provision is currently before the Constitutional Court. The Court must analyze whether the power incorporated in that provision is jurisdictional and our legislator is in default of regulating the procedure for its application, or whether it is administrative and, in order to enforce it, the general sanctioning procedure of the CPACA must be exhausted, or whether, in short, the rule is totally unenforceable. In the meantime, it is necessary to discuss among ourselves.