Old age-Pensioners and the invalidity and inefficiency of the pensional regime transfer: Closed doors toward the declaration in the framework of an omission of the information?

Regarding the sentence SL 373 of 2021 emitted by the Supreme Court of Justice in its labor division in the past February 10^th of 2021, many have been the speculations and the different type of information around it in relation to the impossibility that this sentence settled to the plaintiff (who was a pensioner) to be transferred to Colpensiones. The truth is that this decision entails a change in the judicial precedent in terms of the invalidity of the pensional regime transfer and it deserves a deep and judgmental analysis because of the sensibility and the relevance that this old age pension topic has in our society.

In the first place, it is important for the analysis of this sentence that the audience understand the group of people that may be possible affected by this judicial decision and in these terms, it is necessary that we differentiate the people who are affiliated to the General Pension System and the ones who acquired the pensioner status.  

The affiliated are the ones that submitted an affiliation form and are linked with the pension regime that they voluntarily chose whether the Medium Premium Regime with Defined Benefit administered by Colpensiones or the Individual Saving System with Solidarity administered by private funds. On the other hand, the pensioners are the ones that meet the requirements in the regime that they were affiliated and, in these terms, they receive their old age pension payment.

¿Which position does the Supreme Court of Justice had before the recent sentence regarding the invalidity and inefficiency of the pensional regime transfer?

Either the plaintiff was an affiliated or a pensioner, the Supreme Court of Justice in sentences 31989 of 2008 and 31314 of the same year, settled a position in which the judges may state that the effect of the lack or omission of the information by the private funds in the moment that the plaintiff did the regime transfer from the Medium Premium Regime with Defined Benefit administered by ISS today Colpensiones to the Individual Saving System with Solidarity administered by private funds is the invalidity and inefficiency of that transfer. The consequence of this invalidity and inefficiency declaration was that the private fund had to transfer all of the contributions that the person did during the affiliation and their financial income to COLPENSIONES, who had to receive the contributions and provide to the plaintiff (pensioner or affiliated) the old age pension.

¿What aspects did the sentence SL 373 of 2021 changed in the framework of the invalidity and inefficiency of the pensional regime transfer for the Old Age Pensioners?

Before proceeding with the analysis of the changes that were settled with the sentence, it is important to mention that the factual situation of the plaintiff in this specific case was different from other cases in which the plaintiffs are old age Pensioners that pretend the invalidity and inefficiency of the pernsional regime transfer because of the omission of the information by the private funds, because:

1. There are proofs in the judicial process that certificate that the plaintiff received a double advice by the private fund where he was affiliated in the moment, and there is also a pension projection that the fund did for the plaintiff to know the amount of his old age pension at that moment. This means that in this specific case the plaintiff may have had received more information than most of the plaintiffs receive in the moment of the transfer.
2. In the moment that the plaintiff decided to retire and to receive his old age pension in the Individual Saving System with Solidarity he chose one of the benefits that this regime has which is taking an early retirement.

This circumstances lead to the conclusion that the decision emitted by the Supreme Court of Justice attended to this particular conditions of the plaintiff which are significantly different from other cases in which a pensioner pretends the invalidity and the inefficiency of the pension regime transfer in the framework of an omission of the information by the private funds, this obliges the judges in future sentences to analyze very carefully the factual situation of the plaintiff that is already a pensioner in order to evaluate if it is objectively possible to get to the same conclusions as in the present case.  

Having into account what was said before the big change that was introduced by the sentence SL 373 of 2021 in terms of invalidity and inefficiency of the pensional regime transfer is that in future judicial processes were the plaintiff is already pensioned the judges won´t be able to declare the inefficiency and invalidity of the regime transfer and this at the same time means that they won’t be able to return to Colpensiones and receive a better old age pension by this entity.  

This was decided that way because in terms of the Supreme Court of Justice once a person acquires the pensioner status it means that there is a legal status consolidated and reverting these effects may bring important damage to all the people, entities, acts, legal relations and to all the rights and the liabilities of third persons and to the system.

So, ¿ Are doors closed for the pensioners that were victims of omission of the information by the private funds when they did their regime transfer for claiming damages?

Another new aspect that has the sentence SL 373 of 2021 is the possibility that the pensioners have to judicially claim the damages when they reasonably consider that they had been affected in their pension rights by the nonfulfillment of the information duty that the private funds had at the moment of the regime transfer and during the time of the affiliation.

Nevertheless, this door that was opened the Supreme Court of Justice of the possibility of claiming the damages leaves at the same time many unanswered questions (i) In which jurisdiction must be presented de claim? (ii) Would it be possible to claim damages as an alternative claim in a suit that pursues the inefficiency and invalidity of the transfer regime? (iii) Is this a new way for the Pensioners that consider they had been affected by the omission of the information duty that had the private funds? (iv) Is there a prescriptive term for this claim? (v) The amount of the condemn in damages would be the same as the old age pension that the plaintiffs would have had received in Colpensiones?

Conclusions

Without a doubt this sentence implicates a change in the judicial precedent that may be defined as predictable in this kind of judicial processes because of the significant effects that the condemns had for the General Pension System when the plaintiff was already a pensioner. Nevertheless, this decision represents only a first step in the jurisprudence doctrine that is yet to come in this specific topic because trough this decision we cannot affirm that this will be the way in which all the cases of pensioners who pretend de inefficiency and invalidity of their transfer will be define since this sentence was emitted in a very particular and different case.

Finally, it is important to mention that there is no incidence of this sentence in the other judicial processes where the plaintiffs are still affiliated and have not reached the requirements for obtaining their old age pension or who have not decided to pension yet. In these cases, the Supreme Court of Justice has settled that the judicial consequence of the omission of information by the private funds must be the judicial declaration of inefficiency and invalidity of the regime transfer.