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Policy of Prevention of Anti-Judicial Damage and Defense Of INVIMA Interests

The ultimate goal for INVIMA is to protect the Public Health. Because of this, their activities are very relevant for the population in general. However, when this authority fails or is wrong at a decision, this can cause very damaging for third parties.

When taking a decision such as a legal measure, imposing a sanction, suspending the activities of a private company, the procedures and the legal arguments must be very well supported and justified. Otherwise, imposing these sanctions by means of an unlawful decision would not only not the collective interest, but would also unjustifiably affect the rights of third parties. And these third parties, in the face of this unjustified decision, could initiate actions for claiming damages that, if the facts are proven, could give rise to compensation and payment of damages that would be assumed, at the end, by all of us.

In May of this year, INVIMA issued a policy of "preventing unlawful damage and defending of interests" (contained in document GDI-DIE-PL019 of May 30, 2019) which aims to establish preventive measures to mitigate the risk that administrative actions and decision making in the different areas and dependencies of the authority would lead to decisions or omissions that could cause damage to third parties.

With this policy it is sought to establish guidelines that guarantee that for the judicial processes in which INVIMA is involved, those are solved following legal procedures, and taking into consideration the interests of the authority. The aim is to incorporate preventive measures looking to avoid the occurrence or to diminish the negative effects for the authority related to extrajudiciary or judiciary procedures.

It is interesting that at the moment of defining the strategy, historical statistics were analyzed (year 2017), the type of processes in which the entity was involved, and the figures related.

Different priorities were then established to determine in which type of processes there were more significant money figures, and in what way the contingencies and cases that give rise to this type of risk could be reduced.

As a great conclusion it can be affirmed that the litigious activity with which INVIMA is related is low, given that the total of the value claimed in controversies during 2017 was COP $ 8,300,000,000 (more or less 2.5 million dollars).

Within the type of claims that INVIMA had to deal with during this period, the basis for the procedures are (i) Illegality of the administrative act that imposes sanctions derived from the activities of inspection and control; (ii) Omission in the functions of inspection, surveillance and control, and (iii) Damages caused by the issuance of health warnings related to products.

It can be seen then that these are actions based on activities carried out by INVIMA as per the competence of this authority. A third party that considers that the sanction that was imposed is illegal, because the action was extinguished, or a company that suffered damages because INVIMA issued a sanitary warning that affected the commercialization of its products, but it turned out that said warning was not properly supported.

At the end, why is this initiative important and interesting for us as users? We consider that it is indeed important for two main reasons:

First of all because a policy like this improves the quality of INVIMA's actions. If the actions against the authority are based on poorly supported actions, a policy that seeks to prevent this phenomenon, must necessarily contribute to improve the goals of INVIMA activities, which is positive.

Secondly, because it is about the financial resources of the system, and we must support that INVIMA is trying to reduce the cases in which the justice system decides that a third party must be compensated. In those cases, that money will no longer be used for the purposes of the entity, which is, of course, undesirable.

Authors

Karl Mutter
Karl Mutter, LL.M.
Partner
Bogotá
Luz Helena Vargas
Luz Helena Vargas
Associate Director
Bogotá