The Constitutional Court declared the Social Protection Floor (PPS) based on the National Development Plan 2018-2022 unconstitutional through Sentence C-276 of 2021

With Decree 1174 of August 27, 2020, the operation and access to the Social Protection Floor (PPS) was regulated as a mechanism that offers basic social guarantees to those people who receive monthly incomes below a monthly minimum as a result of their part-time dependent labor dedication, or derived from a job, trade or independent economic activity. However, on August 19, 2021, the Constitutional Court declared the legal provision of the National Development Plan unconstitutional, due to procedural errors in the way it was initially conceived.

1. What were the Protection components offered and regulated through the norm?

The Social Protection Law allowed those who earn less than one minimum wage the following protection components:

• Coverage under the Subsidized Health Regime.
• Access to the Periodic Economic Benefits Program - BEPS as a protection mechanism for old age.
• An Inclusive Insurance, which will cover the worker against the risks derived from the work activity and the illnesses covered by the BEPS. It works as a policy that covers and indemnifies in cash in case such contingencies arise. 
• Access to the Family Subsidy System, once it is regulated by the Government.

2. Who could be linked to the PPS?

Mandatory:

• Those persons who have one or more part-time employment ties whose monthly income is less than 1 SMLMV.
• Persons who enter into one or more contracts for the provision of services that receive a monthly payment of less than 1 SMLMV.
• Persons who have one or several labor ties, and simultaneously, with one or several contracts for the provision of services with a monthly income of less than 1 SMLMV.

Volunteers:

• Persons who carry out a trade or economic activity, including producers in the agricultural sector, with neither an employment contract nor a contract for the provision of services and whose total monthly income is less than 1 SMLMV.

3. Declaration of unconstitutionality by the Constitutional Court.

The PPS was created based on the provisions of Article 193 of the National Development Plan, also known as Law 1955 of May 25, 2019, which was declared unconstitutional on August 19, 2021, as stated by the Constitutional Court in Sentence C-276-21.

The High Constitutional Court argued that Article 193 of the National Development Plan violated the principle of unity of subject matter enshrined in Article 158 of the Political Constitution, according to which all bills must refer to the same subject matter, so that provisions or amendments that are not related to it will be inadmissible.

In other words, in the opinion of the Constitutional Court, the PPS is a transversal provision of the Social Security System that must be regulated through an ordinary legislative procedure provided for in the Constitution and cannot be part of the content of a law approving the National Development Plan, since it does not correspond to the planning function, does not seek to promote the fulfillment and mission of the National Development Plan, since it does not constitute an authorization of resources or appropriations for the execution thereof.

4. With what effects was the norm declared unenforceable and what repercussions does it have?

The norm subject to control was declared unconstitutional with deferred effects, which means that it will not be immediately removed from the legal system, taking into account that its automatic removal could cause a greater detriment from the point of view of the constitutional principles and values and the fundamental rights to social security of those already affiliated to the PPS. For this reason, a prudential term was granted to withdraw it as of June 20, 2023, in order to avoid causing trauma to those already affiliated, since in effect, despite the declaration of unenforceability, the Constitutional Court recognized that the spirit of the mechanism is to seek the expansion of coverage in health, pension and risks, the integration and protection of those who are in more vulnerable conditions.

This last aspect is in line with reality, due to the fact that, despite the existence of the obligation to affiliate to the Integral Social Security System, the number of workers hired for days or hours is minimal and they remain in the informal sector, causing them to lack savings for the protection of their old age and to be exposed to occupational risks or contingencies under no protection whatsoever.

5. How can this mechanism be reincorporated into the legal system after the declaration of unenforceability?

Based on the Constitutional Court's decision, the PPS must be regulated through the ordinary legislative procedure provided for in the Constitution, i.e., the legislative initiative must be filed before the Congress of the Republic by the subjects legitimized by law;  Congressmen, the National Government, Citizens (5% census), Councilmen or Deputies (35%), High Courts and control bodies, so that it may be published in the Congressional Gazette and undergo all the necessary debates and be sanctioned by the President.

The above allows concluding that the genesis of the PSS included in the law of the National Development Plan, from the formal point of view, was legally a mistake, since the Government Plan is not the instrument to create and implement plans that by its nature is a responsibility of the legislative power.