The Court's ruling that toughens the transfer of private funds to Colpensiones

The Constitutional Court has just made a substantive decision in relation to people who are contributing to private funds and who wish to transfer to the average premium regime managed by the Colombian Pension Administrator (Colpensiones).

Specifically, it involves tightening some requirements for the process for transferring the pension.

The decision was made after the study of a protection action instituted by Colpensiones, against the Labor Cassation Chamber of the Supreme Court of Justice, since this corporation has indicated that whenever it is indicated in a lawsuit that an AFP did not report regarding changes in the pension regime, it is up to the “AFP to demonstrate that said information was provided.”

In the decision, with a presentation by Judge Jorge Enrique Ibáñez Najar, it is stated that judges must limit themselves to decreeing all the evidence requested by the parties that is relevant and conducive or that which is necessary ex officio.

In addition, it is requested to “equally evaluate all the evidence ordered and performed, individually and as a whole with the others, including the evidence, which allows you to determine the degree of conviction that they offer about the events that occurred and the member's knowledge.” about the consequences of the transfer”

In its decision, the high court indicated that “it will not be possible to apply the reversal of the burden of proof as the only remedy.”

Previously, the Supreme Court of Justice, Labor Cassation Chamber, established that when a member alleges that he was improperly informed about the implications of his transfer, it would be up to the defendant AFP to demonstrate that he did adequately inform about the consequences of the transfer.

Now, the Court modified that precedent and specified that the judge must decree the evidence requested from all the parties, that is, he expands the request so that the parties also have that possibility of proving.

The Constitutional Court, in its statement, “considered that the precedent is disproportionate in terms of evidence and therefore violates the constitutional right to due process in cases in which the ineffectiveness of the transfer of affiliates from the Medium Premium Regime to the Regime is discussed. of Individual Solidarity Savings due to information problems that occurred between 1993 and 2009,” the corporation said.

Furthermore, the Court recognized that the precedent of the Supreme Court of Justice, although it had a highly protective component, “was openly disproportionate in what has to do with the reversal of the burden of proof”, a rule according to which, as long as In all cases it is up to the defendant AFP to demonstrate that it provided information.

“The judge must act as director of the judicial process, with the autonomy and independence that are his, and within the many actions aimed at forming his conviction to decide what interest corresponds, he can decree, practice and evaluate on equal conditions all the evidence requested by the parties,” added Judge Ibáñez.

The decision, according to the high court, has immediate effect upon compliance with the rules set forth “in this ruling to all lawsuits that are ongoing before the Ordinary Labor Jurisdiction, whether in the first, second instance or in the cassation court.”

The Plenary Chamber also highlighted the importance of “the duty to provide clear, relevant and sufficient information to users who wish to change regimes.”

The above, because this decision “has important repercussions on their right to social security.”

According to the Financial Superintendence, in the last 14 years almost one million four hundred thousand people have been transferred from private funds to Colpensiones.

The highest peak occurred in 2016, when 196,466 people were transferred and in 2020 when fewer transfers were made (69,877).

So far in 2024, at least 7,043 people have been transferred from a private fund to Colpensiones.