A few days ago the Commission of Justice System and Autonomous Bodies of the Constitutional Convention, approved by 16 votes in favor and 3 abstentions the creation of a “National Consumer Agency” that would replace the National Consumer Service (Sernac), with supervisory, sanctioning and regulatory powers, which – according to the text – must be autonomous and independent of the political cycle and governments of the day.
Today the Sernac has supervisory power, so the constitutional norm is repetitive. However, the sanctioning and regulatory powers are added, which were already the result of discussion in the National Congress some years ago. It cannot be lost sight of the fact that these two powers were declared unconstitutional by the Constitutional Court (TC).
At the time, there were constitutionalists who blamed the TC for having taken away Sernac’s teeth. However, before his pronouncement, there were many of us who warned the authorities and Congress that a Sernac with sanctioning power made him a judge and a party.
Why judge and party? Because Sernac and Consumer Associations have active legitimacy, the most powerful tool to defend consumers, since it allows the filing of class actions on behalf of all consumers affected by the same fact. With this tool, both Sernac and consumer associations combat abuses, collusion, lack of professionalism of suppliers of goods and services and other affectations.
In our institutional design, the bodies that apply administrative sanctions do not have active legitimacy to represent citizens, it is enough to look at the Labor Directorate, the superintendencies and regulatory bodies that have sanctioning powers, but do not have active legitimacy to defend the rights of those affected after sanctioning.
This initiative lacked knowledge of the opinion of the Consumer Associations, which – according to the motion – do not exist. While they introduced a comparison with foreign legislation, having a super-powerful state agency does not guarantee better consumer protection. In addition, today the Local Police Courts are present in all the communes of the country, being the justice closest to the citizens. It is also necessary to consider the costs that would mean implementing this National Consumer Agency. Today it is necessary to give autonomy to Sernac and define its role, as well as provide it with attributions in the greatest needs of consumers.
The proposal of the National Consumer Agency considers the protection of individual consumers, whom the current Sernac does not represent in the Local Police Courts, and in exceptional cases presents actions for the general interest, in which the consumer has to become a party with a final ruling to defend his personal interest before the court; this is the current procedure.
However, Consumer Associations have the power to represent the individual interests of consumers before the Courts, the problem is that associations do not have the resources to represent them. In other countries, to solve this lack of protection and lack of financing, a system has been created that allows the association that sues in the general or individual interest to receive a percentage of the fine to finance consumer protection. Today the fines go to tax benefit.
On the regulatory power proposed by the motion presented, there is a fundamental problem that must be resolved. Firstly, that the Consumer Law is not supplementary. Secondly, there is a lack of dialogue of sources. The fragmentation into special laws, creating subsystems, should be corrected to make them coherent and coordinated with the Consumer Law, eliminating any norm that is incompatible with the Consumer Law, unless insurmountable contradictions are verified.
Finally, from my point of view, the priority is that consumer protection is in our Magna Carta, consider that the State will guarantee the defense of consumers and users, protecting, through effective procedures, the safety, health and legitimate economic interests of consumers and users and establishes a pro-consumer principle. In addition, consider that Consumer Associations should be considered as relevant actors, since they represent organized civil society and have played a prominent rolein the protection of Chile’s consumers.
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