2013, CIUDAD?, Shailly Barnes for CIVISOL
Original Unabridged Version. The summary published by ESCR-NET is available in http://bit.ly/2lom6OM
Petition for an abstract review of the expression “in minor municipalities in rural zones and in specific areas or urban zones” found in article 15 and the expression “are share held corporations” found in article 17 of the Public Domiciliary Utilities Act. Admitted on January 28th 2003
Country: Colombia
Thematic Focus: Development, right to entrepreneurship, Public Procurement, Tenders, equality and nondiscrimination, legal personhood, economy organizations, Realizing ESCR of vulnerable population, nonprofit organizations, social and solidarity economy,
Forum and Date of Decision: Constitutional Court of Colombia, August 28, 2003
Nature of the Case:
Petition filed by Silvio Ruiz Grisales and Nohra Padilla others as Colombian citizens and waste pickers by occupation, requesting the abstract review of legal expressions found in Law 142/94 or Public Domiciliary Utilities Act, as they were deemed to violate the Constitution, i.e., the Preamble and Constitutional clauses 1, 2, 3, 13, 25, 38, 40, 53, 57, 60, 78, 79, 81, 93, 95-5, 103, 311, 333, 334, 355, 365, 367 and 369 regarding equality, participatory democracy, freedom of association, free competition and the strengthening of solidarity-based organizations, the contracting capacity of Nonprofit organizations, State intervention in the economy for promoting an equitable distribution of opportunities and the benefits of development, the regulatory scope of the Congress in public utilities and public utilities’ users’ rights to participate in the management of public utilities.
Summary:
In 2002/2003, waste pickers’ organizations in Bogota attempted to enter for the first time into a tender process to compete for one of the six waste collection and transportation contracts of the city, which was opening up the municipal service of waste collection to private operators. The waste pickers, however, were de jure precluded from competing for these contracts in big cities because they were not equity-owned, “share held corporations” corporations as established by the law, but rather, non-profit and solidarity-based economics organizations of informal working poor, such as co-operatives. Deemed “authorized organizations” by the Public Domiciliary Utilities Act, their operation and market was legally restricted only to “minor municipalities in rural zones and in specific areas or urban zones”.
The Constitutional Court accepted that the legal expressions at issue could be interpreted in a restrictive way and that as it currently stood, non profit organizations were only authorized to operate as public service providers in certain zones and unauthorized to enter or compete in public procurement processes and tenders in major cities. It held that equality must be granted not only in rights but also in opportunities and legal treatment and thus conditioned the interpretation of the expression “in minor municipalities in rural zones and in specific areas or urban zones” to be non-restrictive but inclusive of solidarity-based or non-profit organizations. Non-profit organizations where, thereby, “authorized organizations” to compete in any size city in the country.
Enforcement of the Decision and other Outcomes:
Note: Arguments for change and protection granted by the Court began with prior constitutional decision T-724-03 and has been refined and developed by ruling T-291-09 and supervised by Auto 268-10 and Auto 275-11.
The right of not-for-profit organizations and not-equity owned enterprises to access public tenders and procurement and compete for service procurement has been established.
Under the comprehensive public interest litigation strategy (in parallel with ruling T-724-03, which was filed to prevent the irreparable prejudice of further marginalization of the vulnerable population of waste pickers by exclusionary tenders, the Colombian State has now a provision in the Public Contracting Statute for such Purpose of inclusion. Law 1150 of 2007.
Significance: This case and ruling effectively removed the legal market entrance barrier restricting associative organizations of vulnerable populations seeking economic growth and inclusion from formal development due to their nonprofit legal nature.
Attorneys’ involvement: Adriana Ruiz-Restrepo (ad honorem) Luis Jaime Salgar Vegalara (ad honorem)
Source: http://bit.ly/2lFSKMb