Unconstitutionality of port concessions under Law 7762Inconstitucionalidad de la concesión de muelles bajo la Ley 7762

**Review of the Document** **Exp: 22-009133-0007-CO** **Res. No. 2022016950** **CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE.** San José, at ten hours twenty-five minutes on the twentieth of July, two thousand twenty-two.

An action of unconstitutionality brought by Antonio Wells Medina, of legal age, married, business administrator, holder of identity card number 7090995, in his personal capacity and as general secretary of the Sindicato de Trabajadores de JAPDEVA, against subsections 2) and 3) of article 2 and subsection 4) of article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, ordinal 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which modified numeral 1 of the Ley Orgánica de JAPDEVA, and the Contrato de concesión de obra pública con servicio público for the design, financing, construction, operation, and maintenance of the Moín Container Terminal.

**Whereas:** 1.- By a writ received in this Chamber at 12:53 p.m. on April 29, 2022, the claimant requests that the unconstitutionality be declared of subsections 2) and 3) of article 2 and subsection 4) of article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, ordinal 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which modified numeral 1 of the Ley Orgánica de JAPDEVA, and the Contrato de concesión de obra pública con servicio público for the design, financing, construction, operation, and maintenance of the Moín Container Terminal. The claimant states that article 121 of the Constitución Política reads: "In addition to the other powers conferred by this Constitution, the following correspond exclusively to the Legislative Assembly: (...) 14) To decree the alienation or application to public uses of the Nation's own property. The following may not permanently leave the domain of the State: a) The forces that may be obtained from the waters of the public domain in the national territory; b) Coal deposits, oil sources and deposits, and any other hydrocarbon substances, as well as radioactive mineral deposits existing in the national territory; c) Wireless services. The property mentioned in items a), b), and c) above may only be exploited by the public administration or by private parties, in accordance with the law or through a special concession granted for a limited time and in accordance with the conditions and stipulations established by the Legislative Assembly. National railways, docks, and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor may they in any way leave the domain and control of the State." For its part, article 140 of the Constitución Política establishes: "19) To sign administrative contracts not covered by subsection 14) of article 121 of this Constitution, subject to submitting them for approval by the Legislative Assembly when they stipulate tax or fee exemptions, or have as their object the exploitation of public services, resources, or natural wealth of the State." He indicates that, in April 1998, the Ley General de Concesión de Obras Públicas con Servicios Públicos was approved, which, in its article 2, provides: "1.- Any work and its operation are susceptible to concession when there are reasons of public interest, which must be recorded in the file by means of a reasoned act. Telecommunications, electricity, and health services are excepted from the application of this Law. 2.- Railways, rail lines, docks, and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures provided in this law. 3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned and not the existing ones." He adds that, on February 28, 2019, APM TERMINALS began operations with its 2 berths, in accordance with point 4.1.1.22 of the Contrato de concesión de obra pública con servicio público for the design, financing, construction, operation, and maintenance of the Moín Container Terminal. On March 1, 2019, the Minister of Transport, Rodolfo Méndez Mata, issued official letter DM-2019-0604, where it was indicated that the concept of a fully cellular vessel is not contained in a current regulation and, based on that interpretation, he proceeded to instruct JAPDEVA to immediately insert the programming of vessels to be served by the TCM for the current week, in adherence to technical criteria that guarantee a safe and efficient operation for both terminals (Gastón Kogan Rogan and TCM). The foregoing, to avoid economic and commercial losses for the country due to the paralysis of operations at our ports. From the list of vessels annexed to the official letter, all these vessels failed to meet the requirement of being fully cellular container ships; however, the Minister's instruction was to send them to be served by the TCM administered by the company APM TERMINALS. On March 4, the executive president of JAPDEVA, Greivin Villegas Ruiz, sent official letter PEL-211-2019 to Minister Rodolfo Méndez Mata, where it was stated: "Based on the constitutional principle of legality (articles 11 Constitución Política and 11 Ley General de la Administración Pública; ordinal 188 of the Constitución Política; duty of probity (article 3 of Law 8422); numerals 166, 169, subsequent and concordant articles of the Ley General de la Administración Pública, as well as articles 1, 6 subsections a) and c); 22 of the Ley Orgánica de JAPDEVA; I respectfully find myself obliged to consider your official letter DM-2019-0700 (administrative act) as manifestly and absolutely null and void, and therefore, your instruction is incompatible within the framework of the organic relationship of our represented entities (Ministry and Decentralized Entity) according to article 99 of the Ley General de la Administración Pública (LGAP). In general, we observe with concern that the MOPT's unilateral interpretation regarding the use of the access channel, the scheduling, and the type of vessel that the TCM can serve, is not in accordance with the legal system. The concession contract (contrato de concesión) and the concessionaire itself recognize that the TCM can only serve fully cellular container ships. The situation is further aggravated when a monthly schedule of TCM operations is instructed for the period from February 19 to March 19, 2019, without knowing in advance the service demand or the type of vessels to be served, which is improper and contrary to the provisions of the JAPDEVA Operations Regulations. Said regulation is known and accepted by APM TERMINALS, since it forms an integral part of the concession contract (contrato de concesión). In addition to the foregoing, it is recognized that JAPDEVA, as the Port Authority, is responsible for carrying out such scheduling weekly. The illegitimate instruction issued by the MOPT in its official letter injures JAPDEVA's autonomy and generates damages that are impossible or difficult to repair, even irreversible, as we have stated. Damages and prejudice are likewise generated before the port community; for example, the fact that companies such as Dole and Chiquita have stated they were forced by the Government to move their operations to APM under the criterion of your represented entity, despite the fact that many of their vessels are not of the Fully Cellular type. The foregoing situation has generated financial and operational uncertainty for the companies, forcing them to make the decision to move all their operations to APM, and that implies layoffs of their workers. In accordance with the current legal framework, I proceed to explain in detail the corresponding reasons of fact and law..." Later, in that same official letter, it was added that: "We share your concern that the public service be provided continuously and uninterruptedly, and therefore, as recognized and communicated by the concessionaire itself, 'all shipping companies arriving at the Limón-Moín port complex in fully cellular container ships must dock at the Moín Container Terminal'. In addition to the foregoing, all shipping companies arriving at the Limón-Moín port complex in non-fully cellular container ships must dock at the JAPDEVA Terminal. Acting to the contrary — as we explained in our official letter PE-033-2019 — would represent a technical bankruptcy for JAPDEVA and, according to our projections, by the month of April of the current year, there would not be the financial capacity to guarantee the continuity of public port services, development management, payment of salaries, social charges, and other obligations. Excuse me, Mr. Minister, but JAPDEVA is obliged to act under the protection of constitutional numeral 188; duty of probity (article 3 of Law 8422); articles 1, 6 subsections a) and c); 22 of the Ley Orgánica de JAPDEVA; and numerals 1, 4, 6, 11, 27, 59, 60, 66, 99, 100, 101 of the Ley General de la Administración Pública, and therefore disobey the instruction you issued (articles 107, 108 LGAP; and 3, 4, and 5 Law 8422). It is reiterated that JAPDEVA made the corresponding communication one week in advance by the Port Management for, as of March 1, the agencies or their representatives to submit the official documents provided by the ship's captain proving the presence of Fully Cellular Container Ships, all in accordance with what is established in the JAPDEVA Port Operations Regulations and as equally recognized and accepted by the concessionaire in its communication." He points out that on that same day, March 6, the press reported that President Carlos Alvarado explained that Greivin Villegas Ruiz had been dismissed, because he was not aligned with the Government. He asserts that the start of operations for APM TERMINALS was marked by serious problems. The start-up was so complicated that the Cámara de Exportadores de Costa Rica sent a note addressed to the Consejo Portuario Nacional, where several problems that the operation of the APM TERMINALS company had experienced were set forth. Faced with the start-up problems of APM TERMINAL, CORBANA sent a note addressed to the Consejo Nacional de Concesiones where it was stated: "The export sector in general faces a significant increase in export costs, among them the TCM tariffs, a situation that damages the country's competitiveness, since the savings from the operator's efficiency have not been and will not be transferred to the exporter. At present, the tariffs constitute the most expensive in the region, placing the country at a competitive disadvantage." On May 28, 2019, the Executive Branch submitted to the Legislative Assembly the bill called "Ley de modernización de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (JAPDEVA) y protección de sus personas servidoras", which was processed under legislative file No. 21,426. This project proposed a series of measures for the reduction of JAPDEVA personnel (horizontal transfers to other institutions, early retirement, and voluntary labor mobility) as a direct reaction to the serious deterioration its finances were experiencing. In 2019, it appeared in the press that, at that time, given the decrease in vessel service at JAPDEVA, unlike the past, where the institution's payroll was paid with income from vessel service, the Government was subsidizing that expense, since JAPDEVA had practically no income of its own. On June 18, 2019, the Executive Branch submitted a fourth extraordinary budget to the Legislative Assembly (with modifications to the 2019 Ordinary Budget of the Republic), which was processed under legislative file 21,475. The project, in its original version, had the purpose of incorporating resources into the budget of the Ministerio de Obras Públicas y Transportes and the budget title for Pension Regimes, for a total amount of ₡23,679,008,731.00, to address JAPDEVA's critical financial situation as already described. Regarding the MOPT, said extraordinary budget (file No. 21,475) incorporated a transfer destined for JAPDEVA, in the amount of ₡21,989,765,516.00, with the objective of financing the payment of three months of payroll (which included salaries, year-end bonus, and social contributions) for a total amount of ₡5,752,908,243.00, in addition to providing resources for the institution's payroll reduction plan contained in bill No. 21,426, for an amount of ₡16,236,857,273.00. By mid-2019, JAPDEVA itself issued the report JAPDEVA Budget Execution June 30, 2019.pdf, which shows the reduction of its income for April 2019. This, given the Government's decision to transfer the service of container ships to now be served by APM TERMINALS. This shows that the reduction in the institution's income is dramatic and is what comes to justify the bill. He accuses that the absolute restriction imposed on JAPDEVA for the service of container ships as a consequence of the administrative conduct has caused all container ships arriving on the Costa Rican Caribbean, including conventional or non-fully cellular ones, to have to queue for several hours to be served at the two berths of the TCM belonging to APM Terminals, while the eight berths that JAPDEVA has are empty and totally underutilized. This situation, added to the concern about the high tariffs charged by APM Terminals, caused five business chambers - namely: the Cámara Nacional de Agricultura y Agroindustria (CNAA), the Cámara Nacional de Productores y Exportadores de Piña (CANAPEP), the Corporación Bananera Nacional (CORBANA), the Cámara Nacional de Productores y Exportadores de Melón y Sandía (CANAPEMS), and the Cámara Nacional de Productores Independientes de Banano (APROBAN) - to send a note to the Consejo Portuario Nacional (official letter CE-2019-1049 of June 18, 2019), in which they pointed out a series of impacts they were suffering in their economic activity that endangered the sustainability of their activities and the country's competitiveness. This note mentioned problems in the appointment systems, in the supervision of refrigeration systems, with the terminal's electrical flow, in the computer system, and in the information systems. Serious congestion on Route 257 for access to the TCM to pick up or deliver goods was also mentioned. For this period, several organizations certify layoffs at CADESA, SINTRACOBAL, and SINTRASTAFCOR. This shows that the impact on workers in Limón goes beyond just JAPDEVA and is, therefore, an element to take into account when weighing interests in the decision. He adds that, by October 2019, the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, was approved, with which a process of reducing JAPDEVA's payroll was initiated, through horizontal transfers and early retirement systems charged to the national budget, where the State had to assume onerous payments to cover the expenses of employees who were previously dedicated to container handling at JAPDEVA's ports and who became unemployed when the service for these was transferred to the TCM operated by APM TERMINALS. At the end of October 2019, during a radio interview on Monumental, the former deputy, former presidential candidate, and businessman Antonio Álvarez Desanti stated that the country's producers and exporters, in his case of bananas, longed for the JAPDEVA era, since APM had turned out —according to them— to be a fiasco, because export costs were extremely high, to the point of calling it the most expensive port in the region. He also stated that it was much more inefficient than JAPDEVA. He affirmed that costs practically doubled with APM TERMINALS. On October 17, 2019, the Law that Transforms the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, was published in La Gaceta, which, in its article 18, modified article 1 of its original law, with the following text: "Article 1.- The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica is created, hereinafter called JAPDEVA, as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of the Port Authority; it shall be responsible for building, administering, operating, subcontracting, granting in concession (concesionar), and carrying out any other financial mechanism that national regulations allow, to develop port services, its own administrative management, and investments, constructions, and improvements in the maritime and fluvial ports of the Atlantic Slope, with the exception of those operating under subsection h) of article 60 of this law." Following this reform, on February 6, 2021, Andrea Centeno sent official letter PEL-15-2021 to SINTRAJAP, in which it is stated: "In follow-up to the last meeting of the Restructuring Commission held at the Executive Presidency on December 21, 2020, we attach the information presented for your reference. Economic situation of the organization and financial erosion according to the legal seizure process. Projected criticality and need for resources. Exercise of payroll reduction needs. Review of what was already indicated in the Institutional Reorganization Program on outsourced services and presentation made to your Board of Directors in November 2019. Cost and efficiency analysis of the identified outsourced services." Attached to this note was an official letter titled: "Review of information and efficiency data on outsourcing." This note indicated: "The outsourcing of services is one of the changes applied in the reorganization program according to JAPDEVA's new vision, for the optimization of the cost model and indirect employment generation in Limón, which allows the institution: Potential payroll reduction." In November 2019, JAPDEVA published on its website its institutional reorganization program, where in its chapter titled "Institution in Crisis" it pointed out: "For the year 2019, the financial situation worsens as a significant deficit is recorded during the first half of the year in revenue collection. The foregoing is a result of the impact on effective income due to changing the business model and transferring the containerized cargo to the new Mohín Container Terminal (TCM) starting in February 2019. Current income generated from port activity as of June 30, 2019 is recorded for the sum of ₡12,888.2 million, equivalent to 30% of the estimated annual income budget for economic year 2019. It should be noted that this amount still includes the service of some container ships that were provided service at the beginning of the year amid the transition process with the TCM, as well as, on two occasions, as contingency measures due to failures presented at the latter." Later in this document, in point 2.6., titled "MAIN ACTIONS IN RELATION TO INSTITUTIONAL REORGANIZATION AND STRENGTHENING OF JAPDEVA", it was indicated: "iii. Given that port tariffs have not been updated since 2012, it is necessary that once the new operational processes and reassignment of human resources are implemented, a tariff study be carried out to request from ARESEP the appropriate tariffs for the provision of port services, which in turn allows the institution to cover, through an investment program, the expenses required for the investments that will need to be made. d. The growth and development of human resource capacities is fundamental to the strategy of achieving greater institutional efficiency and effectiveness, which entails strengthening the human resources consisting of the 258 officials who will remain in the fulfillment of actions and functions according to the institution's processes and sub-processes." On December 19, 2019, the Government of the Republic issued a press release acknowledging the problem of the high tariffs charged by APM TERMINALS and the impact on the export sector, which stated: "Government will negotiate with APM Terminals possible reduction of tariffs." This, according to said note, given the concern regarding tariffs for the export sector. The negotiations, according to this release, will be led by Rodolfo Méndez Mata, in his capacity as Minister of Transport, and will involve officials from the CNC, JAPDEVA, and the concessionaire. By late December 2019 and early 2020, news related to the possible negotiation of tariffs with APM TERMINALS and the Government has appeared in the press, mentioning that the parties have considered a reduction of the fee chargeable to the concessionaire, direct payment to the concessionaire, extension of the concession term, and even talks about exempting the company APM TERMINALS from completing stages 2 and 3 of the TCM, namely, exempting them from the obligation to build berths 3, 4, and 5 of the TCM stipulated in the concession contract (contrato de concesión). Finally, in the Presidential speech given by Carlos Alvarado on May 1, 2021, it was indicated: "The case of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA) is complex and gives rise to much debate. The truth is that when the contract was signed in 2012 for the operation of the Moín Container Terminal (TCM), what was materialized there was the transfer of 84% of the cargo and 80% of JAPDEVA's income to the TCM, in exchange for a fee. A public business was ceded to a private party without adequate compensation, and without guarantees of better tariffs and better operation. Furthermore, without a clear transition plan for JAPDEVA. Thus, when the TCM began operations in February 2019, JAPDEVA faced head-on the massive drop in its income while maintaining the same level of expenditure. Today the reality is that the TCM tariffs are more expensive than before and the terminal, two years after entering operation, is already reaching operational saturation." The claimant argues that if a careful reading is made of subsections 2) and 3) of article 2 and subsection 4) of ordinal 5 of Law No. 7762 of April 14, 1998, called "Ley General de Concesión de Obra Pública con Servicio Público" and, by connection, of the Contrato de concesión de obra pública con servicio público for the design, financing, construction, operation, and maintenance of the Moín Container Terminal, these are unconstitutional in that they violate the literal meaning of the last paragraph of subsection 14) of article 121 of the Constitución Política, by virtue of which: "National railways, docks, and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor may they in any way leave the domain and control of the State." He affirms that it follows from the foregoing, with complete clarity, that the aforementioned property cannot be subject to any type of transfer or concession, as intended through Law No. 7762 and the concession contract (contrato de concesión) for public works with public services, which undoubtedly violate the fundamental norm. It is clear that the aforementioned norm cannot be interpreted in a manner different from its literal meaning. While it is true that granting a concession (concesionar) is not necessarily the same as alienating, leasing, or encumbering, precisely, what the constitutional norm indicates is first, that docks may not be alienated, leased, or encumbered, directly or indirectly; but the second part of said numeral is even more categorical, stating that docks may not, in any way, leave the domain and control of the State. If one looks at the definition given in article 1 of the Ley de Concesiones, the concession of a work with public service is defined as: "b) Concession of a work with public service: administrative contract by which the Administration entrusts to a third party, which may be a public, private, or mixed entity, the design, planning, financing, construction, conservation, expansion, or repair of any public real property, as well as its operation, providing the services foreseen in the contract in exchange for consideration charged to the users of the work, to the beneficiaries of the service, or for counter-payments of any kind paid by the granting Administration." He maintains that if the constitutional norm prohibits docks from leaving in any way the domain and control of the State, then, based on the previous definition, by allowing the Administration for a third party to carry out the design, planning, financing, construction, conservation, expansion, or repair of any public real property, as well as its operation, providing the services foreseen in the contract, it is clear that this concessioned property would be partly leaving the domain and control of the State, since the public service would be provided by a third party. Thus, since granting a concession (concesionar) is not expressly permitted in the Constitution, the legislator cannot provide that docks may be concessioned, as indicated by the norms challenged in this case. Even if it is argued that with the concession the State does not lose ownership of the public property, the truth is that neither is the concession expressly permitted in the Constitution, nor can the constitutional text be interpreted broadly in a matter as restrictive as the disposition of public property. Especially because, by mandate of the Constitución Política itself, it is not permitted that "in any way" docks leave the control of the State and, clearly, the concession is a manner in which docks have been allowed to leave the control of the State, since they come to be administered by a private company. The Ley General de Concesión de Obras Públicas con Servicios Públicos makes a possible exception, in its article 2, subsection 3, by stating: "3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned and not the existing ones." However, the exception given in article 121 of the Constitución Política, in the final paragraph of subsection 14, is clear in establishing: "National railways, docks, and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor may they in any way leave the domain and control of the State." The Constitución Política does not make the exception that the Ley de Concesiones does, because, for the constituent power, docks entirely, without exception, while they are in service, may not be alienated, leased, or encumbered, directly or indirectly, nor may they in any way leave the domain and control of the State. In the case of the TCM concession to the company APM TERMINALS, although it could be argued that this was not a work in operation at the time of its concession, the truth is that once said Terminal was enabled, as already explained, the President of the Republic himself acknowledged that the service of all container ships that JAPDEVA was handling was transferred to be handled by APM TERMINALS, which means that, in reality, the service that JAPDEVA already provided, prior to said concession, was indeed concessioned in favor of the company APM TERMINALS, so that, in practice, this concession of this port work of the Limón docks for a service that was already being provided by JAPDEVA disrespects our Magna Carta, by allowing a port service that JAPDEVA already provided to leave the domain and control of the State, as was the handling of container ships that were served in the existing ports of Limón and Moín for decades.

The claimant argues that the alleged unconstitutionality goes beyond what has been argued thus far in different actions of unconstitutionality, as it is not a matter of unconstitutionality by omission of the challenged norms, but rather a direct violation of the constitutional text, given that the servicing of container vessels that JAPDEVA was already providing was awarded as a concession (concesión) to a private company, something that was clearly and remains prohibited by the Political Constitution. He accuses an infringement of the principle of constitutional legality, which warrants the declaration of unconstitutionality of the concession contract with the company APM TERMINALS and of the law that allowed that concession to take place. The claimant adds that, bearing in mind that these are strategic assets of the State, such as the docks, the literal wording in this case is insurmountable, because although the concept of a concession did not exist at the time the Political Constitution was drafted, the fact is that this figure bears a very close similarity to what the Constitution expressly prohibits, given that the concession is a type of lease, as the concession becomes an indirect way in which the asset leaves the control (dominio) and supervision of the State, which is precisely what the constitutional norm prohibits. He insists that a restrictive interpretation is required in this case, because the content of the norm imposes a very clear prohibition that cannot be excepted. In such a way that, even if the Legislative Assembly had proceeded to approve the concession through a qualified procedure, such approval would still have been equally unconstitutional. Therefore, with even greater reason, the legal norms that empower the Executive Branch, through the challenged Law, to grant concessions for the docks would be unconstitutional, because the constitutional prohibition under discussion is further weakened if it is the same Executive Branch, with a framework law, that can grant a concession for an asset that is inalienable according to the Constitution. The claimant states that it can be affirmed that there exists, as in many other cases indicated by this Chamber, a type of "constitutional reservation" (reserva constitucional). Only the Constitution-maker can indicate how to dispose of the docks, and only if the Constitution-maker enables the possibility of granting them in concession, could they be concessioned. This thesis being sustained is none other than the application of the content of the principle of legality to the constitutional text, understood in the sense that, in this matter of public assets, what is not expressly permitted (to grant in concession), is therefore prohibited. He points out that this Constitutional Chamber has sustained the existence of a "constitutional reservation" in certain matters, such as in the case of vote no. 2010-011352, concerning the grounds for canceling the credentials of deputies, vote no. 2008-016099, regarding the principle of freedom, or vote no. 2013-012801, concerning the material jurisdiction of the contentious-administrative jurisdiction. In this case, since it involves the disposal of strategic public assets, he considers that a "constitutional reservation" also exists that prevents the legislator—and, of course, also the Executive Branch—from establishing the possibility of granting concessions, not only because the Constitution does not expressly permit it, but because at the time the Political Constitution was drafted, the legal concept of a concession was unknown; but it is precisely for this reason that it was indicated that the docks in operation could not be leased or encumbered, directly or indirectly, nor leave the control (dominio) and supervision of the State in any way; that is, by indicating that they cannot leave the State's control in any way, an open, broad concept is used, attempting to anticipate any legal figure that might be attempted in the future to violate this provision. He asserts that this prohibition on granting concessions for these strategic assets has a logic of even national security, since, ever since APM TERMINALS began operations, news reports of containers with drugs appearing in European ports from Costa Rica have become very frequent. News that, prior to APM TERMINALS commencing operations, was not heard in the media. The claimant insists that a strict interpretation of the constitutional text is appropriate when dealing with assets of such relevance, without ignoring that the text of the last paragraph of the norm under discussion is categorical: these assets, docks, airports, and railways cannot leave, in any way, the control (dominio) and supervision of the State. He reiterates that a comprehensive analysis of subsection fourteen of Article 121 of the Constitution allows one to conclude, once again, that the docks, airports, and railways cannot leave the State's control (dominio) under any modality. The penultimate paragraph of the norm under discussion admits that private parties may exploit the assets mentioned in subsections a, b, and c, in accordance with the law or through a special concession, granted for a limited time and subject to the conditions and stipulations established by Parliament. Clearly, the second paragraph establishes that private parties may exploit the mentioned assets; this means that when this is authorized, the norm expressly provides for it. This is the rule that the norm implicitly establishes. A very different situation is provided for in the last paragraph of paragraph 14) of Article 121 of the Constitution, as it does not authorize, in any way, those assets to be exploited by private parties, because it does not admit that docks, railways, and airports may be exploited by private parties, and they cannot leave, directly or indirectly, the control (dominio) and supervision of the State. According to this comprehensive interpretation of the text of the norm, it is confirmed that the constitutional norm under discussion does not authorize the State to cease having direct control over the assets mentioned in the last paragraph of subsection fourteen of Article 121 of the Constitution. He accuses, on the other hand, that it is inconceivable and absolutely unacceptable that a private port terminal was established so that, with only two berthing positions, exclusively, it would handle all the loading and unloading of containers along the entire Costa Rican Caribbean Coast. As recognized by the President of the Republic, Carlos Alvarado, in his speech on May 1, 2021, the provision of port services by APM Terminals was established with cost overruns that exceed JAPDEVA's rates and affected the financial capacity of that institution, rendering it incapable of guaranteeing the continuity of public port services, development management, payment of salaries, social security contributions, and other obligations. He asserts that, in mid-June 2019, 16 business chambers sent a letter to President Carlos Alvarado, in which they detailed a series of inefficiencies in APM Terminals' operations, including delays due to congestion at the port entrance and high rates. The main complaint of exporters is that the rates charged by the company APM Terminals in the country exceed prices in other ports in the region by up to $300. Exporters assert that the price difference exists even compared to other nearby ports managed by APM Terminals. In total, exporters report that they are paying approximately $515 dollars per container entry and exit. Furthermore, compared to Caldera, the other important port in Costa Rica, approximately $200 dollars more are paid for the exit and entry of containers (full and empty). On average, approximately $120 million more has been paid during 2019, compared to what was paid before the TCM entered into operation. A study conducted by Cadexco revealed that the TCM's operating costs are considerably higher than the vast majority of ports in the hemisphere. Exporters assert that the rate problem goes beyond paying a higher price, as it directly affects the country's competitiveness and job creation, especially in rural areas. The high tariff costs of APM Terminals also affect the cost of living for Costa Ricans, by increasing the price of imported products as the import costs for containers entering through the Atlantic rise. On May 1, 2021, the President of the Republic himself came to recognize that: "Today the reality is that the TCM rates are more expensive than before and the terminal, two years after entering into operation, is already reaching its operational saturation." He indicates that a study from September 2012, titled "Port Matters in Costa Rica and Serious Deficiencies of the Bidding Process for the Concession on the Atlantic Coast of the Container Terminal in Moín," prepared by Daniel Pacheco Arias, who was part of the group that conducted a consulting service on port matters for the Public Services Regulatory Authority (ARESEP), carried out during the second half of 2009 and the first half of 2010, concludes that in Costa Rica we approved port rates similar to those of some countries in Europe and Asia, although we have Latin American salaries. Therefore, Daniel Pacheco concludes—regarding the tariff issue approved for APM TERMINALS—that: "In conclusion, if we are not going to pay here in Costa Rica like workers of the flagship ports of the U.S./Europe, then rates like those of the U.S./Europe should not be proposed. Cargo rates above $200 are not justified. The incongruity between salaries and rates would be fatal if the concessionaire subsequently adheres to the national minimum wage." He accuses that, in short, the rate established by clause 11 of the contract with APM TERMINALS is far above the regional average, and this has, among its consequences, the loss of competitiveness as a country, by making our imports and exports through the Atlantic port more expensive. APM Terminals' entry into the national territory foreshadowed greater modernity and efficiency compared to JAPDEVA's administration, which would translate, according to business leaders, into lower costs; however, this has not occurred. He argues that the foregoing allows one to understand a practical reason of the constitution-maker in prohibiting any figure similar to a concession for the docks. He indicates that while he is aware of the Constitutional Chamber's jurisprudential line regarding concessions and monopolies, the fact is that he also knows the Constitutional Chamber can vary its jurisprudential line and, indeed, there are quite a few cases in the past where it has changed its jurisprudential line. He therefore refers again to the study conducted by Daniel Pacheco Arias, which indicated: "We will not engage here in a dissertation on monopolies, but the long-term trends that could harm us in port matters are summarized in a paragraph. A private monopoly would have guaranteed demand (captive cargo). Cargo and rates determine income. In such a way that a concessionaire is tempted, as a private company, to optimize its profits by minimizing its costs, thereby affecting the quality of the service. Naturally, a private monopoly will not do what public sector unions do, such as shutting down the port and striking, as this would affect its income. But they can make clients (ships) wait in line, make minimal investments and/or delay them, be stingy when it comes to responding for damages, have the minimum equipment and personnel and not the optimal (according to the best industry standards) for cargo handling, etc. In competitive environments, if a concessionaire does not serve a client well (damages, slowness, abusive charges, etc.), the client moves its cargo to another terminal and/or port; thus, there is a link between quality and the concessionaire's income, which persuades the concessionaire to think twice before lowering the quality of the service. That is why there should be no monopolies lasting 3 decades. Developed countries, large or small, do not have port monopolies on their coasts. Neither does any serious developing country in Latin America have them. Neither the U.S. Government nor the European Commission has allowed a shipping line or a mega-port operator to acquire local or regional monopoly power, for which purpose they regulate permits, concessions, mergers, and acquisitions. The logical approach, and what is customary worldwide, is that in a port complex, as real demand grows, the installation of terminals by different containerized cargo operators is permitted. In this way, competition is introduced in an orderly manner. Each terminal may have one or several berthing positions, depending on the port's traffic." The claimant points out that the Constitutional Chamber has conducted the analysis regarding concessions and monopolies from the perspective of public service, but the truth is that seen from outside our borders, namely, from the point of view of shipping lines and international markets, it is clear that in Costa Rica, in the Atlantic ports, there is a single provider of the service for attending container vessels, and it matters little to them whether it is a concession or not, as the fact is that these shipping companies, in Costa Rica, can only leave their containers on the Costa Rican Atlantic with a single port operator, which is APM TERMINALS, and this explains the high rates, the low efficiency, and the poor quality of the service. He agrees, then, that in competitive environments, if a concessionaire does not serve a client well (damages, slowness, abusive charges, etc.), the client moves its cargo to another terminal and/or port; thus, there is a link between quality and income, a situation that does not exist on Costa Rica's Atlantic coast regarding container handling, since APM TERMINALS is the only company that provides this service. He alleges that this allows one to understand another practical reason of the constitution-maker in prohibiting any figure similar to the concession of the docks. He alleges, on the other hand, that on October 17, 2019, the Law that Transforms the Port Administration and Economic Development Board of the Atlantic Slope, Law No. 9764, was published in La Gaceta, which in its Article 18 amended Article 1 of its original law, with the following text: "The Port Administration and Economic Development Board of the Atlantic Slope is created, hereinafter referred to as JAPDEVA, as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for constructing, administering, operating, subcontracting, granting concessions for, and carrying out any other financial mechanism that national regulations permit, to develop port services, its own administrative management, and the investments, constructions, and improvements in the maritime and river ports of the Atlantic Slope, with the exception of those operating under subparagraph h) of Article 6 of this law." The original text of Article 1 of the Organic Law of JAPDEVA established: "The Port Administration and Economic Development Board of the Atlantic Slope is created, hereinafter referred to as JAPDEVA, as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for constructing, administering, conserving, and operating the current port of Limón and its extension to Cieneguita, as well as other maritime and river ports of the Atlantic Slope, with the exception of those operating under subparagraph h) of Article 60 of this law." Note how now, following this 2019 reform, the norm allows subcontracting, granting concessions for, and carrying out any other financial mechanism that national regulations permit—figures that did not exist in the original norm—to develop services, which previously JAPDEVA's own Organic Law did not permit, as, prior to the reform, JAPDEVA's Organic Law was in line with Article 121 of the Political Constitution, which in the final paragraph of paragraph 14 states: "The national railways, docks, and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor leave the control (dominio) and supervision of the State in any way." This reform introduced in 2019, through the Law for the Transformation of the Port Administration and Economic Development Board of the Atlantic Slope, Law No. 9764, by introducing these variations to the original text of JAPDEVA's Organic Law, is clearly allowing for the outsourcing of port services, as explained in the aforementioned official communication PEL15-2021, thereby disrespecting Article 121 of the Political Constitution. He reiterates that, in the Presidential speech given by Carlos Alvarado on May 1, 2021, it is acknowledged that just 2 years after entering into operation, the Terminal is already at operational saturation. An aspect that has a simple explanation, which is that the Concession Contract for public works with public service for the design, financing, construction, exploitation, and maintenance of the Moín container terminal, in its point 4.1.1. 22, indicates that phase 2 will only have 2 berthing positions. If one reads the Master Plan used as the basis for this concession, specifically on pages 87 and 88, in point 6.10, it is indicated that in phase 2, the new container terminal is operational. This phase begins in 2016 and lasts until 2020. The docks for container handling are the Taiwanese Pier and the New Container Terminal with 900m of dock, and it is even indicated that: "With an average LOA of container ships of 180m at the end of phase 2, it can be concluded that the port has 5 docks available for container handling." According to this Master Plan, what was contemplated was that the servicing of container vessels by APM TERMINALS and by JAPDEVA would coexist, which can be corroborated in its Table 6-5, specifically in point 6.9.3., visible on pages 85 and 86 of said document. Thus, in phase 2, which is the phase we are told we are currently in, the Master Plan acknowledges that there were going to be 5 berthing positions for container handling in the Atlantic, namely, the 3 at the TCM and the 2 at JAPDEVA, for a total of 1,200 linear meters of dock. Something very far from the 2 berthing positions that APM TERMINALS has for servicing the container vessels arriving on the Atlantic. On the other hand, in point 6.10, on pages 87 and 88 of this Master Plan, it is indicated that in phase 3, the new Container Terminal will be extended with an additional 600m. In phase 3 (2021 - 2030), containers will be handled at the Taiwanese Pier and at the new Container Terminal of 1500m of dock, where it is even stated: "Based on an average LOA of container ships of 210m at the end of phase 3, it can be deduced that the port has 7 docks available for container handling." It should be noted, then, that according to this Master Plan, the Moín complex would have, in phase 2A, about 5 berthing positions for servicing container vessels, and starting in 2021, about 7 berthing positions for container vessels; however, currently, in 2022, the country is actually only using the 2 berthing positions of the TCM for servicing container vessels; namely, the same number of berthing positions that JAPDEVA had in 2008 specialized for that purpose. He accuses that it is clear that, with this concession, there is a flagrant disrespect for the principle of constitutional efficiency, since by disrespecting the bidding specifications and the Master Plan, an absolutely illogical and irrational concession was allowed to be approved for the country, because if JAPDEVA had a total of 700 meters of dock specialized for container handling prior to the construction of the TCM, one could not speak of an increase in the port's installed capacity if currently the company APM TERMINALS only has 2 berthing positions with a total of 600 linear meters of dock. He argues that, therefore, we are no longer just facing an unconstitutionality of Article 2, paragraph 2, of the General Law on Concessions of Public Works with Public Services, but rather an unconstitutionality of the concession contract itself, by approving a contract that, far from increasing the installed capacity of the ports on the Atlantic, actually decreased it, since in practice JAPDEVA used the remaining berths for servicing container vessels when necessary. Regarding the principles of effectiveness and efficiency, he cites the judgment of this Chamber no. 12.330-2011. He points out that it is clear that there cannot be efficiency if, prior to the TCM entering into operation, JAPDEVA had 2 specialized berths for container handling but could serve vessels with containers at any of the remaining 10 berthing positions of the Limón-Moín port complex, and now it has been reduced to only the 2 berthing positions of the TCM for container handling, when the Master Plan guaranteed 5 berthing positions for specialized container handling at this moment. He accuses that when the Government interprets that the contract gives APM TERMINALS exclusivity over servicing container vessels, now the TCM must become "choked," trying to handle one million two hundred thousand containers—which is what JAPDEVA was handling—on only 2 berthing positions, which clearly vitiates the principles of efficiency and effectiveness of the Administration. He cites vote no. 12.330-2011 again. He points out that this vitiates the concession contract given to the company APM TERMINALS with unconstitutionality and requests that it be declared as such. He refers, again, to the Presidential speech given by Carlos Alvarado on May 1, 2021, given that the Executive Branch is acknowledging that the APM TERMINALS concession is not only more expensive for importers and that it is experiencing saturation problems, but also acknowledges that the business that JAPDEVA used to conduct was ceded to a private company, without foreseeing how the institution would maintain its payroll when its income was eliminated. He asserts that, when the container handling business belonged to JAPDEVA, the rate was much lower for the businessperson, and even so it allowed JAPDEVA to pay very competitive salaries, well above the legal minimum, to its employees; but with APM TERMINALS, rates skyrocketed for users, but the salaries for the workers who now handle the loading and unloading of containers decreased compared to what JAPDEVA paid for the same work, for the officials who had to be dismissed from their jobs at the institution. However, at SINTRAJAP, there is great concern that this policy of outsourcing public services continues to be promoted, even though it is detrimental to the most adequate distribution of wealth established in Article 50 of our Political Constitution, because although the institution may have a reduction in payroll costs, the contracting companies will, at the same time, hire their employees at the lowest possible salary, which will allow the businessperson to make the highest profits possible. That is, the greatest well-being is no longer being guaranteed to all inhabitants of the country, but rather the greatest well-being for a few businesspeople, who, contracting at the lowest possible cost, will be carrying out tasks that had been performed by well-remunerated JAPDEVA officials, thereby guaranteeing a better and more adequate distribution of wealth. He cites votes 2005-17612 and 2007-09469 of this Chamber. The claimant alleges that it is clear that the State must guarantee production, but not at any cost, as, hand in hand, it must strive for the most adequate distribution of wealth, and this implies that if an institution is already providing services directly with its own officials and these officials are receiving a comfortable salary to cover their family needs, the Government would be acting wrongly by promoting the outsourcing of the service now, since this implies that a single businessperson will contract the same services at the lowest possible cost, in order to obtain the greatest profit possible for himself. This violates the Christian principle of social justice mentioned in judgment 1273-95 of the Constitutional Chamber. It is not dignified that the people who perform the work are those who receive the least for said work, while a third party, namely the businessperson, is the one who receives the most money and profit for the tasks these workers are performing. The American Convention on Human Rights refers to the inherent dignity of the human being in its Article 5, when dealing with the right to personal integrity—an expression repeated in Article 10 of the International Covenant on Civil and Political Rights—as well as Articles 6, relating to the prohibition of slavery and servitude, and 11, which expressly refers to the protection of honor and dignity. He points out that care must be taken if we gradually move from having well-remunerated people (officials) to well-remunerated companies that pay legal minimums to those who perform the work, as this gradually creates undignified situations similar to those of the past, where business and political elites literally lived off the production and labor performed by their slaves, thus promoting a veiled form of slavery in this century. The dignity of the person is respected as long as they are not considered an object, in this case, an object given the lowest possible salary so that third parties can profit from their labor. He alleges that here we see the logic enshrined in the Political Constitution, in its Article 50, that there exists a norm that guarantees the greatest well-being to all inhabitants of the country, not only by organizing and energetically stimulating production, but also by guaranteeing the most adequate distribution of wealth. He cites judgments 1273-95 and 5907-2007 of this Constitutional Chamber. He affirms that, in the case of JAPDEVA's docks, it is clear that since these have been in operation for many years, here its workers have not only contributed to the Nation's well-being, but also, thanks to the possibility of affiliation with a union like SINTRAJAP and having a collective bargaining agreement, they have been guaranteed the best possible working conditions, including the best possible salary or remuneration according to the type of work, taking into account not only their professional expertise, but also the physical or mental effort of their labor, and also the risk of their particular job, aspects that are not always taken into account when implementing minimum wage policies and, therefore, it is clear that the policy of outsourcing port services is detrimental to these social-labor achievements, given that the new JAPDEVA workers will have to fall back on a minimum wage policy, since they will not be direct employees of JAPDEVA, but rather will be employees of a company that will seek to obtain the greatest possible profit from their labor and, for this purpose, will adopt a minimum wage policy, which in his judgment will violate the special protection granted by Article 121, paragraph 14, of the Political Constitution, not only because it is a matter of national security, but because the dock workers have always been JAPDEVA employees and have always had remuneration that guarantees the greatest distribution of wealth. He considers that the legislators, especially Epsy Campbell and Margarita Penón Góngora of the Partido Acción Ciudadana, were right when they filed an action of unconstitutionality in 2004, alleging at that time that the norms and acts they were challenging, which sought the concession or outsourcing of the Pacific docks, could only be achieved by way of a constitutional amendment to release the Nation's docks, by virtue of the special protection granted by Article 121, paragraph 14), of the Political Constitution. A norm that, according to the constituent deputies, must be interpreted to mean that the docks must, in no way, leave the control (dominio) of the Nation, nor be given over for exploitation (explotación) to private parties. However, 17 years later, the same Partido Acción Ciudadana, in the person of Andrea Centeno, seeks to do in the Atlantic ports what, 17 years ago, deputies Epsy Campbell and Margarita Penón Góngora of that same political party tried to prevent in the Pacific, which not only could endanger the security of the Nation—by seeking to transfer even the security of the docks to a private company—but also, by outsourcing the activity currently performed by JAPDEVA workers, who receive income that allows a good distribution of wealth in the province of Limón, will now lead to having workers who will only receive the legal minimum with the most extensive workdays possible, to perform the same tasks that JAPDEVA workers currently perform efficiently and safely, and this only to "lower costs" and thereby allow a few businesspeople to profit from the work that their employees will perform, which will increase inequality in the country. This violates the principle of social justice.

He points out that an attempt will be made to indicate that outsourcing is a policy aimed at economically rescuing JAPDEVA, but it was public and notorious that JAPDEVA, in 2018, at the beginning of the current Government, had a surplus that even allowed the Government to use its funds to repair the Matina dike; but it is with the start of operations of APM TERMINALS, as the servicing of all container ships was transferred to said terminal, that JAPDEVA saw its budget reduced, its financial situation worsened, and finally resulted in the Law that Transforms the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, with which the situation of the province of Limón has worsened, as it has entailed the termination of employment of more than 600 direct workers of JAPDEVA, people who had a dignified income that fostered a good distribution of wealth, to having a company that performs the same work that JAPDEVA performed at a much higher cost for exporting and importing business owners, and with wage policies much lower than those JAPDEVA had, which has worsened the economic situation of the province of Limón, since wealth is no longer being distributed among its population, but is leaving the country as the concessionaire is a foreign company, and if the institution's current services are outsourced, this serious situation in the province of Limón will worsen even further, because the money will go to a few business owners who are probably not even from Limón and the workers will earn only the minimum to subsist. The claimant indicates that there is an aspect to take into account from the perspective of constitutional rationality, and that is that as a result of the implementation of this concession to APM TERMINALS, the cost of imports and exports through the Atlantic became more expensive, which reduced the country's competitiveness in the international market for its products; but most seriously, the TCM is at the limit of its operational capacity, since far from increasing the operational capacity of the Atlantic ports, it was rather decreased. But, furthermore, before the implementation of such concession, with rates much lower than the current ones, for servicing container ships, the export and import sector benefited from very competitive regional rates, and with this income JAPDEVA managed not only to pay its payroll of 1400 employees, but was also able to carry out works in the Atlantic Region, such as the repair of the dike in Matina in 2018. That is to say, the income from servicing ships allowed the 1400 employees not only to receive a minimum wage, but also allowed that, through historic struggles and the collective bargaining agreement, the 1400 employees had incomes even above the average compared to other institutions in the country, and this allowed for a better distribution of wealth in Limón and the country, because these 1400 employees invested this money mostly within Limón. With the start of operations of APM TERMINALS, JAPDEVA encountered a marked reduction in its current income, and this forced the Central Government to transfer money from the central budget to the institution to finance this financial gap, as well as to modify JAPDEVA's Organic Law to allow it to eliminate more than 900 jobs from the institution, forcing the Central Government to finance early retirements, horizontal mobility to other institutions, and all this to allow a concession that has proven to be more expensive for the country to be maintained, since it is reducing the competitiveness of exports and imports, as well as to allow a concession that did not increase the port capacity of the Atlantic, but decreased it. One last negative effect of this concession is that APM TERMINALS' income, having a low wage policy, is mostly profits, that is, they are substantial sums of money that leave the country as it is a foreign concession; that is, this concession fosters a negative balance of payments for the country, since, annually, millions of dollars leave the country as a result of the income this foreign concessionaire receives due to its high rates, impoverishing not only the workers and citizens in general by raising the cost of living, but also favoring an impoverishment of the country as a whole, which in the long run is causing greater inflation, a greater devaluation of the colón, and is thus favoring the economic crisis the country is going through, which affects all citizens. He requests that, consequently, this acción de inconstitucionalidad be declared with merit.

2.- For the purpose of substantiating his standing, the claimant alleges that this acción de inconstitucionalidad does not require a prior case, judicial or administrative, as established by constitutional articles 7, 50, and 89, in connection with the matter discussed in the present case, and the provisions of article 75, second paragraph, of the Ley de la Jurisdicción Constitucional, as there is a manifest diffuse interest at stake, which is respect for constitutional legality regarding the correct handling of public funds. In the present matter, since the right to the correct handling of public domain assets (bienes demaniales) is at stake, which goes hand in hand with the correct handling of public funds, standing therefore derives from the cited article 75, second paragraph, of the Ley de la Jurisdicción Constitucional. He points out, on the other hand, that a harmonious interpretation of article 60 of the Constitución Política, in relation to numerals 7, 11, and 12 of the International Covenant on Economic, Social and Cultural Rights, allows deriving that, among the powers of unions, the pursuit of dignified living conditions for workers, the defense of the right of workers and their families to the enjoyment of the highest attainable standard of physical and mental health, and the improvement in all its aspects of occupational hygiene and the environment are included. This legitimizes SINTRAJAP for the filing of this action, because, as a result of the way the situations of this concession have occurred, the jobs of hundreds of JAPDEVA employees affiliated with SINTRAJAP have been affected.

3.- Article 9 of the Ley de la Jurisdicción Constitucional empowers the Chamber to reject on procedural grounds or on the merits, at any time, even from its presentation, any petition submitted for its consideration that proves to be manifestly inadmissible, or when it considers that there are sufficient elements of judgment to reject it, or that it is the simple reiteration or reproduction of a prior, identical or similar rejected petition.

Authored by Judge Castillo Víquez; and,

Considering:

I.- OBJECT OF THE ACTION. The claimant challenges, first, subsections 2) and 3) of article 2 and subsection 4) of article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as they provide:

"Article 2.- Coverage 1.- Any work and its exploitation are susceptible to concession when there are reasons of public interest, which must be recorded in the case file through a reasoned act. Telecommunications, electricity, and health services are excepted from the application of this Law.

2.- Railways, rail lines, docks, and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures provided in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains for the provisions of article 42.1 a) of this law, by reason of the new works or expansions concessioned at the cited docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be used exclusively for investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall become the property of the mentioned entities, as applicable." (the emphasis does not correspond to the original) "Article 5.- Definition and performance:

1.- For the purposes of this law, the Granting Administration is understood to be the Executive Branch, public companies, and the decentralized territorial and institutional sector.

2.- When the object of the concession falls within the scope of competence of an organ of the Executive Branch, the Consejo Nacional de Concesiones, having previously demonstrated the legal, technical, environmental, economic, and financial feasibility of the project, shall be the competent technical entity to act in the contracting procedure stage and, when necessary, during the execution of the contract.

The contract shall be signed by both the Executive Branch, represented by the Minister of the branch, the Minister of Finance, and the President of the Republic, and by the Consejo Nacional de Concesiones.

3- When the object of the concession falls within the scope of competence of the decentralized sector, public companies, and local governments, such public entities, individually or grouped, by means of an agreement signed with the Consejo Nacional de Concesiones, may agree with this body on the procedure for selecting the concessionaire and the execution of the concession contract.

4.- It corresponds exclusively to the Executive Branch, considered in the terms of article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, rail lines, docks, and international airports, both new and existing. The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of article 2.3 of this law.

5.- Cases in which the decentralized sector or public companies directly concession shall be governed by this law." (the emphasis does not correspond to the original) They also challenge ordinance 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA), Law No. 9764 of October 15, 2019, which modified numeral 1 of JAPDEVA's Organic Law, for the purpose of establishing—the latter—that:

"Article 1°- The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica is hereby created, hereinafter referred to as Japdeva, as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for constructing, administering, operating, subcontracting, concessioning, and carrying out any other financial mechanism that national regulations permit, to develop port services, its own administrative management, and the investments, constructions, and improvements, in the maritime and fluvial ports of the Atlantic Region, with the exception of those operating under subsection h) of article 6 of this law.

It shall administer and coordinate with any organ of the Public Administration, centralized or decentralized, for the channeling of the Atlantic and the lands and assets that this same law grants it." Finally, they request that the unconstitutionality of the Contrato de concesión de obra pública con servicio público for the design, financing, construction, exploitation, and maintenance of the terminal de contenedores de Moín also be declared.

II.- ON THE ADMISSIBILITY OF THIS ACCIÓN DE INCONSTITUCIONALIDAD. This Chamber considers that the claimant has sufficient standing to challenge the unconstitutionality of subsections 2) and 3) of article 2 and subsection 4) of article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as well as ordinance 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which modified numeral 1 of JAPDEVA's Organic Law, as they expressly allege the defense of diffuse interests, regarding the "correct handling of public domain assets (bienes demaniales)", since, this Court has deemed that, indeed, the defense of "assets of the constitutional public domain" constitutes a case of diffuse interests that grants direct standing for the filing of an acción de inconstitucionalidad (Voto No. 2011-2698) and that the "defense of the Nation's own patrimony, formed by the totality of the assets that make up the public domain, constitutionally recognized in article 121 subsection 14)", enjoys "privileged protection through the possibility that any person, based on the authorization conferred in this regard by article 75, paragraph 2 of the Ley de la Jurisdicción Constitucional, directly files the acción de inconstitucionalidad" (Voto No. 2005-05651).

However, pursuant to article 9 of the Ley de la Jurisdicción Constitucional, this Tribunal can reject on the merits any petition, even from its presentation or in limine litis, when it considers that there are sufficient elements of judgment, which is the case in the sub lite, regarding such normative provisions, as will be analyzed in the following considerandos.

Regarding, specifically, the Contrato de concesión de obra pública con servicio público for the design, financing, construction, exploitation, and maintenance of the terminal de contenedores de Moín, this Tribunal considers that this action is inadmissible by reason of its object, therefore its outright rejection proceeds, as will also be analyzed in the respective considerando.

III.- ON THE CHALLENGE TO SUBSECTIONS 2) AND 3) OF ARTICLE 2 AND SUBSECTION 4) OF ARTICLE 5 OF THE LEY GENERAL DE CONCESIÓN DE OBRAS PÚBLICAS CON SERVICIOS PÚBLICOS. As for this first point of the action, the claimant alleges that, according to an adequate interpretation or understanding of article 121, subsection 14, final paragraph, of the Constitución Política, the application of the legal figure of the concession in the case of docks is unconstitutional, which causes the unconstitutionality of subsections 2) and 3) of article 2 and subsection 4) of article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos. In response to such objection, it must be pointed out that this Chamber has already ruled on the constitutionality of said regulation, and express reference has been made to the issue raised by the claimant. Thus, in Voto No. 2013-015693 of 4:20 p.m. on November 27, 2013, issued in expediente No. 12-009578-0007-CO, this Chamber resolved that:

"IV.- Object of the action. The claimant challenges the apparent unconstitutionality derived from subsections 2) and 3) of article 2 and subsection 4) of ordinance 5 of Law No. 7762 of April 14, 1998, called "Ley General de Concesión de Obra Pública con Servicio Público" and, by connection, the Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, since the required approval of the Legislative Assembly was omitted.

The rules alluded to by the petitioner state the following:

"ARTICLE 2.- Coverage (...)

2.- Railways, rail lines, docks, and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures provided in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains for the provisions of article 42.1 a) of this law, by reason of the new works or expansions concessioned at the cited docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be used exclusively for investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall become the property of the mentioned entities, as applicable" "SECTION I GRANTING ADMINISTRATION ARTICLE 5.- Definition and performance (...)

4.- It corresponds exclusively to the Executive Branch, considered in the terms of article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, rail lines, docks, and international airports, both new and existing.

The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of article 2.3 of this law" The claimant deems that an unconstitutionality by omission occurs, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of articles 140 subsection 19 and 121 subsection 14 of the Constitución Política, it is inferred that in the case of administrative contracts of special significance related to railways, docks, and national airports, legislative approval is inexorably required, since the Fundamental Law did not foresee the possibility of a special law, as it does in the case of the assets mentioned in sections a), b), and c) of the cited subsection 14. Such aspect was not examined previously by the Chamber, according to the claimant.

Consequently, they request the following: "(...) that in the judgment, the following be declared unconstitutional by omission: article 2, subsections 2) and 3), and article 5, subsection 4), both of Law 7762 of April 14, 1998 (Ley General de Concesión de Obra Pública con Servicio Público) and, by connection, the Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, of February 13, 2012. In a subsidiary manner, we request the Constitutional Chamber to declare that article 2, subsections 2) and 3), and article 5, subsection 4), both of Law 7762 of April 14, 1998 (Ley General de Concesión de Obra Pública con Servicio Público), as the legal basis of the Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, of February 13, 2012, understood in accordance with the Law of the Constitución Política, necessarily entail the Legislative Approval procedure provided for in the Constitutional Legal Norm resulting from the referral of article 140 subsection 19) to article 121 subsection 14) (...)".

Consequently, it is not the object of this action whether article 121 of the Constitución Política prohibits that, by way of concession, a private party may exploit legal businesses referring to railways, docks, and national airports, since the appellant itself admits this possibility and only objects that the legal efficacy of such type of concession is not conditioned upon subsequent legislative approval.

VI.- Background of this Chamber. As the parties rightly state, this Tribunal has had the opportunity to refer in previous pronouncements to the topic of legislative approval in certain types of administrative contracts. Firstly, in judgment number 3789-92 of 12:00 p.m. on November 27, 1992, the following was indicated:

"III. ON THE CONFLICT WITH ARTICLE 121, SUBSECTION 14 OF THE CONSTITUCIÓN POLITICA: It is stated in the consultation that 'It has been questioned by some that, by empowering the concessionaire to exploit the new railway, dock, and airport facilities, in accordance with article six, second subsection of the bill, it could be conflicting with the constitutional provision that prevents the transfer of these works, article 121, subsection 14 of our Carta Magna.' Article 6 of the Bill states:

'ARTICLE 6.- National railways, docks, and airports, the latter while in service, cannot be transferred, leased, or encumbered, directly or indirectly, nor leave, in any form, the domain and control of the State.

'The concessions granted to build and exploit new railway, dock, and airport facilities must be processed in accordance with this Law and approved by the Legislative Assembly, within a period no longer than forty-five days from their presentation.

'Complementary or non-essential public services, located in railways, docks, and airports, may be granted in concession.' As observed, the first paragraph of article 6 coincides with what the Constitution provides in the last paragraph of article 121, subsection 14). It is, essentially, an "echo norm". As for the rest, it must be noted that the concession for the construction and exploitation of new railway, dock, and airport facilities is subject to a qualified procedure, since it ultimately requires approval by the Legislative Assembly. Except for this fact, and because in this same case the concession may be granted for a period of 'up to fifty years' (article 9 of the Bill), the institute in no way differs from the concession of public works in general, as regulated in the Bill' (the emphasis does not correspond to the original) As can be verified from the reading of that excerpt, this Tribunal had pointed out the existence of a 'qualified' procedure for the case of concessions for the construction and exploitation of new railway, dock, and airport facilities, since they ultimately required approval by the Legislative Assembly. However, already in judgment number 6240-93 of 2:00 p.m. on November 26, 1993, the Chamber changed its criterion regarding the point that is the object of this action:

"II.- In the consultation processed under #4171-93, accumulated to the previous one, the Representatives question article 9 of the Bill, insofar as it confers powers to the Executive Branch for the signing of contracts for the exploration and exploitation of hydrocarbons, without submitting them to legislative approval. This norm, together with that of 13 subsection d), indicates the attributions of the Technical Council and the General Director of Hydrocarbons, as follows: 'Article 9...

• h)Approve contracts for the exploration and exploitation of hydrocarbons.' 'Article 13...
• d)Sign contracts for the exploration and exploitation of hydrocarbons and submit them to the approval of the Technical Council.' The Chamber deems that, in accordance with its judgment #3789-92 of 12:00 p.m. on November 27, 1992, article 121.14) of the Constitución Política contains three distinct, clearly differentiated rules: 'a) The first is a norm that empowers the Legislative Assembly to decree the transfer or application to public uses of the Nation's own assets. On one hand, this norm is unrestricted insofar as it refers to all the Nation's own assets, and, on the other, it reserves the matter to the law, invalidating administrative acts of transfer or application to public uses not based on prior law; b) The second prescribes which assets may not permanently leave the domain of the State. For those categories, which are stated in subsections a), b), and c), the restriction is total and absolute regarding leaving the domain of the State, but, immediately, the norm moderates its severity warning that such categories of assets can be exploited by the public administration or by private parties in accordance with the law or through special concession; c) The third is a norm that specifically refers to certain assets (railways, docks, and national airports in service) not included in the three categories of the preceding norm.' Consequently, the Constitution provides for two regimes to exploit these specially protected natural resources, without any of them being able to leave the domain of the State: One, that of concessions or contracts granted by the Legislative Assembly directly, in use of an original competence; the second, the possibility either to exploit them by the Public Administration, or to entrust them to private parties, through a legally granted or authorized concession. Both possibilities presuppose the competence of the Legislative Assembly to set in the specific case, or else regulate in a general law, imperative 'conditions and stipulations' in the execution of the contract—such as its temporary nature, form of compliance, minimum obligations of the executor, etc.—which place beyond the reach of the concessionaires or the agreement itself of the parties, the possibility of deviating from them. It is not idle to recall that the administrative act of concession never acquires the character or rank of law, even if it is processed and adopted as such, (arts. 140.19 and especially 124.2 of the Constitution).

III.- Thus, one of the forms established there, obviously foreseeing how difficult and complicated having to go to the Legislative Assembly for the approval of each individual concession contract can be, is that of a general regulatory law of the contracting process, commonly known as a 'framework law'. In this case, the Legislative Assembly vests in the Public Administration the power to grant specific concessions, a competence that, of course, does not include that of entirely replacing the function of the former, as will be stated later (...)

This norm vests the Executive Branch with original constitutional competence for the signing of administrative contracts, whether agreed upon with private parties or with other public entities—as administrative contracts they are—in accordance with which, and also in light of the scheme of separation of functions of the Powers of the State, it is the exclusive power of the Executive Branch, specifically the President together with the Minister of the branch, while article 121 subsection 14), in matters reserved by the Constitution itself by virtue of their capital importance, does not expressly provide for said competence, when the Legislative Assembly does not choose to grant the concession itself, but rather to regulate it so that the Administration does it' (the emphasis is not original) In this way, the Chamber began to recognize the possibility that the Legislative Assembly could regulate, through a general concession law, the contracting process for the approval of each individual concession contract, foreseeing how difficult and complicated having to go to the Legislative Assembly for the approval of each individual concession contract can be. Thus, the Legislative Assembly would vest in the Public Administration the power to grant specific concessions.

This criterion related to the approval of a general law on matters of administrative contracting, was subsequently reiterated through judgment number 2319-98 of 5:51 p.m. on March 31, 1998, in which this Tribunal upheld the following:

"III.- ON THE MERITS OF THE QUESTIONS CONSULTED: Having clarified the points on admissibility and scope of the formulated consultation, a pronouncement on the merits proceeds. In summary, the consultation refers to three aspects of the Bill. On one hand, it is questioned whether the consulted bill is contrary to the provisions of article 121, subsection 14 of the Constitución Política, in accordance with the parameters this Chamber has defined. In the criterion of the consultants, although it is possible to grant railways, docks, and airports, which are assets of the Nation, in concession, it is not possible to grant an authorization to the Executive Branch for such purposes generically in the Framework Law, rather the Legislative Assembly must authorize the contract in each individual case.

(...)

In this Chamber's criterion, nothing impedes that by means of a framework law, the Assembly empower the Executive Branch to grant public assets in concession, without a specific approval for each particular case being necessary, since it is understood that it has given a general approval for such effect, in compliance with the Constitution itself. In summary, regarding this consulted aspect, the Chamber finds no unconstitutionality whatsoever' (the underline does not correspond to the original) In the same sense, Voto número 2005-005651 of 2:41 p.m. on May 11, 2005, can be cited, through which the Chamber again authorized the existence of a general law in which the Legislative Assembly could delegate to the Executive Branch the signing and approval of administrative contracts in general. In this regard, the following was stated:

"(...) In the cited judgment, it is clearly stated that the possibility of granting assets such as docks in concession, within the parameters that the Chamber has described, does not constitute a violation of the Constitución Política, since in accordance with the nature of the 'concession', these assets are not being released from their public purpose (desafectando), as they are not being separated from the public purpose to which they are linked, therefore they do not leave the public domain, nor are they being transferred, leased, or encumbered, so the alleged violation does not occur."

Now, in this study we are discussing two distinct concession figures: the public works with public services concession, regulated in the Law challenged here, and the public service management concession regulated in the Public Procurement Law. Both involve different modalities of concession, but in any case, as already indicated, they do not violate Article 121, subsection 14. In fact, this Court has already addressed the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was pending:

(...)

In the case of public works with public services concessions, the General Public Works Concession Law is applicable as a framework law, and for the public service management concession, the Public Procurement Law, Articles 74 and 75, apply. In this understanding, it is not unconstitutional for the public administration to concession these assets within the parameters this Court has indicated. On the other hand, as the plaintiffs themselves correctly indicate, Article 2, subsection 3 challenged here states that: “... In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.”, conforming to Article 121, subsection 14, so that whether the questioned bidding processes violate said provision is a matter that must be determined through the legality review process, since we would consequently not be facing a constitutional violation, but rather a nonconformity with the application of the law” (emphasis not in original).

In summary, it can be affirmed that the jurisprudential line regarding the issue of legislative approval for certain administrative contracts of national relevance has determined it to be constitutional for the Legislative Assembly, through a general concession law, to delegate to the Executive Branch the signing and final approval of administrative contracts, even those concerning public assets of special importance, such as those considered as such by the Constituent Assembly in Article 121, subsection 14) of the Political Constitution.

VII.- On the merits. The scope of the constitutional norms invoked. As correctly indicated in Considerando V of this judgment, the plaintiff considers that there is an unconstitutionality by omission in Articles 2, subsections 2) and 3), and 5, subsection 4), both of Law No. 7762 “Ley General de Concesión de Obra Pública con Servicio Público”, insofar as they do not provide for the legislative approval procedure established in numerals 140, subsection 19) and 121, subsection 14) of the Political Constitution. In order to determine whether the plaintiff is correct in his allegations, it is necessary to analyze the structure and content of the constitutional norms the plaintiff claims are infringed, with the aim of subsequently confronting the legal norms, in what they state and in what they omit, with the constitutional ones, in order to determine their validity in light of Constitutional Law.

7.1) First, ordinal 121, subsection 14) of the Fundamental Charter states the following:

“ARTICLE 121.- In addition to the other powers conferred by this Constitution, the following correspond exclusively to the Legislative Assembly:

(...)

• 14)To decree the divestiture or the application to public uses of the Nation's own property.

The following may not permanently leave the domain of the State:

• a)The forces that can be obtained from public domain waters within the national territory; b) Coal deposits, sources and deposits of petroleum, and any other hydrocarbon substances, as well as deposits of radioactive minerals existing within the national territory; c) Wireless services; The assets mentioned in subsections a), b) and c) above may only be exploited by the public administration or by private parties, in accordance with the law or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly.

National railways, docks, and airports—the latter while they are in service—may not be divested, leased, or encumbered, directly or indirectly, nor may they leave in any way the domain and control of the State.” The cited subsection is structured into three general norms (without prejudice to the existence of other more specific norms), as determined by this Chamber since its inception: “Article 121, subsection 14) contains three distinct norms, which must be clearly differentiated” (Judgment 3789-92). The first of these is found in the first paragraph of said subsection and establishes a general rule. The following two constitute exceptions to the rule. Of these, the second is contained in the second paragraph, sub-subsections a), b), and c), and the third paragraph of the subsection in question, where a distinctive regulation is established concerning the forces obtained from waters, coal deposits, sources and deposits of petroleum, hydrocarbon substances, deposits of radioactive minerals, and wireless services. Finally, the third norm is located in the last paragraph of the subsection and refers to national railways, docks, and airports in service.

Concerning the first norm, the Chamber has stated that; “it empowers the Legislative Assembly to decree 'the divestiture or the application to public uses of the Nation's own property'. On the one hand, this norm is unrestricted as it refers to all of the Nation's own property, and, on the other, it reserves the matter to law, invalidating administrative acts of divestiture or application to public uses not based on prior law.” Thus, the constituent power, through this norm, attributes general powers to the Legislative Assembly over the Nation's assets in two specific cases: divestiture and application to public uses.

Divestiture consists of the transfer of ownership of an asset or the title to a right to a different estate. Disposition is not synonymous with divestiture; there exists a genus-species relationship between them. Divestiture is a form of asset disposition, consisting of the displacement of the asset from one estate to another. The divestiture of the principal asset entails that of its accessories (principle of accessoriness) and the transferor's liability for defects and eviction. Limitations on divestiture are given by law or by the Constitution itself, and they prevent the temporary or definitive divestiture of the asset. As a general rule, assets dedicated to the public domain cannot be divested unless a legal provision states otherwise.

Thus, in accordance with the provisions of the first paragraph of subsection 14 of constitutional Article 121, it is incumbent upon the Legislative Assembly, in exercise of the legislative reserve granted by the Political Constitution, to divest, that is, to transfer the domain of the Nation's assets to a third party, or to dedicate them to public uses: common or special, while they continue within its estate. Public administrations only have competence in this matter based on a prior law that expressly empowers them.

The second norm of subsection 14 of constitutional numeral 121 contains an exception to the general rule that empowers the legislator to divest the Nation's own property. Indeed, the norm refers to assets that cannot leave the domain of the State, which cannot be divested but can be exploited by the Public Administration or private parties in two ways: a) in accordance with the Law or b) through a special concession (subject to the conditions and stipulations established by the Legislative Assembly). In relation to this norm, the Constitutional Chamber stated: “The second prescribes which assets 'may not permanently leave the domain of the State'. For these categories, which are listed in subsections a), b), and c), the restriction is total and absolute regarding 'leaving the domain of the State', but, immediately, the norm moderates its severity warning that such categories of assets may be 'exploited by the public administration or by private parties' in accordance with the law or through a special concession.” (Judgment #3789-92).

The third norm, contained in the last paragraph of subsection 14 of Article 121 of the Political Constitution, is of special relevance for the decision of the sub examine, as it specifically refers to railways, ports, and airports. Regarding this norm, the Constitutional Chamber stated in judgment number 3789-92 of 12:00 hours on November 27, 1992, repeatedly cited in the jurisprudence of this Chamber, the following:

“The third is a norm that specifically refers to certain assets (national railways, docks, and airports in service) not included in the three categories of the preceding norm. If nothing were said about these assets, they would be covered by the empowerment norm with which subsection 14) begins, as has already been seen.

But the existence of this specific provision implies a distinct legal regime for these assets, which limits the general principle of divestiture and application to public uses in a rigorous manner: such assets 'may not be divested, leased, or encumbered, directly or indirectly, nor may they leave in any way the domain and control of the State'.

The norm alludes, firstly, to divestiture, lease, or encumbrance, but the expression 'directly or indirectly', in the rigid context of the provision, may refer both to the situation in which the State acts by itself or through other legal entities (subjective sense), or to cases in which modalities or means are employed that have equivalent or similar legal consequences or effects, although per se they do not technically constitute divestiture, lease, or encumbrance (substantive sense).

Next, this rigor is confirmed with the expression 'nor may they leave in any way the domain and control of the State', an expression that must also be given a broad coverage of hypotheses due to the norm's vocation.” It is deduced from the norm that the prohibition against directly or indirectly divesting or encumbering national railways, ports, and airports in service constitutes an exception to the rule of the first paragraph of subsection 14, which empowers the Legislative Assembly to divest the Nation's own property. Conversely, the prohibition against directly or indirectly leasing national railways, ports, and airports reinforces the second idea of the first paragraph, concerning the destination of these assets for public uses. Both prohibitions become constitutional guarantees. The first safeguards certain strategic assets for the Nation's economic development, ensuring they do not leave the State's estate under any circumstances. The second safeguards the public use of such assets. With the first, the constituent power removed this competence from the Legislative Assembly and, with greater reason, from the Administration, and reserved the matter to the Constituent Power, so that, by virtue of the principles of parallelism of forms and preservation of rank, a prior constitutional amendment is required for the divestiture of any of these assets. With the second, the private use of such assets is prohibited.

It is logical that if the Constitution imposes the prohibition against divesting railways, ports, and airports, directly or indirectly, it also prevents them from being encumbered. The ratio iuris is evident: the constitution of a mortgage over these assets, as security for, for example, a public credit, would entail the risk of loss of ownership. The mortgage is not only a concept foreign to the regime of public domain assets, but is also, in this case, prohibited by the fundamental norm itself.

The Constitution rejects any legal concept that implies the direct or indirect divestiture of the asset. To that extent, concepts such as seizure would also be prohibited. Seizure, stricto sensu, does not inexorably imply divestiture, as it responds to a security measure to prevent the owner of the thing from disposing of it; however, it entails the risk of eventual divestiture, since that precautionary measure, ultimately, aims to secure the forced execution of the asset when the contractual obligation it guarantees is breached. Given the constitutional prohibition, seizure would also be prohibited, as it poses a risk to the loss of ownership. Seizure would also be inappropriate due to the incompetence of the ordinary judge to change the destination of the asset that the Constitution confers upon it, and they cannot, consequently, order a seizure or proceed with its execution.

National railways, ports, and airports in service cannot be subject to judicial execution either; actions for dispossession, interdicts, or possessory actions are not appropriate against them.

Now, the Constitution establishes an absolute prohibition on divestiture but in no way a total prohibition on other forms of disposition of the asset (subject to them not leaving the domain and control of the State in the case of railways, docks, and airports). Is a concession constitutionally possible in the context of the norm? The answer is affirmative, and the ratio iuris is self-evident: the concession does not constitute an exception to the prohibition on divestiture; the ownership of the asset remains in the power of the State or the competent Administration; and neither does it imply an exception—as a lease does—to the application of said assets to public uses, insofar as the concessionaire satisfies, through its management, the public purposes that the Administration would be responsible for fulfilling, if it were to assume such public service with its own resources.

Regarding the constitutional viability of the concession based on this norm, the Chamber stated:

“…if one confronts the summary enumeration of some characteristics of the concession made earlier with the provisions of Article 121, subsection 14), the following comments are derived. The term 'divestiture' implies the transfer of the domain or ownership of the thing or the title of a right to another person, which does not happen with a concession, since according to the terms of the Bill itself, the State retains domain over them, to the point that it could recover them—if for reasons of public interest it should deem it necessary—subject to prior indemnification to the concessionaire (…) although it is true that there is a term for its exploitation, the State—as noted—can recover it despite the established term, and the economic benefit received by the concessionaire consists exclusively of the fee or sum of money paid by the users. It does not imply an encumbrance of the asset either, as results from the Articles of the Bill. In other words, the public work constructed will always belong to the State. Hence, as a public domain asset, it will enjoy the characteristics of imprescriptibility, inalienability, and unattachability that are inherent to this type of assets.

Consequently, given the prerogatives that the bill reserves for the Administration, it is not reasonable to understand that the assets subject to the concession leave or could leave—directly or indirectly—the domain and control of the State. To the above must be added the broad powers of control or oversight that the State reserves for itself, including concerning the remuneration (tariffs for the provision of the public service) that the concessionaire will receive, which must be set by the competent bodies of the Public Administration indicated in the Bill, all based on principles of justice and reasonableness, characteristic of public law.” (Constitutional Chamber Judgment number 3789-92).

Doctrinally, the concession falls within the framework of so-called indirect management contracts, since the concessionaire carries out the works or manages the services that the Public Administration is responsible for constructing or providing. The State continues to satisfy the social need and attend to the public purpose, only instead of doing so with its own resources, it does so through a third party (the concessionaire). In this type of contract, the Administration cedes the construction of the work and the provision of the service but retains ownership. The concession, which is the legal title by virtue of which the private party acts, introduces a relationship of special subjection between the concessionaire and the Administration, in which the Administration exercises exorbitant powers of direction, regulation, supervision, control, and sanction to achieve public objectives, without prejudice to a certain autonomy of the concessionaire to act and manage within the legal framework that the concession entails. Due to this and because it offers an external service but in its own name, the concessionaire is responsible to third parties for its actions. Obviously, it will also be answerable administratively (fines) and civilly for the damages caused to the granting Administration. Ultimately, the concession does not imply loss of ownership of the public asset and, therefore, does not constitute a transgression of the prohibition against divestiture contained in the fourth paragraph of subsection 14 of constitutional Article 121.

The concession also differs from a lease, a form of asset disposition by virtue of which the lessor obligates itself to deliver the leased object for a specific price and time, under conditions to be exploited by the lessee. The main effect is that, through the lease, the use and enjoyment of the thing are transferred to the lessee. In such a case, although the ownership of the asset is not transferred, the truth is that the use and enjoyment of the asset in question would be reserved to the autonomy of the lessee's will; the asset would no longer be used for the benefit of Costa Ricans but for a use specific to the lessee, private, foreign to public use.

The prohibition against leasing is not an exception to the divestiture rule established in the first paragraph of subsection 14 under analysis, because, as we have already seen, leasing does not compromise ownership of the asset; however, it is unconstitutional because it violates the rule that a public asset be destined for private use. Now, it is an interpretive error to extend, by analogy, the prohibition against leasing to that of granting a concession, because in this concept, unlike a lease, the Administration continues to destine the asset or service for public use and remains responsible for satisfying the social needs pursued with the asset, only through indirect management.

Having provided these explanations, it is clear that through the concession, the constitutional affirmation “nor may they leave in any way the domain and control of the State” is fully complied with.

Obviously, the foregoing does not preclude a careful examination of the particular characteristics of each concession, since in the case of national railways, docks, and airports, it is prohibited not only for them to leave the domain of the State, but also for them to be placed outside its control. The foregoing implies that the clauses of a concession cannot reach such an extreme that it materially and essentially neuters the State's capacity for control over the concessionaire.

7.2) Article 140, subsection 19) of the Political Constitution stipulates the following:

“ARTICLE 140.- The following are duties and powers that jointly correspond to the President and the respective Government Minister:

(...)

• 19)To sign administrative contracts not covered by subsection 14) of Article 121 of this Constitution, subject to submitting them for the approval of the Legislative Assembly when they stipulate exemption from taxes or fees, or have as their object the exploitation of public services, resources, or natural riches of the State.

The legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime. The provisions of this subsection shall not apply to loans or other similar agreements referred to in subsection 15) of Article 121, which shall be governed by their special norms.

(Thus added the preceding paragraph by Article 2 of Law No. 5702 of June 5, 1975)” For a better understanding of the norm, we must fully identify which contracts are subject to such provisions, and which contracts fall outside the scope of its regulation.

The norm establishes a general rule that could be summarized as follows: “It is the duties and powers of the Executive Branch to sign administrative contracts”. However, there are two types of contracts that, by express provision of subsection 19 of Article 140 of the Magna Carta, fall outside the scope of that general rule: a) those covered by subsection 14 of constitutional numeral 121, and b) loans or other similar agreements referred to in subsection 15 of Article 121 of the Political Constitution. These types of contracts are governed by their special norms and not by the provisions of the cited subsection 19.

Within the contracts governed by the norm, we can find two types: those that require legislative approval and those that are perfected without legislative intervention. Within the former, we find three classes of administrative contracts: a) those that “stipulate exemption from taxes or fees”, b) “or have as their object the exploitation of public services”, and finally, c) those whose object is the “resources or natural riches of the State.” In this case, it is the Administration's responsibility to drive the bidding process: the opening of the tender, the selection of offers, and the award of the contract; however, such an act is valid but not effective, because the approval of the Legislative Assembly is required for that. In this way, the approval constitutes a useful administrative act as a control technique that removes obstacles to effectiveness and whose rationale lies in the strategic relevance of the assets and resources at stake in national development. Indeed, as a consequence of such significance, the Constituent Power imposes the requirement of legislative approval as a reinforced guarantee or safeguard, founded on the principles of control, democracy, and cooperation among the Public Powers. It is a legislative act of collaboration with the administrative function, separate from the competence of legislative creation proper: “The legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime.” (Political Constitution, Article 140, subsection 19 in fine) “The legislative approval of contracts, agreements, and other acts of an administrative nature shall not give those the character of laws, even if done through the ordinary procedures of the latter.” (Political Constitution, Article 124 in fine).

Regarding public services, the question arises as to whether every contract having that object must be submitted for legislative approval. The Chamber considers that for a better understanding of the scope of this provision, an exercise of historical reading and interpretation is indispensable, for which purpose one must take as a basis the intention expressed by the Original Constituent Power in the Minutes of the National Constituent Assembly. Precisely, for this subsection, a clear and unequivocal will of the Constituent Power is verified, which consists of the fact that legislative approval for contracts whose object is the exploitation of public services refers only to those contemplating large-scale projects of national transcendence. Observe the literalness of the Constituent Power's intention:

“Article 2.- Deputy LEIVA presented a motion to add a subsection to the article referring to the powers and duties of the President jointly with the respective Government Minister, reading as follows:

“To sign administrative contracts not covered by subsection 14) of Article 97 of this Constitution, subject to submitting them for the approval of the Legislative Assembly, when they stipulate exemption from taxes or fees, or have as their object the exploitation of public services or of resources and natural riches of the State.

Cases governed by special laws are excepted.” [140.19] The proponent explained that his motion was almost entirely included in the 1949 Bill, subsection 10), Article 232. Messrs. Trejos and Esquivel had submitted it as a motion, but later withdrew it, because it was said that subsection 14), Article 97, already approved, contemplated that situation. However, both subsections refer to two distinct cases.

Licenciado ESQUIVEL asked Mr. Leiva if contracts to establish new industries in the country, regulated by laws granting all kinds of facilities to those industries so they can develop in the country, do not fall under that subsection and consequently require legislative approval. The mover clarified that the final exception solved the problem. However, Deputy Esquivel indicated that he still had certain doubts, for example, regarding contracts for the exploitation of public services. A contract between the State and a bus company, for example, to transport mail, will it have to come to the Chamber for its approval? The mover observed that those small contracts are always governed by special laws. Most of the time, those contracts are signed not by the President himself, but by minor dependencies, with the interested parties. His intention is that among the powers of the Executive remains that of signing that class of administrative contracts that are not of great scope. The public services referred to in his motion are those of great importance, such as railways.

Put to a vote, Mr. Leiva's motion was approved (Minutes No. 135) As observed, the only public service contracts that require legislative approval are those of great scope, among which, it is reiterated, those covered by subsection 14 of constitutional numeral 121 are excluded, along with loans or other similar agreements cited in subsection 15 of Article 121 of the Political Constitution, since they are subject to a specific constitutional regulation.

Now, the constituent assembly member Leiva cites, as an example of a large-scale contract, the railways, which could lead to the conclusion that what is regulated in constitutional numeral 140, subsection 19, becomes applicable not only to such railways, but also to national docks and airports, since these three assets are subject to common regulation in the last paragraph of ordinal 121, subsection 14 of the Political Constitution. However, to explain the reason for such a reference by Deputy Leiva, the historical context in which it occurred must be clear.

In this regard, the Office of the Attorney General of the Republic, in its report rendered in action number 04-003389-0007-CO, clarified the following:

“In accordance with the partial reform to the Fundamental Charter of 1871, which was processed under the name 'Prohibiting the Divestiture of the Pacific Railway and Requiring Two-Thirds of the Votes of Congress to Contract Loans Abroad', we have that its objectives, according to the statement of purposes of the initiative, were the following:

'There is a very marked current of opinion in the country, tending, out of a natural sentiment of national well-being, to secure the Pacific Railway and its terminal docks against the possibility of them being divested, and to avoid, in view of the enormous debts burdening the State, the contracting of loans abroad.

Such a current of opinion is amply justified. Regarding the first point, due to the transcendental importance that the Pacific Railway has for the country, not only as an enabling instrument for an extensive and rich zone of the country, but also as an effective means of defense through the tariff competition that it is possible to establish with the Atlantic Railway. Regarding the second point, because if it is true that loans are indispensable for developing the country's resources, it is also true that taking into account the enormous debts weighing down the nation, only in exceptionally justified cases could a new contract be authorized, and consequently that legislative authorization must be backed by two-thirds of the votes of Congress.' (See National Archives, Congress Fund, No. 17,358, folio 1).

Regarding this constitutional reform, the then President of the Republic, Lic. Ricardo Jiménez Oreamuno, in his report of May 1, 1936, stated, with respect to what is of interest, the following:

'As an exception to what I have just stated [about refraining from indicating certain measures because a new administration was about to be inaugurated] and only because the Constitution obliges the Executive to give an opinion when it concerns a reform to the same, I give it regarding the amendment, in process, to which your decree of August 17 of the last year refers. The project has two objectives: that the Pacific Railway and the terminal docks not leave the domain and control of the State; and that the contracting of loans abroad must be authorized by two-thirds of the votes of Congress. I do not discuss whether it is absolutely prudent to oppose, whatever the circumstances may be, any plan that removes the management of the railway from the hands of State employees.' I accept the project's thesis as sound; but if it is sound, it is unclear why it should not apply to the railroads and the Atlantic docks. It is true that those railroads and docks are in foreign hands and will remain so for many years, while the respective concessions are alive, but, on the one hand, we must assume that constitutional precepts are enacted to be perpetual, insofar as humanly possible; and, on the other, that without the constitutional reserve being contemplated, those lines and docks could be definitively disposed of starting tomorrow, or the effects of the current concessions could be extended now, or a new concession could be agreed to, for when the current ones expire. It seems logical, then, that whatever is provided for the Pacific should also apply to the Atlantic, and to new railroads and docks." (See Archivos Nacionales, Fondo Congreso, No. 17,358, folio 10 and La Gaceta No. 101 of May 5, 1936. The boldface does not correspond to the original).

As a result of the foregoing, a special commission of the Constitutional Congress tasked with studying the matter, subsequent to the speech by the President of the Republic, adopted, in its opinion of May 25, 1936, in the pertinent part, the objection of the First Citizen, justifying its proceeding as follows:

"Your Special Commission, tasked with rendering an opinion on the proposed constitutional reform to subparagraphs 15 and 16 of Article 73, to the effect that neither the Pacific Railroad nor its terminal docks may be disposed of (enajenados) or leased (arrendados) directly or indirectly, nor may they in any way leave the domain and control of the State; and that the contracting of loans abroad requires the approval of two-thirds of the votes of Congress, has the honor to fulfill its charge in the following terms:

In accordance with Article 134 of the Constitution, the bill under study received, after the required formalities, the approval of Congress in Decree No. 165 of August 17, 1935, and was forwarded to the Executive Branch for the purposes of subparagraph 6 of the aforementioned Article 134.- The President of the Republic, in his Message sent to Congress on the 1st of the current month, expressed his opinion on the amendment in process.

Regarding the reference to the prohibition on disposing of the Pacific Railroad and its terminal docks, the Head of the Executive Branch opines—and we adopt this opinion—that the provision should be extended to the Atlantic Railroad and its terminal docks and to new railroads and docks that may be built in the future on behalf of the State.- Consequently, we consider that the amendment could be drafted in a general and more concise form by stating that national railroads and their terminal docks are excepted from the power of disposal (enajenación) that subparagraph 15 of Article 73 grants to Congress." (See Archivos Nacionales, Fondo Congreso, No. 17,358, folio 13. The boldface does not correspond to the original)." Such concern for the railroads is also understood because "the concessions granted to foreign companies were for extremely long terms, as occurred with the Panama Canal and with the Atlantic railroad. In this latter case, according to the Soto-Keith contract signed in 1884, which was ratified by the Legislative Branch through Law No. 2 of April 21, 1884, clause XXI, the government ceded and transferred to the company, for a term of ninety-nine years, in full ownership, the railroads built and the one to be built between Reventazón and Cartago; furthermore, the company was granted exemptions to import rolling stock and was ceded public lands (terrenos baldíos). Clause XXVII regulated the reversion, that is, the transfer that the Compañía del Ferrocarril de Costa Rica would make to the government upon the expiration of the ninety-nine years of the railroad concession, with all its constructions and fixed and rolling material, all of which was to be in good condition." (See the aforementioned report of the Procuraduría General de la República).

Consequently, Deputy Leiva's reference to the railroads is explained by the multiple problems and abuses that arose in a period immediately preceding the 1949 Constituent Assembly. In reality, such concern motivated Congress, acting in its constituent function and through Law No. 14 of June 19, 1936, to amend Article 73, subparagraph 15 of the Political Constitution of 1871 (corresponding to numeral 121, subparagraph 14 of the current Constitution), to the effect that, with respect to the exclusive power of Congress to decree the disposal (enajenación) and application to public uses of the Nation's own property, matters concerning all national railroads and docks were excepted, which could not be disposed of (enajenados) or leased (arrendados), directly or indirectly, nor in any way leave the domain and control of the State. Thus, prior to the Political Constitution of 1949, the constituent legislator had already opted to regulate this matter by means of a special rule; later, alongside railroads and docks, the 1949 constituent assembly added airports.

Ergo, there is a very clear and concrete historical reference that the will of the 1949 constituent assembly, following the same line that reformed the previous Constitution of 1871 in 1936, consisted of regulating all matters concerning railroads, docks, and airports in Article 121, subparagraph 14 of the Political Constitution. Thus, subparagraph 19 of Article 140 of the Constitution does not apply to contracts contemplated in subparagraph 14 of numeral 121 of the current Political Constitution.

It should be noted that it makes no sense to establish two rules to regulate the same situation; therefore, in the case of railroads, docks, and airports, the special rule (121 subparagraph 14) must be applied, and not the general one (140 subparagraph 19).

7.3) The systematic interpretation of Articles 140 subparagraph 19 and 121 subparagraph 14 of the Political Constitution.

From what was stated in point 7.2, we have concluded that outside the scope of application of Article 140 subparagraph 19 of that same normative body are the property and administrative contracts regulated in numeral 121 subparagraph 14 of the Political Constitution, since this latter rule constitutes a special regulation for those.

It has also been made clear that through a concession, the constitutional affirmation "nor in any way leave the domain and control of the State" is fully satisfied, as explained in point 7.1 of this ruling.

The question of whether that concession can be regulated by a general law, in which the Legislator sets the conditions for the Executive to grant concessions regarding the property indicated in Article 121 subparagraph 14, has also been clarified by the reiterated jurisprudence of this court. In effect, as examined in point 7.1, the State cannot dispose of (enajenar), encumber (gravar), or lease (arrendar) directly or indirectly the national railroads, ports, and airports in service. However, from the cited constitutional provision, it is deduced that the legislator (reserva de ley) may regulate the concession of these assets, under the protection of the provision contained in the general rule of the first paragraph of subparagraph 14, "To decree the disposal (enajenación) or the application to public uses of the Nation's own property." Of these two general powers of the Legislative Branch, the power to dispose (enajenar) is ruled out in the case of railroads, docks, and airports, since the last paragraph of subparagraph 14 of Article 121 expressly prohibits such property from leaving the domain and control of the State. However, in the absence of an express prohibition, the legal concept of concession, even under a general law, is viable for destining the exploitation of railroads, docks, and airports to public uses, including by way of concession, provided that such assets do not leave the domain and control of the State. This is so because the legislator holds, by express constitutional mandate of the first paragraph of Article 121 subparagraph 14, the general power to "decree" the application to public uses of the Nation's property (first paragraph of numeral 121 of the Political Constitution), so that in the exercise of its power to issue laws, it is not constitutionally prohibited from executing such constitutional mandate by means of a general concession law, in which it imposes upon the Executive Branch those positive legal conditions necessary to manage the concession of said assets and safeguard their public use, which in the case of railroads, docks, and airports additionally has the unavoidable limit that their exploitation does not leave the domain and control of the State.

Regarding the aforementioned point, this Chamber has already had the opportunity to rule in judgment number 5651-2005 of 14:41 hours on May 11, 2005:

"… in this study we are talking about two different concession concepts: the public works concession with public services (concesión de obra pública con servicios públicos), regulated in the Law challenged here, and the public service management concession (concesión de gestión de servicios públicos) regulated in the Administrative Contracting Law (Ley de Contratación Administrativa). Both imply different modalities of concession, but in any case, as already indicated, they do not violate Article 121 subparagraph 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was pending: (….). In the case of public works concessions with public services, the General Law on Concession of Public Works (Ley General de Concesión de Obra Pública) is applicable as a framework law, and for the concession of public service management, the Administrative Contracting Law, Articles 74 and 75." In effect, the concession of railroads, ports, and airports falls within the scope of coverage of Law number 7762 of April 14, 1998, General Law on Concession of Public Works with Public Services (Ley General de Concesión de Obras Públicas con Servicios Públicos), which in Article 2 provides:

"ARTICLE 2.- Coverage 1.- Any work and its exploitation are susceptible to concession when there are reasons of public interest, which must be recorded in the administrative file (expediente) by means of a reasoned act. Telecommunications, electricity, and health services are excepted from the application of this Law.

2.- Railroads, railways (ferrovías), docks, and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures provided in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains for the provisions of Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned at the cited docks, shall be remitted to the Junta de la Administración Portuaria de la Vertiente Atlántica (JAPDEVA) and the Instituto Costarricense de Puertos del Pacífico (INCOP), as applicable, to be destined exclusively to investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the mentioned entities, as applicable." (The boldface does not correspond to the original).

It is concluded that, in relation to railroads, ports, and airports, the General Law on Concession of Public Works with Public Services comes to be the general law, developed under the protection of the provisions of the first paragraph and with the limitations of the fourth paragraph, both of numeral 121 subparagraph 14 of the Constitution, which establishes a legislative reserve (reserva) in favor of the Legislative Assembly to regulate these matters while observing the limits that the Constitution itself establishes.

Now then, a new point to be elucidated, which constitutes the fundamental object of this action, consists of the petitioner's allegation that in the sub examine, an unconstitutionality by omission has occurred, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of Articles 140 subparagraph 19 and 121 subparagraph 14 of the Political Constitution, it is inferred that in the case of administrative contracts of special magnitude related to national railroads, docks, and airports, legislative approval is inexorably required, since the Fundamental Law did not foresee the possibility of a special law, as it does in the case of the assets mentioned in sections a), b), and c) of the cited subparagraph 14.

In this regard, in point 7.2 it has been explained that there is a very clear and concrete historical reference that the will of the 1949 constituent assembly, following the same line that reformed the previous Constitution of 1871 in 1936, consisted of regulating all matters concerning railroads, docks, and airports in Article 121 subparagraph 14 of the Political Constitution. Thus, subparagraph 19 of Article 140 of the Constitution does not apply to contracts contemplated in subparagraph 14 of numeral 121 of the current Political Constitution. It should be noted that it makes no sense to establish two special rules to regulate the same situation; therefore, in the case of railroads, docks, and airports, the special rule (121 subparagraph 14) must be applied, and not the general one (140 subparagraph 19).

In addition to the foregoing, certainly, in sections a), b), and c) of subparagraph 14 of Article 121 of the Political Constitution, it is expressly regulated that the assets contained therein may only be exploited by the Public Administration or by private parties, in accordance with the law or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly. On the other hand, it is equally true that the last paragraph of the cited subparagraph, with respect to railroads, docks, and airports, fails to indicate that their exploitation may occur in accordance with the law or through a special concession, contrary to what it does with the other mentioned assets.

However, from such normative situation, one cannot deduce the inexorable logical consequence (from which the petitioners start) that in the case of railroads, docks, and airports, their concession is only viable via legislative approval for each specific case, and not through a framework law.

Firstly, as already emphasized in point 7.2 of this Considerando, the property and administrative contracts regulated in numeral 121 subparagraph 14 of the Constitution are outside the scope of application of Article 140 subparagraph 19 of the Constitution, since they are governed by their own special provisions. Then, it is not possible to deduce from a relationship between numeral 121 subparagraph 14 and Article 140 subparagraph 19 that, regarding concessions of railroads, ports, and airports, because they are matters of great magnitude, each concession contract concerning those specific assets must be approved by the Legislative Assembly, since said assets have a specific constitutional regulation (numeral 121 subparagraph 14), with content different from that established in numeral 140 subparagraph 19 of the Magna Carta. That is, while this latter article does provide for parliamentary approval inexorably in contracts of great magnitude, 121 subparagraph 14 does not.

Secondly, it is necessary to realize that it is natural for the Legislative Branch to dedicate itself to what is exclusive to it, a deliberative task that results in the production of laws, while the Executive Branch concentrates on that which most characterizes it, administrative management (which includes all matters concerning administrative contracting). Beyond those fields, an intervention by one Public Branch in a field that is not its own would only be feasible by express provision of the constituent assembly or when the essential content of the jurisdictional sphere of a Branch is not affected. Precisely, the renowned Costa Rican jurist Eduardo Ortiz Ortiz has emphasized that the Executive Branch is the natural representative of the State in the execution of contracts, except for an express rule to the contrary, which would have to be unequivocal.

This being the case, the logical interpretation of the last paragraph of subparagraph 14 of Article 121 of the Constitution leans more toward attributing to the Executive Branch that power most consubstantial to its legal nature, rather than prohibiting it, as the petitioner claims. In other words, the fact that with respect to the assets contemplated in sub-sections a), b), and c) of subparagraph 14 of numeral 121 of the Political Constitution, their exploitation is foreseen in accordance with the law or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly, does not mean that with respect to the assets regulated in the last paragraph of the reference numeral, only the second option (that of a special concession requiring legislative approval) is legally viable, given that, on the one hand, said paragraph does not prohibit either of the two mentioned alternatives, and on the other, the possibility of a general law fosters a more adequate balance between what is legally most natural to each of the Branches: while Parliament legislates, setting the positive legal framework for the Executive to administratively manage the concessions, the latter is entrusted with the execution of this administrative contracting modality.

Note that the constitutional precept for the legislator was to not allow railroads, docks, and airports to be disposed of (enajenados), leased (arrendados), encumbered (gravados), or to leave the domain or control of the State, without indicating through which means it should guarantee all of that. Without any doubt, the Legislative Branch exercises this power through its essential function, which is to legislate, and that is precisely what it does through a general concession law, where it sets the parameters by which the Executive Branch must also direct its essential function as administrator of the State. Consequently, there is no delegation of functions from one Branch to another; rather, each exercises its powers and authorities within the foreseen constitutional framework.

By virtue of the foregoing, the alleged unconstitutionality by omission of Articles 2, subparagraphs 2) and 3), and 5, subparagraph 4), of the General Law on Concession of Public Works with Public Services becomes inapplicable. As this ground of unconstitutionality is dismissed, the alleged unconstitutionality by connection of the Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation, and Maintenance of the Moín Container Terminal (Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín) must also be dismissed. Judges Armijo and Cruz issue a dissenting vote (salvan el voto) and declare the action admissible with its consequences. Judges Jinesta, Castillo, and Hernández take note." Although, effectively—as the petitioner points out—the main criticism formulated in that action No. 12-009578-0007-CO referred to an alleged omission in the impugned legal regulations by not requiring subsequent approval by the Legislative Assembly of the concession contract granted under the General Law on Concession of Public Works with Public Services, the truth is that this Tribunal conducted an extensive analysis regarding the content and scope of Article 121, subparagraph 14, of the Constitution and, unlike what was argued by the petitioner, this Chamber concluded that the impugned regulations were not incongruent with or violative of said constitutional provision, inasmuch as the legal concept of concession—as a form of indirect management contract, which "does not entail the loss of ownership (titularidad) of the public asset" and which implies that the "State continues satisfying the social need and attending to the public purpose, only that instead of doing so with its own resources, it does so through a third party (the concessionaire)," regarding which a "relationship of special subjection is established, in which the Administration exercises exorbitant powers of direction, regulation, surveillance, control, and sanction to achieve public objectives"—does not violate, prima facie, the constitutional prohibition against disposing (enajenar), leasing (arrendar), or encumbering (gravar), directly or indirectly, the docks and "fully satisfies the constitutional affirmation 'nor in any way leave the domain and control of the State...,'" according to the reasons extensively developed in the previously transcribed vote (see, particularly, its Considerando VII). These considerations are applicable to the present action, as there is no reason whatsoever that justifies varying the criterion.

Now then, as is apparent from a comprehensive reading of the filing brief, it is clear that the petitioner's main objections or criticisms relate, very specifically, to the Public Works Concession Contract with Public Service for the Design, Financing, Construction, Exploitation, and Maintenance of the Moín Container Terminal, insofar as it seeks to question its necessity or convenience and matters concerning its proper execution or fulfillment. Express reference to this point will be made later.

IV.- OF THE CHALLENGE TO ARTICLE 18 OF THE LAW OF TRANSFORMATION OF THE JUNTA DE ADMINISTRACIÓN PORTUARIA Y DE DESARROLLO ECONÓMICO DE LA VERTIENTE ATLÁNTICA (JAPDEVA), LAW NO. 9764, WHICH AMENDED ARTICLE 1 OF THE ORGANIC LAW OF JAPDEVA. The petitioner again accuses a violation of Article 121, subparagraph 14, of the Political Constitution. However, from the reading of the impugned normative provision, it can be verified that it confirms the paper or role of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica as an "autonomous entity of the State, with the character of a public utility enterprise, which shall assume the prerogatives and functions of a Port Authority" and, specifically, it is tasked with "constructing, administering, operating, subcontracting, concessioned (concesionar), and carrying out any other financial mechanism that national regulations permit," precisely, to thereby "develop port services, its own administrative management, and investments, constructions, and improvements, in the maritime and river ports of the Atlantic Slope (Vertiente Atlántica)." Thus, the rule provides a legal authorization for this entity to resort to different contracting options and the application of financial mechanisms that "national regulations permit," in order to thereby develop its prerogatives and functions as a port authority. From this rule, it cannot be inferred that it authorizes the cited entity to dispose of (enajenar), lease (arrendar), or encumber (gravar) the docks or ports under its charge, nor to allow them to leave the domain or control of the State, not only because the text of the rule does not establish it, but because, necessarily, it must be integrated, interpreted, and applied in accordance with the substantial and formal requirements imposed by the rest of the legal system, including, primarily, Article 121, subparagraph 14), of the Political Constitution itself, as well as the rest of the applicable regulatory framework. Regarding, specifically, the possibility of "concessioned (concesionar)," reference must be made to what was already indicated in the previous Considerando, to the effect that this Chamber, in various precedents, has recognized that the legal concept of concession—whether public works concession with public services or concession for management of public services—is not incongruent with or violative of Article 121, subparagraph 14), of the Political Constitution; on the contrary, it constitutes a constitutionally valid option of indirect management of the public service, which does not imply disposing of (enajenar), leasing (arrendar), or encumbering (gravar) the docks, nor their leaving the domain and control of the State. Thus, in vote No. 2005-05651 of 14:41 hours on May 11, 2005, in which similar criticisms were examined, related to the Instituto Costarricense de Puertos del Pacífico (INCOP), this Chamber resolved:

"V.- Object of the challenge. The petitioners consider that the acts of invitation to tender carried out by the Instituto de Puertos del Pacífico (INCOP) and by the Consejo Nacional de Concesiones in the international public tenders (licitaciones) number 1-2001 concession for management of public services of the Caldera terminal, 2-2001 concession for management of public services of the Puntarenas terminal, 3-2001 concession for management of tugboat services on the Pacific Slope, 3-2001 public works concession with public service for the Puerto Caldera bulk terminal, and 4-2001 public works concession with public service for the Puerto Caldera tuna terminal, all published in La Gaceta Oficial number 68 of April 5, 2001, as well as their subsequent award and approval (refrendo); and similarly with respect to Articles 2, subparagraphs 2) and 3), and 5, subparagraph 4) of the General Law on Concession of Public Works with Public Services, number 7762 of April 2, 1998, are unconstitutional on the grounds that they are contrary to the principles of legality, legislative reserve (reserva de ley), non-delegability of functions, reasonableness, proportionality, and due process, as well as for contradicting the provisions of Articles 1, 2, 3, 4, 9, 11, 39, 121 subparagraph 14) and 140 subparagraph 19), all of the Political Constitution. With respect to the impugned provisions of Law No. 7762, these provide:

"ARTICLE 2.- Coverage ...

2.- Railroads, railways (ferrovías), docks, and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures provided in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains for the provisions of Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned at the cited docks, shall be remitted to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be destined exclusively to investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the mentioned entities, as applicable." "ARTICLE 5.- Definition and action ...

4.- It corresponds exclusively to the Executive Branch, considered in the terms of Article 21.2 of the General Law of Public Administration, to award and execute the concession contracts for railroads, railways (ferrovías), docks, and international airports, both new and existing.

The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law." VI.- On the merits. The core aspect questioned by the petitioners is that the challenged acts and provisions violate Article 121 subparagraph 14), since they cannot be the object of a concession because the Constituent Assembly so provided and because assets of public domain are being disaffected. The Chamber, on repeated occasions, has ruled on this aspect and has indicated:

"III. ON THE CONFLICT WITH ARTICLE 121, SUBPARAGRAPH 14 OF THE POLITICAL CONSTITUTION: It is expressed in the consultation that 'Some have questioned the fact that by empowering the concessionaire to exploit the new installations of railroads, docks, and airports, in accordance with Article 6, second paragraph of the bill, it could be conflicting with the constitutional provision that prevents the disposal (enajenación) of these works, Article 121, subparagraph 14 of our Magna Carta.' Article 6 of the Bill states: 'ARTICLE 6.- National railroads, docks, and airports, the latter while in service, cannot be disposed of (enajenados), leased (arrendados), or encumbered (gravados), directly or indirectly, nor in any way leave the domain and control of the State.

'Concessions granted to construct and exploit new installations of railroads, docks, and airports must be processed in accordance with this Law and approved by the Legislative Assembly, within a period not exceeding forty-five days from their submission.

'Services complementary or non-essential public services, located in railroads, docks, and airports, may be concessioned.' As observed, the first paragraph of Article 6 coincides with what the Constitution provides in the last paragraph of Article 121, subparagraph 14). It is, in essence, an 'echo rule.' As for the rest, it must be highlighted that the concession for the construction and exploitation of new installations of railroads, docks, and airports is subject to a qualified procedure, since it ultimately requires approval by the Legislative Assembly. Except for this fact, and because in this same case the concession may be granted for a term of 'up to fifty years' (Article 9 of the Bill), the legal institution in no way differs from the public works concession in general, as regulated in the Bill." Consequently, the concession has the following relevant characteristics: a) Through the concession mechanism, the execution of the work is commissioned and the necessary legal powers are transferred so that it may be exploited; b) The transfer of these powers is temporary and the exploitation generally reserves to the Administration its powers of authorization, control, and oversight; c) Ownership of the property right and the provision of the public service remain with the Administration; d) The provision of the public service by the concessionaire is subordinated to the principles of national convenience, legality, generality, continuity, efficiency, adaptability, and fair remuneration; e) The rights and obligations of the concessionaire and, where applicable, of the subcontractors, cannot be assigned, placed in trust, or encumbered, nor may any agreement for usufruct, lease, administration, or total or partial exploitation of the assets subject to the concession be entered into without the prior, express consent of the granting Administration and the approval of the Contraloría General de la República, consent and approval which must necessarily be understood, and is so interpreted for the purposes of this opinion, as not being possible if there are constitutional or legal limits that prevent it; and f) The concession is extinguished, among other causes, through redemption for reasons of public interest.

Returning now to the text of Article 121, subsection 14) of the Constitution, whose final paragraph, as mentioned in the consultation, is the one that could be affected by the second paragraph of Article 6 of the Bill, it is appropriate, within the framework of this consultation, to define its content. Indeed, Article 121, subsection 14) contains three distinct norms, which must be clearly differentiated: a) The first is a norm that enables the Legislative Assembly to decree "the alienation or application to public uses of the Nation's own property." On the one hand, this norm is unrestricted insofar as it refers to all of the Nation's own property, and, on the other, it reserves the matter to the law, invalidating administrative acts of alienation or application to public uses not based on prior law; b) The second prescribes which property "may not permanently leave the domain of the State." For those categories, which are set out in subsections a), b), and c), the restriction is total and absolute regarding "leaving the domain of the State," but, immediately, the norm moderates its severity by noting that such categories of property may be "exploited by the public administration or by private parties" in accordance with the laws or through a special concession; c) The third is a norm that refers specifically to certain property (railways, docks, and national airports in service) not included in the three categories of the preceding norm. If nothing were said about this property, it would be covered by the enabling norm with which subsection 14) begins, as has already been seen. But the existence of this specific provision implies a distinct legal regime for this property, which limits the general principle of alienation and application to public uses in a rigorous manner: such property "may not be alienated, leased, or encumbered, directly or indirectly, nor leave in any way the domain and control of the State." The norm refers, in the first place, to alienation, lease, or encumbrance, but the expression "directly or indirectly," in the rigid context of the provision, can refer equally to the situation in which the State proceeds by itself or through other legal entities (subjective sense), or to cases in which modalities or means are used that have equivalent or similar legal consequences or effects, even though they do not technically constitute alienation, lease, or encumbrance per se (substantive sense). Following this, this rigor is confirmed by the expression "nor leave in any way the domain and control of the State," an expression that must also be given broad hypothetical coverage due to the purpose of the norm. Having said that: if we compare the summary enumeration of some characteristics of the concession made earlier with the provisions of Article 121, subsection 14), the following comments are derived. The term "alienation" implies the transfer of the domain or ownership of the thing or the title of a right to another person, which does not occur with the concession, since according to the Bill's own terms, the State retains domain over them, to the point that it could recover them—if for reasons of public interest it were to so deem it—upon prior indemnification to the concessionaire. It also differs from the concept of lease, since as a synallagmatic contract, the lessor guarantees the lessee the use and enjoyment of the thing for a determined time, while the latter undertakes to pay a sum of money; whereas in the concession, although it is true that there is a term for its exploitation, the State—as noted—can recover it notwithstanding the fixed term, and the economic benefit received by the concessionaire consists exclusively of the fee or sum of money paid by the users. Nor does it imply an encumbrance of the property, as results from the articles of the Bill. In other words, the constructed public work will always belong to the State. Hence, as public domain property, it will enjoy the characteristics of imprescriptibility, inalienability, and unattachability that are inherent to this type of property. Consequently, given the prerogatives that the bill reserves to the Administration, it is not reasonable to understand that the property subject to the concession leaves or could leave—directly or indirectly—the domain and control of the State. To the foregoing must be added the broad powers of control or oversight that the State reserves for itself, including regarding the remuneration (tariffs for the provision of the public service) that the concessionaire will receive, which must be set by the competent bodies of the Public Administration indicated in the Bill, all on the basis of the principles of justice and reasonableness, characteristic of public law. Hence, it is the opinion of this Chamber that no violation whatsoever is observed by the consulted norm with respect to Article 121, subsection 14) of the Political Constitution." (Judgment No. 3789-92) In the cited judgment, it is clearly set forth that the possibility of granting concessions for property such as docks, within the parameters described by the Chamber, does not constitute a violation of the Political Constitution, because pursuant to the nature of the "concession," these assets are not being decommissioned (desafectando), as they are not being separated from the public purpose to which they are bound; therefore, they do not leave the public domain, nor are they being alienated, leased, or encumbered, so the alleged violation does not occur. Now, in this study, we are discussing two different concession models: the concession of public works with public services, regulated in the Law challenged here, and the concession for the management of public services regulated in the Law of Administrative Contracting (Ley de Contratación Administrativa). Both involve distinct modalities of concession, but in any case, as already indicated, they do not violate Article 121, subsection 14. In fact, this Court ruled on the merits of this matter in the Legislative Consultation that was submitted for study while the approval of this law was underway:

"...It is noteworthy that the Political Constitution does not distinguish between public works and public service concessions, in the terms posed in the consultation, and even though that distinction may be advisable for good legislative drafting, its omission does not imply any constitutional objection. Furthermore, the concession of works or public service is a typically administrative contract precisely because of the public nature of its object. Desirable legislative drafting should not be confused with what is constitutional or unconstitutional, since this depends on the content of the Constitution itself and the norm challenged against it, which could even be designed according to good legislative drafting and yet still be unconstitutional. Hence, the fact that a specific norm is not drafted in accordance with a particular doctrinal school or suffers from certain defects does not imply that it is unconstitutional. For all of the foregoing, this Chamber considers that the objections the consulting deputies raise against the bill, regarding this point, are not related to problems of constitutionality, but rather to criteria of opportunity and convenience belonging to the legislator, who is responsible for regulating the matter in the manner deemed most viable, clearly, without violating the Political Constitution. The Chamber further understands that the concession of the public works and services referred to in this bill excepts everything relating to national security, customs control, immigration, and everything having to do with functions inherent to the State, which are non-delegable and inalienable and cannot in any way be left in private hands. For example, even if an airport is granted under a concession, so that the public service provided there is carried out by a private entity, matters relating to port security, immigration, and customs, among others, are reserved exclusively to the State, and these functions may not be exercised either directly or indirectly by private parties. In the opinion of this Chamber, nothing prevents the Assembly, through a framework law, from empowering the Executive Branch to grant concessions for public property, without the need for specific approval for each particular case, since it is understood that a general approval has been given for this purpose, in compliance with the Constitution itself. In summary, regarding this consulted aspect, the Chamber finds no unconstitutionality whatsoever." In the case of public works concessions with public services, the General Law of Concession of Public Works (Ley General de Concesión de Obra Pública) is applicable as a framework law, and for the concession of management of public services, the Law of Administrative Contracting (Ley de Contratación Administrativa), Articles 74 and 75. Under that understanding, it is not unconstitutional for the public administration to grant concessions for these assets within the parameters that this Court has indicated. On the other hand, as the petitioners themselves correctly indicate, Article 2, subsection 3, challenged here, states that: "...In the case of the docks of Limón, Moín, Caldera, and Puntarenas, under this law, only new works or expansions carried out there may be granted under concession, and not the existing ones.", conforming to Article 121, subsection 14, so whether the questioned bids violate such provision is a matter that must be determined through the legality review process, as we would consequently not be facing a constitutional violation, but rather a non-compliance with the application of the law.

VII.- The petitioners request that this Court, in the event it declares the challenged law to be a framework law, declare the bids challenged here unconstitutional for having been processed through procedures different from those established by Law 7762. Such an extreme is inadmissible for the Chamber, since what is sought constitutes the issuance of a mere legality judgment, which exceeds the competence of this Court. Of course, if the norms contained in the Political Constitution are at the apex of the normative order, certainly any violation of a legal nature also violates the Political Constitution, but to remedy these conflicts, the original constituent created the ordinary jurisdictions.

VIII.- On the other hand, the petitioners allege that the principle of reasonableness and proportionality and the sound management of public expenditure are violated, questioning that the concessions will practically imply the de facto closure of INCOP and the creation of a privatization. Regarding these aspects, the Chamber, in Judgment No. 14.606-03, also already stated:

"III.- STRENGTHENING PROCESS OF INCOP. The Deputies consider that "(...) there is no legal precept whatsoever that allows INCOP to carry out a jurisdictional, structural, and labor restructuring of such magnitude; thus, there is also no authorization to pay 'indemnification' as described" (...), and therefore it is a privatization without normative support. In this regard, it is necessary to indicate whether INCOP has sufficient legal powers and faculties to determine its restructuring or modernization is an aspect of mere legality that exceeds the competences of this Court. However, it is worth indicating that the power of organization or reorganization is a principle or virtual power for any public entity other than the State. The Political Constitution guarantees, in its Article 188, to every minor public entity, distinct from the State, a minimum or first-degree administrative autonomy, that is, the power of self-administration, without being subject to any other public entity and without the need for a legal norm so ordering, to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the tasks and purposes assigned to it. In development of the constitutional text, Articles 6, paragraph 2, 59, paragraph 2, and 103, paragraph 1, of the General Law of Public Administration (Ley General de la Administración Pública) confer upon the head of any public entity—in the case of an autonomous institution like INCOP, the Board of Directors—the power of self-organization and reorganization—the latter by application of the principle of parallelism of competences—to provide itself with the most convenient organic structure for the fulfillment of the purposes assigned by the legal system and the general governing principles of public services of effectiveness, efficiency, and adaptation to any change in the legal regime or social need they satisfy (Articles 4, 225, paragraph 2, and 269, paragraph 1, of the General Law of Public Administration (Ley General de la Administración Pública)). In another order of considerations, the privatization of public services—that is, the definitive transfer of their ownership and exercise to subjects of private law—should not be confused with their indirect management by a public entity through the figure of the concessionaire, since, in this hypothesis, the granting administration maintains the ownership of the service and of the public domain assets necessary for its effective provision, while only temporarily transferring to the concessionaire the exercise of certain powers for the management of the service—with or without infrastructure—or the construction of works that will continue to be publicly owned (Article 121, subsection 14, of the Political Constitution and General Law of Concession of Public Works with Public Services)." From the foregoing, it is easily deducible that the Chamber already indicated that it is not for this jurisdiction to determine the advisability or otherwise of the modernization process pursued by INCOP, nor to determine the suitability of the chosen means, nor the advisability of the manner in which it intends to indemnify its employees, as these are matters that exceed the competence of this Court.

IX.- Finally, regarding the matter claimed by the petitioners concerning the insufficiency of funds to comply with the 70% established by Law No. 7762 because it is intended to indemnify employees with the income from the concession, which they consider contrary to Article 2, subsection 3 of that same law, this also implies a legality review, which, as explained in Considerando VIII, cannot be the subject of a pronouncement by this Court.

X.- Conclusion. Consequently, given that from the study conducted, this Court found no constitutional violation of the rights and principles claimed, the proper course is to dismiss it, as is hereby ordered. Judges Armijo and Cruz dissent and declare the appeal granted." Considerations fully applicable to the sub lite case.

Indeed, as can be inferred from reading the petition, it can be verified that more than an objection to the effective possibility of the docks or ports being alienated, leased, or encumbered, or of them being allowed to leave the domain or control of the State, in light of the challenged norm, what is questioned is the possibility that JAPDEVA may resort to an eventual "outsourcing" (tercerización) of certain services, which is alleged, by the petitioner, could harm the workers who would work for the companies providing their services to JAPDEVA, as their working conditions would be less favorable than those of the institution's current workers. It is alleged that this would violate Articles 50 and 74 of the Political Constitution, relating to the State's duty to ensure "the most adequate distribution of wealth" and the Christian principle of social justice.

Regarding this point, reference must be made to what has already been indicated in the previously transcribed precedent (ruling no. 2005-5651, Considerando VIII), in the sense that it exceeds the scope of competence of this Chamber to assess the advisability of resorting to these mechanisms for the provision of services. It must also be noted that the reform challenged in this action is part of a process of restructuring and modernization of JAPDEVA. This Chamber has already ruled on such process, in ruling no. 2019-018505 at 11:45 a.m. on September 24, 2019, issued on the occasion of the optional legislative consultation on constitutionality formulated regarding the then bill no. 21.426, "Law for the Modernization of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva) and Protection of its Employees" (Ley de Modernización de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva) y Protección de sus personas servidoras). An opportunity in which it was resolved—in what is relevant—that:

"(...) As stated in the explanatory memorandum of the legislative file, the legislative initiative responds to the urgent need to resolve, in the short term, the serious situation of financial sustainability facing the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva). The bill has two fundamental axes: a) to reorganize and transform Japdeva from an administrative, operational, and financial point of view in such a way that it can find its break-even point, based on a study that must be approved no later than two months after the law is approved, b) to facilitate the reduction of the workforce to allow a return to that break-even point, under the following modalities: horizontal transfer of workers to other institutions under certain parameters, payment of benefits and incentives, and early retirement, also both under parameters established in the bill. According to the explanatory memorandum of the bill:

As part of said reorganization, the workers of said institution may voluntarily request their horizontal transfer to institutions of the Central Administration and the Institutional Decentralized Administration; or, they may opt for the payment of their benefits plus an additional incentive, to engage in activities outside the public sector. Both possibilities will be made effective in accordance with the parameters set forth in the bill.

Establishes a right to be covered by an early retirement regime, which will be charged to the National Budget, provided they meet the requirements indicated in the law and have not taken advantage of the additional incentive for institutional transformation. The bill also regulates aspects such as the calculation of the early retirement amount and its maximum limit, parameters of expiration, the transfer to the Invalidez, Vejez y Muerte Regime, and the supplementary application of Law No. 7302 (General Regime of Pensions Charged to the National Budget); as well as inter-institutional coordination between the Ministry of Labor and Social Security and the CCSS so that, through the signing of a collective insurance agreement, the insurance conditions for former employees of JAPDEVA who enjoy the early retirement benefit are regulated.

The bill consists of three chapters, the first entitled "Modernization of Japdeva" (Articles 1 to 7), the second "Early Retirement Regime" (Articles 8 to 17), and the third "Amendments to Other Laws" (18 to 20). In addition, it contains five transitory provisions that refer, one to the maximum period for the Dirección General del Servicio Civil to apply the process for carrying out horizontal transfers, as well as regarding the transfers of institutions under the scope of the Autoridad Presupuestaria; a maximum period of 1 month for workers to choose and formally request one of the modalities indicated in the law, a term that, once lapsed, obliges the administration to begin executing the termination of the personnel necessary to reach its financial break-even point, as well as regulation on the group of workers to whom the regulation is applicable.

(...)

IV.- On the legal nature of JAPDEVA and its labor regime. The legal nature of Japdeva is clearly regulated in its creation law (No. 3091 of February 18, 1963, fully amended by No. 5337 of August 27, 1973). It is an autonomous institution, with the character of a public utility company. Its Article 1 states:

"Creation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, as an autonomous entity of the State, with the character of a public utility company." "It shall also be responsible for administering the Atlántico canalization and the lands and property granted to it by this same law. It shall administer the State's railway transport companies that provide services to and from the ports of the Vertiente Atlántica specifically contemplated by the Executive Branch in the national development plans.

NOTE: The administration of the State railways was transferred to the Instituto Costarricense de Ferrocarriles (INCOFER) by its Organic Law No. 7001 of September 19, 1985 (especially by its Articles 1 to 4, 36, and 45).

Article 2.- It shall promote the comprehensive, rapid, and efficient socio-economic development of the Vertiente Atlántica of Costa Rica. JAPDEVA may lease, sell, allocate, or exploit the lands granted to it by this law, for the purpose of promoting the ends for which it was created, but it must previously consult the criteria of the Instituto de Tierras y Colonización, a criterion from which it may not deviate except by the affirmative vote of five of the members of the Administration Council. Within the current port area and its extension to Cieneguita and in that of new ports of the Vertiente Atlántica, an adjacent zone shall be determined for the installation of industries or commercial services related to port operation, which in no case may be alienated, but may be leased for fixed terms. The respective contracts shall contain a clause that expressly states that JAPDEVA may unilaterally terminate them when it needs the land for works and installations of general interest, in its judgment and without any responsibility whatsoever.

Article 3.- As an autonomous institution of public law, JAPDEVA shall have legal personality and its own patrimony; it shall enjoy administrative independence in accordance with this law. It shall be governed by the decisions of its Administration Council, whose members shall act in accordance with the Political Constitution, the pertinent laws, and regulations, being responsible for their management in a total and unavoidable manner. Relations between the Executive Branch and JAPDEVA shall be maintained through the Ministry of Public Works and Transport (Ministerio de Obras Públicas y Transportes)." Now, this type of organization is also known doctrinally as a public company-public entity; this is because it was created to develop a mercantile and commercial activity under the guise of a Public Law organization and, consequently, its legal regime is mixed. That is, all those aspects related to the organization and the exercise of certain eminently administrative powers or competences are governed by Administrative Law, and those relating to business activity by Private Law. In this regard, Article 3, paragraph 1, of the General Law of Public Administration (Ley General de la Administración Pública) establishes that "Public law shall regulate the organization and activity of public entities, unless otherwise expressly provided by law." For its part, paragraph 2 provides that "Private law shall regulate the activity of entities that, due to their overall regime and the requirements of their line of business, can be considered as common industrial or mercantile enterprises." This concerns, as seen, cases in which public entities exercise a Public Law capacity and another Private Law capacity (Article 1 of the General Law of Public Administration (Ley General de la Administración Pública)).

For its part, the Procuraduría General de la República has been clear in indicating, in the case of Japdeva, that the generality of its personnel does not hold the status of public servants because they do not perform public management, with the exception of employer representatives. It concludes, therefore, that for the vast majority, their labor regime is governed by private law, with the exception of the so-called managerial and higher oversight positions, which are indeed considered public servants. In this sense, a duality operates in JAPDEVA regarding service relationships, given that a group of employees is subject to common labor law, while another sector is governed by public law. (by way of example, see Legal Opinions 260 of 12/03/1998, 369 of 10/31/2014) In Legal Opinion 369-2014, in what is relevant, the Procuraduría General de la República stated:

"By reason of the legal nature that the legislator conferred on JAPDEVA, its employees are not considered public servants, and therefore are governed by labor law (provided it is not displaced by higher-order considerations of public law), as ordered by Articles 3, subsection 2), 111, subsection 3), and 112, subsections 2) and 3) of the General Law of Public Administration (Ley General de la Administración Pública):

Article 3: "(...)

2. Private law shall regulate the activity of entities that, due to their overall regime and the requirements of their line of business, can be considered as common industrial or mercantile enterprises." Article 111: "(...)

3. Employees of State economic enterprises or services responsible for dealings subject to common law are not considered public servants." Article 112: "(...)

2. Service relationships with laborers, workers, and employees who do not participate in the public management of the Administration, in accordance with paragraph 3 of Article 111, shall be governed by labor or mercantile law, as the case may be.

3. However, the provisions of public law that are necessary to guarantee administrative legality and morality, as determined by the Executive Branch by Decree, shall also apply to the latter." (...)" However, the preceding statement is not absolute because within decentralized entities there are also positions that are indeed subject to the public regime, and those are those that participate in public management, as can be inferred—a contrario sensu—from subsection 2) of Article 112, just referred to.

The employees who participate in public management are, according to what has been indicated by the Second Chamber of the Supreme Court of Justice, "those who drive and direct the powers of the State, the heads of autonomous institutions, executive presidencies, as well as the heads (managerial group) of State enterprises, etc." (ruling No. 2007-548 at 9:45 a.m. on August 15, 2007).

In addition to the above, reference is also made to Legal Opinion No. C-293-2007 of August 27, 2007, applicable to the case under study:

"It must be noted that the reiterated jurisprudence of this Technical Consultative Body has indicated the public nature of the relationship existing at the managerial levels of banking entities, which, by reason of the nature of the functions performed, are subject to a public regime to regulate their actions. In this regard, we have indicated:

"It is feasible to point out that a dichotomy of employment regimes coexists in that banking entity; alongside the personnel governed by a mixed regime—that is, one in which common labor legislation applies provided it is not displaced by higher-order considerations characteristic of public law (Constitutional Chamber Ruling No. 7730-2000 at 2:47 p.m. on August 30, 2000)—there are certain positions under a strictly public employment regime, called by doctrine and constitutional jurisprudence 'high-level' positions, who are not workers in the authentic sense of the word, but rather their service relationship is governed by administrative law and its principles, as they are true public servants." (Article 112, subsection 1) of the General Law of Public Administration).

In that regard, the Constitutional Chamber of the Supreme Court of Justice, in its ruling number 244-2001 of 14:46 hours on January 10, 2001, when referring to the situation of senior-level officials excluded from the INS collective bargaining agreement, held that: “… the employees of this institution cannot be considered as public officials, except in the case of managerial and senior oversight positions – to whom the public employment regime does apply – thereby excluding them from ordinary labor laws, which includes collective bargaining agreements.” (emphasis added).

The Constitutional Court followed the same position in judgment No. 12953-2001 of 16:25 hours on December 18, 2001, when in its Considerando V, in fine, it held that: “it is strictly necessary to presume that these servants perform ‘Public Management’ functions that, as the Attorney General's Office indicates, entail ‘a superior power of decision and oversight, as applicable’ (folio 34) and that, therefore, configure an employment regime that is entirely regulated by public law.” (emphasis not in original).

Thus, the appointment, removal, powers, disciplinary and salary regime, and in general, everything concerning the service relationship of those officials is regulated by public law; besides some of those positions being of the so-called “fixed-term” type, for which they enjoy stability in their posts, all of which creates important differences with respect to the labor personnel of that banking institution.” (Opinion C-034-2005 of January 26, 2005, emphasis not in original)” (only the emphasis is not in original).

Now, it is noted that there is no exhaustive list of officials who participate in public management, so their determination corresponds to the Administration itself, and ultimately, to the Courts of Justice (in that line, vote No. 2010-1277 of 15:32 hours on September 9, 2010, issued by the Second Chamber); however, in judgment No. 2001-12953 of 16:25 hours on December 18, 2001, the Second Chamber indicated that it is feasible to presume that servants excluded from collective bargaining agreements perform Public Management functions. Specifically, it indicated:

“In this way, based on the fact that RECOPE's own Collective Bargaining Agreement, in its article 4°, provides for excluding from its scope of application the President, the General Manager, the General Directors, the Area Managers, the General Auditor, the Deputy General Auditor, the Advisors and Assistants to the Presidency and the General Management, the Directorate Heads, the Secretary of Minutes of the Board of Directors, as well as those appointed to Executive Coordinator positions regardless of the functions they perform, it is strictly necessary to presume that these servants perform ‘Public Management’ functions that, as the Attorney General's Office indicates, entail ‘…a superior power of decision and oversight, as applicable…’ (folio 34) and that, therefore, entail an employment regime that is entirely regulated by Public Law.” (bold not in original).

With respect to JAPDEVA, its collective bargaining agreement in numeral 4 provides that “This Agreement shall not cover the Executive President, his Assistants and Advisors, the Managers and their Assistants, Deputy Managers, Auditor and Deputy Auditor, as they are the officials who participate in the public management of the Administration” (bold not in original), from which it follows, first, that the Board has already carried out an analysis to determine specifically which servants participate in public management, but also, and in accordance with what is stated herein, that these must be considered public officials, and therefore, subject to public law.” For its part, the Constitutional Chamber, in judgment 2010-9928 of 15:00 on June 9, 2010, indicated:

“VI.- UNCONSTITUTIONALITY OF ARTICLE 3°, SUBSECTION A), OF THE CONTENTIOUS-ADMINISTRATIVE PROCEDURAL CODE. (…) Thus, by way of example and without claiming exhaustiveness, the labor jurisdiction must hear and resolve – even if the matter is related to the administrative conduct or function exercised by a public entity – typically or materially labor-related extremes, such as the appropriateness or not and the calculation for the payment of the year-end bonus (aguinaldo), vacations, notice and severance pay, matters concerning the recognition of a retirement or pension or occupational risks, controversies arising within the scope of individual and collective Labor Law (e.g., economic-social conflicts), everything relating to the exercise of the right to strike or work stoppage, etc. In the same sense, it is necessary to recognize that in the case of employees entrusted with management subject to the common law of public enterprises or economic services carried out by a public administration, or of simple laborers, workers, or employees who do not participate in the public management of the respective public entity, that is, those whom the doctrine calls ‘workers of the public administration,’ the controversies that arise must be heard and resolved by the labor jurisdiction, as they are not, in a strict sense, a public official, servant, or employee (articles 111, paragraph 2°, and 112, paragraph 2°, of the General Law of Public Administration), given that, any conduct emanating from the public entity, in such context, will not be subject to the administrative legal regime and cannot materially be deemed an administrative-legal relationship. (…)”.

What was resolved by the Chamber allows a differentiation to be made between the public employment regime and the private one of the Administration. In the former, figures such as statutory regimes (article 191 of the Magna Carta), the right to full stability (in permanent employees) or relative stability (in interim servants), the right to reinstatement (which is only exceptional in the private regime) prevail, among other manifestations that do not concur in the latter and that allow both frameworks to be distinguished. Although within the private employment of a public enterprise-public entity, whose workers do not participate in public management, as ordered by subsection 3 of the aforementioned mandate 112 ibidem, principles of public law may operate by integration to guarantee "administrative legality and morality," such complementarity does not make those relationships characteristic of public employment, as it is clear that they remain of another moral nature. All of which reinforces the existence of a mixed-nature employment regime.

It is important to be clear on the foregoing for purposes of determining whether it is possible for the legislator to mandatorily determine the reduction of the payroll through restructuring of a decentralized institution to achieve its financial equilibrium, and if so, under what parameters it may do so.

V.- On constitutional jurisprudence regarding administrative restructurings.

The Costa Rican state has already undergone several processes of restructuring in the public sector in the past, for which legislation has been issued. On these matters – which have occasionally been brought before the Constitutional Chamber – the jurisprudence has considered that it is possible to carry out restructuring in the case of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof.

However, the application of these processes requires adherence to a series of prior requirements set forth – in most cases – in legislation, as occurs in the case of the Civil Service Statute and its Regulations, thereby seeking to guarantee absolute respect for the constitutional rights of the servants.

In this regard, the Constitutional Chamber has indicated:

“Article 192 of the Political Constitution empowers the Public Administration to order the restructuring of the various dependencies that comprise it, in order to achieve its better performance and organization, for which it may order not only the elimination and reclassification of positions, but also the transfer of officials to different posts, provided that due process is observed (...) The power to mandatorily transfer or reduce public officials is intrinsic to the State, which may implement – provided the procedure established to agree to a reorganization is respected – the necessary measures in order to organize its different dependencies to achieve a better functioning thereof... “ (Vote No. 4246-94) Likewise, this Chamber has indicated that administrative restructuring processes must be subject to real needs:

“It must also be taken into account that so-called restructurings or reorganizations must be based on real and duly proven needs in order to prevent abuses on the part of employers, who under an apparent justification violate the rights of servants, who by supposition – weaker party – within the relationship, are rendered unable to exercise immediate administrative or judicial action to stop this type of abuse. Therefore, every reorganization process must include the participation of all those dependencies required for making the final decision.” (Judgment 3288-94) In the same sense, judgment 00602-2001 stated:

“In addition to them, the Chamber has also indicated that in a public employment relationship, the projection of the right to work protected by article 56 of the Constitution contains, as one of its postulates in favor of the worker, that of stability in the position, without it being possible to ignore that this is what allows the servant to access a series of social and economic benefits that enable their academic and labor advancement, providing them with the security necessary for their personal development and that of the family nucleus that depends on them, which truly gives effect to the meaning of the right to work as an individual guarantee and obligation to society, in the expression used by the constitutional text; for which reason servants may only be removed by way of exception, due to a justified dismissal cause, or in the case of forced reduction of services, one of the cases being precisely the restructuring processes to which an institution may be subjected, the latter being, moreover, in line with the principles derived from article 192 of the Political Constitution, but precisely because it is an exception to the constitutional guarantee of stability for the worker, its application by the administration must be executed with absolute objectivity, transparency, and seriousness, and hence the requirement for qualified technical studies that can validate the decision-making, based on a coherent and effective model." In the case of the consulted bill, the legislator empowers JAPDEVA in its article 2 to determine the adequate administrative, operational, and financial structure for its proper functioning, as well as to carry out the technical studies and necessary actions to maintain the working persons it requires to guarantee the continuity of the entity and financial equilibrium, in the short and long term, in such a way that it exempts it from submitting to the procedures and regulations existing for the public sector, but on the other hand, it subjects it to the condition that the decisions adopted be based on technical studies. As can be observed from the legislative discussions, both the Comptroller General of the Republic and the Minister of Finance confirm that, from a financial point of view, JAPDEVA presents an imbalance that makes it unsustainable in the future and compromises the payment capacity of the servants of that entity in its current conformation (see Volume II fs 358-394; 409-412; Volume III fs 725 et seq.; Volume X 2573 et seq.), confirmed by the authorities of JAPDEVA (fs. Volume II 395-408; 473-719). The economic studies are clear that the institution's income is far lower than its expenses and its future capacity to assume the entirety of the current payroll, given the commencement of operations of APM Terminals, the concession contract, and the Ministerial directives adopted regarding it.

In that sense, the Chamber considers that although the technical studies would determine what the future structure should be according to the business model and the institutional reorganization plan, together with the strategic plan and the new technical studies, for the provision not to be unconstitutional due to its effects, in the case of public servants and the administrative, operational, and financial structure that is adopted, there must be an absolute connection between both, such that it is demonstrated that they respond to real needs duly proven in order to prevent abuses, according to the jurisprudence cited supra. In no way can it be interpreted that the requirement for technical studies referred to in the norm, because they are ex post, means a blank check for the administration to whimsically determine either the public servants who are to remain or be eliminated, or the administrative, operational, and financial structure that the entity is to have in the future. In that sense, this Chamber clarifies that, for the measure not to result in an unconstitutionality due to its effects, no dismissal of public servants may be initiated until the technical study referred to in article 2 of the consulted bill is concluded, and due process has been provided to those persons who would be affected by a potential dismissal. Every final act must also be duly grounded in the respective technical study.

Different is the case of workers subject to the common law regime, because these shall be governed by the provisions of the Labor Code and the Collective Bargaining Agreement in what is applicable, and with respect to the workers of said regime, the degree of stability guaranteed by article 192 of the Political Constitution to public servants does not operate. Naturally, in order to carry out a dismissal without employer liability in this segment of workers, all established legal provisions must be complied with.

Likewise, those workers who enjoy special union immunity (fuero especial sindical) may not be forcibly dismissed without following the procedures established in legislation, nor may the precautionary measures or resolutions that the courts of justice issue on occasion of cases submitted to their knowledge be disrespected.

In the case of dismissal with employer liability, for those workers subject to the common law regime who have not wished to voluntarily accept any of the modalities of horizontal mobility, incentives, or early retirement established by the law, the procedures proper to labor legislation must equally be complied with, including the payment of the corresponding legal benefits within what is stipulated by the legal system.

The Chamber considers that the consulted transitional provision nowhere empowers the entity to carry out automatic dismissals, since in the case of public servants, the positions may only be eliminated in accordance with the technical studies, after due process, without them being able to be done beforehand, and in the case of servants subject to the common law regime, who are the majority, they may be dismissed with employer liability with the full payment of their legal benefits as provided in labor legislation, if they did not wish to voluntarily accept any of the modalities of horizontal transfer, incentives, or early retirement established in the law. Likewise, without employer liability, only those who incur a serious fault may be dismissed, as established by the rules of common law.

VI-. On the alleged violation of JAPDEVA's administrative autonomy.

The petitioners allege that there is a possible unconstitutionality of the competence that the Legislative Assembly would be arrogating to itself through this norm, to substitute the Administration, for the purpose of disposing of its human and financial resources and proceeding to order the dismissal of its officials from JAPDEVA.

In this sense, they find a possible unconstitutionality in the consulted Transitory II being opposed to article 188 of the Magna Carta, which safeguards the administrative autonomy of autonomous institutions like JAPDEVA (created by Law No. 3091 of February 23, 1963, and its reforms, article 1). Likewise, they consider that this norm would be contrary to the principles derived from article 9 (separation of functions and independence of the branches of government) and article 122 (express prohibition on the Legislative Branch from co-administering), since it implies the direct intervention of the Legislative Assembly in administrative aspects of an autonomous institution by ordering the cessation of its officials.

The core point in this questioning would be to determine if the legislator has constitutional powers to reorganize an autonomous institution. In this sense, it is necessary to differentiate the normative origin of the autonomous institutions contemplated in constitutional numerals 188 and 189. As a first scenario, we have the autonomous institutions created and regulated directly by the Political Constitution, such as the Caja Costarricense del Seguro Social, the Universidad de Costa Rica, among others; and as a second scenario, we have the autonomous institutions created by law through qualified voting.

In the specific case of JAPDEVA, it is an autonomous institution created by law, whose goals, objectives, and purposes are set by law. That is, its creation was by the will of the legislator, which was motivated by a need to satisfy a public purpose at a given time. Having clarified the foregoing, we can affirm that just as the Legislative Assembly can create an autonomous institution, it can also close it – principle of implied powers – because whoever can create, can extinguish or modify its structure and its competencies, especially since in this case the public entity is financially unviable, so there is an objective and reasonable motive. Naturally, in a state of law, no branch of government can act arbitrarily. In the case under study, as indicated supra, there are financial studies from the Ministry of Finance, the Comptroller General of the Republic, and others from the institution itself that recognize the entity's impossibility to pay salaries to the workers, because the business model changed with the entry of a concessionaire (APM Terminals) and without the reactivation and reorganization measures adequate to guarantee its financial equilibrium having been taken in a timely manner. The foregoing has obliged the Executive Branch to send an extraordinary budget to pay salaries for the coming months (file 21,475), monies that will be paid in part with debt (see appearance of the Minister of Finance Volume II fs 256 et seq.; General Comptroller 358 and Comptroller reports 409-412; JAPDEVA 395-408; Volume X Ministry of Finance report fs. 2573 et seq.). The bill being consulted proposes facilitating the reduction of the payroll, under a series of incentives, mobility, and compensation for the workers, according to the technical studies the entity carries out within a maximum period of two months from the law's entry into force, to attempt to rescue the institution and not fall into a cessation of payments that renders it completely inoperative and to adapt it to a new business reality without having to close it. Having analyzed the consulted Transitory II, in the judgment of this Chamber, there is no provision that allows concluding that the legislator has exceeded its constitutional competencies in the consulted norm. All concrete administrative acts, from the law's entry into force – if adopted – will be the responsibility of the representatives of JAPDEVA, according to the new general framework of action set by the legislator. What the law does is set a general framework, as well as time limits and conditions for action. The micro-administration decisions, that is, the concrete acts, the reorganization model to adopt, will depend on JAPDEVA's own administration, according to the technical study established by the law.

To maintain the contrary would be to affirm that the competencies and public services assigned to a decentralized public entity that enjoys political autonomy are petrified, such that the ordinary legislator could not modify or vary such competencies or public services conferred, when there is grounds to do so. In the specific case, it would mean that JAPDEVA must close given the impossibility of maintaining its payroll, given that, according to what is stated in the bill, - JAPDEVA lost 80% of income and retains 100% of the payroll -, with the paradox that the legislator could create another autonomous institution by law with other competencies, which, if done through that route and not by modifying JAPDEVA, would cause great harm to the workers and the public service since JAPDEVA's functions, according to its law of creation, are essential for the port and provincial development of Limón.

It cannot be lost sight of that the Costa Rican state is unitary, and that to more efficiently achieve the ends, objectives, and goals set by the current legal system, it established an organizational design that establishes a central and decentralized power, in the latter case according to territorial criteria (Municipalities), as well as with specialization criteria (Autonomous Institutions).

On this subject, the Constitutional Chamber has stated:

"From the constitutional point of view, it is necessary to begin by emphasizing that Costa Rica, since its birth, has been a concentrated unitary State, which means it has never had any type of political decentralization strictly speaking. The only one it has known is administrative, be it territorial – municipalities – or institutional. So any exercise tending to distinguish, as the appellants intend, between merely administrative decentralization and other possible forms of decentralization, political, is futile." (Resolution No. 4091-94 of August 9, 1994, reiterated by No. 7528-97 of November 12, 1997) The creation of an administrative decentralization model favors, on the one hand, the better satisfaction of local interests, as well as the provision of services and the performance of activities that require technical specialization. Despite this, and the different degree of autonomy with which the public entities that make up the decentralized administration are created, the State must seek to maintain the unity and harmony of its action.

It was with that vision that the constituent established in its article 188 that the autonomous institutions of the State enjoy administrative independence, but are subject to the law in matters of government. Article 188 of the Political Constitution states:

“Article 188. The autonomous institutions of the State enjoy administrative independence and are subject to the law in matters of government. Their directors are responsible for their management.” (emphasis not in original) Originally, the constitutional text did not establish the possibility of subjecting the autonomous institutions of the State to the law in matters of government, an aspect that was reformed in 1968 (Law No. 4097 of April 30, 1968), precisely to guarantee the unity of the state.

As the jurisprudence of this Court has indicated, since that constitutional reform, autonomous institutions do not enjoy a guarantee of unrestricted constitutional autonomy, since the law, apart from defining their competence, may subject them to directives derived from development policies that this same law entrusts to the Central Executive Branch, provided, of course, that the sphere of administrative autonomy strictly speaking is not thereby invaded. According to judgment 1999-919 of this Chamber, the background and effects of the reform itself, by reserving to those entities the matter of their own administration, excluded from their management the power of government which implies: a) the setting of ends, goals, types of means to achieve them; b) the issuance of autonomous regulations of service or activity in accordance with provisions normally called general policy. In this way, the reform made it constitutionally possible to subject autonomous entities in general to national planning criteria and, in particular, to subject them to directives of a general nature issued by the Central Executive Branch or by organs of the Central Administration (called to complement or oversee policy in general). In that sense, general conditions of action that exceed the singular sphere of action can be set by law. (in a similar sense, see judgment 1998-4313). The Chamber has also stated that “the scope of administrative autonomy would be misunderstood if it were believed that it equates to the absence of all possibility of external control, as if decentralized entities were islands governed by sovereign self-government; a State within another.” (see judgment 1998-835).

Likewise, decentralized entities are not islands before the legislator, when there are circumstances that force the safeguarding of public purposes. In the case under analysis, not only is the sustainability of the purposes entrusted to JAPDEVA in its law of creation at risk, essential for the development of the province of Limón, but also the public funds that the Central Government must devote from citizens' taxes to meet the obligations of paying the entity's salaries.

For the foregoing reasons, it cannot validly be alleged that there is a violation of the separation of powers, which is not at stake, nor of article 188 of the Political Constitution." In conclusion, this Chamber did not consider incompatible with the Constitution the possibility of subjecting JAPDEVA to the referred process of modernization and administrative restructuring – according to the parameters developed in that same vote. To which it must be added, again, that assessing the convenience or necessity of “outsourcing” (tercerización) potential services exceeds the scope of competence of this Court. Without prejudice to noting, in any case, that any eventual company that provides such services to JAPDEVA in the national territory must conform, as pertinent, to the array of obligations provided for by the Costa Rican labor legal system, in development of the social rights and guarantees recognized in Title V of the Political Constitution.

V.- ON THE CHALLENGE TO THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, EXPLOITATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL. Finally, it must be reiterated that the main reproaches of the plaintiff are directed at questioning, in particular, the validity, necessity, and convenience of such contract, as well as matters concerning its due execution or compliance; however, as this Chamber has repeatedly indicated, this does not constitute the object of an unconstitutionality action. Thus, recently, when hearing an action brought against that same contract, this Chamber, through vote no. 2021-005640 of 9:15 hours on March 17, 2021, resolved – in what is relevant – that:

“(...) ON THE INADMISSIBILITY OF THIS ACTION AGAINST THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL. The plaintiff also challenges “(…) Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1, and Additional Measure No. 9 of Annex 3 of the PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL”. Despite their arguments, constitutional jurisdiction is not the appropriate avenue to review the content of the challenged concession contract, and therefore, regarding this aspect, the action is improper due to its object. This is because article 10 of the Political Constitution assigns this Chamber the task of “(…) declaring, by an absolute majority of its members, the unconstitutionality of norms of any nature and of acts subject to Public Law.” Likewise, as indicated in the preceding considerando, article 73 of the Law of Constitutional Jurisdiction specifies that “The unconstitutionality action shall be admissible: a) Against laws and other general provisions, even those originating from acts of private subjects, that violate, by action or omission, any constitutional norm or principle. (…)”. In accordance with those provisions, it is not appropriate to bring an action before this Chamber against a contract, even if it is a concession contract.

In the case of subsection a) cited above, when referring to the possibility of challenging “other general provisions (disposiciones generales), even those originating from acts of private subjects,” it should be clarified that it refers to provisions of a normative scope (for example, a regulation or a statute) and not a contractual one, since that is what rightfully follows from the phrase “norms of any nature” used in Article 10 of the Constitution. (In this regard, see votes n° 2005-13070 at 16:02 hours on September 22, 2005 and n° 2009-000310 at 15:18 hours on January 14, 2009).” This criterion was later confirmed in vote no. 2021-013132 at 9:05 hours on June 9, 2021, in which this Chamber stated:

“I.- Regarding the official letters SJD-126-2014 and SJD-170-2014 of the Instituto Costarricense de Turismo and its legal opinion AL-214-2014, clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Annex 3 of the Public Works Concession with Public Service Contract for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal. With respect to the cited administrative acts and the mentioned public works concession with public services contract, it must be indicated that this action is a reiteration of a previous one (expediente no. 21-003621-0007-CO), filed by the same plaintiff, in which this Chamber has already ruled, through vote no. 2021-005640 at 9:15 hours on March 17, 2021 -in what is relevant- that:

“III.- ON THE INADMISSIBILITY OF THIS ACTION AGAINST THE OFFICIAL LETTERS SJD-126-2014 AND SJD-170-2014 OF THE INSTITUTO COSTARRICENSE DE TURISMO AND ITS LEGAL OPINION AL-214-2014. The plaintiff claims to file this unconstitutionality action against “(…) the official letters SJD-126-2014 and SJD-170-2014 of the Instituto Costarricense de Turismo and its legal opinion AL-214-2014 (…)”. Despite the allegations of the managing party, this action is inadmissible regarding this object, given that Article 73 of the Ley de la Jurisdicción Constitucional, in its subsections a) and b), provides the following: “Article 73.- The unconstitutionality action shall be admissible: a) Against laws and other general provisions (disposiciones generales), even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. b) Against subjective acts of public authorities, when they infringe, by action or omission, any constitutional norm or principle, if they are not subject to the remedies of habeas corpus or amparo.(…)”. Based on the foregoing, the unconstitutionality action filed against the official letters and legal opinion issued by the Instituto Costarricense de Turismo is inadmissible for failing to meet the requirements established in the aforementioned provision, since it is not directed against provisions of a general nature that are deemed to infringe constitutional norms and principles. In this case, the challenged official letters and legal opinion do not have a normative character, making the unconstitutionality action filed inadmissible for this purpose.

IV.- ON THE INADMISSIBILITY OF THIS ACTION AGAINST THE PUBLIC WORKS CONCESSION WITH PUBLIC SERVICE CONTRACT FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL. The plaintiff also challenges “(…) Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Annex 3 of the PUBLIC WORKS CONCESSION WITH PUBLIC SERVICE CONTRACT FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL”. Despite their arguments, the constitutional jurisdiction is not the appropriate avenue to review the content of the challenged concession contract, and therefore, in this aspect, the action is inadmissible due to its object. This is because Article 10 of the Political Constitution assigns this Chamber the task of “(…) declaring, by an absolute majority of its members, the unconstitutionality of norms of any nature and of acts subject to Public Law”. Likewise, as indicated in the preceding recital, Article 73 of the Ley de la Jurisdicción Constitucional specifies that “The unconstitutionality action shall be admissible: a) Against laws and other general provisions (disposiciones generales), even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. (…)”. In accordance with those provisions, it is not appropriate to file an action before this Chamber against a contract, even if it is a concession contract. In the case of subsection a) cited above, when referring to the possibility of challenging “other general provisions (disposiciones generales), even those originating from acts of private subjects,” it should be clarified that it refers to provisions of a normative scope (for example, a regulation or a statute) and not a contractual one, since that is what rightfully follows from the phrase “norms of any nature” used in Article 10 of the Constitution. (In this regard, see votes n° 2005-13070 at 16:02 hours on September 22, 2005 and n° 2009-000310 at 15:18 hours on January 14, 2009).” Therefore, the action was finally rejected outright regarding those aspects. This, upon concluding that, in the present case, the questioned conduct was not challengeable through an unconstitutionality action, in accordance with the provisions of Article 73, subsections a) and b), of the Ley de la Jurisdicción Constitucional. Ergo, the plaintiff must abide by what has already been resolved on that occasion, as there is no reason justifying a change of criteria.

II.- Regarding the execution of the consolidated contract with addenda 1 and 2, called “Public Works Concession with Public Service Contract for the design, financing, construction, operation and maintenance of the Moín Container Terminal,” carried out on February 13, 2012, by the Administration and the concessionaire company APM Terminals, the official letters no. UE-TCM-OF-OF-01 13-2013 of October 24, 2013 from the Manager of the TCM Executing Unit and no. DMP-DI-2013-0363 of November 11, 2013 from the Acting Director of Infrastructure of the Maritime Port Division, in which the design presented by the concessionaire was approved, and official letter no. UE-TCM-OF-0192-2014 of December 19, 2014 from the Board of Directors of the Consejo Nacional de Concesiones, in which the company APM Terminals de Moín S.A. was notified of the construction stage corresponding to Phase 2A of the Moín Container Terminal, effective January 19, 2015. In this second action, the aim is to broaden the object of challenge regarding the cited public works concession with public service contract and other administrative acts related to the execution of said contract. In which case, what was already indicated in the cited vote no. 2021-005640 is fully applicable, in the sense that the sub lite does not configure the scenarios provided for in Article 73, subsections a) and b), of the Ley de la Jurisdicción Constitucional.

III.- In relation to what has already been indicated in the two preceding recitals, it should be noted that, in the sub judice, the plaintiff formulates various reproaches regarding the admissibility, convenience, and validity of the cited public works concession with public service contract, as well as a series of administrative acts linked to the execution of said contract. Reprimands regarding which this Chamber has already pronounced, on multiple occasions, in the sense that they correspond to issues that are not appropriate to clarify in this constitutional jurisdiction.

Thus, the plaintiff first questions the content of the cited contract and, in particular, the concession granted to the company APM Terminals, claiming that a public works concession with public service was granted exclusively to the referred company for the purpose of developing and operating the new Moín Container Terminal, which in their opinion violates the provisions of various constitutional norms and principles, mainly, Article 46 of the Constitution. They particularly question that such a concession was granted, affirming that JAPDEVA was already providing the respective container loading and unloading services more efficiently. They also claim that Costa Ricans are being affected by high prices and delays in the provision of port services by the aforementioned company APM Terminals. Finally, they allege that this situation has plunged JAPDEVA into a serious financial crisis. It must be pointed out that, regarding the reproaches expressed by the plaintiff, in judgment No. 2013-16146 at 9:05 hours on December 6, 2013, this Chamber -in what is relevant- considered:

“I.- Object of the appeal. The appellant seeks the protection of the constitutional principle of free enterprise and fair competition, as well as the principle of equality, right to work and a dignified wage, accusing that the Executive Branch granted -exclusively- a public works concession with public service to the company APM Terminals Central America B.V. and APM Terminals Moín S.A. for the design, financing, construction, operation and maintenance of the new Moín Container Terminal, thereby suppressing JAPDEVA’s faculties to provide the most important service in the port activity of Limón, such as the handling of container ships, with the consequent decrease in perceived income as well as the elimination of employment sources, hindering free competition between JAPDEVA and private companies.

II.- On the merits. After examining the record, the Chamber deems that the amparo appeal should be denied, for the reasons to be stated. Firstly, if the appellant maintains any type of disagreement with clause number 9 of the public works concession with public service contract awarded to the company APM Terminals Central America B.V. and APM Terminals Moín S.A., or considers that the content of said contractual clause is arbitrary, illegal, or abusive, they must allege it through the corresponding legal channel, as this Chamber lacks the competence to settle this type of conflict. As this Tribunal has held on previous occasions, “(…) the petitioner must take into account that disputes concerning the correct interpretation of the clauses of the contracts in question, their scopes and the obligations derived from them for the parties, as well as the provisions of the regulations governing the matter, are the proper task of such channels, and not of this jurisdiction, as it is a matter of ordinary legality whose knowledge is outside the scope of competence of the Chamber” (see judgment 2009-015459 at 18:10 hours on September 29, 2009).

Secondly, it can be inferred from the appellant’s statements that the contractual clause they challenge refers to the alleged exclusivity that the company APM Terminals Central America B.V. and APM Terminals Moín S.A. would have regarding the handling of container ships. Specifically, they claim that clause number 9 of the concession contract in question actually grants exclusivity to a private company to provide the service that the public company JAPDEVA provided. In this regard, it is necessary to clarify to the protected party that the decision to have granted or not exclusivity to said company for the provision of that specific type of service (containers) does not constitute in itself an injury of constitutional relevance. As the appellant themselves indicates, what is being suppressed is the legal faculty to provide a service, this due to a decision of opportunity by the Administration. This type of measure belongs to the natural space available to the Administration to exercise administrative management, inherent to its sphere of competence, according to its governmental priorities. Thus, constitutional control would only apply in the event that in the exercise of such competencies, a fundamental right were evidently and manifestly violated, an issue that does not occur in the present case. The mere disagreement of the plaintiff with the referred measure concerns rather a purely political problem, rather than a legal-constitutional one, which is why this Tribunal is obliged to apply self-restraint.

On the other hand, from the statements given under oath by the respondents, it appears that on July 16, 2011, the Sindicato de Trabajadores de JAPDEVA filed a contentious-administrative proceeding regarding the issue in dispute here, which was resolved in the first instance by the Tribunal Contencioso Administrativo through resolution number 0153-2012-VI, in which their lawsuit was dismissed in all its aspects. The respondents affirm that, subsequently, on March 28, 2012, the Union filed another contentious-administrative proceeding, which is currently being processed under expediente number 12-001630-1027-CA and deals with all the events that occurred once the contract was countersigned. According to what was reported by the defendants, said process is ongoing. That being the case, the dismissal of the amparo appeal is even more justified, given that the facts related to the public works concession with public service contract for the design, financing, construction, operation and maintenance of the Moín container terminal (awarded in favor of the private companies APM Terminals Central America B.V. and APM Terminals Moín S.A.) are being examined through the competent ordinary channel” (the underlining is not in the original).

Criterion reiterated in votes no. 2014-18103 at 11:33 hours on October 31, 2014 and no. 2015-001659 at 9:05 hours on February 6, 2015. Meanwhile, more recently, through vote no. 2019-001409 at 09:05 hours on January 25, 2019, upon hearing a similar claim, the Chamber resolved the following:

“... the appellant files an amparo appeal against the signatories of the “Public Works Concession with Public Service Contract for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal,” and states that the Port Authority (JAPDEVA) provides port services to container ships for the handling of container loading and unloading. They refer that on February 13, 2012, the Granting Administration signed a contract with the concessionaire APM Terminal for the operation of loading and unloading container ships, an action that departs from the constitutional legal framework. They consider that said contract contains limitations and restrictions that cause an impact on users (shipping companies and stevedores), because it will no longer be possible to request the provision of services for container ships from the intendancies of Limón and Moín, for which they request the annulment of the referred clause (chapter 4, subsection 22) and that the appeal be granted with the legal consequences.

(...)

I.OBJECT OF THE APPEAL AND LACK OF COMPETENCE OF THE CHAMBER TO HEAR THE CLAIM. In relation to the allegations and claims set out in the First Resultando, it must be noted that this Chamber is not a controller of the legality of the actions or resolutions of the Administration, and therefore it is not competent to review whether the claim required by the protected party is admissible, or whether it conforms or not to the current legal regulations, a task proper to the ordinary, administrative or jurisdictional channels. The admissibility or not of the questioned clause does not constitute a matter that should be discussed in this Jurisdiction, since it does not have the capacity to violate any fundamental right, thus being outside the scope of its competence and must be resolved through ordinary, administrative or jurisdictional channels. Therefore, any claim or discrepancy regarding the terms of the contract must be raised before the respondent authorities or through the competent jurisdictional channel, venues in which they may broadly discuss the substance of the matter, request the pertinent precautionary measures and, eventually, assert their claims. By virtue of the foregoing, the amparo appeal is inadmissible and must be declared as such.”

For its part, in vote no. 2019-016605 at 9:40 hours on August 30, 2019, this Tribunal resolved:

“From the arguments expressed by the plaintiff, it follows that their claim is for this Tribunal to define which cargo must be operated by JAPDEVA in relation to the TCM concession; to stop the legislative process of Bill No. 21426, to define the causes of JAPDEVA’s financial crisis, to determine whether or not the termination of its employees’ employment relationship is appropriate, as well as whether contractual breaches have occurred in the TCM; and to prevent the transfer of funds to JAPDEVA to liquidate it. However, such claims are not matters of constitutionality, but of mere legality.” VI.- IN CONCLUSION. As a corollary of the foregoing, the action is to be rejected on the merits, with respect to subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as well as Article 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, which amended Article 1 of the Ley Orgánica de JAPDEVA. For the rest, the action is rejected outright.

VII.- DOCUMENTATION PROVIDED TO THE EXPEDIENTE. The parties are warned that if they have provided any paper document, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be removed from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, all material not removed within this period will be destroyed, in accordance with the provisions of the “Reglamento sobre Expediente Electrónico ante el Poder Judicial,” approved by the Corte Plena in session N° 27-11 of August 22, 2011, article XXVI and published in the Boletín Judicial issue 19 of January 26, 2012, as well as the agreement approved by the Consejo Superior del Poder Judicial, in session N° 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

The action is rejected on the merits, with respect to subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as well as Article 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, which amended Article 1 of the Ley Orgánica de JAPDEVA. For the rest, the action is rejected outright.

Fernando Castillo V.

Paul Rueda L.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

Rosibel Jara V.

Jose Roberto Garita N.

Documento Firmado Digitalmente -- Código verificador --  9764, which amended subsection 1 of the Organic Law of JAPDEVA and the public works concession contract with public service for the design, financing, construction, operation, and maintenance of the Moín container terminal.

**Whereas:** **1.-** By written submission received by this Chamber at 12:53 p.m. on April 29, 2022, the petitioner requests a declaration of unconstitutionality of subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the General Law on Public Works Concession with Public Services, ordinal 18 of the Law for the Transformation of the Board of Port Administration and Economic Development of the Atlantic Seaboard, Law No. 9764, which amended subsection 1 of the Organic Law of JAPDEVA and the public works concession contract with public service for the design, financing, construction, operation, and maintenance of the Moín container terminal. The petitioner indicates that Article 121 of the Political Constitution states: "*In addition to the other powers conferred upon it by this Constitution, it corresponds exclusively to the Legislative Assembly: (...) 14) To decree the disposal or the application to public uses of the Nation's own property. The following may not permanently leave the domain of the State: a) The power that may be obtained from public-domain waters within the national territory; b) Coal deposits, sources and deposits of petroleum, and any other hydrocarbon substances, as well as deposits of radioactive minerals existing in the national territory; c) Wireless services. The goods mentioned in items a), b), and c) above may only be exploited by the public administration or by private parties, in accordance with the law or by means of a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly. National railways, docks, and airports—the latter while in service—may not be disposed of, leased, or encumbered, directly or indirectly, nor may they leave the domain and control of the State in any way.*" For its part, Article 140 of the Political Constitution establishes: "*19) To sign administrative contracts not included in subsection 14) of Article 121 of this Constitution, subject to submitting them to the approval of the Legislative Assembly when they stipulate exemption from taxes or fees, or have as their object the exploitation of public services, natural resources, or riches of the State.*" He indicates that, in April 1998, the General Law on Public Works Concession with Public Services was approved, which, in its Article 2, provides: "*1.- Any work and its operation are susceptible to concession when there are reasons of public interest, which must be recorded in the file by reasoned act. Telecommunications, electricity, and health services are excepted from the application of this Law. 2.- Railways, railroad tracks, docks, and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures set forth in this law.* 3.- In the case of the Limón, Moín, Caldera and Puntarenas piers, by this law, only new works or expansions carried out there may be granted in concession (concesionadas) and not the existing ones." It adds that, on February 28, 2019, APM TERMINALS began operations with its 2 berths, in accordance with point 4.1.1. 22 of the Public Works Concession Contract with Public Service for the design, financing, construction, operation and maintenance of the Moín Container Terminal. On March 1, 2019, the Minister of Transport, Rodolfo Méndez Mata, issued official letter DM-2019-0604, which indicated that the concept of a fully cellular vessel is not contained in any current regulation and, based on that interpretation, proceeded to instruct JAPDEVA to immediately insert the scheduling of vessels to be served by the TCM for the current week, in adherence to technical criteria that guarantee a safe and efficient operation for both terminals (Gastón Kogan Rogan and TCM). The foregoing, to avoid economic and commercial losses for the country due to the paralysis of our ports' operations. From the list of vessels attached to the official letter, all of these vessels failed to meet the requirement of being fully cellular container ships; however, the minister's instruction was to refer them to be served by the TCM, which is managed by the company APM TERMINALS. On March 4, the executive president of JAPDEVA, Greivin Villegas Ruiz, sent official letter PEL-211-2019 to Minister Rodolfo Méndez Mata, which stated: "Based on the constitutional principle of legality (Articles 11 of the Political Constitution and 11 of the General Public Administration Act (Ley General de la Administración Pública); ordinal 188 of the Political Constitution; duty of probity (Article 3 of Law 8422); numerals 166, 169, following and concordant of the General Public Administration Act (Ley General de la Administración Pública) as well as, Articles 1, 6 subsections a) and c); 22 of the Organic Law of JAPDEVA; I respectfully find myself obligated to consider your official letter DM-2019-0700 (administrative act) as evidently and absolutely null and void, and therefore, your instruction is incompatible within the framework of the organic relationship of our represented entities (Ministry and Decentralized Entity) according to Article 99 of the General Public Administration Act (LGAP). In general, we observe with concern that the MOPT's unilateral interpretation regarding the use of the access channel, the scheduling, and the type of vessel that the TCM can serve, is not in accordance with the legal system. The concession contract and the concessionaire itself recognize that the TCM can only serve fully cellular type container ships. The situation is further aggravated when a monthly schedule of the TCM's operations is instructed for the period from February 19 to March 19, 2019, without knowing in advance the service demand or the type of vessels that will be served, which is improper and contrary to what is established in JAPDEVA's Operations Regulations (Reglamento de Operaciones de JAPDEVA). Said regulation is known and accepted by APM TERMINALS, since it forms an integral part of the concession contract. In addition to the foregoing, it is recognized that JAPDEVA, as the Port Authority, is responsible for carrying out these schedules weekly. The illegitimate instruction issued by the MOPT in its official letter injures JAPDEVA's autonomy and generates damages that are impossible or difficult to repair, even irreversible, as we have stated. Damages and losses are similarly generated before the port community, for example; the fact that companies such as Dole and Chiquita have stated they were forced by the Government to transfer their operations to APM under the purview of your represented entity's criterion; this despite the fact that many of their vessels are not of the Fully Cellular type. The above situation has generated financial and operational uncertainty for the companies, forcing them to decide to transfer their total operations to APM, and that implies layoffs of their workers. In accordance with the current legal framework, I proceed to explain in detail the corresponding reasons of fact and law...". Later, in that same official letter, he added that: "We share your concern so that the public service is provided in a continuous and uninterrupted manner and thus, as the concessionaire itself recognizes and communicated, 'all shipping companies arriving at the Limón-Moín port complex in fully cellular container ships must dock at the Moín Container Terminal'. In addition to the foregoing, all shipping companies arriving at the Limón-Moín port complex in non-fully cellular container ships must dock at the JAPDEVA Terminal.

Acting to the contrary —as we explained in our official communication PE-033-20 19— would represent a technical bankruptcy for JAPDEVA and, according to our projections, by April of this year there would not be the financial capacity to guarantee the continuity of port public services, development management, the payment of salaries, social charges, and other obligations. Excuse me, Mr. Minister, but JAPDEVA is obligated to act under the protection of constitutional numeral 188; the duty of probity (Article 3 of Law 8422); Articles 1, 6 subsections a) and c); 22 of the Organic Law of JAPDEVA; and numerals 1, 4, 6, 11, 27, 59, 60, 66, 99, 100, 101 of the General Law of Public Administration (Ley General de la Administración Pública) and therefore to disobey the instruction issued by you (Articles 107, 108 LGAP and; 3, 4 and 5 Law 8422). It is reiterated that JAPDEVA made the corresponding communication one week in advance by the Port Management so that, as of March 1, the agencies or their representatives present the official documents provided by the ship's captain proving the presence of Fully Cellular Container Ships, all in accordance with what is established in the JAPDEVA Port Operations Regulations (Reglamento de Operaciones Portuarias de JAPDEVA) and as equally recognized and accepted by the concessionaire in its communiqué." It points out that that same day, March 6, the press reported that President Carlos Alvarado explained that Greivin Villegas Ruiz had been dismissed, as he was not aligned with the Government. It asserts that the start of operations of APM TERMINALS was marked by serious problems. The start-up was so complicated that the Chamber of Exporters of Costa Rica (Cámara de Exportadores de Costa Rica) sent a note addressed to the National Port Council (Consejo Portuario Nacional), where several problems that the operation of the company APM TERMINALS had experienced were set forth. In the face of the problems at the start of APM TERMINAL's operations, CORBANA sent a note addressed to the National Concessions Council (Consejo Nacional de Concesiones) stating: "The exporting sector in general faces a significant increase in export costs, among them the TCM rates, a situation that harms the country's competitiveness, since the savings from the operator's efficiency have not been and will not be passed on to the exporter. Currently, the rates constitute the most expensive in the region, placing the country at a competitive disadvantage." On May 28, 2019, the Executive Branch presented to the Legislative Assembly the bill called "Law for the Modernization of the Board of Port Administration and Economic Development of the Atlantic Coast of Costa Rica (JAPDEVA) and Protection of its Servant Personnel (Ley de modernización de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (JAPDEVA) y protección de sus personas servidoras)", which was processed under legislative file no. 21.426. This bill proposed a series of measures for the reduction of JAPDEVA's personnel (horizontal transfers to other institutions, early retirement (prejubilación) and voluntary labor mobility) as a direct reaction to the serious deterioration that its finances were presenting. In 2019, it appeared in the press that, at that time, given the decrease in ship attention at JAPDEVA, unlike the past, where the institution's payroll was paid with the income from ship attention, the Government was subsidizing that expense, since JAPDEVA practically no longer had its own income. On June 18, 2019, the Executive Branch presented to the Legislative Assembly a fourth extraordinary budget (with modifications to the Ordinary Budget of the Republic of 2019), which was processed under legislative file 21.475. The bill, in its original version, had the purpose of incorporating resources into the budget of the Ministry of Public Works and Transport (Ministerio de Obras Públicas y Transportes) and the budget heading of Pension Regimes (Regímenes de Pensiones), for a total amount of ₡ 23,679,008,731.00, to address the critical financial situation of JAPDEVA already described. Regarding the MOPT, said extraordinary budget (file no. 21.475) incorporated a transfer destined for JAPDEVA, for an amount of ₡ 21,989,765,516.00, with the objective of financing the payment of three months of payroll (which included salaries, year-end bonus (aguinaldo) and social contributions) for a total amount of ₡ 5,752,908,243.00, in addition to providing resources for the payroll reduction plan of the institution contained in bill no. 21.426, for an amount of ₡ 16,236,857,273.00. By mid-2019, JAPDEVA itself issued the report budget execution JAPDEVA June 30, 2019.pdf, where the reduction of its income as of April 2019 is shown, in the face of the Government's decision to transfer the attention of container ships to now be handled by APM TERMINALS. Here it is shown that the reduction in the institution's income is dramatic and is what justifies the bill. It accuses that the absolute restriction imposed on JAPDEVA for the attention of container ships, as a consequence of the administrative conduct, has caused all the container ships that arrive on the Costa Rican Caribbean, including conventional or non-fully cellular ones, to have to queue for several hours to be attended at the two berthing positions of APM Terminals' TCM, while the eight berthing positions that JAPDEVA has are empty and totally underutilized.

This situation, added to the concern over the high rates charged by APM Terminals, caused five business chambers – namely: the Cámara Nacional de Agricultura y Agroindustria (CNAA), the Cámara Nacional de Productores y Exportadores de Piña (CANAPEP), the Corporación Bananera Nacional (CORBANA), the Cámara Nacional de Productores y Exportadores de Melón y Sandía (CANAPEMS), and the Cámara Nacional de Productores Independientes de Banano (APROBAN) – to send a note to the Consejo Portuario Nacional (official communication CE-2019-1049 of June 18, 2019), in which they indicated a series of impacts they were suffering in their economic activity that jeopardized the sustainability of their activities and the country's competitiveness. This note mentioned problems in the appointment systems, in the supervision of refrigeration systems, with the terminal's electrical flow, in the computer system, and in the information systems. It also mentioned severe congestion on Ruta 257 for access to the TCM to pick up or deliver goods. For this period, several organizations certify layoffs at CADESA, SINTRACOBAL, and SINTRASTAFCOR. This demonstrates that the impact on workers in Limón goes beyond just JAPDEVA and is, therefore, an element to consider when weighing the interests in the decision.

It adds that, by October 2019, the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, was approved, with which a process of reducing JAPDEVA's payroll began through horizontal transfers and early retirement systems charged to the national budget, where the State had to assume onerous payments to cover the expenses of the employees who previously managed containers in JAPDEVA's ports and who became unemployed when these services were transferred to the TCM operated by APM TERMINALS. At the end of October 2019, during a radio interview on Monumental, former deputy, former presidential candidate, and businessman Antonio Álvarez Desanti stated that the country's producers and exporters, in his case of bananas, longed for the JAPDEVA era, as APM had been—according to them—a fiasco, since export costs were extremely high, to the point of mentioning it as the most expensive port in the region. He also indicated it was much more inefficient than JAPDEVA. He affirmed that costs practically doubled with APM TERMINALS.

On October 17, 2019, the Law that Transforms the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, was published in La Gaceta, which, in its article 18, amended article 1 of its original law, with the following text: "*Article 1.- The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, is created as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of Port Authority; it shall be responsible for constructing, administering, operating, subcontracting, granting concessions, and carrying out any other financial mechanism permitted by national regulations, to develop port services, its own administrative management, and investments, constructions, and improvements, in the maritime and river ports of the Vertiente Atlántica, with the exception of those operating under subsection h) of article 60 of this law.*" Following this reform, on February 6, 2021, Andrea Centeno sent official communication PEL-15-2021 to SINTRAJAP, in which it was stated: "*In follow-up to the last meeting of the Restructuring Commission held at the Executive Presidency on December 21, 2020, we attach the information presented for your information. Economic situation of the organization and financial erosion according to the legal garnishment process. Projected criticality and need for resources. Exercise on the need for payroll reduction. Review of what was already indicated in the Institutional Reorganization Program regarding outsourced services and the presentation made to its Board of Directors in November 2019. Cost and efficiency analysis of the identified outsourced services.*" Attached to said note was a document titled: "*Review of information and efficiency data on outsourcing.*" This note stated: "*The outsourcing of services is one of the changes applied in the reorganization program according to JAPDEVA's new vision, for the optimization of the cost model and indirect employment generation in Limón, which allows the institution: Potential payroll reduction.*" In November 2019, JAPDEVA published its institutional reorganization program on its website, where in its chapter titled "*Institution in crisis*" it indicated: "*For the year 2019, the financial situation worsened, registering a significant deficit during the first half of the year in revenue collection. This is a result of the impact on effective income due to the change in the business model and the transfer of containerized cargo to the new Terminal de Contenedores Mohín (TCM) since February 2019. The current income generated from port activity as of June 30, 2019, is recorded at 012,888.2 million, equivalent to 30% of the annual estimated income budget for the 2019 fiscal year. It should be noted that this amount also still includes the servicing of some container ships that were provided services at the beginning of the year during the transition process with the TCM, as well as on two occasions as contingency measures due to failures presented by the latter.*" Later in this document, in point 2.6, titled "*MAIN ACTIONS IN RELATION TO INSTITUTIONAL REORGANIZATION AND STRENGTHENING OF JAPDEVA*", it was indicated: "*iii. Given that port tariffs have not been updated since 2012, it is necessary that once the new operational processes and human resource reallocation are implemented, a tariff study be carried out to process with ARESEP the appropriate tariffs for the provision of port services, which in turn will allow the institution to cover, through an investment program, the expenses required for the investments that will need to be made. d.*" The growth and development of human resources capacities is fundamental to the strategy of achieving greater institutional efficiency and effectiveness, which entails empowering the human resource consisting of the 258 officials who will remain in the fulfillment of actions and functions according to the institution's processes and subprocesses." On December 19, 2019, the Government of the Republic issued a press release acknowledging the problem of the high tariffs charged by APM TERMINALS and the impact on the export sector, which stated: "Government will negotiate with APM Terminals a possible tariff reduction." This, according to that note, is in light of the concern regarding export sector tariffs. The negotiations, according to such press release, will be led by Rodolfo Méndez Mata, in his capacity as Minister of Transport, and will involve officials from the CNC, JAPDEVA, and the concessionaire. At the end of December 2019 and the beginning of 2020, news appeared in the press regarding the possible tariff negotiation with APM TERMINALS and the Government, noting that the parties have considered a reduction of the canon (canon) charged to the concessionaire, direct payment to the concessionaire, extension of the term of the concession (concesión), and it was even mentioned that the company APM TERMINALS might be exempted from completing phases 2 and 3 of the TCM, specifically, exempting them from the obligation to build berths 3, 4, and 5 of the TCM stipulated in the concession contract (contrato de concesión). Finally, in the Presidential address given by Carlos Alvarado on May 1, 2021, he stated: "The case of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA) is complex and gives rise to much debate. The truth is that when the contract was signed in 2012 for the operation of the Terminal de Contenedores de Moín (TCM), what was concretized there was the transfer of 84% of the cargo and 80% of JAPDEVA's income to the TCM, in exchange for a canon (canon). A public business was ceded to a private party without adequate compensation, and without guarantees of better tariffs and better operation. Moreover, without a clear transition plan for JAPDEVA. Thus, when the TCM began operations in February 2019, JAPDEVA came face-to-face with the massive drop in its income while maintaining the same level of expenditure. Today, the reality is that the TCM's tariffs are more expensive than before and the terminal, two years after starting operations, is already reaching its operational saturation." The plaintiff alleges that a careful reading of subsections 2) and 3) of article 2 and subsection 4) of article 5 of Law No. 7762 of April 14, 1998, called "Ley General de Concesión de Obra Pública con Servicio Público" and, by connection, of the public works concession contract with public service (contrato de concesión de obra pública con servicio público) for the design, financing, construction, operation, and maintenance of the terminal de contenedores de Moín, shows that these are unconstitutional insofar as they violate the literal meaning of the last paragraph of subsection 14) of article 121 of the Political Constitution, by virtue of which: "National railways, docks, and airports—the latter while in service—may not be alienated, leased, or encumbered, directly or indirectly, nor leave in any form the domain and control of the State." It affirms that from the foregoing it is deduced, with all clarity, that the alluded-to assets cannot be the object of any type of transfer or concession (concesión), as is intended through Law No. 7762 and the public works concession contract with public service (contrato de concesión de obra pública con servicio público), which undoubtedly violate the fundamental norm. It is clear that the alluded-to norm cannot be interpreted in a way different from its literal meaning. While it is true that to grant a concession (concesionar) is not necessarily the same as to alienate, lease, or encumber, the constitutional norm precisely indicates first that the docks may not be alienated, leased, or encumbered, directly or indirectly; but the second part of said numeral is even more categorical, indicating that the docks also may not leave in any form the domain and control of the State.

If one turns to the definition given in Article 1 of the Concessions Law, a works concession with public service (concesión de obra con servicio público) is defined as: "*b) Works concession with public service: an administrative contract by which the Administration entrusts a third party, which may be a public, private, or mixed entity, with the design, planning, financing, construction, conservation, expansion, or repair of any public immovable property, as well as its operation, providing the services foreseen in the contract in exchange for compensation collected from the users of the work, from the beneficiaries of the service, or from counter-payments of any kind paid by the granting Administration.*" They argue that if the constitutional norm prohibits docks from leaving the domain and control of the State in any way, then, based on the preceding definition, by allowing the Administration to have a third party carry out the design, planning, financing, construction, conservation, expansion, or repair of any public immovable property, as well as its operation, providing the services foreseen in the contract, it is clear that this concession-granted asset would be partially leaving the domain and control of the State, since the public service would be provided by a third party. Thus, since granting a concession is not expressly permitted in the Constitution, the legislature cannot decree that docks may be granted in concession, as the norms challenged in this case indicate. Even if one argues that with the concession, the State does not lose ownership of the public asset, the truth is that the concession is neither expressly permitted in the Constitution, nor can the constitutional text be interpreted broadly in a matter as restrictive as the disposal of public assets. Especially since, by mandate of the Political Constitution itself, it is not permitted that "in no way" ("de ninguna manera") the docks leave the control of the State, and clearly, the concession is one manner in which the docks have been allowed to leave the State's control, since they come to be administered by a private company. The General Law on Concessions of Public Works with Public Services makes a potential exception in its Article 2, subsection 3, by stating: "*3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be granted in concession, and not existing ones.*" However, the exception stated in Article 121, final paragraph, subsection 14 of the Political Constitution is clear in establishing: "*Railroads, docks, and national airports—the latter while in service—may not be sold, leased, or encumbered, directly or indirectly, nor leave the domain and control of the State in any way.*" The Political Constitution does not make the exception that the Concessions Law does, since for the constituent, all docks, without exception, while they are in service, may not be sold, leased, or encumbered, directly or indirectly, nor leave the domain and control of the State in any way. In the case of the concession of the Container Terminal of Moín (TCM) to the company APM TERMINALS, although it could be argued that this was not a work in operation at the time of its concession, the truth is that once said Terminal was enabled, as already explained, the President of the Republic himself acknowledged that the service for all container ships that JAPDEVA was handling was transferred to be handled by APM TERMINALS. This means that, in reality, the service that JAPDEVA was already providing prior to this concession was indeed granted in concession in favor of the company APM TERMINALS, and therefore, in practice, this concession of this port work at the Limón docks for a service already being provided by JAPDEVA disrespects our Magna Carta, by allowing a port service already in operation that JAPDEVA was providing—namely, the handling of container ships that were served in the existing ports of Limón and Moín for decades—to leave the domain and control of the State.

The claimant argues that the unconstitutionality alleged goes beyond what has been argued to date in various amparo actions, since it is not a question of unconstitutionality by omission of the challenged rules, but rather of direct violation of the constitutional text, given that the servicing of container ships that JAPDEVA was already providing was granted as a concession to a private company, which was clearly and is prohibited by the Political Constitution. He accuses an infringement of the principle of constitutional legality, which warrants a declaration of unconstitutionality of the concession contract with the company APM TERMINALS and of the law that allowed that concession to occur. The claimant adds that, bearing in mind that these are strategic assets of the State, such as the docks, the literal meaning in this case is insurmountable, because although the concept of a concession did not exist at the time the Political Constitution was drafted, the fact is that this mechanism bears a very close similarity to what the Constitution expressly prohibits, given that a concession becomes an indirect way in which the asset leaves the domain and control (dominio y control) of the State, and that is precisely what the constitutional rule prohibits. He insists that a restrictive interpretation is required in this case, because the content of the rule imposes a very clear prohibition that cannot be excepted. Thus, even if the Legislative Assembly had proceeded to approve the concession through a qualified procedure, such approval would have been equally unconstitutional. So, with much greater reason, the legal rules that empower the Executive Branch, through the challenged Law, to grant concessions for the docks would be unconstitutional, because the constitutional prohibition in question is further weakened if the Executive Branch itself, with a framework law, can grant a concession over an asset that is inalienable according to the Constitution. The claimant states that it can be affirmed that there exists, as in many other cases noted by this Chamber, a kind of "constitutional reserve" (reserva constitucional). Only the Constituent Assembly can indicate how to dispose of the docks, and only if the Constituent Assembly enables the possibility of granting them in concession, could they be concessioned. This thesis being sustained is none other than the application of the content of the principle of legality to the constitutional text, understood in the sense that, in this area of public assets, whatever is not expressly permitted (to grant a concession) is therefore prohibited. He points out that this Constitutional Chamber has upheld the existence of a "constitutional reserve" (reserva constitucional) in certain matters, as is the case of vote no. 2010-011352, regarding the grounds for revocation of credentials of deputies, vote no. 2008-016099, regarding the principle of liberty, or vote no. 2013-012801, regarding the material jurisdiction of the contentious-administrative jurisdiction. In this case, since it concerns the disposal of strategic public assets, he considers that a "constitutional reserve" (reserva constitucional) also exists, which prevents the legislator —and even more so, of course, the Executive Branch— from establishing the possibility of granting a concession, not only because the Constitution does not expressly permit it, but because at the time the Political Constitution was drafted, the legal concept of concession was not known, but precisely for this reason it was stated that the docks in operation could not be leased or encumbered, directly or indirectly, nor leave the domain and control (dominio y control) of the State in any way; that is, by stating that they cannot in any way leave the control of the State, a broad, open concept is used, attempting to anticipate any legal mechanism that might be attempted in the future to violate this provision. He asserts that this prohibition on granting concessions for these strategic assets has a logic rooted in even national security, since, from the moment APM TERMINALS began operating, news reports of containers with drugs appearing in European ports from Costa Rica have become very frequent. News that, prior to APM TERMINALS beginning operations, was not heard in the media. The claimant insists that a strict interpretation of the constitutional text is what is appropriate when it comes to assets of such relevance, without ignoring that the text of the last paragraph of the rule in question is categorical: those assets—docks, airports, and railways—may not leave, in any way, the domain and control (dominio y control) of the State. He reiterates that a comprehensive analysis of section fourteen of Article 121 of the Constitution allows one to conclude, again, that the docks, airports, and railways may not leave, under any modality, the domain (dominio) of the State. The penultimate paragraph of the rule in question admits that private individuals may exploit the assets mentioned in sections a, b, and c, in accordance with the law or through a special concession, granted for a limited time and subject to the conditions and stipulations that Parliament establishes. Clearly, the second paragraph establishes that private individuals may exploit the mentioned assets; this means that when this is authorized, the rule expressly provides for it. This is the rule that the regulation implicitly establishes.

A very different situation is foreseen by the last paragraph of subsection 14) of Article 121 of the Constitution, as it does not authorize, in any way, that those assets may be exploited by private parties, because it does not permit that docks, railways, and airports may be exploited by private parties, and they cannot leave, directly or indirectly, the domain and control of the State. In accordance with this comprehensive interpretation of the text of the norm, it is confirmed that the constitutional norm in question does not authorize the State to cease having direct control over the assets mentioned in the last paragraph of subsection fourteen of constitutional Article 121. It accuses, on the other hand, that it is inconceivable and absolutely unacceptable that a private port terminal was established so that, with only two berths, it could exclusively handle all the loading and unloading of containers on the entire Costa Rican Caribbean Coast. As acknowledged by the President of the Republic Carlos Alvarado, in his speech of May 1, 2021, the provision of port service by APM Terminals was established with cost overruns that exceed JAPDEVA's rates and affected the financial capacity of such institution, rendering it incapable of guaranteeing the continuity of public port services, development management, the payment of wages, social charges, and other obligations. It asserts that, in mid-June 2019, 16 business chambers sent a letter to President Carlos Alvarado, in which they detailed a series of inefficiencies in APM Terminals' operations, among which were delays due to congestion at the port entrance and high rates. The main complaint of exporters is that the rates charged by the company APM Terminals in the country exceed prices at other ports in the region by up to $300. Exporters ensure that the price difference occurs even with other nearby ports managed by APM Terminals. In total, exporters report that they are paying around $515 for the entry and exit of a container. Furthermore, compared to Caldera, the other major port in Costa Rica, about $200 more is paid for the exit and entry of containers (full and empty). On average, about $120 million more was paid during 2019, compared to what was paid before the entry into operation of the TCM. A study conducted by Cadexco revealed that the operational costs of the TCM are considerably higher than the vast majority of ports in the hemisphere. Exporters ensure that the rate problem goes beyond paying a higher price, as it directly affects the country's competitiveness and job creation, especially in rural areas. The high rate costs of APM Terminals also affect the cost of living of Costa Ricans, by increasing the price of imported products, due to the increased importation costs of containers entering through the Atlantic. On May 1, 2021, the President of the Republic himself came to recognize that: "Today the reality is that the TCM's rates are more expensive than before and the terminal, two years after its entry into operation, is already reaching its operational saturation.". Indicates that a September 2012 study, titled "Port matters in Costa Rica and serious deficiencies of the tender for the concession on the Atlantic coast of the Container Terminal in Moín", prepared by Daniel Pacheco Arias, who was part of the group that carried out a consultancy on port matters for the Public Services Regulatory Authority (Autoridad Reguladora de los Servicios Públicos, ARESEP), executed during the second semester of 2009 and the first semester of 2010, concludes that in Costa Rica we approved port rates similar to those of some countries in Europe and Asia, although we have Latin American wages. For this reason, Daniel Pacheco ends up indicating -regarding the approved rate matter for APM TERMINALS- that: "In conclusion, if we are not going to pay here in Costa Rica like the workers of the flagship ports of the USA/Europe, rates like those of the USA/Europe should not be proposed. Rates on cargo exceeding $200 are not justified. The incongruence between wages and rates would be fatal if the concessionaire then adheres to the national minimum wage." It accuses that, definitively, the rate established by clause 11 of the contract with APM TERMINALS is far above the regional average and this has among its consequences that we lose competitiveness as a country, by making our imports and exports through the Atlantic port more expensive. The entry of APM Terminals into national territory envisioned greater modernity and efficiency compared to JAPDEVA's administration, which would translate, according to business owners, into lower costs; however, this has not happened. It argues that the foregoing allows an understanding of a practical reason of the constituent for prohibiting any figure similar to the concession of the docks.

It indicates that although it is aware of the Constitutional Chamber's jurisprudential line (línea jurisprudencial) regarding concessions and monopolies, the truth is that it also knows that the Constitutional Chamber can vary its jurisprudential line, and in fact, there are quite a few cases in the past where it has changed its jurisprudential line. Therefore, it refers again to the study carried out by Daniel Pacheco Arias, in which it was stated: "*A dissertation on monopolies will not be made here, but the long-term trends that could harm us in port matters are summarized in one paragraph. A private monopoly would have guaranteed demand (captive cargo). Cargo and tariffs determine income. In such a way that a concessionaire is tempted, as a private company, to optimize its profits by minimizing its costs, thereby affecting the quality of service. Naturally, a private monopoly is not going to do what public sector unions do, such as stopping the port and going on strike, since this would affect its income. But they can make clients (ships) wait in line, make the minimum investments and/or delay them, be stingy when responding for damages, have the minimum equipment and personnel and not the optimal (according to the best industry standards) for cargo handling, etc. In competitive environments, if a concessionaire does not serve a client well (damages, slowness, abusive charges, etc.), the client moves its cargo to another terminal and/or port; so there is a link between quality and the concessionaire's income, which persuades the concessionaire to think twice before lowering the quality of service. That is why there should not be 3-decade monopolies. Developed countries, large or small, do not have port monopolies on their coasts. Nor does any serious developing country in Latin America have them. Neither the U.S. Government nor the European Commission has allowed a shipping line or a mega-port operator to acquire local or regional monopoly power, for which they regulate permits, concessions, mergers, and acquisitions. The logical thing, and what is customary worldwide, is that in a port complex, as real demand grows, the installation of terminals by different containerized cargo operators is permitted. In this way, competition is introduced in an orderly manner. Each terminal may have one or several berths, depending on the port's traffic.*" The claimant points out that the Constitutional Chamber has carried out the analysis regarding concessions and monopolies from the perspective of public service, but the truth is that seen from outside our borders, namely, from the point of view of shipping lines and international markets, it is clear that in Costa Rica, in the Atlantic ports, there is a single provider of the container ship service, and it matters little to them whether it is a concession or not, because the truth is that these shipping companies, in Costa Rica, can only leave their containers on the Costa Rican Atlantic with a single port operator which is APM TERMINALS, and this explains the high tariffs, the low efficiency, and the poor quality of service. It agrees, then, that in competitive environments, if a concessionaire does not serve a client well (damages, slowness, abusive charges, etc.), the client moves its cargo to another terminal and/or port; so there is a link between quality and income, a situation that on the Atlantic of Costa Rica does not exist in terms of container service, since APM TERMINALS is the only company that provides this service. It alleges that this allows understanding another practical reason for the constitutional framer to prohibit any figure similar to the concession of the docks.

It further alleges that on October 17, 2019, the Law that Transforms the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, was published in La Gaceta, which in its Article 18 amended Article 1 of its original law, with the following text: "The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, is created as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for building, administering, operating, subcontracting, granting concessions for, and carrying out any other financial mechanism that national regulations allow, to develop port services, its own administrative management, and investments, constructions, and improvements, in the maritime and river ports of the Vertiente Atlántica, with the exception of those operating under subparagraph h) of Article 6 of this law." The original text of Article 1 of the Ley Orgánica de JAPDEVA stated: "The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, is created as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for building, administering, conserving, and operating the current port of Limón and its extension to Cieneguita, as well as other maritime and river ports of the Vertiente Atlántica, with the exception of those operating under subparagraph h) of Article 60 of this law." Note how now, as of this reform of the year 2019, the regulation allows subcontracting, granting concessions for, and carrying out any other financial mechanism that national regulations allow—figures that did not exist in the original regulation—to develop services, which the original Ley Orgánica de JAPDEVA did not permit, since, prior to the reform, the Ley Orgánica de JAPDEVA was in accordance with Article 121 of the Constitución Política, which in the final paragraph of subparagraph 14 indicates: "National railways, docks, and airports—the latter while they are in service—may not be sold, leased, or encumbered, directly or indirectly, nor in any way leave the domain and control of the State." This reform introduced in the year 2019, through the Law for the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, by introducing these variations to the original text of the Ley Orgánica de JAPDEVA, is clearly allowing for an outsourcing (tercerización) of port services, as explained in the aforementioned official communication PEL15-2021, thereby disrespecting Article 121 of the Constitución Política. It reiterates that in the Presidential address given by Carlos Alvarado on May 1, 2021, it was acknowledged that 2 years after entering into operation, the Terminal is already in operational saturation. An aspect that has a simple explanation, which is that the public works concession contract with public service for the design, financing, construction, operation, and maintenance of the Moín container terminal, in its clause 4.1.1.22, indicates that phase 2 will only have 2 berthing positions. If one reads the Master Plan that was used as the basis for this concession, specifically pages 87 and 88, point 6.10 indicates that in phase 2, the new container terminal is operational. This phase begins in 2016 and lasts until 2020.

The docks for container handling are Muelle Taiwanés and the New Container Terminal with 900m of dock, and it is even indicated that: "*With an average length overall of container ships of 180m at the end of phase 2, it can be concluded that the port has 5 docks available for container handling*." According to this Master Plan, what was contemplated was that the servicing of container ships by APM TERMINALS and by JAPDEVA would coexist, which can be corroborated in its Table 6-5, specifically in point 6.9.3, visible on pages 85 and 86 of said document. Thus, in phase 2, which is where we are told we are currently, the Master Plan recognizes that there were going to be 5 berthing positions for container handling in the Atlantic, namely, the 3 of the TCM and the 2 of JAPDEVA, for a total of 1,200 linear meters of dock. This is a far cry from the 2 berthing positions that APM TERMINALS has for servicing the container ships arriving in the Atlantic. On the other hand, in point 6.10, on pages 87 and 88 of this Master Plan, it is indicated that in phase 3 the new Container Terminal is extended by an additional 600m. In phase 3 (2021 - 2030), containers are handled at Muelle Taiwanés and at the New Container Terminal of 1500m of dock, and where it is even indicated: "*Based on an average length overall of container ships of 210m at the end of phase 3, it can be deduced that the port has 7 docks available for container handling*." Note, then, that according to this Master Plan, the Moín complex would have, in phase 2A, some 5 berthing positions for servicing container ships and, as of 2021, some 7 berthing positions for container ships; however, currently, in the year 2022, in reality the country is only using the 2 berthing positions of the TCM for servicing container ships; namely, the same number of berthing positions that JAPDEVA had in 2008 specialized for that purpose. It accuses that it is clear that, with this concession, there is a flagrant disrespect for the constitutional principle of efficiency, since by disregarding the cartel and the Master Plan, it allows the approval of an absolutely illogical and irrational concession for the country, because if JAPDEVA had a total of 700 meters of dock specialized for container servicing prior to the construction of the TCM, one could not speak of an increase in the installed capacity of the port, if currently the company APM TERMINALS only has 2 berthing positions with a total of 600 linear meters of dock. It maintains that, therefore, we are no longer facing only an unconstitutionality of Article 2, subsection 2, of the General Law on Concession of Public Works with Public Services, but rather an unconstitutionality of the concession contract itself, by approving a contract that, far from increasing the installed capacity of the ports in the Atlantic, actually decreased it, since in practice JAPDEVA used the remaining positions for servicing container ships when necessary. Regarding the principles of effectiveness and efficiency, it cites ruling no. 12.330-2011 of this Chamber. It points out that it is clear that there can be no efficiency if, prior to the entry into operation of the TCM, JAPDEVA had 2 specialized positions for container handling, but could serve ships with containers at any of the remaining 10 berthing positions of the Limón-Moín port complex, and now it went to having only the 2 berthing positions of the TCM for container servicing, when the Master Plan guaranteed 5 berthing positions for specialized container servicing at this point. It accuses that, when the Government interpreted that the contract gives APM TERMINALS the exclusivity for servicing container ships, now the TCM must "choke," trying to handle one million two hundred thousand containers —which is what JAPDEVA was handling— at only 2 berthing positions, which clearly vitiates the principles of efficiency and effectiveness of the Administration. It cites once more ruling no. 12.330-2011. It points out that this vitiates the concession contract granted to the company APM TERMINALS with unconstitutionality and thus requests that it be declared. It refers, again, to the Presidential speech given by Carlos Alvarado on May 1, 2021, given that the Executive Branch is recognizing that the APM TERMINALS concession is not only more expensive for importers and that it is experiencing saturation problems, but it also recognizes that the business that JAPDEVA had was ceded to a private company, but without foreseeing how the institution was going to maintain its payroll when its income was eliminated.

It asserts that, when the container handling business belonged to JAPDEVA, the tariff was much lower for the entrepreneur, and even then it was enough for JAPDEVA to pay very competitive salaries, well above the legal minimum, to its employees; but with APM TERMINALS, the tariffs skyrocketed for users, while the salaries for the workers who now handle the loading and unloading of containers decreased compared to what JAPDEVA paid for the same work, for the officials who must have been dismissed from their jobs at the institution. Nevertheless, at SINTRAJAP it is viewed with great concern that this policy of outsourcing (tercerización) of public services continues to be promoted, even though it goes against the most adequate distribution of wealth established in article 50 of our Political Constitution, since although the institution may have a reduction in payroll costs, at the same time, the contracting companies will hire their employees with the lowest possible salary, which will allow the entrepreneur to have the greatest possible profits. That is, it is no longer guaranteeing the greatest well-being for all the inhabitants of the country, but the greatest well-being for a few entrepreneurs, who, hiring at the lowest possible cost, will be carrying out tasks that had been performed by well-remunerated JAPDEVA officials, thus guaranteeing a better and more adequate distribution of wealth.

It cites rulings Voto 2005-17612 and Voto 2007-09469 of this Chamber. The petitioner argues that it is clear that the State must guarantee production, but not at any cost, since, hand in hand, it must seek the most adequate distribution of wealth, and this implies that if an institution is already providing services directly with its own officials and these officials are receiving a comfortable salary to cover their family needs, the Government would be wrong to promote the outsourcing of the service now, since this implies that a single entrepreneur will hire the same services at the lowest possible cost, in order to achieve the greatest possible profit for himself. This violates the Christian principle of social justice referred to in ruling 1273-95 of the Constitutional Chamber. It is not dignified that the people who perform the work are those who receive the least for that labor, while a third party, namely the entrepreneur, is the one who receives more money and profit for the tasks that these workers are performing. The American Convention on Human Rights refers to the inherent dignity of the human being in its article 5, addressing the right to personal integrity—an expression repeated in clause 10 of the International Covenant on Civil and Political Rights—as well as numerals 6, relating to the prohibition of slavery and servitude, and 11, which expressly refers to the protection of honor and dignity. It points out that care must be taken if little by little we move from having well-remunerated people (officials) to well-remunerated companies that pay legal minimums to those who perform the work, because little by little undignified situations similar to those of the past are created, where business and political elites literally lived off the production and work carried out by their slaves, thus fostering a veiled slavery in this century. The dignity of the person is respected as long as they are not considered an object, in this case, an object that is given the lowest possible salary, so that third parties can profit from their work.

It alleges that here we see the logic that was embedded in the Political Constitution, in its article 50, that there be a norm that guarantees the greatest well-being for all the inhabitants of the country, not only by organizing and vigorously stimulating production, but also by guaranteeing the most adequate distribution of wealth. It cites rulings 1273-95 and 5907-2007 of this Constitutional Chamber.

It asserts that, in the case of the JAPDEVA docks, it is clear that since these have been in operation for many years, here its workers have not only contributed to the well-being of the Nation, but also, thanks to the possibility of affiliation with a union such as SINTRAJAP and having a collective bargaining agreement (convención colectiva), they have been guaranteed the best possible working conditions, including the best possible salary or remuneration according to the type of work, taking into account not only their professional expertise, but also the physical or mental effort of their labor, and also the risk of their particular work, aspects that are not always taken into account when implementing minimum wage policies and, therefore, it is clear that the policy of outsourcing (tercerización) of port services is to the detriment of these social and labor achievements, given that the new JAPDEVA workers will have to fall back on a minimum wage policy, since they will not be direct employees of JAPDEVA, but rather will be employees of a company that will seek to obtain the greatest possible profit from their work and for this will adopt a minimum wage policy, which in its view will violate the special protection granted by Article 121, subsection 14, of the Political Constitution, not only because it is a matter of national security, but because dock workers have always been JAPDEVA workers and have always had a remuneration that guarantees the greatest distribution of wealth.

It considers that the legislators were right, especially Epsy Campbell and Margarita Penón Góngora of the Partido Acción Ciudadana, when they filed an unconstitutionality action (acción de inconstitucionalidad) in 2004, alleging at that time that the norms and acts they were challenging, which sought the concession (concesión) or outsourcing (tercerización) of the Pacific docks, insofar as they considered that only through constitutional reform could the Nation's docks be released from their status, by virtue of the special protection granted by Article 121, subsection 14), of the Political Constitution. A norm which, according to the constituent deputies, must be interpreted in the sense that the docks, in no way, should leave the domain of the Nation, nor be given in exploitation to private parties. However, 17 years later, the same Partido Acción Ciudadana, in the person of Andrea Centeno, seeks to do in the Atlantic ports what 17 years ago, deputies Epsy Campbell and Margarita Penón Góngora, of that same political party, attempted to prevent in the Pacific, which can not only put the Nation's security at risk —by seeking to transfer even the security of the docks to a private company—, but also, with this, by outsourcing (tercerizar) the activity currently performed by JAPDEVA workers, who receive incomes that allow for a good distribution of wealth in the province of Limón, now there will be workers who will only receive the legal minimum with the longest possible working hours, to perform the same tasks that JAPDEVA workers perform efficiently and safely today, and this only to "lower costs" and thereby allow a few businesspeople to profit from the work their workers will perform, which will increase inequality in the country. This violates the principle of social justice.

He points out that an attempt will be made to argue that outsourcing (tercerización) is a policy aimed at rescuing JAPDEVA economically, but it was public and notorious that JAPDEVA, in 2018, at the beginning of the current Government, had a surplus that even allowed the Government to use its funds to repair the Matina dike; however, it was with the start of APM TERMINALS' operations, when the servicing of all container ships was transferred to that terminal, that JAPDEVA saw its budget reduced, its financial situation worsened, and it finally led to the Law that Transforms the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, with which the situation of the province of Limón has worsened, as it has meant the cessation of work for more than 600 direct JAPDEVA employees, people who had a decent income that fostered a good distribution of wealth, to having a company that performs the same work that JAPDEVA performed at a much higher cost for exporting and importing business owners, and with much lower salary policies than those JAPDEVA had, which has deteriorated the economic situation of the province of Limón, since the wealth is no longer being distributed among its population, but is instead leaving the country because the concessionaire is a foreign company, and if the institution's current services are outsourced, this grave situation in the province of Limón will worsen even further, since the money will go to a few business owners who are probably not even from Limón and the workers will earn only the bare minimum to subsist.

The petitioner indicates that there is an aspect to consider from the perspective of constitutional rationality, which is that as a result of the implementation of this concession to APM TERMINALS, the cost of imports and exports through the Atlantic increased, which reduced the country's competitiveness in the international market for its products; but more seriously, the TCM is at the limit of its operating capacity, since far from increasing the operating capacity of the Atlantic ports, it rather decreased. Moreover, before the implementation of such a concession, with rates much lower than the current ones for servicing container ships, the exporting and importing sector benefited from very competitive regional rates, and with this income JAPDEVA managed not only to pay its payroll of 1400 employees, but also allowed it to carry out works in the Vertiente Atlántica, such as the repair of the dike in Matina in 2018. That is, the income from servicing ships allowed the 1400 employees not only to receive a minimum salary, but also, through historic struggles and the collective bargaining agreement (convención colectiva), allowed the 1400 employees to have incomes even above the average compared to other institutions in the country, and this allowed for a better distribution of wealth in Limón and the country, since these 1400 employees mostly spent this money within Limón. With the start of APM TERMINALS' operations, JAPDEVA encountered a marked reduction in its current income and this forced the Central Government to transfer money from the central budget to the institution to finance this financial hole, as well as to modify the Organic Law of JAPDEVA to allow it to dispose of more than 900 jobs at the institution, forcing the Central Government to finance early retirements, horizontal transfers to other institutions, and all of this to allow a concession that has proven to be more expensive for the country to be maintained, since it is reducing the competitiveness of exports and imports, as well as to allow a concession that did not increase the port capacity of the Atlantic, but rather decreased it.

A final negative effect of this concession is that APM TERMINALS' revenues, given its low wage policy, are mostly profits, meaning they are substantial sums of money that leave the country as it is a foreign concession; that is, this concession fosters a negative balance of payments for the country, since millions of dollars leave the country annually as a result of the revenues this foreign concessionaire receives from its high tariffs, impoverishing not only workers and citizens in general by raising the cost of living, but also favoring an impoverishment of the country as a whole, which in the long run is causing greater inflation, greater devaluation of the colón, and is thus favoring the economic crisis the country is going through, which affects all citizens. He requests that, consequently, this acción de inconstitucionalidad be declared with merit.

2.- To substantiate his standing (legitimación), the petitioner argues that this acción de inconstitucionalidad does not require a prior judicial or administrative case, pursuant to articles 7, 50, and 89 of the Constitution, in connection with the matter under discussion in this case, and the provisions of article 75, second paragraph, of the Ley de la Jurisdicción Constitucional, because there is a manifest diffuse interest at stake, which is respect for constitutional legality regarding the proper handling of public funds. In this matter, given that the right to the proper handling of public domain assets is involved, which goes hand in hand with the proper handling of public funds, the standing (legitimación) therefore derives from the cited article 75, second paragraph, of the Ley de la Jurisdicción Constitucional. He points out, on the other hand, that a harmonious interpretation of article 60 of the Constitución Política, in relation to numerals 7, 11, and 12 of the International Covenant on Economic, Social and Cultural Rights, allows one to derive that, among the powers of unions, is included the search for decent living conditions for workers, the defense of the right of workers and their families to the enjoyment of the highest attainable standard of physical and mental health, and the improvement of all aspects of occupational and environmental hygiene. This legitimizes SINTRAJAP to file this acción, since, as a result of the way the situations of this concession have unfolded, the jobs of hundreds of JAPDEVA employees affiliated with SINTRAJAP have been affected.

3.- Article 9 of the Ley de la Jurisdicción Constitucional empowers this Chamber to reject outright or on the merits, at any time, even from its presentation, any procedural action brought before it that proves to be manifestly inadmissible, or when it considers there are sufficient grounds for rejecting it, or that it constitutes a mere reiteration or reproduction of a previous, identical or similar rejected action.

Drafted by Magistrate Castillo Víquez; and,

Considering:

I.- PURPOSE OF THE ACCIÓN. The petitioner challenges, first of all, subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as they provide:

“Article 2.- Coverage 1.- Any work and its operation are subject to concession when there are reasons of public interest, which must be recorded in the file by means of a reasoned act.

Telecommunications, electricity, and health services are excluded from the application of this Law.

2.- Railways, railroad lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out therein may be concessioned, and not the existing ones.

Seventy percent (70%) of what the granting authority (Administración) obtains pursuant to Article 42.1 a) of this law, by reason of the new works or expansions concessioned at the cited docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as appropriate, to be exclusively used for investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has expired, said works shall pass to the ownership of the aforementioned entities, as appropriate.” (emphasis not in original) “Article 5.- Definition and action:

1.- For the purposes of this law, the granting authority (Administración concedente) is understood to be the Executive Branch, public enterprises, and the territorial and institutional decentralized sector.

2.- When the object of the concession falls within the scope of competence of an organ of the Executive Branch, the National Concessions Council (Consejo Nacional de Concesiones), with the legal, technical, environmental, economic, and financial feasibility of the project having been previously demonstrated, shall be the competent technical entity to act in the procurement procedure stage and, when necessary, during the execution of the contract.

The contract shall be signed by both the Executive Branch, represented by the corresponding minister, the Minister of Finance, and the President of the Republic, and by the National Concessions Council.

3- When the object of the concession falls within the scope of competence of the decentralized sector, public enterprises, and local governments, such public entities, individually or grouped, through an agreement signed with the National Concessions Council, may agree with this body on the procedure for selecting the concessionaire and the execution of the concession contract.

4.- It corresponds exclusively to the Executive Branch, considered in the terms of Article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, railroad lines, docks, and international airports, both new and existing. The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law.

5.- Cases in which the decentralized sector or public enterprises grant concessions directly shall be governed by this law.” (emphasis not in original) It also challenges ordinal 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA), Law No.

9764 of October 15, 2019, which amended subsection 1 of the Organic Law of JAPDEVA, in order to establish—the latter—that:

"Article 1°- The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica is created, hereinafter referred to as Japdeva, as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of Port Authority; it shall be responsible for constructing, administering, operating, subcontracting, granting concessions for, and undertaking any other financial mechanism permitted by national regulations, to develop port services, its own administrative management, and investments, constructions, and improvements, in the maritime and river ports of the Vertiente Atlántica, with the exception of those operating under subsection h) of Article 6° of this law. It shall administer and coordinate with any body of the Public Administration, centralized or decentralized, for the channeling of the Atlántico and the lands and assets that this same law grants it." Finally, it requests that the unconstitutionality of the public works concession contract with public service for the design, financing, construction, exploitation, and maintenance of the Moín container terminal also be declared.

II.- ON THE ADMISSIBILITY OF THIS UNCONSTITUTIONALITY ACTION. This Chamber considers that the plaintiff has sufficient standing to challenge the unconstitutionality of subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as well as article 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended subsection 1 of the Organic Law of JAPDEVA, insofar as it expressly alleges the defense of diffuse interests, regarding the "correct management of public domain assets (bienes demaniales)", given that this Court has deemed that, effectively, the defense of "assets of the constitutional public domain (bienes del dominio público constitucional)" constitutes a case of diffuse interests that grants direct standing for the filing of an unconstitutionality action (Voto 2011-2698) and that the "defense of the Nation's own patrimony, formed by all the assets that make up the public domain, constitutionally recognized in Article 121, subsection 14)" enjoys "privileged protection through the possibility that any person, based on the authorization conferred in this regard by Article 75, paragraph 2° of the Ley de la Jurisdicción Constitucional, directly files the unconstitutionality claim" (Voto 2005-05651).

Now, pursuant to Article 9 of the Ley de la Jurisdicción Constitucional, this Court may reject any proceeding on the merits, even from its presentation or in limine litis, when it considers that there are sufficient elements of judgment, which is the case in the sub lite matter, regarding such normative provisions, as will be analyzed in the following considerandos.

Specifically regarding the public works concession contract (Contrato de concesión de obra pública) with public service for the design, financing, construction, exploitation, and maintenance of the Moín container terminal, this Tribunal considers that the present action is inadmissible due to its object, therefore its outright rejection is appropriate, as will also be analyzed in the respective considerando.

III.- ON THE CHALLENGE TO SUBSECTIONS 2) AND 3) OF ARTICLE 2 AND SUBSECTION 4) OF ARTICLE 5 OF THE LEY GENERAL DE CONCESIÓN DE OBRAS PÚBLICAS CON SERVICIOS PÚBLICOS. Regarding this first aspect of the action, the plaintiff alleges that, according to an adequate interpretation or understanding of Article 121, subsection 14, final paragraph, of the Political Constitution, the application of the legal concept of concession (concesión) in the case of docks is unconstitutional, which causes the unconstitutionality of subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos. In response to such reproach, it must be noted that this Chamber has already ruled on the constitutionality of said regulations and has made express reference to the issue raised by the plaintiff. Thus, in Voto No. 2013-015693 of 16:20 hours on November 27, 2013, issued in Expediente No. 12-009578-0007-CO, this Chamber resolved that:

"IV.- Object of the action.

The petitioner challenges the apparent unconstitutionality arising from subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of Law No. 7762 of April 14, 1998, called “Ley General de Concesión de Obra Pública con Servicio Público” and, by connection, of the Concession Contract for Public Works with Public Service for the Design, Financing, Construction, Operation, and Maintenance of the Container Terminal of Moín, since the required approval of the Legislative Assembly was omitted.

The norms alluded to by the petitioner state the following:

“ARTICLE 2.- Coverage (…)

2.- Railways, railroad lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains under the provisions of Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned at the aforementioned docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be destined exclusively for investments in works in the respective provinces, without being able to be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the aforementioned entities, as applicable” “SECTION I ADMINISTRACIÓN CONCEDENTE ARTICLE 5.- Definition and Action (…)

4.- It corresponds exclusively to the Executive Branch, considered under the terms of Article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, railroad lines, docks, and international airports, both new and existing.

The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law” The petitioner considers that an unconstitutionality by omission occurs, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of Articles 140, subsection 19, and 121, subsection 14, of the Political Constitution, it is extracted that in the case of administrative contracts of special significance related to railways, docks, and national airports, legislative approval is inexorably required, since the Fundamental Law did not provide for the possibility of a special law, as it does in the case of the assets mentioned in sections a), b), and c) of the cited subsection 14. This aspect was not previously examined by the Chamber, according to the petitioner.

Consequently, it requests the following: “(…) that in the judgment, the following be declared unconstitutional by omission: Article 2, subsections 2) and 3) and Article 5, subsection 4), both of Law 7762 of April 14, 1998 (Ley General de Concesión de Obra Pública con Servicio Público) and, by connection, the Concession Contract for Public Works with Public Service for the Design, Financing, Construction, Operation, and Maintenance of the Container Terminal of Moín, of February 13, 2012.

As a subsidiary matter, we request the Constitutional Chamber to declare that article 2, subsections 2) and 3), and article 5, subsection 4), both of Ley 7762 of April 14, 1998 (Ley General de Concesión de Obra Pública con Servicio Público), as the legal basis for the Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, of February 13, 2012, interpreted in accordance with the Law of the Political Constitution, *necessarily entail* the Legislative Approval procedure provided for in the Constitutional Legal Norm resulting from the referral of article 140, subsection 19) to article 121, subsection 14) (…).” Consequently, it is not the object of this action to determine whether article 121 of the Political Constitution prohibits a private party from exploiting legal businesses related to railroads, docks, and national airports by way of a concession (concesión), since the petitioner herself admits this possibility and only objects that the legal effectiveness of such a type of concession is not conditioned upon a subsequent legislative approval.

**VI.- Background of this Chamber.** As the parties rightly state, this Court has had the opportunity to address the issue of legislative approval in certain types of administrative contracts in prior pronouncements. First, in judgment number 3789-92 of 12:00 hours on November 27, 1992, the following was stated:

“III. REGARDING THE CONFLICT WITH ARTICLE 121, SUBSECTION 14 OF THE POLITICAL CONSTITUTION: The consultation states that ‘Some have questioned whether, by empowering the concessionaire to exploit new railroad, dock, and airport installations, in accordance with article six, second subsection of the bill, this might conflict with the constitutional provision that prohibits the alienation of these works, article 121, subsection 14 of our Magna Carta.’ Article 6 of the Bill states:

‘ARTICLE 6.- National railroads, docks, and airports, the latter while in service, may not be alienated, leased, or encumbered, directly or indirectly, nor may they, in any way, leave the ownership and control of the State.

‘The concessions granted to build and exploit new railroad, dock, and airport installations must be processed in accordance with this Law and approved by the Legislative Assembly, within a period not exceeding forty-five days from their submission.

‘Complementary or non-essential public services, located in railroads, docks, and airports, may be granted in concession.’ As can be observed, *the first paragraph of article 6 coincides with what the Constitution establishes in the last paragraph of article 121, subsection 14). It is essentially an “echo norm.”* For the rest, it should be noted that the concession for the construction and exploitation of new railroad, dock, and airport installations *is subject to a qualified procedure, since it ultimately requires approval by the Legislative Assembly*, except for this fact, and because in this same case the concession may be granted for a term of ‘up to fifty years’ (article 9 of the Bill), the institute in no way differs from the concession of public works (concesión de obra pública) in general, as regulated in the Bill” (the emphasis does not belong to the original).

As can be verified from reading that excerpt, this Court had indicated the existence of a “qualified” procedure for the case of concessions for the construction and exploitation of new railroad, dock, and airport installations, since they ultimately required approval by the Legislative Assembly. However, in judgment number 6240-93 of 14:00 hours on November 26, 1993, the Chamber varied its criterion regarding the specific point that is the object of this action:

“II.- In the consultation processed under #4171-93, consolidated with the previous one, the Deputies question article 9 of the Bill, in that *it grants powers to the Executive Branch to sign contracts for the exploration and exploitation of hydrocarbons, without subjecting them to legislative approval*.

This norm, together with that of Article 13(d), sets forth the powers of the Technical Council (Consejo Técnico) and the Director General of Hydrocarbons (Director General de Hidrocarburos), as follows: "Article 9...

• h)To approve contracts for the exploration and exploitation of hydrocarbons." "Article 13...
• d)To sign the contracts for the exploration and exploitation of hydrocarbons and submit them for the approval of the Technical Council." The Chamber (Sala) considers that, in accordance with its judgment #3789-92 of 12:00 noon on November 27, 1992, Article 121.14) of the Political Constitution (Constitución Política) contains three distinct, clearly differentiated rules: "a) The first is a norm that empowers the Legislative Assembly (Asamblea Legislativa) to decree the alienation or application to public uses of the Nation's own property. On one hand, this norm is unrestricted insofar as it refers to all of the Nation's own property, and, on the other, it reserves the matter to the law, invalidating administrative acts of alienation or application to public uses not based on a prior law; b) The second prescribes which property may never permanently leave the domain of the State. For those categories, which are set forth in subsections a), b), and c), the restriction is total and absolute regarding leaving the domain of the State, but the norm immediately moderates its severity by warning that such categories of property may be exploited by the public administration or by individuals in accordance with the law or through a special concession; c) The third is a norm that refers specifically to certain property (functioning national railways, docks, and airports) not included in the three categories of the preceding norm." Consequently, the Constitution provides two regimes for exploiting those specially protected natural resources, without any of them being able to leave the domain of the State: One, that of concessions or contracts granted by the Legislative Assembly directly, in the exercise of an original power; the other, the possibility of exploiting them by the Public Administration (Administración Pública), or of entrusting them to individuals, through a legally granted or authorized concession. Both possibilities presuppose the power of the Legislative Assembly to establish, in the specific case, or to regulate in a general law, mandatory "conditions and stipulations" in the execution of the contract—such as its temporary nature, manner of compliance, minimum obligations of the executor, etc.—which place the possibility of departing from them beyond the reach of the concessionaires or of the agreement itself of the parties. It is not idle to recall that the administrative act of concession never acquires the character or rank of law, even if it is processed and adopted as such (arts. 140.19 and especially 124.2 Constitution).

III.- Thus, one of the forms established therein, obviously foreseeing how difficult and complicated it can be to have to go to the Legislative Assembly for the approval of each individual concession contract, is that of a general regulatory law, commonly known as a "framework law" (ley marco). In this case, the Legislative Assembly vests in the Public Administration the power to grant specific concessions, a power which, of course, does not include that of completely substituting the function of the former, as will be discussed further on.

(...)

This norm vests the Executive Branch (Poder Ejecutivo) with original constitutional authority for the signing of administrative contracts, whether they are agreed upon with individuals or with other public entities—as administrative contracts that they are—in accordance with which, and also in light of the scheme of separation of powers of the Branches of State, it is a power exclusive to the Executive Branch, specifically the President together with the relevant Minister, whereas Article 121, subsection 14), in matters reserved by the Constitution itself by virtue of their capital importance, does not expressly provide for said authority when the Legislative Assembly does not opt to grant the concession itself but rather to regulate it so that the Administration may do so." (emphasis not in original) In this way, the Chamber began to recognize the possibility that the Legislative Assembly could regulate, through a general concession law, the contracting process for the approval of each individual concession contract, foreseeing how difficult and complicated it can be to have to go to the Legislative Assembly for the approval of each individual concession contract.

Thus, the Legislative Assembly would vest in the Public Administration the power to grant specific concessions.

This criterion related to the approval of a general law on administrative contracting was subsequently reiterated through judgment number 2319-98 of 17:51 hours on March 31, 1998, in which this Tribunal held the following:

"III.- ON THE MERITS OF THE QUESTIONS CONSULTED: Having clarified the points on admissibility and scope of the consultation formulated, the ruling on the merits proceeds. In summary, the consultation refers to three aspects of the Project. On one hand, it is questioned whether the consulted project is contrary to the provisions of article 121 subsection 14 of the Political Constitution, in accordance with the parameters that this Chamber has defined. In the opinion of the consultative parties, while it is possible to grant concessions for railways, docks, and airports, which are property of the Nation, it is not possible to grant an authorization to the Executive Branch for such purposes in a generic manner in the Framework Law; rather, the Legislative Assembly must authorize the contract in each individual case.

(...)

In the criterion of this Chamber, nothing prevents the Assembly, through a framework law, from empowering the Executive Branch to grant public property in concession, without a specific approval being necessary for each particular case, since it is understood that it has given a general approval for such purpose, in compliance with the Constitution itself. In summary, regarding this aspect consulted, the Chamber does not find any unconstitutionality" (the underlining does not correspond to the original) In the same vein, vote number 2005-005651 of 14:41 hours on May 11, 2005, can be cited, through which the Chamber again authorized the existence of a general law in which the Legislative Assembly could delegate to the Executive Branch the signing and approval of administrative contracts in general. In this regard, the following was stated:

"(...) In the cited judgment, it is clearly stated that the possibility of granting concessions for property such as docks, within the parameters described by the Chamber, does not constitute a violation of the Political Constitution, since in accordance with the nature of the 'concession,' these properties are not being disaffected, because they are not being separated from the public purpose to which they are linked; therefore, they do not leave the public domain, nor are they being alienated, leased, or encumbered, so the alleged violation does not occur. Now, in this study we are talking about two distinct concession figures: the public works concession with public services, regulated in the Law challenged here, and the public service management concession regulated in the Administrative Contracting Law. Both involve different modalities of concession, but in any case, as already indicated, they do not violate article 121 subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was in process:

(...)

In the case of public works concessions with public services, the General Public Works Concession Law is applicable as a framework law, and for the public service management concession, the Administrative Contracting Law, articles 74 and 75. In that understanding, it is not unconstitutional for the public administration to grant concessions for these properties within the parameters that this Tribunal has indicated. On the other hand, as the plaintiffs themselves indicate, article 2 subsection 3 challenged here states: '...

In the case of the docks of Limón, Moín, Caldera and Puntarenas, under this law, only new works or expansions carried out there may be granted under a public works concession with public service (concesión), and not the existing ones.”, in accordance with Article 121(14), so that whether the challenged bidding processes violate such provision is a matter that must be determined through the legality review process, since we would consequently not be facing a constitutional violation, but rather a disagreement with the application of the law” (emphasis not in the original).

In summary, it can be stated that the jurisprudential line regarding the issue of legislative approval for certain administrative contracts of national relevance has determined as constitutional that, through a general concession (concesión) law, the Legislative Assembly delegates to the Executive Branch the signing and final approval of administrative contracts, including those whose purpose is public property of special importance, such as those considered that way by the Constituent Assembly in Article 121(14) of the Political Constitution.

VII.- On the merits. The scope of the invoked constitutional norms. As was well indicated in recital V of this judgment, the plaintiff considers that there is an unconstitutionality by omission in Articles 2, subsections 2) and 3), and 5, subsection 4), both of Law No. 7762 “General Law of Public Works Concession with Public Service (Ley General de Concesión de Obra Pública con Servicio Público)”, in that they do not provide for the legislative approval procedure set forth in numerals 140(19) and 121(14) of the Political Constitution. In order to determine whether the petitioner is correct in their arguments, it is necessary to analyze the structure and content of the constitutional norms that the plaintiff claims are infringed, with the objective of subsequently comparing the legal norms in what they state and in what they omit with the constitutional ones, in order to determine their validity under the Law of the Constitution.

7.1) In the first place, ordinal 121(14) of the Fundamental Charter indicates the following:

“ARTICLE 121.- In addition to the other powers conferred upon it by this Constitution, it corresponds exclusively to the Legislative Assembly:

(…)

• 14)To decree the alienation or application to public uses of the Nation's own property.

The following may not permanently leave the domain of the State:

• a)The power that may be obtained from public domain waters in the national territory; b) Coal deposits, oil sources and deposits, and any other hydrocarbon substances, as well as deposits of radioactive minerals existing in the national territory; c) Wireless services; The property mentioned in subsections a), b) and c) above may only be exploited by the public administration or by private parties, in accordance with the law or through a special concession (concesión especial) granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly.

National railways, docks, and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor leave the domain and control of the State in any way.” The cited subsection is structured into three general norms (without prejudice to the existence of other more specific norms), as this Chamber has determined since its beginnings: “Article 121(14) contains three different norms, which must be clearly differentiated” (Judgment 3789-92). The first of them is found in the first paragraph of that subsection and establishes a general rule. The following two constitute exceptions to the rule. Of these, the second is contained in the second paragraph, sub-subsections a), b), and c), and the third paragraph of the subsection in question, where a distinctive regulation is established in relation to the power obtained from waters, coal deposits, oil sources and deposits, hydrocarbon substances, deposits of radioactive minerals, and wireless services.

Finally, the third norm is located in the last paragraph of the subsection and is related to national railways, docks, and airports in service.

Regarding the first norm, the Chamber has stated that; "it enables the Legislative Assembly to decree 'the alienation or the application to public uses of the Nation's own property.' On one hand, this norm is unrestricted insofar as it refers to all of the Nation's own property, and, on the other, it reserves the matter to statute, invalidating administrative acts of alienation or application to public uses not based on a prior statute." Thus, through this norm, the constituent power attributes general competencies to the Legislative Assembly over the Nation's property in two specific cases: alienation and application to public uses.

Alienation (enajenación) consists of the transfer of ownership of a good or the title to a right to a different estate. Disposition (disposición) is not synonymous with alienation; there is a genus-to-species relationship between them. Alienation is a form of disposition of the good, consisting of the displacement of the good from one estate to another. The alienation of the principal good entails that of its accessories (principle of accessoriness) and the liability of the transferor for defects and eviction. Limitations on alienation are imposed by statute or by the Constitution itself, and prevent the temporary or definitive alienation of the good. As a general rule, goods dedicated to public domain (dominio público) cannot be alienated unless there is a legal provision to the contrary.

Thus, in accordance with the provisions of the first paragraph of subsection 14 of Article 121 of the Constitution, it falls to the Legislative Assembly, in exercise of the legal reserve granted to it by the Political Constitution, to alienate, that is, to transfer the domain of the Nation's property to a third party, or to allocate them to public uses: common or special, while they remain in its estate. Public administrations only have competence in this matter based on a prior statute that expressly enables them.

The second norm of subsection 14 of Article 121 of the Constitution contains an exception to the general rule that empowers the legislator to alienate the Nation's own property. Indeed, the norm refers to goods that cannot leave the State's domain, which cannot be alienated but can be exploited by the Public Administration or by private parties in two ways: **a)** in accordance with the Law or **b)** by special concession (under the conditions and stipulations established by the Legislative Assembly). Regarding this norm, the Constitutional Chamber stated: "The second prescribes which goods 'may not definitively leave the domain of the State.' For those categories, which are enunciated in subsections a), b), and c), the restriction is total and absolute regarding 'leaving the domain of the State,' but, immediately, the norm moderates its severity by warning that such categories of goods can be 'exploited by the public administration or by private parties' in accordance with the law or by special concession." (Judgment #3789-92).

The third norm, contained in the last paragraph of subsection 14 of Article 121 of the Political Constitution, is of special relevance for the decision of the sub examine, as it refers specifically to railways, ports, and airports. Regarding this norm, the Constitutional Chamber stated in judgment number 3789-92 of 12:00 hours on November 27, 1992, repeatedly cited in the jurisprudence of this Chamber, the following:

"The third is a norm that refers specifically to certain goods (national railways, docks, and airports in service) not included in the three categories of the preceding norm.

If nothing is said about these assets, they would be covered by the enabling rule with which subsection 14) begins, as has already been seen.

But the existence of this specific provision implies a distinct legal regime for these assets, which rigorously limits the general principle of alienation and application to public uses: such assets "may not be alienated, leased, nor encumbered, directly or indirectly, nor in any way leave the ownership and control of the State." The rule alludes, in the first place, to alienation, lease, or encumbrance, but the expression "directly or indirectly," in the strict context of the provision, can refer either to the situation in which the State proceeds by itself or through other legal entities (subjective sense), or to cases in which modalities or means are employed that have equivalent or similar legal consequences or effects, even though they may not technically involve alienation, lease, or encumbrance (substantive sense).

Subsequently, this rigor is confirmed by the expression "nor in any way leave the ownership and control of the State," an expression that must also be given broad coverage of hypotheses due to the vocation of the rule.” It is deduced from the rule that the prohibition against alienating or encumbering, directly or indirectly, railways, ports, and national airports in service constitutes an exception to the rule of the first paragraph of subsection 14, which empowers the Legislative Assembly to alienate the nation’s own assets. On the contrary, the prohibition against leasing, directly or indirectly, railways, ports, and national airports serves to strengthen the second idea of the first paragraph, relating to the destination of these assets for public uses. Both prohibitions become constitutional guarantees. The first protects certain strategic assets for the Nation’s economic development, so that they in no way leave the State’s patrimony. The second protects the public use of such assets. With the first, the constitutional framer removed this competence from the Legislative Assembly and, even more so, from the Administration, and reserved the matter to the Constituent Power, such that by virtue of the principles of parallelism of forms and conservation of rank, the alienation of any of these assets requires a prior constitutional reform. With the second, the private use of such assets is prohibited.

It is logical that if the Constitution imposes the prohibition against alienating railways, ports, and airports, directly or indirectly, it also prevents them from being encumbered. The *ratio iuris* is evident: the constitution of a mortgage on these assets, as collateral for example for a public loan, would entail the risk of loss of ownership. The mortgage is not only a concept foreign to the regime of public domain assets, but, moreover, in this case it is prohibited by the fundamental rule itself.

The Constitution rejects any legal concept that involves the direct or indirect alienation of the asset. To that extent, concepts such as seizure would also be prohibited. Seizure, in *stricto sensu*, does not inexorably imply an alienation, as it responds to a security measure to prevent the owner of the thing from disposing of it; however, it entails the risk of an eventual alienation, since that precautionary measure, in the last instance, tends to ensure the forced sale of the asset when the contractual obligation it guarantees is breached. Given the constitutional prohibition, seizure would also be prohibited, insofar as it poses a risk of loss of ownership. Seizure would also be improper due to the ordinary judge's lack of competence to change the use to which the Constitution assigns these assets, and he cannot, consequently, order a seizure nor proceed with its execution.

Railways, ports, and national airports in service also cannot be the object of judicial execution; regarding them, the action of dispossession, interdicts, or possessory actions are not applicable.

Now, the Constitution establishes an absolute prohibition against alienation but in no way a total prohibition against other types of disposition of the asset (with the reservation that they not leave the ownership and control of the State in the case of railways, docks, and airports). Is concession constitutionally possible in the context of the rule?

The answer is affirmative and the ratio iuris is self-evident: the concession does not constitute an exception to the prohibition on alienation, as ownership of the asset remains with the State or the competent Administration; nor does it constitute an exception—as a lease does—to the application of said assets to public uses, to the extent that the concessionaire satisfies, through its management, the public purposes that the Administration would be responsible for fulfilling if it were to assume such public service with its own resources.

Regarding the constitutional viability of the concession based on this provision, the Chamber stated:

“…if one contrasts the brief enumeration of some characteristics of the concession made earlier with the provisions of Article 121, subsection 14), the following comments arise. The term 'alienation' (enajenación) entails the transfer of ownership or title of the thing or the right to another person, which does not occur with the concession, since according to the very terms of the Project, the State retains ownership over them, to the point that it could recover them—if for reasons of public interest it were to deem it so—upon prior indemnification to the concessionaire (…) although it is true that there is a term for its exploitation, the State—as indicated—can recover it despite the established term, and the economic benefit the concessionaire receives consists exclusively of the fee or sum of money paid by the users. Neither does it imply encumbrance of the asset, as follows from the articles of the Project. In other terms, the public work constructed will always belong to the State. Hence, as a public domain asset, it will enjoy the characteristics of imprescriptibility, inalienability, and immunity from seizure that are inherent to this type of assets.

Consequently, given the prerogatives that the project reserves to the Administration, it is not reasonable to understand that the assets subject to the concession leave or could leave—directly or indirectly—the ownership and control of the State. To the above must be added the broad powers of control or oversight that the State reserves for itself, including with regard to the stipend (fees for provision of the public service) that the concessionaire will receive, which must be fixed by the competent bodies of the Public Administration indicated in the Project, all based on principles of justice and reasonableness characteristic of public law.” (Judgment of the Constitutional Chamber number 3789-92).

Doctrinally, the concession falls within the scope of so-called indirect management contracts, since the concessionaire carries out the works or manages the services that the Public Administration is responsible for constructing or providing. The State continues satisfying the social need and attending to the public purpose, only instead of doing so with its own resources, it does so through a third party (the concessionaire). In this type of contract, the Administration cedes the construction of the work and the provision of the service, but retains ownership. The concession, which is the legal title by virtue of which the private party acts, introduces a relationship of special subjection between the concessionaire and the Administration, in which the Administration exercises exorbitant powers of direction, regulation, surveillance, control, and sanction to achieve the public objectives, without prejudice to a certain autonomy of the concessionaire to act and manage within the legal framework that the concession entails. Due to this and because it offers a service belonging to another but in its own name, the concessionaire is responsible to third parties for its actions. Obviously, it will also be administratively (fines) and civilly liable for the damages caused to the granting Administration. In short, the concession does not entail loss of ownership of the public asset and, therefore, does not constitute a violation of the prohibition on alienation contained in the fourth paragraph of subsection 14 of Article 121 of the Constitution.

The concession also differs from a lease, a form of disposition of an asset by virtue of which the lessor is obligated to deliver the leased object for a determined price and time, under conditions to be exploited by the lessee. The main effect is that through the lease, the use and enjoyment of the thing is transferred to the lessee.

In such a case, although ownership of the asset is not transferred, the truth is that the use and enjoyment of the asset in question would be reserved to the autonomy of the lessee's will; the asset would no longer be used for the benefit of Costa Ricans but rather for the lessee's own use, private, extraneous to public use.

The prohibition on leasing is not an exception to the rule on alienation established in the first paragraph of subsection 14 under analysis, because as we have seen, leasing does not compromise ownership of the asset; however, it is unconstitutional because it violates the rule that a public asset must be destined for private use. That said, it is an interpretive error to extend, by analogy, the prohibition on leasing to that of granting a concession (concesión), because in this latter figure, unlike leasing, the Administration continues to destine the asset or service to public use and continues to be responsible for satisfying the social needs pursued through the asset, only through indirect management.

With these explanations made, it is clear that through the concession (concesión), the constitutional assertion is fully satisfied that it shall "nor in any way leave the domain and control of the State." Obviously, the foregoing does not preclude a careful examination of the particular characteristics of each concession (concesión), since in the case of railways, docks, and national airports, it is prohibited not only that they leave the domain of the State, but also that they fall outside its control. The foregoing implies that the clauses of a concession (concesión) cannot reach such an extreme that the State's capacity for control over the concessionaire is materially and essentially undermined.

**7.2)** Article 140, subsection 19) of the Political Constitution stipulates the following:

"ARTICLE 140.- The following are duties and powers that belong jointly to the President and the respective Government Minister:

(…)

**19)** To sign administrative contracts not included in subsection 14) of Article 121 of this Constitution, with the reservation of submitting them to the approval of the Legislative Assembly when they stipulate an exemption from taxes or rates, or have as their purpose the exploitation of public services, natural resources, or riches of the State.

The legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime. The provisions of this subsection shall not apply to the loans or other similar agreements referred to in subsection 15) of Article 121, which shall be governed by their special rules.

(Thus added the previous paragraph by Article 2 of Law No. 5702 of June 5, 1975)" For the sake of a better understanding of the rule, we must fully identify which contracts are subject to such provisions and which contracts fall outside the scope of its regulation.

The rule establishes a general principle that could be summarized as follows: "It is the duty and power of the Executive Branch to sign administrative contracts." However, there are two types of contracts that, by express provision of subsection 19 of Article 140 of the Magna Carta, fall outside the reach of that general rule: **a)** those included in subsection 14 of constitutional numeral 121, and **b)** the loans or other similar agreements referred to in subsection 15 of Article 121 of the Political Constitution. These types of contracts are governed by their special rules and not by the provisions of cited subsection 19.

Within the contracts governed by the rule, we can find two types: those that require legislative approval and those that are perfected without legislative intervention. Within the former, we find three classes of administrative contracts: **a)** those that "stipulate an exemption from taxes or rates," **b)** those that "have as their purpose the exploitation of public services," and finally, **c)** those that have as their purpose the "natural resources or riches of the State." In this case, it falls to the Administration to promote the bidding process: the opening of the competition, the selection of offers, and the awarding of the contractor; however, such an act is valid but not effective, because for that, the approval of the Legislative Assembly is required.

Thus, approval constitutes a useful administrative act as a control technique that removes obstacles to effectiveness and whose understanding lies in the strategic relevance of the goods and resources at stake in national development. Indeed, as a consequence of such significance, the Constituent imposes the requirement of legislative approval as a reinforced guarantee or protection, founded on the principles of control, democracy, and cooperation among the Branches of Government. It is a legislative act of collaboration with the administrative function, separate from the competence of legislative creation proper: "Legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime." (Constitución Política, art. 140 inciso 19 in fine) "Legislative approval of contracts, agreements, and other acts of an administrative nature shall not give those acts the character of laws, even if done through the ordinary procedures of these." (Constitución Política, art. 124 in fine).

Regarding public services, the question arises as to whether every contract with that purpose must be submitted to legislative approval. The Chamber considers that for a better understanding of the scope of this provision, an exercise in historical reading and interpretation is essential, for which purpose the intention expressed by the Original Constituent in the Records of the National Constituent Assembly must be taken as a basis. Precisely, for this subsection, a clear and unequivocal will of the Constituent is confirmed, which is that legislative approval for contracts whose purpose is the exploitation of public services is solely referred to those involving large-scale projects of national importance. Observe the literal wording of the Constituent's intention:

"Article 2º.- Deputy LEIVA presented a motion to add a subsection to the article referring to the powers and duties of the President together with the respective Government Minister, stating as follows:

"Sign administrative contracts not covered in subsection 14) of article 97 of this Constitution, subject to submitting them to the approval of the Legislative Assembly, when they stipulate exemption from taxes or fees, or have as their purpose the exploitation of public services or the State's natural resources and wealth.

Excepted are cases governed by special laws." [140.19] The proponent explained that his motion almost entirely was included in the 1949 Draft, subsection 10), article 232. Messrs. Trejos and Esquivel had presented it as a motion, but later withdrew it, since it was said that subsection 14), article 97, already approved, contemplated that situation. However, both subsections refer to two different cases.

Mr. ESQUIVEL asked Mr. Leiva if contracts to establish new industries in the country, regulated by laws granting all kinds of facilities to those industries so that they can develop in the country, fall within that subsection and consequently require legislative approval. The proponent clarified to him that the final exception solved the problem. However, Deputy Esquivel indicated that he still had certain doubts, for example, regarding contracts for the exploitation of public services. A contract between the State and a bus company, for example, to transport mail, would it have to come to the Chamber for approval? The proponent observed that those small contracts are always governed by special laws. Most of the time, those contracts are signed, not by the President himself, but by lesser agencies, with the interested parties. His intention is that among the Executive's powers remains that of signing that type of administrative contracts that are not of great magnitude.

The public services referred to in his motion are those of great importance, such as the railways.

When Mr. Leiva's motion was put to a vote, it was approved (Minutes No. 135).

As can be observed, the only public service contracts that require legislative approval are those of great magnitude, within which, it is reiterated, those included in paragraph 14 of Article 121 of the Constitution are excluded, as well as the loans or other similar agreements cited in paragraph 15 of Article 121 of the Political Constitution, since they are subject to a particular constitutional regulation.

Now, the constituent Leiva cites, as an example of a large-scale contract, the railways, which could lead to the conclusion that what is regulated in paragraph 19 of Article 140 of the Political Constitution becomes applicable not only to such railways, but also to the national docks and airports, since these three assets are subject to a common regulation in the last paragraph of Article 121, paragraph 14 of the Political Constitution. However, to explain the reason for such a reference by Deputy Leiva, the historical context in which it occurred must be made clear.

In this regard, the Office of the Attorney General of the Republic (Procuraduría General de la República), in its report rendered in action number 04-003389-0007-CO, clarified the following:

"In accordance with the partial reform to the Fundamental Charter of 1871, which was processed under the name of 'Prohibiting the Alienation of the Pacific Railway and Requiring Two-Thirds of the Votes of Congress to Contract Loans Abroad,' we have that its objectives, according to the statement of motives of the initiative, were the following:

'There is a very marked current of opinion in the country, which tends, by a natural sentiment of national well-being, to secure the Pacific Railway and its terminal docks against the possibility of them being alienated, and to avoid, in view of the enormous debts that exist against the State, the contracting of loans abroad.

Such a current of opinion is amply justified. As to the first point, because of the transcendental importance that the Pacific Railway has for the country, not only as an enabling instrument for an extensive and rich zone of the country, but also as an effective means of defense through the rate competition that it is possible to establish against the Atlantic Railway. As to the second point, because if it is true that loans are indispensable for developing the country's resources, it is also true that, taking into account the enormous debts that burden the nation, only in an exceptionally justified case could a new contracting be authorized, and consequently that legislative authorization must be backed by the two-thirds of votes of Congress.' (See Archivos Nacionales, Fondo Congreso, n.° 17.358, folio 1).

Regarding this constitutional reform, the then President of the Republic, Lic. Ricardo Jiménez Oreamuno, in his report of May 1, 1936, stated, in the pertinent part, the following:

'As an exception to what I have just expressed [about refraining from indicating certain measures because a new administration was about to be inaugurated] and only because the Constitution obliges the Executive to express an opinion when it deals with a reform to the same, I express it with regard to the amendment, in process, to which your decree of August 17 of last year refers. The project has two objectives: that the Pacific Railway and the terminal docks do not leave the domain and control of the State; and that the contracting of loans abroad must be authorized by two-thirds of the votes of Congress. I do not discuss whether in an absolute way it is prudent to oppose, whatever the circumstances may be, any plan that takes the management of the railway out of the hands of State employees. I accept the thesis of the project as good; but if it is good, it is not seen why it should not be applied to the railways and docks of the Atlantic.' It is true that the latter and these are in foreign hands and will remain so for many years, as long as the respective concessions are alive, but, on the one hand, we must assume that constitutional precepts are made to be perennial, as far as humanly possible; and, on the other, that without the constitutional reserve that is being contemplated, **as of tomorrow those lines and docks could be definitively disposed of, or the effects of the current concessions could be extended from now on, or a new concession could be agreed to, for when the current ones expire.** It seems logical, then, that what is provided for the Pacific should also be applied to the Atlantic, and for new railroads and docks.” (See Archivos Nacionales, Fondo Congreso, No. 17,358, folio 10 and La Gaceta No. 101 of May 5, 1936. The boldface does not correspond to the original).

Because of the foregoing, a special commission of the Constitutional Congress charged with studying the issue, subsequent to the speech of the President of the Republic, accepts, in its report of May 25, 1936, in relevant part, the objection of the First Citizen, justifying its proceeding as follows: “Your Special Commission charged with reporting on the constitutional reform project to subsections 15 and 16 of Article 73 in the sense that neither the Ferrocarril al Pacífico nor its terminal docks may be disposed of or leased directly or indirectly or leave in any way the domain and control of the State; and that the contracting of loans abroad requires the approval of two-thirds of the votes of Congress, has the honor of fulfilling its charge in the following terms:

In accordance with Article 134 of the Constitution, the project under study received, after the required formalities, the approval of Congress in decree No. 165 of August 17, 1935 and was passed to the Executive Branch for the effects of subsection 6° of the cited Article 134.- The President of the Republic, in his Message sent to Congress on the 1st of the current month, gave his opinion on the amendment in process. Regarding the reference to the prohibition of disposing of the Ferrocarril al Pacífico and its terminal docks, the Head of the Executive Branch opines and we accept that opinion that the provision should be extended to the Ferrocarril al Atlántico and its terminal docks **and to the new railroads and docks that in the future may be built at the expense of the State.-** Consequently, we consider that the amendment could be drafted in a general and more concise form stating that the national railroads and the terminal docks thereof are excepted from the disposal power that subsection 15 of Article 73 grants to Congress.” (See Archivos Nacionales, Fondo Congreso, No. 17,358, folio 13. The boldface does not correspond to the original).” Such concern for the railroads is understood, furthermore, because “the concessions that were granted to foreign companies were for extremely long terms, just as happened with the Panama Canal and with the railroad to the Atlantic. In this last case, according to the Soto-Keith contract signed in 1884, which was ratified by the Legislative Branch through Law No. 2 of April 21, 1884, clause XXI, **the government ceded and transferred to the company, for the term of ninety-nine years, in full ownership,** the railroads already built and the one to be built between Reventazón and Cartago; moreover, the company was given exemptions to import rolling stock and **public lands were ceded** to it. In clause XXVII, the reversion was regulated, that is, the transfer that the Costa Rica Railroad Company would make to the government, upon the expiration of the ninety-nine years of the railroad concession, with all its constructions and fixed and rolling stock, all of which had to be in good condition.” (See the aforementioned report of the Procuraduría General de la República).

Consequently, Deputy Leiva’s reference to the railroads is explained by the multiple problems and abuses that arose in a stage immediately prior to the 1949 Constituent Assembly. In reality, such concern motivated Congress, acting in a constituent function and by Law No.

14 of June 19, 1936, amended Article 73(15) of the Political Constitution of 1871 (corresponding to numeral 121(14) of the current Constitution), in the sense that, regarding the exclusive power of Congress to decree the alienation (enajenación) and application to public uses of the Nation's own property, it excepted everything concerning all national railways and docks, which could not be alienated or leased, directly or indirectly, nor in any way leave the domain and control of the State. Thus, prior to the 1949 Political Constitution, the constitutional legislator had already opted to regulate this matter through a special rule; subsequently, alongside railways and docks, the framers of the 1949 Constitution added airports.

Ergo, there is a very clear and concrete historical reference that the will of the framers of the 1949 Constitution, following the same line that amended the previous 1871 Constitution in 1936, consisted of regulating everything concerning railways, docks, and airports in Article 121(14) of the Political Constitution. Thus, Article 140(19) of the Constitution does not apply to the contracts referred to in Article 121(14) of the current Political Constitution.

Note that it makes no sense to establish two rules to regulate the same situation, and therefore in the case of railways, docks, and airports, the special rule (121(14)) must be applied, and not the general one (140(19)).

7.3) The systematic interpretation of Articles 140(19) and 121(14) of the Political Constitution.

From what was stated in point 7.2, we have concluded that outside the scope of application of Article 140(19) of that same normative body are the property and administrative contracts regulated in Article 121(14) of the Political Constitution, since this latter provision constitutes a special regulation for those.

It has also been made clear that through the concession (concesión), the constitutional affirmation "nor in any way leave the domain and control of the State" is fully satisfied, as explained in point 7.1 of this ruling.

The question of whether that concession can be regulated by a general law, in which the Legislator sets the conditions for the Executive to grant concessions regarding the property indicated in Article 121(14), has also been clarified by the reiterated case law of this court. Indeed, as examined in point 7.1, the State cannot alienate, encumber, or lease, directly or indirectly, national railways, ports, and airports in service. However, from the cited constitutional provision, it is deduced that the legislator (reserve of law) can indeed regulate the concession of these property, under the protection of the provisions contained in the general rule of the first paragraph of subsection 14: "Decree the alienation or application to public uses of the Nation's own property." Of these two general powers of the Legislative Branch, that of alienation is ruled out in the case of railways, docks, and airports, since the last paragraph of Article 121(14) expressly prohibits such property from leaving the domain and control of the State. However, in the absence of an express prohibition, the figure of the concession, even under a general law, does make it viable to allocate the operation of railways, docks, and airports to public uses, including by way of concession, provided that such property does not leave the domain and control of the State.

This is so because the legislator holds, by express constitutional mandate of the first paragraph of Article 121 subsection 14, the general power to “decree” the application to public uses of the Nation’s assets (first paragraph of Article 121 of the Political Constitution), so that in exercising its power to enact laws, it is not constitutionally barred from executing that constitutional mandate through a general concession law, in which it imposes on the Executive Branch those positive legal conditions necessary to manage the concession (concesión) of such assets and safeguard their public use, which in the case of railways, docks, and airports additionally has the unavoidable limit that their exploitation not leave the domain and control of the State.

Regarding the aforementioned point, this Chamber has already had occasion to rule in judgment number 5651-2005 of 14:41 hours on May 11, 2005:

“… in this study we are speaking of two different concession figures, the public works concession with public services, regulated in the Law challenged here, and the public service management concession regulated in the Administrative Contracting Law. Both involve distinct modalities of concession, but which in any case, as already indicated, do not violate Article 121 subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was pending: (….). In the case of public works concessions with public services, the General Public Works Concession Law is applicable as a framework law, and for the public service management concession, the Administrative Contracting Law, Articles 74 and 75.” In effect, the concession of railways, ports, and airports falls within the scope of coverage of Law number 7762 of April 14, 1998, General Public Works Concession with Public Services Law, which in Article 2 provides:

“ARTICLE 2.- Coverage 1.- Any work and its exploitation are susceptible to concession when reasons of public interest exist, which must be recorded in the file by reasoned act.

Telecommunications, electricity, and health services are exempted from the application of this Law.

2.- Railways (ferrocarriles), railroad tracks (ferrovías), docks (muelles) and international airports, both new and existing, as well as the services provided there, may only be granted in concession (concesión) through the procedures set forth in this law.

3.- In the case of the docks (muelles) of Limón, Moín, Caldera and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains pursuant to Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned at the cited docks, shall be remitted to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be allocated exclusively to investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the aforementioned entities, as applicable." (The bold text does not correspond to the original).

It is concluded that, in relation to railways, ports and airports, the Ley General de Concesión de Obras Públicas con Servicios Públicos comes to be the general law, developed under the provisions of the first paragraph and with the limitations of the fourth paragraph, both of constitutional numeral 121 subsection 14, which establishes a reservation in favor of the Legislative Assembly to regulate these matters observing the limits that the Constitution itself establishes.

Now then, a new point to elucidate, which constitutes the fundamental object of this action, consists of the appellant's allegation that in the sub examine an unconstitutionality by omission has come to occur, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of Articles 140 subsection 19 and 121 subsection 14 of the Political Constitution, it is extracted that in the case of administrative contracts of special significance related to railways, docks and national airports, legislative approval is inexorably required, since the Fundamental Law did not provide for the possibility of a special law, as it does in the case of the goods mentioned in subparagraphs a), b) and c) of the cited subsection 14.

In this regard, in point 7.2 it has been explained that there is a very clear and concrete historical reference that the will of the constituent of '49, following the same line that in 1936 reformed the previous Constitution of 1871, consisted of regulating everything concerning railways, docks and airports in Article 121 subsection 14 of the Political Constitution. Thus, subsection 19 of constitutional Article 140 does not apply to the contracts contemplated in subsection 14 of ordinal 121 of the current Political Constitution. It should be noted that it makes no sense to establish two special norms to regulate the same situation, so in the case of railways, docks and airports, the special norm (121 subsection 14) must be applied, and not the general one (140 subsection 19).

In addition to the foregoing, certainly, in subparagraphs a), b) and c) of subsection 14 of Article 121 of the Political Constitution it is expressly regulated that the goods contained therein may only be exploited by the Public Administration or by private parties, in accordance with the law or through a special concession (concesión especial) granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly. On the other hand, it is equally true that the last paragraph of the cited subsection, with respect to railways, docks and airports, is silent in indicating that their exploitation may occur in accordance with the law or through a special concession, contrary to what it does with the other mentioned goods.

However, from such regulatory situation, one cannot infer the inexorable logical consequence (from which the appellants proceed) consisting of the fact that in the case of railways, docks and airports, their concession is only viable via legislative approval for each specific case, and not through a framework law.

Firstly, as was already underlined in point 7.2 of this recital (considerando), the goods and administrative contracts regulated in numeral 121 subsection 14 of the Constitution are outside the scope of application of constitutional Article 140 subsection 19, since they are governed by their own special provisions.

Furthermore, it is not possible to deduce from a relationship between section 121(14) and article 140(19) that, regarding concessions for railways, ports, and airports, since these are matters of great magnitude, each specific concession contract for those specific assets must be approved by the Legislative Assembly, given that those assets have specific constitutional regulation (section 121(14)), with content different from that established in article 140(19) of the Magna Carta. That is, while the latter article does inexorably provide for parliamentary approval in contracts of great magnitude, section 121(14) does not.

Secondly, it is necessary to realize that what is natural is for the Legislative Branch to dedicate itself to what is exclusive to it, a deliberative task that results in the production of laws, while the Executive Branch concentrates on what most characterizes it, administrative management (within which everything concerning administrative contracting is included). Beyond those fields, an intervention by any Public Branch in a field that is not its own would only be feasible by express provision of the constituent power or when the essential content of a Branch’s jurisdictional scope is not affected. Precisely, the renowned Costa Rican jurist Eduardo Ortiz Ortiz has emphasized that the Executive Branch is the natural representative of the State in entering into contracts, unless there is an express rule to the contrary, which would have to be unequivocal.

Thus, the logical interpretation of the last paragraph of section 14 of article 121 of the Constitution leans more towards attributing to the Executive Branch that competence most consubstantial with its legal nature, rather than prohibiting it, as the plaintiff claims. In other words, the fact that, in relation to the assets contemplated in sub-sections a), b), and c) of section 14, article 121 of the Political Constitution, their exploitation was foreseen in accordance with the law or by special concession granted for a limited time and under the conditions and stipulations established by the Legislative Assembly, does not mean that regarding the assets regulated in the last paragraph of the referenced article, only the second option (that of a special concession subject to legislative approval) is legally viable, since, on one hand, that paragraph does not prohibit either of the two mentioned alternatives and, on the other, the possibility of a general law fosters a more adequate balance between what is legally most natural to each of the Branches: while Parliament legislates, establishing the positive legal framework for the Executive to administratively manage concessions, the latter is entrusted with entering into this form of administrative contracting.

It should be noted that the constitutional precept for the legislator was that it should not allow railways, docks, and airports to be alienated, leased, encumbered, or removed from the domain or control of the State, without indicating by what means it should guarantee all of that. Without a doubt, the Legislative Branch exercises this attribution through its essential function, which is to legislate, and that is precisely what it does through a general concession law, where it sets the parameters by which the Executive Branch must also direct its essential function as administrator of the State. Thus, it is not a delegation of functions from one Branch to another, but rather each one exercises its competences and powers within the provided constitutional framework.

In virtue of the foregoing, the alleged unconstitutionality by omission of articles 2, subsections 2) and 3), and 5, subsection 4), of the General Law on Public Works Concessions with Public Services (Ley General de Concesión de Obras Públicas con Servicios Públicos) becomes improper. Upon dismissing this ground of unconstitutionality, equally the alleged unconstitutionality by connection of the Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal must be dismissed. Justices Armijo and Cruz dissent and would uphold the action with all its consequences. Justices Jinesta, Castillo and Hernández add a separate note.” 12-009578-0007-CO referred to an alleged omission in the challenged legal provision by not requiring a subsequent approval by the Legislative Assembly of the concession contract granted under the General Law on Concession of Public Works with Public Services, the fact is that this Tribunal carried out a thorough analysis regarding the content and scope of Article 121, subsection 14, of the Constitution and, contrary to what was argued by the plaintiff, this Chamber concluded that the challenged provision was not inconsistent with or a violation of said constitutional provision, insofar as the legal figure of the concession —as a type of indirect management contract, which "does not entail loss of ownership of the public asset" and which implies that the "State continues to satisfy the social need and attend to the public purpose, only that instead of doing so with its own resources, it does so through a third party (the concessionaire)", with respect to which, "a relationship of special subjection is established, in which the Administration exercises exorbitant powers of direction, regulation, vigilance, control, and sanction to achieve public goals"— does not transgress, prima facie, the constitutional prohibition against alienating, leasing, or encumbering, directly or indirectly, docks and "fully complies with the constitutional affirmation 'nor leave in any way the domain and control of the State'...", according to the reasons extensively developed in the previously transcribed vote (see, particularly, its Considerando VII). These considerations are applicable to the present action, as there is no reason whatsoever to justify a change in criteria.

Now, as is evident from a comprehensive reading of the filing brief, it is clear that the plaintiff's main objections or concerns relate, in a very specific manner, to the Concession Contract for public works with public service for the design, financing, construction, operation, and maintenance of the Moín Container Terminal, as they seek to question its necessity or convenience and matters regarding its due execution or compliance. Express reference will be made to this point later.

IV.- CONCERNING THE CHALLENGE TO ARTICLE 18 OF THE LAW FOR THE TRANSFORMATION OF THE JUNTA DE ADMINISTRACIÓN PORTUARIA Y DE DESARROLLO ECONÓMICO DE LA VERTIENTE ATLÁNTICA, LAW NO. 9764, WHICH AMENDED ARTICLE 1 OF THE ORGANIC LAW OF JAPDEVA. The plaintiff accuses, once again, an infringement of Article 121, subsection 14, of the Political Constitution. However, from a reading of the challenged normative provision, it can be verified that it confirms the role of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica as an “autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority” and, specifically, it is tasked with “building, administering, operating, subcontracting, concessioning, and performing any other financial mechanism that national regulations allow”, precisely, in order to thus be able to “develop port services, its own administrative management and investments, constructions, and improvements, in the maritime and river ports of the Vertiente Atlántica”. In this way, what the norm provides is a legal authorization so that this entity may resort to different contracting options and the application of financial mechanisms that “national regulations allow”, in order to, in this manner, be able to develop its prerogatives and functions as a port authority.

From said regulation it cannot be derived that it authorizes the aforementioned entity to dispose of, lease, or encumber the docks or ports under its charge, nor to allow them to leave the domain or control of the State, not only because the text of the regulation does not establish it, but because, necessarily, it must be integrated, interpreted, and applied in conjunction with the substantial and formal requirements imposed by the rest of the legal system, including, primarily, Article 121, subsection 14), of the Political Constitution itself, as well as the rest of the applicable regulatory framework. Regarding, specifically, the possibility of granting concessions, one must refer to what was already indicated in the preceding recital, in the sense that this Chamber, in various precedents, has recognized that the legal figure of the concession—be it a concession for public works with public services or a concession for the management of public services—is not incongruous with or violative of Article 121, subsection 14), of the Political Constitution; on the contrary, it is a constitutionally valid option for the indirect management of the public service, which does not imply disposing of, leasing, or encumbering the docks, nor that they leave the domain and control of the State. Thus, in ruling no. 2005-05651 of 14:41 hours on May 11, 2005, in which similar complaints were heard, related to the Instituto Costarricense de Puertos del Pacífico, this Chamber resolved:

"V.- Object of the challenge. The plaintiffs believe that the acts of invitation to bid conducted by the Instituto de Puertos del Pacífico (INCOP) and by the Consejo Nacional de Concesiones in international tenders number 1-2001 concession for the management of public services of the Caldera terminal, 2-2001 concession for the management of public services of the Puntarenas terminal, 3-2001 concession for the management of tugboat services on the Pacific Slope, 3-2001 concession for public works with public service of the Puerto Caldera bulk terminal, and 4-2001 concession for public works with public service of the Puerto Caldera tuna terminal, all published in La Gaceta Oficial number 68 of April 5, 2001, as well as their subsequent award and approval; and likewise regarding Articles 2 subsections 2) and 3) and 5 subsection 4) of the Ley General de Concesión de Obras Públicas con Servicios Públicos, number 7762 of April 2, 1998, are unconstitutional because they are considered contrary to the principles of legality, legal reserve, non-delegability of functions, reasonableness, proportionality, and due process, as well as for contradicting the provisions of Articles 1, 2, 3, 4, 9, 11, 39, 121 subsection 14) and 140 subsection 19), all of the Political Constitution. Regarding the challenged provisions of Law No.

7762, these provide:

“ARTICLE 2.- Scope ...

2.- Railways, railroad lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, under this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains pursuant to Article 42.1 a) of this law, by reason of the new works or expansions concessioned at the cited docks, shall be remitted to the Junta de la Administración Portuaria de la Vertiente Atlántica (JAPDEVA) and the Instituto Costarricense de Puertos del Pacífico (INCOP), as applicable, to be used exclusively for investments in works in the respective provinces, without being able to be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the aforementioned entities, as applicable.” “ARTICLE 5.- Definition and Action ...

4.- It is exclusively the responsibility of the Executive Branch, considered in the terms of Article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, railroad lines, docks, and international airports, both new and existing.

The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law.” VI.- On the merits. The core aspect challenged by the plaintiffs is that the contested acts and provisions violate Article 121, subsection 14, since they cannot be the object of a concession, because the Constituent Assembly so provided and because public domain assets are being declassified. This Chamber has repeatedly ruled on this aspect and has indicated:

“III. ON THE CONFLICT WITH ARTICLE 121, SUBSECTION 14 OF THE POLITICAL CONSTITUTION: The consultation states that 'Some have questioned the fact that by empowering the concessionaire to operate the new railway, dock, and airport facilities, in accordance with Article six, second paragraph of the bill, it could be conflicting with the constitutional provision that prevents the disposal of these works, Article 121, subsection 14 of our Magna Carta.' Article 6 of the Bill states: 'ARTICLE 6.- National railways, docks, and airports, the latter as long as they are in service, may not be disposed of, leased, or encumbered, directly or indirectly, nor in any way leave the domain and control of the State.

'The concessions granted to build and operate new railway, dock, and airport facilities must be processed in accordance with this Law and approved by the Legislative Assembly, within a period not exceeding forty-five days from their submission.

'Complementary or non-essential public services located in railways, docks, and airports may be granted in concession.' As can be observed, the first paragraph of Article 6 coincides with what the Constitution provides in the last paragraph of Article 121, subsection 14). It is essentially an 'echo norm'. Furthermore, it is important to note that the concession for the construction and operation of new railway, dock, and airport facilities is subject to a qualified procedure, since it ultimately requires approval by the Legislative Assembly. Except for this fact, and because in this same case the concession may be granted for a term of 'up to fifty years' (Article 9 of the Bill), the institute does not differ in any way from the concession of public works in general, as regulated in the Bill.

Consequently, it has the following relevant characteristics: a) By way of the concession (concesión), the execution of the work is entrusted and the necessary legal powers are transmitted for its operation; b) The transmission of those powers is temporary and the operation generally reserves to the Administration its powers of authorization, control, and oversight; c) The ownership of the property right and the provision of the public service remain with the Administration; ch) The provision of the public service by the concessionaire is subordinated to the principles of national convenience, legality, generality, continuity, efficiency, adaptability, and just compensation; d) The rights and obligations of the concessionaire and, as applicable, of the subcontractors, cannot be assigned, placed in trust, or encumbered, nor may any agreement for usufruct, lease, administration, or total or partial operation be entered into regarding the assets subject to the concession (concesión) without the prior and express consent of the granting Administration and the approval of the Contraloría General de la República, consent and approval which must be understood necessarily, and is so interpreted for the purposes of this opinion, as impossible to give if there are constitutional or legal limits that prevent it; and e) The concession (concesión) is extinguished, among other grounds, by means of rescue for reasons of public interest.

Returning now to the text of Article 121, subsection 14) of the Constitution, whose last paragraph, as mentioned in the consultation, is what could be affected by the second paragraph of Article 6 of the Bill, it is appropriate within the framework of this consultation to delimit its content. Indeed, Article 121, subsection 14) contains three distinct norms, which must be clearly differentiated: a) The first is a norm that empowers the Legislative Assembly to decree "the alienation or application to public uses of the Nation's own property". On one hand, this norm is unrestricted insofar as it refers to all the Nation's own property, and, on the other, it reserves the matter to the law, invalidating administrative acts of alienation or application to public uses not based on prior law; b) The second prescribes which assets "may not definitively leave the domain of the State". For those categories, which are set forth in subsections a), b), and c), the restriction is total and absolute regarding "leaving the domain of the State", but, immediately, the norm moderates its severity by noting that such categories of assets may be "operated by the public administration or by private parties" in accordance with the law or through a special concession (concesión especial); c) The third is a norm that refers specifically to certain assets (railways, docks, and national airports in service) not included in the three categories of the preceding norm. If nothing were said about these assets, they would be covered by the enabling norm with which subsection 14) begins, as has already been seen. But the existence of this specific provision implies a distinct legal regime for these assets, which strictly limits the general principle of alienation and application to public uses: such assets "may not be alienated, leased, nor encumbered, directly or indirectly, nor leave in any way the domain and control of the State". The norm refers, firstly, to alienation, lease, or encumbrance, but the expression "directly or indirectly", in the strict context of the provision, may refer equally to the situation in which the State proceeds by itself or through other legal entities (subjective sense), or to cases in which modalities or means are employed that have equivalent or similar legal consequences or effects, even if per se they do not technically constitute alienation, lease, or encumbrance (substantive sense). Subsequently, this rigor is confirmed by the expression "nor leave in any way the domain and control of the State", an expression which must also be given broad coverage of hypotheses due to the vocation of the norm. Now then: if the summary enumeration of some characteristics of the concession (concesión) made earlier is compared with the provisions of Article 121, subsection 14), the following comments arise. The term "alienation" (enajenación) entails the transmission of dominion or ownership of the thing or the ownership of a right to another person, which does not happen with the concession (concesión), since according to the very terms of the Bill, the State retains dominion over them, to the point that it could recover them—if for reasons of public interest it were to so deem—upon prior compensation to the concessionaire. It also differs from the figure of a lease (arrendamiento), since as a synallagmatic contract, the lessor assures the lessee the use and enjoyment of the thing for a determined time, while the latter commits to the payment of a sum of money; whereas in the concession (concesión), although it is true that there is a term for its operation, the State—as indicated—may recover it notwithstanding the established term, and the economic benefit the concessionaire receives consists exclusively of the fee or sum of money paid by the users. Nor does it imply an encumbrance (gravamen) on the asset, as results from the articles of the Bill.

In other words, the public work constructed will always belong to the State. Hence, as a public domain asset, it will enjoy the characteristics of imprescriptibility, inalienability (irrenunciabilidad), and immunity from seizure (inembargabilidad) that are inherent to this type of asset. Consequently, given the prerogatives that the project reserves for the Administration, it is not reasonable to understand that the assets subject to the concession leave or could leave—directly or indirectly—the domain and control of the State. To the foregoing must be added the broad powers of control or oversight (fiscalización) that the State reserves for itself, including regarding the stipend (tariffs for the provision of the public service) that the concessionaire will receive, which must be set by the competent bodies of the Public Administration indicated in the Project, all based on principles of justice and reasonableness inherent to public law. Hence, in the opinion of this Chamber, no violation is observed by the consulted norm with respect to Article 121, subsection 14) of the Political Constitution (Constitución Política).” (Judgment No. 3789-92) In the cited judgment, it is clearly stated that the possibility of granting concessions (concesión) for assets such as docks, within the parameters that the Chamber has described, does not constitute a violation of the Political Constitution (Constitución Política), since, in accordance with the nature of the “concession” (concesión), these assets are not being decommissioned, as they are not being separated from the public purpose to which they are linked; therefore, they do not leave the public domain, nor are they being alienated, leased, or encumbered, so the alleged violation does not occur. Now, in this study, we are speaking of two distinct concession models: the public works concession with public services, regulated in the Law challenged here, and the public service management concession, regulated in the Administrative Contracting Law (Ley de Contratación Administrativa). Both involve different modalities of concession (concesión), but in any case, as already indicated, they do not harm Article 121, subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was pending:

“...It should be noted that the Political Constitution (Constitución Política) does not distinguish between public works and public service concession (concesión), in the terms raised in the consultation, and even though such a distinction might be advisable as a matter of good legislative technique, its omission does not imply any constitutional objection. Furthermore, the concession of public works or services is a typically administrative contract precisely due to the public nature of its object. Desirable legislative technique must therefore not be confused with that which is constitutional or unconstitutional, since this depends on the content of the Constitution itself and the norm confronted with it, which could even be designed according to good legislative technique, yet nonetheless be unconstitutional. Hence, the fact that a given norm is not drafted in accordance with a particular doctrinal current or suffers from certain defects does not imply that it is unconstitutional. For all the foregoing reasons, this Chamber considers that the objections that the consulting deputies make to the bill, regarding this point, are not related to constitutional problems, but rather to criteria of opportunity and convenience belonging to the legislator, who is responsible for regulating the matter in the manner they deem most viable, provided, of course, that they do not violate the Political Constitution (Constitución Política). The Chamber further understands that the concession of the public works and services referred to in this bill excludes everything related to national security, customs control, migration, and everything having to do with the State's own functions, which are non-delegable and inalienable (irrenunciables) and can in no way be placed in private hands.” Thus, for example, even when an airport is granted under a concession (concesión), so that the public service provided there is performed by a private entity, matters relating to port security, migration, and customs, among others, are reserved exclusively to the State, without those functions being able to be exercised either directly or indirectly by private parties.

In the opinion of this Chamber, nothing prevents the Assembly, by means of a framework law (ley marco), from empowering the Executive Branch to grant concessions for public assets, without requiring specific approval for each particular case, since it is understood that it has given general approval for such purpose, in compliance with the Constitution itself.

In summary, regarding this consulted aspect, the Chamber finds no unconstitutionality whatsoever.” In the case of public works concessions with public services, the General Law on Concession of Public Works and Concession for the Management of Public Services, and the Administrative Contracting Law, articles 74 and 75, are applicable as a framework law. In that sense, it is not unconstitutional for the public administration to grant concessions for these assets within the parameters that this Court has indicated. On the other hand, as the plaintiffs themselves correctly indicate, Article 2, subsection 3, challenged here, states that:

"...In the case of the docks of Limón, Moín, Caldera, and Puntarenas, under this law, only new works or expansions carried out there may be concessioned, and not the existing ones.", thereby conforming to Article 121, subsection 14, so whether the questioned tenders (licitaciones) violate that provision is a matter that must be determined through the legality review process (vía de legalidad), as we would consequently not be facing a constitutional violation, but rather a disagreement with the application of the law.

VII.- The plaintiffs request this Court, should it declare the challenged law to be a framework law, to declare the tenders challenged here unconstitutional because they were processed through procedures different from those established in Law 7762. Such a point is inadmissible for the Chamber, since what is sought constitutes the issuance of a judgment on mere legality, which exceeds the competence of this Court.

Of course, if the norms contemplated in the Political Constitution are at the apex of the normative order, certainly any legal violation also violates the Political Constitution, but to remedy these conflicts the original constituent power created the ordinary jurisdictions.

VIII.- On the other hand, the plaintiffs accuse a violation of the principle of reasonableness and proportionality and the sound management of public spending, questioning that the concessions will practically imply the de facto closure of INCOP and the formation of a privatization. Regarding these aspects, the Chamber in ruling No. 14.606-03 also already indicated:

"III.- INCOP STRENGTHENING PROCESS. The Deputies consider that "(...) there is no legal precept whatsoever that allows INCOP to carry out a competence, structural, and labor restructuring of such magnitudes, and with it, there is also no authorization to pay an 'indemnification' as described" (...), thus it constitutes a privatization without normative support. On this point, it is necessary to indicate that whether INCOP has sufficient legal competencies and powers to determine its restructuring or modernization is an aspect of mere legality that exceeds the competences of this Tribunal. However, it is worth noting that the power of organization or reorganization is, in principle or virtually, inherent to any public entity other than the State. The Political Constitution guarantees, in its article 188, to every lesser public entity, distinct from the State, a minimum or first-degree administrative autonomy, that is, the power of self-administration, without subjection to any other public entity and without the need for a legal norm that so provides, in order to arrange its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the tasks and purposes assigned to it.

In developing the constitutional text, sections 6, paragraph 2, 59, paragraph 2, and 103, paragraph 1, of the General Law on Public Administration (Ley General de la Administración Pública) confer upon the head of any public entity – in the case of an autonomous institution such as INCOP, the Board of Directors – the power of self-organization and reorganization – the latter by application of the principle of parallelism of powers – to provide itself with the most suitable organizational structure for fulfilling the purposes assigned by the legal system and the general guiding principles of public services, namely effectiveness, efficiency, and adaptation to any change in the legal regime or social need they satisfy (articles 4, 225, paragraph 2, and 269, paragraph 1, of the General Law on Public Administration). In another order of considerations, the privatization of public services, that is, the definitive transfer of their ownership and exercise to private-law subjects, should not be confused with their indirect management by a public entity through the figure of the concessionaire (concesionario), since, in this hypothesis, the granting administration (administración concedente) maintains ownership of the service and of the public domain assets necessary for its effective provision, merely transferring temporarily to the concessionaire the exercise of certain powers for the management of the service – with or without infrastructure – or the construction of works that will continue to be publicly owned (article 121, subsection 14, of the Political Constitution and the General Law on Concession of Public Works with Public Services).” From the foregoing, it is easily deducible that the Chamber already indicated that it is not for this jurisdiction to determine the advisability or otherwise of the modernization process sought by INCOP, nor to determine the suitability of the means chosen, nor the advisability of the manner in which it intends to compensate its employees, as these are matters that exceed the jurisdiction of this Court.

IX.- Finally, regarding the matter claimed by the plaintiffs concerning the insufficiency of funds to comply with the 70% mandated by Law No. 7762 because it is intended to compensate employees with the concession’s revenues, which they deem contrary to Article 2, subsection 3 of that same law, this also implies a legality review, which, as explained in recital (considerando) VIII, cannot be the subject of a ruling by this Court.

X.- Conclusion. Consequently, since from the study conducted this Court found no constitutional violation of the rights and principles claimed, the appropriate course is to dismiss it, as is hereby ordered. Judges Armijo and Cruz dissent and would grant the appeal.

Considerations fully applicable to the sub lite.

Indeed, as can be inferred from reading the filing brief, it can be verified that rather than an objection to the effective possibility that the docks or ports may be alienated, leased, or encumbered, or that they may be allowed to leave the ownership or control of the State, in light of the challenged provision, what is questioned is the possibility that JAPDEVA may resort to a potential “outsourcing (tercerización)” of certain services, which is alleged by the petitioner could harm the workers who would work for the companies providing their services to JAPDEVA, as their working conditions would be less favorable than those of the institution’s current workers. It is alleged that this would violate Articles 50 and 74 of the Political Constitution, relating to the State’s duty to ensure “the most adequate distribution of wealth” and the Christian principle of social justice.

Regarding this point, reference must be made to what was already indicated in the precedent previously transcribed (vote no. 2005-5651, recital VIII), in the sense that assessing the advisability of resorting to these mechanisms for the provision of services exceeds the scope of jurisdiction of this Chamber. It should also be noted that the reform challenged in this action is part of a restructuring and modernization process of JAPDEVA.

This Chamber has already ruled on that process, in vote no. 2019-018505 of 11:45 a.m. on September 24, 2019, issued on the occasion of the optional legislative consultation of constitutionality formulated regarding the then bill no. 21.426, “Ley de Modernización de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva) y Protección de sus personas servidoras”. An opportunity in which it was resolved -as relevant- that:

“(...) According to the statement of reasons in the legislative dossier, the legislative initiative responds to the urgent need to solve in the short term the serious situation of financial sustainability facing the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva). The bill has two fundamental axes: a) reorganize and transform Japdeva from an administrative, operational, and financial point of view in such a way that it can find its break-even point, based on a study that must be approved no later than two months after the law is passed, b) facilitate the reduction of the payroll to allow a return to that break-even point, under the following modalities: horizontal transfer of workers to other institutions under certain parameters, payment of benefits and incentives, and early retirement (prejubilación), both also under parameters established in the bill. According to the bill's statement of reasons:

1. As part of said reorganization, the workers of said institution may voluntarily request their horizontal transfer to institutions of the Central Administration and institutional Decentralized Administration; or, they may opt for the payment of their benefits plus an additional incentive, to engage in activities outside the public sector. Both possibilities will be made effective according to the parameters set forth in the bill.

2. Establishes a right to avail oneself of an early retirement regime (régimen prejubilatorio), which will be charged to the National Budget, provided they meet the requirements indicated in the law and have not availed themselves of the additional incentive for institutional transformation. The bill also regulates aspects such as the calculation of the early retirement amount and its maximum cap, expiration parameters, the transfer to the Disability, Old Age, and Death Regime, and the supplementary application of Law no. 7302 (General Pension Regime Charged to the National Budget); as well as inter-institutional coordination between the Ministry of Labor and Social Security and the CCSS so that, through the signing of a collective insurance agreement, the insurance conditions of former JAPDEVA employees who enjoy the early retirement benefit are regulated.

The bill consists of three chapters, the first titled “Modernización de Japdeva” (from article 1 to 7), the second “Régimen Pre jubilatorio” (from article 8 to 17), and the third “Reformas a otras leyes” (18 to 20). Furthermore, it contains five transitory provisions that refer to, one, the maximum period for the General Directorate of the Civil Service to apply the process for carrying out horizontal transfers, as well as regarding transfers from institutions under the purview of the Budgetary Authority; a maximum period of 1 month for workers to choose and formally request one of the modalities indicated in the law, a term that once expired, obligates the administration to initiate the execution of the cessation of personnel necessary to reach its financial break-even point, as well as the regulation on the group of workers to which the regulation is applicable.

(...)

IV.- On the legal nature of JAPDEVA and its labor regime. The legal nature of Japdeva is clearly regulated in its creation law (No. 3091 of February 18, 1963, comprehensively reformed by No. 5337 of August 27, 1973). It concerns an autonomous institution (institución autónoma), with the character of a public utility company (empresa de utilidad pública).

In its article 1 it states:

"Create the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, as an autonomous entity (ente autónomo) of the State, with the character of a public utility company." "It shall likewise be responsible for administering the Atlantic canalization and the lands and assets that this very law grants it. It shall administer the State's railway transportation enterprises that provide services to and from the ports of the Atlantic Slope (Vertiente Atlántica) that are specifically contemplated by the Executive Branch in the national development plans." NOTE: The administration of the State railways was transferred to the Instituto Costarricense de Ferrocarriles (INCOFER) by its Organic Law (Ley Orgánica) No. 7001 of September 19, 1985 (especially by its articles 1 to 4, 36, and 45).

Article 2.- It shall promote the comprehensive, rapid, and efficient socio-economic development of the Atlantic Slope (Vertiente Atlántica) of Costa Rica. JAPDEVA may lease, sell, adjudicate, or exploit the lands conferred upon it by this law, for the purpose of promoting the ends for which it was created, but it must previously consult the criterion of the Instituto de Tierras y Colonización, a criterion from which it may not deviate, except with the affirmative vote of five of the members of the Board of Administration (Consejo de Administración). Within the current port area and its extension to Cieneguita and in that of new ports of the Atlantic Slope (Vertiente Atlántica), an adjacent zone shall be determined for the installation of industries or commercial services related to port operation, which in no case may be alienated, but may be leased for fixed terms. The respective contracts shall contain a clause expressly stating that JAPDEVA may unilaterally terminate them when it needs the land for works and installations of general interest, at its discretion and without any liability.

Article 3.- As an autonomous institution (institución autónoma) of public law, JAPDEVA shall have juridical personality (personería jurídica) and its own patrimony; it shall enjoy administrative independence in accordance with this law. It shall be governed by the decisions of its Board of Administration (Consejo de Administración), whose members shall act in accordance with the Political Constitution, the pertinent laws and regulations, being totally and unavoidably responsible for their management. Relations between the Executive Branch and JAPDEVA shall be maintained through the Ministerio de Obras Públicas y Transportes." Now, this type of organization is also known doctrinally as a public enterprise-public entity (empresa pública-ente público); the foregoing because it was created to develop a mercantile and commercial activity under the guise of a Public Law organization, and consequently its legal regime is mixed. That is, all those aspects related to the organization and the exercise of certain eminently administrative powers or competencies are governed by Administrative Law, and those related to business activity by private Law.

Regarding this matter, Article 3, paragraph 1, of the Ley General de la Administración Pública establishes that "Public law shall regulate the organization and activity of public entities, unless an express provision states otherwise"; for its part, paragraph 2 provides that "Private law shall regulate the activity of entities which, by their overall regime and the requirements of their line of business, may be considered common industrial or commercial enterprises." These are, as can be seen, cases in which public entities exercise one capacity under Public Law and another under Private Law (Article 1 of the Ley General de la Administración Pública).

For its part, the Procuraduría General de la República has been clear in stating, in the case of Japdeva, that the generality of personnel in its service does not hold the status of public servants (servidores públicos) because they do not perform public management, with the exception of employer representatives. It concludes, then, that for the vast majority, their labor regime is governed by private law, with the exception of so-called managerial and senior oversight positions, which are indeed considered public servants. In this sense, a duality operates in JAPDEVA regarding service relationships, given that common labor law applies to one group of workers, while another sector is governed by public law. (By way of example, see Opinions 260 of 03/12/1998, 369 of 31/10/2014 ) In Opinion 369-2014, as relevant, the Procuraduría General de la República indicated:

"In view of the legal nature that the legislator conferred upon JAPDEVA, its employees are not considered public servants, and they are therefore governed by labor law (provided this is not displaced by superior considerations of public law), as ordered by Articles 3, subsection 2), 111, subsection 3), and 112, subsections 2) and 3) of the Ley General de la Administración Pública:

Article 3: "(…)

2. Private law shall regulate the activity of entities which, by their overall regime and the requirements of their line of business, may be considered common industrial or commercial enterprises." Article 111: "(…)

3. Employees of State companies or economic services tasked with duties subject to common law are not considered public servants." Article 112: "(…)

2.

Service relationships with workers, laborers, and employees who do not participate in the public management of the Administration, in accordance with paragraph 3 of article 111, shall be governed by labor or commercial law, as applicable.

3. However, the legal or regulatory provisions of public law that are necessary to guarantee administrative legality and morality shall also apply to the latter, as determined by Decree of the Executive Branch.

(…)

Notwithstanding, the foregoing statement is not absolute because within the decentralized entities there are also positions that are in fact subject to the public regime, and those are the ones that participate in public management, as is inferred—a contrario sensu—from the recently referenced subsection 2) of Article 112.

The servants who participate in public management are, according to what has been indicated by the Second Chamber of the Supreme Court of Justice, "those who lead and direct the branches of the State, the heads of autonomous institutions, executive presidencies, as well as the heads (managerial group) of State enterprises, etc." (ruling No. 2007-548 of 9:45 a.m. on August 15, 2007).

In addition to the foregoing, reference is also made to Opinion No. C-293-2007 of August 27, 2007, applicable to the case under study:

"It should be noted that the reiterated jurisprudence of this Technical Consultative Body has indicated the public nature of the relationship existing at the managerial levels of banking entities, which, due to the nature of the functions performed, are subject to a public regime to regulate their actions. In this regard, we have indicated:

"It is worth noting that in that banking entity a dichotomy of employment regimes coexists; alongside the personnel governed by a mixed regime, that is, where common labor legislation applies provided that 'it is not displaced by higher-order considerations inherent to public law' (Ruling of the Constitutional Chamber No. 7730-2000 of 14:47 hrs. on August 30, 2000), there are certain positions under a strictly public employment regime, termed by doctrine and constitutional jurisprudence as 'high level,' which are not workers in the true sense of the word, but rather their service relationship is governed by administrative law and its principles, as they are true public servants. (Article 112 subsection 1) of the General Public Administration Law).

In that sense, the Constitutional Chamber of the Supreme Court of Justice, in its ruling number 244-2001 of 14:46 hours on January 10, 2001, when referring to the situation of senior-level officials excluded by the collective bargaining agreement of INS, held that: "… the employees of this institution cannot be considered public officials, except for the case of managerial and senior oversight positions – to which the public employment regime does apply – thereby excluding them from common labor norms, which includes collective conventions." (the underlining is ours).

The Constitutional Court followed the same position in ruling No.

12953-2001 of 16:25 hours of December 18, 2001, when in its fifth whereas clause (considerando V), in fine, it held that: <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">it is strictly proper to presume that these employees perform functions of </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Public Management (Gestión Pública)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> which, as</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> the Attorney General's Office points out, entail </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">a power of decision and oversight, as applicable, that is superior</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(folio 34)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">and that, therefore,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; text-decoration:underline; vertical-align:sub">constitute an employment regime that is governed entirely by public law (derecho público)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">. (the underlining is not from the original).</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Thus,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">the appointment, removal, powers, disciplinary and salary regime, and in general,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">everything concerning the service relationship of those officials is regulated by public law; in addition to some of those positions being of the so-called </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">fixed-term (de período)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> type,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">for which reason they enjoy stability in their positions, all of which constitutes important differences with respect to the labor personnel of that banking institution.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(Legal Opinion C-034-2005 of January 26, 2005, the underlining is not from the original)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> (only the underlining is not from the original).</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">However, it is noted that there is no exhaustive list of officials who participate in public management (gestión pública), so its determination corresponds to the Administration (Administración) itself, and in</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> the last instance, to the Courts of Justice (in that vein, vote N</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> 2010-1277 of 15:32 hours of September 9, 2010, issued by the Second Chamber); however, in judgment N</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> 2001-12953 of 16:25 hours of December 18, 2001, the Second Chamber indicated</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">that it is feasible</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">to presume</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">that the employees excluded from the collective bargaining agreements perform functions of Public Management (Gestión Pública).</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Specifically, it stated:</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">In this way, based on the fact that RECOPE's own Collective Bargaining Agreement (Convención Colectiva), in its article 4</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">, provides for the exclusion from its scope of application of the President, the General Manager, the General Directors, the Area Managers, the General Auditor, the Deputy General Auditor, the Advisors and Assistants to the Presidency and the General Management, the Heads of Directorate, the Secretary of Minutes of the Board of Directors, as well as those appointed to Executive Coordinator positions regardless of the functions they perform,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">it is strictly proper to presume that these employees perform functions of "Public Management (Gestión Pública)" that, as the Attorney General's Office points out, entail "</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">a power of decision and oversight, as applicable, that is superior</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">"</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(folio 34) and that, therefore, entail an employment regime that is governed entirely by Public Law (Derecho Público).</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> (the bold is not from the original).</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Regarding</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">JAPDEVA, its collective bargaining agreement in clause 4 provides that </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">The Executive President, his Assistants and Advisors, the Managers and their Assistants, Deputy Managers, Auditor and Deputy Auditor shall not be covered by this Agreement,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">as they are the officials who participate in the public management (gestión pública) of the Administration (Administración)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> (the bold is not from the original), from which it can be deduced, in the first place, that</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">the Board (Junta) has already carried out</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">an analysis to determine specifically</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">which employees participate in public management (gestión pública), and furthermore, in accordance with what has been indicated herein, that</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">these must be deemed</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">public officials (funcionarios públicos), and therefore, subject to public law (derecho público).</span> For its part, the Constitutional Chamber, in judgment 2010-9928 of 3:00 p.m. on June 9, 2010, indicated:

"**VI.- UNCONSTITUTIONALITY OF ARTICLE 3, SUBSECTION A), OF THE CONTENTIOUS-ADMINISTRATIVE PROCEDURAL CODE.** (...) Thus, by way of example and without intending to be exhaustive, the labor jurisdiction must hear and resolve – even if the matter is related to the administrative conduct or function exercised by a public entity – typically or materially labor-related issues, such as the appropriateness or not and the calculation for the payment of the year-end bonus (aguinaldo), vacations, notice period and severance pay (preaviso y auxilio de cesantía), matters concerning the recognition of a retirement or pension or professional risks, disputes that arise in the field of individual and collective Labor Law (e.g., conflicts of an economic-social nature), everything relating to the exercise of the right to strike or work stoppage, etc. In the same vein, **it is necessary to recognize that, regarding employees in charge of activities subject to the common law of public companies or economic services developed by a public administration, or mere laborers, workers, or employees who do not participate in the public management of the respective public entity, that is, those whom the doctrine calls “workers of the public administration,” the disputes that arise must be heard and resolved by the labor jurisdiction, since they are not, in the strict sense, a public official, servant, or employee (articles 111, paragraph 2, and 112, paragraph 2, of the Ley General de la Administración Pública),** given that any conduct emanating from the public entity, in such context, will not be subject to the administrative legal regime, nor can it be materially considered an administrative-legal relationship. (...)".

What was resolved by the Chamber allows for a differentiation between the public and private employment regime of the Administration. In the former, figures such as statutory regimes (article 191 of the *Carta Magna*), the right to full stability (for permanent employees) or relative stability (for interim servants or employees), the right to reinstatement (which is only exceptional in the private regime), among other manifestations that do not concur in the latter and that allow both frameworks to be demarcated, prevail. Although within the private employment of a public company-public entity, whose workers do not participate in public management, as ordered by subsection 3 of the aforementioned mandate 112 ibidem, principles of public law may operate by integration to guarantee "administrative legality and morality," such complementarity does not make those relationships typical of public employment, as it is clear that they remain of another moral nature. All of which reinforces the existence of **a mixed-nature employment regime.** The foregoing is important to be clear about for purposes of determining whether it is possible for the legislator to mandatorily determine the reduction of the payroll (planilla) through a restructuring (reestructuración) of a decentralized institution to achieve its financial balance, and if so, under what parameters it can do so.

**V.- On constitutional jurisprudence regarding administrative restructurings (reestructuraciones administrativas).** The Costa Rican state has already undergone several restructuring processes in the public sector in the past, for which legislation has been issued.

Regarding these matters—which have at times been brought before the Sala Constitucional—the case law has considered that restructuring (reestructuración) is possible in the event of a forced reduction of services, whether due to lack of funds or to achieve a better organization thereof.

However, the application of these processes requires compliance with a series of prior requirements set forth—in the majority of cases—in legislation, as occurs with the Civil Service Statute and its Regulations, thereby pursuing the aim of guaranteeing absolute respect for the constitutional rights of the employees.

In this respect, the Sala Constitucional has indicated:

“Article 192 of the Constitución Política empowers the Public Administration to order the restructuring of the various dependencies that comprise it, for the purpose of achieving their better performance and organization, for which it may order not only the elimination and reclassification of positions, but also the transfer of officials to different posts, provided that due process is observed (...) The power to forcibly transfer or reduce public officials is intrinsic to the State, which may implement—provided the established procedure for agreeing to a reorganization is respected—the necessary measures in order to organize its different dependencies to achieve their better functioning... “(Voto No.4246-94) Similarly, this Chamber has pointed out that administrative restructuring processes must be subject to real needs:

“It must also be taken into account that so-called restructurings or reorganizations must be based on real and duly proven needs in order to avoid abuses on the part of employers, who under an apparent justification violate the rights of employees, who by their very position – as the weaker party – within the relationship, are unable to exercise immediate administrative or judicial action to stop this type of abuse. Therefore, every reorganization process must include the participation of all those dependencies required for making the final decision.” (Sentencia 3288-94) In the same vein, sentencia 00602-2001 stated:

“In addition to these, the Chamber has also pointed out that in a public employment relationship, the projection of the right to work protected by Article 56 of the Constitution contains, as one of its postulates in favor of the worker, that of stability in the position, without it being possible to ignore that this is what allows the employee to access a series of social and economic benefits that enable their academic and professional advancement, providing them the necessary security for their personal development and that of the family nucleus that depends on them, which truly effectuates the meaning of the right to work as an individual guarantee and an obligation to society, in the expression used by the constitutional text; for which reason employees may only be removed by way of exception, due to a justified cause for dismissal, or in the case of a forced reduction of services, one of the cases precisely being the restructuring processes to which an institution may be subjected, the latter being, moreover, in accordance with the principles derived from Article 192 of the Constitución Política, but precisely because it is an exception to the constitutional guarantee of stability for the worker, its application by the administration must be executed with absolute objectivity, transparency and seriousness, and hence the requirement of qualified technical studies that can validate decision-making, based on a coherent and effective model.” In the case of the draft law consulted, the legislator empowers in its Article 2, JAPDEVA to determine the adequate administrative, operational, and financial structure for its correct functioning, as well as to carry out the technical studies and actions necessary to maintain the working personnel it requires to guarantee the continuity of the entity and the financial equilibrium, in the short and long term, in such a way that it exempts it from submitting to the existing procedures and regulations for the public sector, but on the other hand, subjects it to the condition that the decisions adopted be based on technical studies.

As can be observed from the legislative discussions, both the Contraloría General de la República and the Minister of Finance confirm that, from a financial standpoint, Japdeva presents an imbalance that makes it unsustainable in the future and compromises the payment capacity of the employees of that entity in its current configuration (see Volume II pages 358-394; 409-412; Volume III pages 725 et seq.; Volume X 2573 et seq.), confirmed by the authorities of Japdeva (pages Volume II 395-408; 473-719). The economic studies are clear that the institution's revenues are far lower than its expenses and its future capacity to assume the entirety of the current payroll, given the commencement of operations of APM Terminals, the concession contract, and the Ministerial directives adopted regarding it.

In that sense, this Chamber considers that although the technical studies would determine what the future structure should be according to the business model and the institutional reorganization plan, in conjunction with the strategic plan and the new technical studies, so that the provision is not unconstitutional by its effects, in the case of public employees and the administrative, operational, and financial structure adopted, there must exist an absolute connection between both such that it is demonstrated that they respond to real, duly proven needs in order to avoid abuses, according to the jurisprudence cited above. In no way can it be interpreted that the requirement for technical studies referred to in the norm, because they are ex post, means a blank check for the administration to whimsically determine either the public employees who are to remain or be eliminated, or the administrative, operational, and financial structure that the entity shall have in the future. In that sense, this Chamber clarifies that for the measure not to result in unconstitutionality by its effects, no dismissal of public employees can be initiated until the technical study referred to in Article 2 of the consulted legislative bill is concluded and due process has been given to those persons who would be affected by an eventual dismissal. Furthermore, every final act must be duly grounded in the respective technical study.

The case of workers subject to the common law regime is different, because these shall be governed by the provisions of the Labor Code and the Collective Bargaining Agreement as applicable, and regarding the workers of said regime, the degree of stability guaranteed by Article 192 of the Political Constitution to public employees does not operate. Naturally, in order to carry out a dismissal without employer liability in this segment of workers, all established legal provisions must be fulfilled.

Likewise, workers who enjoy special union immunity (fuero especial sindical) may not be forcibly dismissed without following the procedures established in the legislation, nor may precautionary measures or resolutions issued by the courts of justice in cases brought before them be disrespected.

In the case of dismissal with employer liability, for those workers subject to the common law regime who did not wish to voluntarily avail themselves of any of the modalities of horizontal mobility, incentives, or early retirement established by the law, the procedures specific to labor legislation must equally be fulfilled, including the payment of the corresponding legal benefits within what the legal system stipulates.

This Chamber considers that the consulted transition provision in no part empowers the entity to carry out automatic dismissals, since in the case of public employees, positions may only be suppressed in accordance with the technical studies, after due process, without being able to do so beforehand, and in the case of employees subject to the common law regime, who are the majority, they may be dismissed with employer liability with full payment of their legal benefits as provided in labor legislation, if they did not wish to voluntarily avail themselves of any of the modalities of horizontal transfer, incentives, or early retirement established in the law. Likewise, without employer liability, only a person who commits serious misconduct may be dismissed, as established by the rules of common law.

VI-.

Regarding the alleged violation of the administrative autonomy (autonomía administrativa) of Japdeva.

The petitioners allege that there is a possible unconstitutionality in the competence that the Legislative Assembly would be arrogating to itself through this norm, to substitute the Administration, with the purpose of disposing of its human and financial resources and proceeding to order the dismissal of its officials from Japdeva.

In this sense, they find a possible unconstitutionality in that Transitory Provision II of the bill under consultation opposes Article 188 of the Magna Carta, which safeguards the administrative autonomy (autonomía administrativa) of autonomous institutions (instituciones autónomas) such as JAPDEVA (created by Law No. 3091 of February 23, 1963, and its reforms, Article 1). Likewise, they consider that this norm would be contrary to the principles derived from Article 9 (separation of functions and independence of the branches of State) and Article 122 (express prohibition on the Legislative Branch from co-administering), since it implies the direct intervention of the Legislative Assembly in administrative aspects of an autonomous institution by ordering it to terminate its officials.

The crucial point in this questioning would be to determine whether the legislator has constitutional powers to reorganize an autonomous institution. In this sense, it is necessary to differentiate the normative origin of the autonomous institutions (instituciones autónomas) contemplated in constitutional Articles 188 and 189. As a first scenario, we have the autonomous institutions created and regulated directly by the Political Constitution, such as the Caja Costarricense del Seguro Social, the Universidad de Costa Rica, among others; and as a second scenario, we have the autonomous institutions of legal creation by qualified vote.

In the specific case of JAPDEVA, it is an autonomous institution of legal creation whose goals, objectives, and purposes are set by law. That is, its creation was by the will of the legislator, which was motivated by a need to satisfy a public purpose at a specific time. Having clarified the above, we can affirm that just as the Legislative Assembly can create an autonomous institution, it can also close it —principle of implied powers (principio de los poderes implícitos)—, for whoever can create, can extinguish or modify its structure and its competencies, especially since in this case the public entity is financially unviable, for which there is an objective and reasonable motive. Naturally, in a state of law, no power can act arbitrarily. In the case under study, as indicated above, there are financial studies from the Ministry of Finance, the Contraloría General de la República, and others from the institution itself that recognize the entity's impossibility of paying salaries to the workers, because the business model changed with the entry of a concessionaire (APM Terminals) and without the appropriate reactivation and reorganization measures being taken in a timely manner to guarantee its financial balance. The foregoing has obliged the Executive Branch to send an extraordinary budget to pay salaries for the coming months (file 21,475), funds that will be paid in part with debt (see appearance of the Minister of Finance, Volume II, pages 256 et seq.; Comptroller General 358 and reports from the Contraloría 409-412; Japdeva 395-408; Volume X, Ministry of Finance report, pages 2573 et seq.). The bill under consultation proposes to facilitate the reduction of the payroll (reducción de planilla), under a series of incentives, mobility, and compensation for the workers, in accordance with the technical studies to be carried out by the entity within a maximum period of two months from the law's entry into force, in order to attempt to rescue the institution and not fall into a cessation of payments that would render it completely inoperative and to adapt it to a new business reality without having to close it. Having analyzed Transitory Provision II under consultation, in the opinion of this Chamber there is no provision that allows concluding that the legislator has exceeded its constitutional competencies in the norm under consultation. All concrete acts of administration, from the entry into force of the law —if it were to be adopted— will be the responsibility of the officers of JAPDEVA, in accordance with the new general framework of action set by the legislator. What the law does is set a general framework, as well as deadlines and conditions for action. The decisions of micro-administration, that is, the concrete acts, the reorganization model to be adopted, will depend on the administration of Japdeva itself, according to the technical study that the law establishes.

To argue the contrary would be to affirm that the competencies and public services assigned to a decentralized public entity that enjoys political autonomy are petrified, such that the ordinary legislator could not modify or vary such conferred competencies or public services, when there is a basis to do so.

In the specific case, it would mean that Japdeva would have to close down, given the impossibility of maintaining its payroll, since, as stated in the bill, -Japdeva lost 80% of its income and retains 100% of its payroll-, with the paradox that the legislator can create another autonomous institution by law with other powers, which if done through that route and not by modifying Japdeva, would cause great harm to the workers and the public service, since Japdeva's functions, according to its law of creation (ley de creación), are essential for the port development and the development of the province of Limón.

It cannot be overlooked that the Costa Rican State is unitary, and that to more efficiently achieve the purposes, objectives, and goals set by the current legal system, it established an organizational design that establishes a central and decentralized power, in the latter case according to territorial criteria (Municipalities), as well as specialization criteria (Autonomous Institutions).

On this subject, the Constitutional Chamber (Sala Constitucional) has indicated:

"From a constitutional point of view, it is necessary to begin by emphasizing that Costa Rica, since its inception, has been a concentrated unitary State, which means it has never had any type of political decentralization (descentralización política) properly speaking. The only one it has known is administrative, whether territorial –municipalities– or institutional. Thus, any exercise aimed at distinguishing, as the appellants intend, between merely administrative decentralization (descentralización meramente administrativa), and other possible forms of decentralization, such as political, is useless." (Resolution No. 4091-94 of August 9, 1994, reiterated by No. 7528-97 of November 12, 1997) The creation of a model of administrative decentralization (descentralización administrativa) favors, on the one hand, the better satisfaction of local interests, as well as the provision of services and the performance of activities that require technical specialization. Despite this, and the varying degree of autonomy with which the public entities that make up the decentralized administration are created, the State must seek to maintain the unity and harmony of its action.

It was with that vision that the constituent established in its Article 188 that the autonomous institutions of the State enjoy administrative independence but are subject to the law in matters of government. Article 188 of the Political Constitution states:

"Article 188. The autonomous institutions of the State enjoy administrative independence and are subject to the law in matters of government. Their directors are responsible for their management." (the underlining is not from the original) Originally, the constitutional text did not establish the possibility of subjecting the autonomous institutions of the State to the law in matters of government, an aspect that was reformed in 1968 (Law No. 4097 of April 30, 1968), precisely to guarantee the unity of the state.

According to the jurisprudence of this Tribunal, as of that constitutional reform, autonomous institutions do not enjoy a guarantee of unrestricted constitutional autonomy, since the law, apart from defining their competence, can subject them to directives derived from development policies that the law itself entrusts to the Central Executive Branch, provided, of course, that this does not invade the sphere of administrative autonomy (autonomía administrativa) properly speaking. According to ruling 1999-919 of this Chamber, the antecedents and effects of the reform itself, by reserving to those entities the matter of their own administration, excluded from their management the power of government which implies: a) the setting of purposes, goals, types of means to achieve them; b) the issuance of autonomous service or activity regulations in accordance with provisions normally called general policy.

In this way, the reform made it constitutionally possible to subject autonomous entities in general to national planning criteria and, in particular, to subject them to general directives issued by the central Executive Branch or by organs of the Central Administration (called upon to complement or oversee general policy). In that sense, general conditions of action that exceed the singular scope of action may be established by law. (in a similar sense, see judgment 1998-4313). The Chamber has also indicated that "the scope of administrative autonomy would be poorly understood if it were believed that it equates to the absence of all possibility of external control, as if decentralized entities were islands governed by sovereign self-government; a State within another." (see judgment 1998-835).

Similarly, decentralized entities are not islands before the legislator, when circumstances exist that require safeguarding public purposes. In the case under analysis, not only is the sustainability of the purposes entrusted to Japdeva in its creation law, essential for the development of the province of Limón, at risk, but also the public funds that the Central Government must allocate from citizens' taxes to meet the entity's salary payment obligations.

For the foregoing reasons, it cannot be validly alleged that there is a violation of the separation of powers, which is not at stake, nor of Article 188 of the Political Constitution." In conclusion, this Chamber did not deem it incompatible with the Constitution to subject JAPDEVA to the aforementioned process of administrative modernization and restructuring—in accordance with the parameters developed in that same ruling. In addition, once again, it exceeds the scope of competence of this Court to assess the advisability or necessity of the "outsourcing (tercerización)" of potential services. Notwithstanding noting, in any case, that any eventual company that provides such services to JAPDEVA in the national territory must comply, as pertinent, with the set of obligations provided for by the Costa Rican labor legal system, in development of the social rights and guarantees recognized in Title V of the Political Constitution.

V.- ON THE CHALLENGE TO THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL. Finally, it must be reiterated that the main reproaches of the plaintiff are directed at questioning, in particular, the validity, necessity, and advisability of such contract, as well as matters regarding its proper execution or compliance; however, as this Chamber has repeatedly indicated, this does not constitute the object of an unconstitutionality action. Thus, recently, when hearing an action filed against that same contract, this Chamber, through ruling no.

2021</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">-</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">005640 of 9:15 a.m. on March 17, 2021, resolved -in pertinent part- that:</span></p><p style="margin:0pt 35.5pt 21.5pt; text-align:justify; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">(...)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">REGARDING THE INADMISSIBILITY OF THIS ACTION AGAINST THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> The claimant also challenges</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“(</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">9 of Annex 3</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">of the PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Despite its arguments, the constitutional jurisdiction is not the appropriate avenue to review the content of the challenged concession contract, and therefore regarding this aspect the action is inadmissible due to its subject matter. This is because Article 10 of the Political Constitution assigns this Chamber the task of</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">) declaring, by an absolute majority of its members, the unconstitutionality of provisions of any nature and of acts subject to Public Law</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Likewise, as stated in the preceding recital, Article 73 of the Constitutional Jurisdiction Law specifies that</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">An action of unconstitutionality shall lie: a) Against laws and other general provisions, including those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. (</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">In accordance with those provisions, it is not possible to bring an action before this Chamber against a contract, even if it is a concession contract (contrato de concesión). In the case of subsection a) cited above, when referring to the possibility of challenging</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">other general provisions, including those originating from acts of private subjects</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">, it must be clarified that this refers to provisions of a normative scope (for example, a regulation or a statute) and not a contractual one, since that is what correctly follows from the phrase</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">provisions of any nature</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">used in constitutional Article 10. (In this regard, see rulings no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">2005-13070 of 4:02 p.m. on September 22, 2005 and no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">2009-000310 of 3:18 p.m. on January 14, 2009).</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">”</span></p><p style="margin-top:21.5pt; margin-left:1.55pt; margin-bottom:21.5pt; text-indent:35.5pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">Criterion subsequently confirmed, in ruling no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub"> 2021-013132</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">of 9:05 a.m. on June 9, 2021, in which this Chamber stated:</span></p><p style="margin:21.5pt 35.5pt 0pt; text-indent:14.2pt; text-align:justify; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">I.- Regarding official letters SJD-126-2014 and SJD-170-2014 of the Costa Rican Tourism Institute and its legal opinion AL-214-2014, clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Annex 3 of the Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Regarding the aforementioned</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">administrative acts and</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">the mentioned</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">concession contract (contrato de concesión)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">for public works with public services, it must be noted that this action is</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">a</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">reiteration of a previous one (file no. 21-003621-0007-CO), filed by the same claimant, in which</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">this Chamber already</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">ruled, by means of ruling no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">2021-005640 of 9:15 a.m. on March 17, 2021 -in pertinent part-, that:</span></p><p style="margin:0pt 35.5pt; text-indent:14.2pt; text-align:justify; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">III.- REGARDING THE INADMISSIBILITY OF THIS ACTION AGAINST OFFICIAL LETTERS SJD-126-2014 AND SJD-170-2014 OF THE COSTA RICAN TOURISM INSTITUTE AND ITS LEGAL OPINION AL-214-2014.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">The claimant states that he is filing this action of unconstitutionality against</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“(</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">) official letters SJD-126-2014 and SJD-170-2014 of the Costa Rican Tourism Institute and its legal opinion AL-214-2014 (</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span></p> Despite the allegations of the petitioner, this action is inadmissible with respect to this object, given that Article 73 of the Ley de la Jurisdicción Constitucional, in subsections a) and b), provides the following: "Article 73.- The acción de inconstitucionalidad shall be available: a) Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. b) Against subjective acts of public authorities, when they infringe, by action or omission, any constitutional norm or principle, if they are not susceptible to the remedies of habeas corpus or amparo. (…)". Based on the foregoing, the acción de inconstitucionalidad filed against the official letters and legal opinion issued by the Instituto Costarricense de Turismo is inadmissible for failing to meet the requirements set forth in the aforementioned rule, since it is not directed against provisions of a general nature that are deemed to infringe constitutional norms and principles. In this case, the impugned official letters and legal opinion do not have a normative character, making the acción de inconstitucionalidad filed for such purpose inadmissible.

IV.- ON THE INADMISSIBILITY OF THIS ACTION AGAINST THE CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN. The petitioner also challenges "(…) Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Anexo 3 of the CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN". Despite their arguments, the constitutional jurisdiction is not the appropriate avenue to review the content of the impugned concession contract, and therefore, with respect to this aspect, the action is inadmissible due to its object. This is because Article 10 of the Constitución Política assigns to this Chamber the task of "(…) declaring, by absolute majority of its members, the unconstitutionality of norms of any nature and of acts subject to Public Law". Likewise, as indicated in the preceding considerando, Article 73 of the Ley de la Jurisdicción Constitucional specifies that "The acción de inconstitucionalidad shall be available: a) Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. (…)". In accordance with those provisions, an action cannot be brought before this Chamber against a contract, even if it involves a concession contract. In the case of subsection a) cited, when referring to the possibility of challenging "other general provisions, even those originating from acts of private subjects", it should be clarified that this refers to provisions of normative scope (for example, a regulation or a statute) and not contractual scope, since that is what rightly follows from the phrase "norms of any nature" used in constitutional article 10. (In this regard, see votes no. 2005-13070 of 16:02 hours on September 22, 2005, and no. 2009-000310 of 15:18 hours on January 14, 2009)." Therefore, the action was ultimately rejected outright regarding those extremes. The foregoing, upon concluding that, in the specific case, the questioned conduct was not challengeable through an acción de inconstitucionalidad, as provided in Article 73, subsections a) and b), of the Ley de la Jurisdicción Constitucional. Ergo, the petitioner must abide by what was already decided on that occasion, as there is no reason justifying a change of criterion.

II.- Regarding the signing of the consolidated contract with addenda 1 and 2, called "Contrato de Concesión de Obra Pública con Servicio Público para el diseño, financiamiento, construcción, explotación y mantenimiento de la Terminal de Contenedores de Moín", carried out on February 13, 2012, by the Administration and the concessionaire company APM Terminals, official letters no. UE-TCM-OF-OF-01 13-2013 of October 24, 2013, from the Manager of the TCM Executing Unit, and no. DMP-DI-2013-0363 of November 11, 2013, from the Acting Director of the Infrastructure Division of the Maritime Port Division, in which the design submitted by the concessionaire was approved, and official letter no. UE-TCM-OF-0192-2014 of December 19, 2014, from the Board of Directors of the National Concessions Council, in which the company APM Terminals de Moín S.A. was notified of the construction stage corresponding to Phase 2A of the Moín Container Terminal, effective as of January 19, 2015. In this second action, the aim is to expand the object of the challenge regarding the cited public works concession contract with public service and other administrative acts related to the execution of such contract. In which case, what was already indicated in the cited vote no. 2021-005640 is fully applicable, in the sense that in the sub lite the assumptions provided for in article 73, subsections a) and b), of the Constitutional Jurisdiction Law are not configured.

III.- In relation to what was already indicated in the two preceding recitals, it should be noted that, in the sub judice, the petitioner formulates various objections regarding the origin, convenience, and validity of the cited public works concession contract with public service, as well as a series of administrative acts linked to the execution of said contract. Objections on which this Chamber has already ruled, on multiple occasions, in the sense that they correspond to issues that are not appropriate to resolve in this constitutional jurisdiction.

Thus, the petitioner first questions the content of the cited contract and, in particular, the concession granted to the company APM Terminals, as he claims that a public works concession with public service was granted exclusively to the referred company for the purpose of developing and operating the new Moín Container Terminal, which in his view violates what is established in various constitutional norms and principles, mainly, article 46 of the Constitution. He particularly questions that such a concession was granted since he asserts that JAPDEVA was already providing the respective container loading and unloading services more efficiently. He also claims that Costa Ricans are being affected by high prices and delays in the provision of port services by the aforementioned company APM Terminals. Finally, he alleges that this situation has plunged JAPDEVA into a serious financial crisis. It should be noted that, regarding the objections raised by the petitioner, in judgment No. 2013-16146 of 9:05 a.m. on December 6, 2013, this Chamber -in what is relevant- considered:

"I.- Object of the appeal. The appellant comes in protection of the constitutional principle of free enterprise and fair competition, as well as the principle of equality, right to work, and a living wage, as he accuses the Executive Branch of having granted -exclusively- a public works concession with public service to the company APM Terminals Central America B.V. and APM Terminals Moín S.A.

for the design, financing, construction, operation and maintenance of the new Container Terminal of Moín, thereby suppressing JAPDEVA’s powers to provide the most important service in the port activity of Limón, namely the handling of container ships, with the consequent reduction in revenue received as well as the elimination of sources of employment, hindering free competition between JAPDEVA and private companies.

II.- On the merits. After examining the case file, the Chamber considers that the amparo appeal must be dismissed, for the reasons that will be stated. In the first place, if the appellant maintains any type of disagreement with clause number 9 of the public works concession with public service contract awarded to the company APM Terminals Central America B.V. and APM Terminals Moín S.A., or considers that the content of said contractual clause is arbitrary, illegal or abusive, he must assert it in the corresponding legality venue, as the Chamber lacks the competence to resolve this type of dispute. As this Court has held on previous occasions, “…the petitioner must take into account that disputes concerning the correct interpretation of the clauses of the contracts in question, their scope and the obligations arising therefrom for the parties, as well as what is provided by the regulations governing the matter, are the proper work of such venues, and not of this jurisdiction, since it is a problem of ordinary legality whose knowledge is outside the scope of competence of the Chamber” (see judgment 2009-015459 at 6:10 p.m. on September 29, 2009).

Secondly, from the appellant's statements it is extracted that the contractual clause he challenges refers to the alleged exclusivity that the company APM Terminals Central America B.V. and APM Terminals Moín S.A. would have regarding the handling of container ships. Specifically, he claims that clause number 9 of the aforementioned concession contract actually grants exclusivity to a private company to provide the service that the public company JAPDEVA provided. In this regard, it is necessary to clarify to the protected party that the decision to have granted or not exclusivity to said company for the provision of that specific type of service (containers), does not in itself constitute an injury of constitutional relevance. As the appellant himself indicates, what is being eliminated is the legal power to provide a service, this due to a decision of opportunity by the Administration. Such a measure corresponds to the natural space available to the Administration to exercise administrative management, inherent to its scope of competence, in accordance with its government priorities. Thus, constitutionality control would only apply if, in the exercise of such competencies, a fundamental right were evidently and manifestly violated, a question that does not occur in the present case. The mere disagreement of the claimant with the referred measure pertains rather to a purely political problem, before a legal-constitutional one, a reason for which this Court is obliged to apply self-restraint.

Furthermore, from the statements given under oath by the respondents, it is observed that on July 16, 2011, the Union of Workers of JAPDEVA filed an administrative contentious proceeding, referring to the issue in dispute here, which was resolved in the first instance by the Administrative Contentious Court through resolution number 0153-2012-VI, in which its lawsuit was declared dismissed on all counts. The respondents state that, subsequently, on March 28, 2012, the Union filed yet another administrative contentious proceeding, which is currently being processed under case file number 12-001630-1027-CA and deals with all the events that occurred once the contract was countersigned. According to what was reported by the respondents, said proceeding is pending. This being the case, there is even more reason for the dismissal of the amparo, given that the facts related to the public works concession with public service contract for the design, financing, construction, operation and maintenance of the container terminal of Moín (awarded in favor of the private companies APM Terminals Central America B.V. and APM Terminals Moín S.A.), are being examined in the competent ordinary venue” (the underlining does not correspond to the original).

A criterion reiterated in votes no. 2014-18103 at 11:33 a.m. on October 31, 2014 and no. 2015-001659 at 9:05 a.m. on February 6, 2015. While, more recently, by vote no.

2019-001409 of 09:05 hours on January 25, 2019, upon hearing a similar claim, the Chamber resolved as follows:

“... the appellant files an amparo action against the signatories of the ‘Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal,’ and states that the Port Authority (JAPDEVA) provides port services to container ships for the loading and unloading of containers. It states that on February 13, 2012, the Granting Administration entered into a contract with the concessionaire APM Terminal for the operation of loading and unloading container ships, an action that departs from the constitutional legal framework. It considers that said contract has limitations and restrictions that cause harm to users (shipping companies and stevedoring companies), because it will no longer be possible to request the provision of services for container ships at the intendancies of Limón and Moín, and therefore requests that the referred clause (chapter 4, subsection 22) be annulled and that the action be granted with the legal consequences.

(...)

I.OBJECT OF THE ACTION AND LACK OF JURISDICTION OF THE CHAMBER TO HEAR THE CLAIM. Regarding the arguments and claims set forth in the First Resultando, it must be noted that this Chamber is not a controller of the legality of the actions or resolutions of the Administration, such that it is not its role to review whether the claim requested by the amparo petitioner is appropriate, or whether it conforms to current legal regulations or not, a task proper to ordinary, administrative or jurisdictional channels. The appropriateness or not of the questioned clause does not constitute a matter to be discussed in this Jurisdiction, since it does not have the virtue of violating any fundamental right, and thus it falls outside the scope of its competence and must be resolved through ordinary, administrative or jurisdictional channels. Therefore, any claim or discrepancy regarding the terms of the contract must be raised before the respondent authorities or in the competent jurisdictional venue, forums in which the merits of the matter may be discussed broadly, the applicable precautionary measures requested, and, eventually, the claims asserted. By virtue of the foregoing, the amparo action is inadmissible and must be declared as such.”

For its part, in vote no. 2019-016605 of 09:40 hours on August 30, 2019, this Court resolved:

“From the arguments put forth by the claimant, it is clear that his claim is for this Court to define which cargo must be operated by JAPDEVA in relation to the TCM concession; to halt the processing of Bill No. 21426, to define the causes of the financial crisis at JAPDEVA, to determine whether or not the termination of its employees' employment relationship is appropriate, as well as whether contractual breaches have occurred in the TCM; and to prevent the transfer of funds to JAPDEVA to liquidate it. However, such claims are not matters of constitutionality, but of mere legality.” VI.- IN CONCLUSION. As a corollary to the foregoing, the action must be rejected on the merits with respect to subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the General Law on Concession of Public Works with Public Services, as well as numeral 18 of the Law for the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended numeral 1 of the Organic Law of JAPDEVA. In all other respects, the action is rejected outright.

VII.- DOCUMENTATION PROVIDED TO THE CASE FILE. The parties are warned that if they have provided any paper document, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this judgment.

Otherwise, all material not removed within this period shall be destroyed, in accordance with the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Corte Plena in session N° 27-11 of August 22, 2011, article XXVI and published in Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session N° 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

The action is rejected on the merits, with respect to subsections 2) and 3) of article 2 and subsection 4) of article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as well as ordinal 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended numeral 1 of the Ley Orgánica de JAPDEVA. In all other respects, the action is rejected outright.

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width="162" height="74" alt="" style="-aw-left-pos:0pt; -aw-rel-hpos:column; -aw-rel-vpos:paragraph; -aw-top-pos:0pt; -aw-wrap-type:inline" /></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:10.5pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:7pt; vertical-align:sub">Anamari Garro V.</span></p></td></tr><tr><td style="padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:10.5pt; background-color:#ffffff"><img 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width="162" height="74" alt="" style="-aw-left-pos:0pt; -aw-rel-hpos:column; -aw-rel-vpos:paragraph; -aw-top-pos:0pt; -aw-wrap-type:inline" /></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:10.5pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:7pt; vertical-align:sub">Jose Roberto Garita N.</span></p></td></tr></table><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; line-height:150%; widows:2; orphans:2; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; vertical-align:sub">Documento Firmado Digitalmente</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; line-height:150%; widows:2; orphans:2; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; vertical-align:sub">-- Código verificador --</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; line-height:150%; widows:2; orphans:2; font-siz <p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; line-height:150%; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:TAHOMA; font-size:9.33pt; vertical-align:sub; -aw-import:spaces">&#xa0;</span><span style="font-family:TAHOMA; font-size:9.33pt; vertical-align:sub">K0GJA1DPFRI61 </span></p><div style="-aw-headerfooter-type:footer-primary; clear:both"><p style="margin-top:0pt; margin-bottom:0pt; text-align:right; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub">EXPEDIENTE N</span><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub">22-009133-0007-CO </span></p><p style="margin-top:0pt; margin-bottom:1pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; vertical-align:sub; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:1pt; margin-bottom:0pt; text-align:center; border-top:0.75pt solid #000000; background-color:#ffffff; -aw-border-top:0pt single"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; vertical-align:sub">Telephones: 2549-1500 / 800-SALA-4TA (800-7252-482).</span></p></div> **I.- SUBJECT OF THE ACTION.** The plaintiff challenges, firstly, subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the General Law on Concession of Public Works with Public Services, as they provide:

"***Article 2.- Coverage*** *1.- Any work and its operation are susceptible to concession when there are reasons of public interest, which must be recorded in the case file by means of a reasoned act. Telecommunications, electricity, and health services are exempt from the application of this Law.* ***2.- Railways, railroad lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.** * ***3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or the expansions carried out therein may be concessioned, and not the existing ones.** * ***Seventy percent (70%) of what the Administration obtains under the provisions of Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned in the cited docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be destined exclusively for investments in works in the respective provinces, and may not be used to cover administrative expenses.** * ***Once the term of these concessions has expired, said works shall pass to the ownership of the aforementioned entities, as applicable.**” (emphasis not in original) "***Article 5.- Definition and action:** * *1.- For the purposes of this law, the granting Administration is understood to be the Executive Branch, public enterprises, and the territorial and institutional decentralized sector.* *2.- When the object of the concession falls within the scope of competence of an organ of the Executive Branch, the National Concessions Council, having previously demonstrated the legal, technical, environmental, economic, and financial feasibility of the project, shall be the competent technical entity to act in the procurement procedure stage and, when necessary, during the execution of the contract.* *The contract shall be signed both by the Executive Branch, represented by the relevant minister, the Minister of Finance, and the President of the Republic, and by the National Concessions Council.* *3.- When the object of the concession falls within the scope of competence of the decentralized sector, public enterprises, and local governments, such public entities, individually or grouped, by means of an agreement signed with the National Concessions Council, may agree with this body on the selection procedure for the concessionaire and the execution of the concession contract.* ***4.- It corresponds exclusively to the Executive Branch, considered in the terms of Article 21.2 of the General Law of Public Administration, to award and sign the concession contracts for railways, railroad lines, docks, and international airports, both new and existing. The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law.** * *5.- Cases in which the decentralized sector or public enterprises grant concessions directly shall be governed by this law.*” (emphasis not in original) It also challenges Article 18 of the Law for the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA), Law No. 9764 of October 15, 2019, which amended Article 1 of the Organic Law of JAPDEVA, in order to establish—the latter—that:

"*Article 1°- The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica is created, hereinafter referred to as Japdeva, as an autonomous entity of the State, with the character of a public utility enterprise, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for building, administering, operating, subcontracting, concessioning, and carrying out any other financial mechanism permitted by national regulations, to develop port services, its own administrative management, and the investments, constructions, and improvements, in the maritime and fluvial ports of the Atlantic Coast, with the exception of those operating under the terms of subsection h) of Article 6 of this law.* *It shall administer and coordinate with any organ of the centralized or decentralized Public Administration, for the canalization of the Atlantic and the lands and assets that this same law grants to it.*” Finally, it requests that the unconstitutionality of the Concession Contract for the public work with public service for the design, financing, construction, operation, and maintenance of the Moín Container Terminal also be declared.

**II.- ON THE ADMISSIBILITY OF THIS UNCONSTITUTIONALITY ACTION.** This Chamber considers that the plaintiff has sufficient standing to challenge the unconstitutionality of subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the General Law on Concession of Public Works with Public Services, as well as Article 18 of the Law for the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended Article 1 of the Organic Law of JAPDEVA, insofar as it expressly alleges the defense of diffuse interests, regarding the “*correct management of public domain assets (bienes demaniales)*”, since this Court has considered that, effectively, the defense of “*assets of the constitutional public domain (bienes del dominio público constitucional)*” constitutes a case of diffuse interests that grants direct standing for the filing of an unconstitutionality action (Vote No. 2011-2698) and that the “*defense of the Nation's own patrimony, formed by the totality of assets that make up the public domain, constitutionally recognized in Article 121 subsection 14)*”, enjoys “*privileged protection through the possibility that any person, based on the authorization conferred in this regard by Article 75 paragraph 2 of the Constitutional Jurisdiction Law, directly files the unconstitutionality claim*” (Vote No.

2005-05651).

Now, pursuant to Article 9 of the Constitutional Jurisdiction Law, this Court may dismiss any action on the merits, even from its presentation or *in limine litis*, when it considers that there are sufficient elements of judgment, which is the case here in the *sub lite*, regarding such normative provisions, as will be analyzed in the following recitals.

Specifically regarding the Public Works Concession with Public Service Contract for the design, financing, construction, operation, and maintenance of the Moín Container Terminal, this Court considers that the present action is inadmissible due to its object, and therefore its outright rejection is appropriate, as will also be analyzed in the respective recital.

**III.- REGARDING THE CHALLENGE TO SUBSECTIONS 2) AND 3) OF ARTICLE 2 AND SUBSECTION 4) OF ARTICLE 5 OF THE GENERAL LAW ON CONCESSION OF PUBLIC WORKS WITH PUBLIC SERVICES.** Regarding this first aspect of the action, the petitioner alleges that, according to a proper interpretation or understanding of Article 121, subsection 14, final paragraph, of the Political Constitution, the application of the legal concept of concession in the case of piers (muelles) is unconstitutional, which causes the unconstitutionality of subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the General Law on Concession of Public Works with Public Services. In response to such complaint, it must be noted that this Chamber has already ruled on the constitutionality of said regulations and has made express reference to the issue raised by the petitioner. Thus, in ruling no. 2013-015693 of 4:20 p.m. on November 27, 2013, issued in case file no. 12-009578-0007-CO, this Chamber resolved that:

"**IV.- Object of the action**. The petitioner challenges the apparent unconstitutionality arising from subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of Law No. 7762 of April 14, 1998, called "General Law on Concession of Public Works with Public Service" and, by connection, the Public Works Concession with Public Service Contract for the Design, Financing, Construction, Operation, and Maintenance of the Moín Container Terminal, since the required approval of the Legislative Assembly was omitted.

The rules alluded to by the petitioner indicate the following:

"ARTICLE 2.- Coverage (...)

2.- Railways (ferrocarriles), rail lines (ferrovías), piers (muelles), and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures established in this law.

3.- In the case of the piers (muelles) of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains under the provisions of Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned in the cited piers (muelles), shall be remitted to the Board of Port Administration of the Atlantic Slope (Junta de la Administración Portuaria de la Vertiente Atlántica) and the Costa Rican Institute of Pacific Ports (Instituto Costarricense de Puertos del Pacífico), as appropriate, to be used exclusively for investments in works in the respective provinces, without being able to be used to cover administrative expenses.

After the term of these concessions has expired, said works shall pass to the ownership of the mentioned entities, as appropriate" "SECTION I GRANTING ADMINISTRATION ARTICLE 5.- Definition and action (...)

4.- It is the exclusive responsibility of the Executive Branch, considered under the terms of Article 21.2 of the General Law of Public Administration, to award and sign the concession contracts for railways (ferrocarriles), rail lines (ferrovías), piers (muelles), and international airports, both new and existing.

The piers (muelles) of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law" The petitioner believes that an unconstitutionality by omission occurs, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of Articles 140, subsection 19, and 121, subsection 14, of the Political Constitution, it is extracted that in the case of administrative contracts of special significance related to railways (ferrocarriles), piers (muelles), and national airports, legislative approval is inexorably required, since the Fundamental Law did not provide for the possibility of a special law, as it does in the case of the goods mentioned in subparagraphs a), b), and c) of the cited subsection 14. Such aspect had not been previously examined by the Chamber, according to the petitioner.

Consequently, he requests the following: "(…) that in a ruling, the following be declared unconstitutional by omission: Article 2, subsections 2) and 3) and Article 5, subsection 4), both of Law 7762 of April 14, 1998 (General Law on Concession of Public Works with Public Service) and, by connection, the Public Works Concession with Public Service Contract for the Design, Financing, Construction, Operation, and Maintenance of the Moín Container Terminal, of February 13, 2012. In the alternative, we request the Constitutional Chamber to declare that Article 2, subsections 2) and 3) and Article 5, subsection 4), both of Law 7762 of April 14, 1998 (General Law on Concession of Public Works with Public Service), as the legal basis for the Public Works Concession with Public Service Contract for the Design, Financing, Construction, Operation, and Maintenance of the Moín Container Terminal, of February 13, 2012, understood in accordance with the Law of the Political Constitution, **necessarily entail** the Legislative Approval procedure provided for in the Constitutional Legal Norm resulting from the referral of Article 140, subsection 19) to Article 121, subsection 14) (…)”.

Therefore, the object of this action is not whether Article 121 of the Political Constitution prohibits a private party from, by way of concession, exploiting legal transactions related to railways (ferrocarriles), piers (muelles), and national airports, since the petitioner himself admits this possibility and only objects that the legal effectiveness of such type of concession is not conditioned upon subsequent legislative approval.

**VI.- Background of this Chamber.** As the parties rightly state, this Court has had the opportunity to refer in previous pronouncements to the issue of legislative approval in certain types of administrative contracts. First, in ruling number 3789-92 of 12:00 p.m. on November 27, 1992, the following was indicated:

"III. ON THE CONFLICT WITH ARTICLE 121, SUBSECTION 14 OF THE POLITICAL CONSTITUTION: It is expressed in the consultation that "It has been questioned by some that by empowering the concessionaire to exploit the new railway (ferrocarril), pier (muelle), and airport facilities, in accordance with article six, second subsection of the draft, it could conflict with the constitutional provision that prevents the alienation of these works, article 121, subsection 14 of our Magna Carta".

Article 6 of the Draft states:

"ARTICLE 6.- National railways (ferrocarriles), piers (muelles), and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor depart, in any way, from the domain and control of the State.

"Concessions granted to build and exploit new railway (ferrocarril), pier (muelle), and airport facilities must be processed in accordance with this Law and approved by the Legislative Assembly, within a period of no more than forty-five days from their presentation.

"Complementary or non-essential public services, located in railways (ferrocarriles), piers (muelles), and airports, may be granted in concession." As observed, **the first paragraph of Article 6 coincides with what the Constitution provides in the final paragraph of Article 121, subsection 14). It is essentially an "echo norm".** Furthermore, it must be highlighted that the concession for the construction and exploitation of new railway (ferrocarril), pier (muelle), and airport facilities **is subject to a qualified procedure, since it ultimately requires approval by the Legislative Assembly**, Except for this fact, and because in this same case the concession may be granted for a term of "up to fifty years" (article 9 of the Draft), the institute does not differ in any way from the concession of public works in general, as regulated in the Draft” (emphasis does not correspond to the original) As can be verified from the reading of that excerpt, this Court had pointed out the existence of a "qualified" procedure for the case of concessions for the construction and exploitation of new railway (ferrocarril), pier (muelle), and airport facilities, since they ultimately required approval by the Legislative Assembly.

However, in judgment number 6240-93 of 2:00 p.m. on November 26, 1993, the Chamber changed its criterion regarding the extreme that is the object of this action:

“II.- In the consultation processed under #4171-93, accumulated to the previous one, the Deputies question Article 9 of the Bill, in that it grants powers to the Executive Branch for the signing of hydrocarbon exploration and exploitation contracts, without submitting them to legislative approval. This provision, together with that of Article 13 subsection d), establish the powers of the Technical Council and the General Director of Hydrocarbons, as follows: "Article 9...

• h)Approve the contracts for the exploration and exploitation of hydrocarbons".

"Article 13...

• d)Sign the hydrocarbon exploration and exploitation contracts and submit them for the approval of the Technical Council." The Chamber considers that, in accordance with its judgment #3789-92 of 12:00 p.m. on November 27, 1992, Article 121.14) of the Political Constitution contains three distinct, clearly differentiated rules: " a) The first, is a provision that empowers the Legislative Assembly to decree the alienation or the application to public uses of the Nation’s own property. On the one hand, this provision is unrestricted insofar as it refers to all the Nation’s own property, and, on the other, it reserves the matter to the law, invalidating administrative acts of alienation or application to public uses not based on a prior law; b) The second, prescribes which property may not definitively leave the State’s domain. For those categories, which are set forth in subsections a), b) and c), the restriction is total and absolute regarding leaving the State’s domain, but, immediately, the provision moderates its severity by warning that such categories of property may be exploited by the public administration or by private parties according to the law or through a special concession; c) The third, is a provision that refers specifically to certain property (railroads, docks and national airports in service) not included in the three categories of the preceding provision." Consequently, the Constitution provides two regimes for exploiting those specially protected natural resources, without any of them being able to leave the State’s domain: One, that of concessions or contracts granted by the Legislative Assembly directly, in the exercise of an original competence; the other, the possibility either to exploit them, by the Public Administration, or to entrust them to private parties, through a concession legally granted or authorized. Both possibilities presuppose the competence of the Legislative Assembly to either establish in the specific case, or regulate in a general law, imperative "conditions and stipulations" in the execution of the contract -such as its temporary nature, form of compliance, minimum obligations of the executor, etc.-, which place the possibility of departing from them beyond the reach of the concessionaires or the agreement of the parties themselves. It is not superfluous to recall that the administrative act of concession never acquires the character or rank of law, even though it is processed and adopted as such, (articles 140.19 and especially 124.2 Constitution).

III.- Thus, one of the forms established therein, obviously foreseeing how difficult and complicated it can be to have to resort to the Legislative Assembly for the approval of each individual concession contract, is that of a general regulatory law of the contracting process, commonly known as a "framework law." In this case, the Legislative Assembly vests in the Public Administration the power to grant specific concessions, a competence which, of course, does not include that of completely substituting the function of the former, as will be discussed below (…)

This provision vests the Executive Branch with original constitutional competence for the signing of administrative contracts, whether they are agreed upon with private parties or with other public entities -as administrative contracts they are-, in accordance with which, and also in light of the scheme of separation of functions of the State Powers, it is an exclusive power of the Executive Branch, specifically the President jointly with the Minister of the relevant branch, while Article 121 subsection 14), in matters reserved by the Constitution itself by virtue of their capital importance, does not expressly provide for said competence, when the Legislative Assembly does not choose to grant the concession itself, but rather to regulate it so that the Administration does so” (the highlighting is not from the original) In this way, the Chamber began to recognize the possibility that the Legislative Assembly could regulate, through a general concession law, the contracting process for the approval of each individual concession contract, foreseeing how difficult and complicated it can be to have to resort to the Legislative Assembly for the approval of each individual concession contract. Thus, the Legislative Assembly would vest in the Public Administration the power to grant specific concessions.

This criterion related to the approval of a general law on administrative contracting matters was subsequently reiterated through judgment number 2319-98 of 5:51 p.m. on March 31, 1998, in which this Tribunal held the following:

“III.- REGARDING THE MERITS OF THE ISSUES CONSULTED: Having clarified the points on admissibility and scope of the consultation made, the pronouncement on the merits is in order. In summary, the consultation refers to three aspects of the Bill. On the one hand, it is questioned whether the consulted bill is contrary to the provisions of Article 121 subsection 14 of the Political Constitution, in accordance with the parameters this Chamber has defined. In the opinion of those consulting, although it is possible to grant in concession the railroads, docks and airports, which are property of the Nation, it is not possible to grant an authorization to the Executive Branch for such effects in a generic manner in the Framework Law, instead the Legislative Assembly must authorize the contract in each individual case.

(…)

In the opinion of this Chamber, nothing prevents the Assembly, through a framework law, from empowering the Executive Branch to grant public property in concession, without a specific approval being necessary for each particular case, since it is understood that it has given a general approval for such effect, in compliance with the Constitution itself. In summary, regarding this consulted aspect, the Chamber finds no unconstitutionality at all” (the underlining does not correspond to the original) In the same vein, vote number 2005-005651 of 2:41 p.m. on May 11, 2005, can be cited, through which the Chamber again authorized the existence of a general law in which the Legislative Assembly could delegate to the Executive Branch the signing and approval of administrative contracts in general. In this regard, the following was stated:

“(…) In the cited judgment it is clearly set forth that the possibility of granting property such as docks in concession, within the parameters the Chamber has described, does not constitute a violation of the Political Constitution, since in accordance with the nature of the 'concession,' these properties are not being disaffected, as they are not being separated from the public purpose to which they are linked, therefore they do not leave the public domain, nor are they being alienated, leased, or encumbered, so the alleged violation does not occur. Now then, in this study we are speaking of two different concession figures, the concession of public works with public services, regulated in the Law challenged here, and the concession of public service management regulated in the Administrative Contracting Law. Both involve distinct modalities of concession, but which in any case, as already indicated, do not harm Article 121 subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was in process:

(...)

In the case of public works concessions with public services, the General Law of Public Works Concession is applicable as a framework law, and for the concession of public service management, the Administrative Contracting Law, articles 74 and 75. With that understanding, it is not unconstitutional for the public administration to grant these properties in concession within the parameters this Tribunal has indicated. On the other hand, as the same claimants well indicate, Article 2 subsection 3 challenged here states that: '... In the case of the docks of Limón, Moín, Caldera and Puntarenas, by this law, only new works or expansions carried out therein may be granted in concession, and not existing ones.', conforming to Article 121 subsection 14, so whether the questioned tenders violate such provision is a matter that must be determined through the legality channel, since we would consequently not be facing a constitutional violation, but rather a disagreement with the application of the law” (the highlighting is not from the original) In summary, it can be affirmed that the jurisprudential line regarding the topic of legislative approval for certain administrative contracts of national relevance, has determined as constitutional that through a general concession law, the Legislative Assembly delegates to the Executive Branch the definitive signing and approval of administrative contracts, even those having as their object public property of special importance, such as those considered in that manner by the Constituent Assembly in Article 121 subsection 14) of the Political Charter.

VII.- On the merits. The scope of the invoked constitutional provisions. As was well indicated in considerando V of this judgment, the claimant considers that there is an unconstitutionality by omission in Article 2 subsections 2) and 3), and Article 5 subsection 4), both of Law No. 7762 "Ley General de Concesión de Obra Pública con Servicio Público", insofar as they do not provide for the legislative approval procedure stipulated in numerals 140 subsection 19) and 121 subsection 14) of the Political Constitution.

In order to determine whether the moving party is correct in its arguments, it is necessary to analyze the structure and content of the constitutional norms that the claimant asserts have been infringed, with the aim of subsequently comparing the legal norms, in what they say and in what they omit, with the constitutional ones in order to determine their validity in light of Constitutional Law.

**7.1)** First, subsection 14 of article 121 of the Fundamental Charter states the following:

"ARTICLE 121.- In addition to the other powers conferred upon it by this Constitution, the following correspond exclusively to the Legislative Assembly:

(...)

• 14)To decree the alienation (enajenación) or the application to public uses of the Nation's own property.

The following may not definitively leave State ownership (dominio del Estado):

• a)The forces that may be obtained from public domain waters within the national territory; b) Coal deposits, petroleum sources and deposits, and any other hydrocarbon substances, as well as deposits of radioactive minerals existing within the national territory; c) Wireless services; The goods mentioned in subsections a), b), and c) above may only be exploited by the public administration or by private parties, in accordance with the law or through a special concession (concesión especial) granted for a limited time and under the conditions and stipulations established by the Legislative Assembly.

National railways, docks, and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor leave in any way the ownership and control of the State." The cited subsection is structured into three general norms (without prejudice to the existence of other more specific norms), as the Chamber has determined since its beginnings: "Article 121, subsection 14) contains three distinct norms, which must be clearly differentiated" (Judgment 3789-92). The first of these is found in the first paragraph of said subsection and establishes a general rule. The following two constitute exceptions to the rule. Of these, the second is contained in the second paragraph, sub-subsections a), b), and c), and the third paragraph of the subsection in question, where a distinctive regulation is established in relation to the forces obtained from waters, coal deposits, petroleum sources and deposits, hydrocarbon substances, radioactive mineral deposits, and wireless services. Finally, the third norm is located in the last paragraph of the subsection and refers to national railways, docks, and airports in service.

Concerning the first norm, the Chamber has stated that; "it enables the Legislative Assembly to decree 'the alienation or the application to public uses of the Nation's own property.' On one hand, this norm is unrestricted insofar as it refers to all the Nation's own property, and, on the other, it reserves the matter to the law, invalidating administrative acts of alienation or application to public uses not based on prior law." Thus, the constitutional framer, through this norm, grants general powers to the Legislative Assembly over the Nation's property in two specific scenarios: alienation and application to public uses.

Alienation (enajenación) consists of the transfer of ownership of a good or the title to a right to a different estate. Disposition is not a synonym for alienation; there is a genus-to-species relationship between them. Alienation is a form of disposition of the good, consisting of the displacement of the good from one estate to another. The alienation of the principal good entails that of the accessories (principle of accessoriness) and the responsibility of the transferor (tradens) for defects and eviction. Limitations on alienation are given by law or by the Constitution itself, and prevent the temporary or definitive alienation of the good. As a general rule, goods assigned to the public domain cannot be alienated except by legal provision to the contrary.

This being the case, in accordance with the provisions of the first paragraph of subsection 14 of constitutional article 121, it is incumbent upon the Legislative Assembly, in exercise of the reservation of law granted to it by the Political Constitution, to alienate, that is, to transfer the ownership (dominio) of the Nation's property to a third party, or to assign them to public uses: common or special, while they remain in its estate. Public administrations only have competence in this matter based on a prior law that expressly enables them.

The second norm of subsection 14 of constitutional numeral 121 contains an exception to the general rule that empowers the legislator to alienate the Nation's own property. Indeed, the norm refers to property that cannot leave State ownership (dominio del Estado), which cannot be alienated but can be exploited by the Public Administration or private parties in two ways: **a)** in accordance with the Law or **b)** through a special concession (concesión especial) (under the conditions and stipulations established by the Legislative Assembly). In relation to this norm, the Constitutional Chamber expressed: "The second prescribes which property 'may not definitively leave State ownership.' For those categories, which are listed in subsections a), b) and c), the restriction is total and absolute regarding 'leaving State ownership,' but, immediately, the norm moderates its severity by warning that such categories of property may be 'exploited by the public administration or by private parties' in accordance with the law or through a special concession." (Judgment #3789-92).

The third norm, contained in the last paragraph of subsection 14 of article 121 of the Political Constitution, is of special relevance for the decision of the sub examine, since it specifically refers to railways, ports, and airports. Regarding this norm, the Constitutional Chamber expressed in judgment number 3789-92 at 12:00 hours on November 27, 1992, repeatedly cited in this Chamber's jurisprudence, the following:

"The third is a norm that specifically refers to certain property (national railways, docks, and airports in service) not included in the three categories of the preceding norm. If nothing were said about these goods, they would be covered by the enabling norm with which subsection 14) begins, as has already been seen.

But the existence of this specific provision implies a distinct legal regime for these goods, which limits the general principle of alienation and application to public uses in a rigorous manner: such property 'may not be alienated, leased, or encumbered, directly or indirectly, nor leave in any way the ownership and control of the State.' The norm refers, in the first place, to alienation, leasing, or encumbrance, but the expression 'directly or indirectly,' in the rigid context of the provision, may refer equally to the situation where the State proceeds by itself or through other legal entities (subjective sense), or to cases where modalities or means are used that have equivalent or similar legal consequences or effects, even though they may not technically imply alienation, leasing, or encumbrance per se (substantive sense).

This rigor is then confirmed with the expression 'nor leave in any way the ownership and control of the State,' an expression that must also be given broad hypothetical coverage due to the norm's vocation." It is deduced from the norm that the prohibition against directly or indirectly alienating or encumbering national railways, ports, and airports in service constitutes an exception to the rule of the first paragraph of subsection 14 that empowers the Legislative Assembly to alienate the Nation's own property. Conversely, the prohibition against directly or indirectly leasing national railways, ports, and airports comes to strengthen the second idea of the first paragraph, relating to the destination of these goods for public uses. Both prohibitions become constitutional guarantees. The first protects certain strategic goods for the economic development of the Nation, so that they in no way leave the State's estate. The second protects the public use of such goods. With the first, the constitutional framer removed this power from the Legislative Assembly and, with greater reason, from the Administration, and reserved the matter to the Constituent Power, so that by virtue of the principles of parallelism of forms and preservation of rank, a prior constitutional reform is required for the alienation of any of these goods. With the second, the private use of such goods is prohibited.

It is logical that if the Constitution imposes the prohibition against alienating railways, ports, and airports, directly or indirectly, it also prevents them from being encumbered. The ratio iuris is evident: the constitution of a mortgage on these goods, as a guarantee for example of a public loan, would entail the risk of loss of ownership. The mortgage is not only a figure foreign to the regime of public domain goods (bienes dominicales), but also, in this case, it is prohibited by the fundamental norm itself.

The Constitution rejects any legal figure that entails the direct or indirect alienation of the good. To that extent, figures such as seizure (embargo) would also be prohibited. This, in stricto sensu, does not inexorably imply an alienation, as it responds to a security measure to prevent the owner of the thing from disposing of it; however, it entails the risk of an eventual alienation, since that precautionary measure, ultimately, tends to ensure the forced execution of the good when the contractual obligation it guarantees is breached. Given the constitutional prohibition, seizure would also be prohibited, as it entails a risk of loss of ownership. Seizure would also be inadmissible due to the incompetence of the ordinary judge to change the destination of the good that the Constitution confers upon them, and the judge cannot, therefore, order a seizure nor proceed with its execution.

National railways, ports, and airports in service also cannot be subject to judicial execution; regarding them, actions for dispossession, interlocutory injunctions (interdictos), or possessory actions are not applicable.

Now, the Constitution establishes an absolute prohibition on alienation but in no way a total prohibition on another type of disposition of the good (subject to the condition that they do not leave the ownership and control of the State in the case of railways, docks, and airports). Is a concession (concesión) constitutionally possible in the context of the norm?

The answer is affirmative and the *ratio iuris* is self-evident: the concession does not constitute an exception to the prohibition on alienation; ownership of the asset remains with the State or the competent Administration; nor does it constitute an exception—as lease (arrendamiento) does—to the application of such assets to public uses, to the extent that the concessionaire, through its management, satisfies the public purposes that the Administration would be responsible for fulfilling if it were to undertake such public service with its own resources.

Regarding the constitutional viability of the concession based on this provision, the Chamber stated:

“…if the summary enumeration of some characteristics of the concession made earlier is compared with the provisions of Article 121, subsection 14), the following comments arise. The term ‘alienation’ entails the transfer of ownership or title to the thing or the ownership of a right to another person, which does not occur with the concession, since according to the very terms of the Bill, the State retains ownership over them, to the point that it could recover them—if for reasons of public interest it were to so deem—upon prior compensation to the concessionaire (…) while it is true there is a term for its operation, the State—as noted—can recover it despite the fixed term, and the economic benefit the concessionaire receives consists exclusively of the fee or sum of money paid by users. Neither does it imply an encumbrance on the asset, as is clear from the articles of the Bill. In other words, the public work constructed shall always belong to the State. Hence, as a public domain asset, it shall enjoy the characteristics of imprescriptibility, inalienability, and unseizability that are inherent to this type of asset.

Consequently, given the prerogatives that the bill reserves for the Administration, it is not reasonable to understand that the assets subject to the concession leave or could leave—directly or indirectly—the ownership and control of the State. To the foregoing must be added the broad powers of control or oversight that the State reserves for itself, even regarding the stipend (rates for the provision of the public service) that the concessionaire shall receive, which must be set by the competent bodies of the Public Administration indicated in the Bill, all on the basis of principles of justice and reasonableness, characteristic of public law.” (Judgment of the Constitutional Chamber number 3789-92).

Doctrinally, the concession falls within the category of so-called indirect management contracts, since the concessionaire carries out the works or manages the services that the Public Administration is responsible for constructing or providing. The State continues to satisfy the social need and attend to the public purpose, only instead of doing so with its own resources, it does so through a third party (the concessionaire). In this type of contract, the Administration cedes the construction of the work and the provision of the service but retains ownership. The concession, which is the legal title by virtue of which the private party acts, introduces a relationship of special subjection between the concessionaire and the Administration, in which the Administration exercises extraordinary powers of direction, regulation, surveillance, control, and sanction to achieve public objectives, without prejudice to a certain autonomy for the concessionaire to act and manage within the legal framework that the concession entails. Due to this and because it offers a service belonging to another but in its own name, the concessionaire is responsible to third parties for its actions. Obviously, it shall also be liable administratively (fines) and civilly for the damages and losses caused to the granting Administration. Ultimately, the concession does not entail a loss of ownership of the public asset and, therefore, does not constitute a transgression of the prohibition on alienation contained in the fourth paragraph of subsection 14 of Article 121 of the Constitution.

The concession also differs from lease (arrendamiento), a form of disposal of an asset, by virtue of which the lessor is obliged to deliver the leased object for a determined price and time, under conditions to be exploited by the lessee. The main effect is that through the lease (arrendamiento), the use and enjoyment of the thing is transferred to the lessee. In such case, although ownership of the asset is not transferred, the fact is that the use and enjoyment of the asset in question would be reserved to the autonomy of the lessee’s will; the asset would no longer be used for the benefit of Costa Ricans but for the lessee’s own, private use, foreign to public use.

The prohibition on leasing is not an exception to the rule on alienation established in the first paragraph of subsection 14 under analysis, because as we have seen, lease (arrendamiento) does not compromise ownership of the asset; however, it is unconstitutional because it violates the rule that a public asset be destined for a private use. Now, it is an interpretive error to extend by analogy the prohibition on leasing to that of granting in concession, because in this figure, unlike lease (arrendamiento), the Administration continues to destine the asset or service to public use and remains responsible for satisfying the social needs pursued with the asset, only through indirect management.

Having made these explanations, it is clear that through the concession, the constitutional affirmation “nor leave in any way the ownership and control of the State” is fully met.

Obviously, the foregoing does not preclude a thorough examination of the particular characteristics of each concession, given that in the case of railways, docks, and national airports, it is not only prohibited that they leave the ownership of the State, but also that they fall outside its control. The foregoing implies that the clauses of a concession cannot reach such an extreme that the State’s capacity for control over the concessionaire is materially and essentially vitiated.

**7.2)** Article 140, subsection 19) of the Political Constitution stipulates the following:

“ARTICLE 140.- The following are duties and powers belonging jointly to the President and the respective Government Minister:

(…)

**19)** To sign administrative contracts not included in subsection 14) of Article 121 of this Constitution, subject to submitting them for the approval of the Legislative Assembly when they stipulate exemption from taxes or fees, or have as their object the exploitation of public services, natural resources, or wealth of the State.

The legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime. The provisions of this subsection shall not apply to loans or other similar agreements referred to in subsection 15) of Article 121, which shall be governed by their special rules.

(The preceding paragraph was thus added by Article 2 of Law No. 5702 of June 5, 1975)” For a better understanding of the rule, we must fully identify which contracts are subject to such provisions and which contracts fall outside the scope of its regulation.

The rule establishes a general principle that could be summarized thus: “It is the duty and power of the Executive Branch to sign administrative contracts.” However, there are two types of contracts that, by express provision of subsection 19 of Article 140 of the Magna Carta, fall outside the scope of that general rule: **a)** those included in subsection 14 of Article 121 of the Constitution, and **b)** loans or other similar agreements referred to in subsection 15 of Article 121 of the Political Constitution. These types of contracts are governed by their special rules and not by the provisions of the cited subsection 19.

Within the contracts governed by the rule, we can find two types: those that require legislative approval and those that are perfected without legislative intervention. Within the former, we find three classes of administrative contracts: **a)** those that “stipulate exemption from taxes or fees,” **b)** “or have as their object the exploitation of public services,” and finally, **c)** those that have as their object the “natural resources or wealth of the State.” In this case, it is the responsibility of the Administration to drive the tendering process: the opening of the competition, the selection of bids, and the award to the contractor; however, such act is valid but not effective, because for this, the approval of the Legislative Assembly is required. Thus, approval constitutes an administrative act useful as a control technique that removes obstacles to effectiveness and whose rationale lies in the strategic relevance of the assets and resources at stake in national development. Indeed, as a consequence of such significance, the Constituent imposes the requirement of legislative approval as a reinforced guarantee or protection, founded on the principles of control, democratic governance, and cooperation among the Public Powers. It is a legislative act of collaboration with the administrative function, alien to the competence of legislative creation itself: “The legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime.” (Political Constitution, Article 140, subsection 19 in fine) “The legislative approval of contracts, agreements, and other acts of an administrative nature shall not give these the character of laws, even if done through the ordinary procedures for these.” (Political Constitution, Article 124 in fine).

In relation to public services, the doubt arises as to whether every contract having that object must be submitted for legislative approval. The Chamber considers that for a better understanding of the scope of this provision, an exercise of historical reading and interpretation is essential, for which purpose one must take as a basis the intention expressed by the Original Constituent in the Minutes of the National Constituent Assembly. Precisely, for this subsection, a clear and unequivocal will of the Constituent is verified, which is that the legislative approval for contracts having as their object the exploitation of public services is solely referred to those contemplating projects of great magnitude and national transcendence. Observe the literalness of the Constituent’s intention:

“Article 2.- Deputy LEIVA presented a motion for an additional subsection to be added to the article referring to the powers and duties of the President jointly with the respective Government Minister, to read as follows:

‘To sign administrative contracts not included in subsection 14) of Article 97 of this Constitution, subject to submitting them for the approval of the Legislative Assembly, when they stipulate exemption from taxes or fees, or have as their object the exploitation of public services or of natural resources and wealth of the State.

Excepted are cases governed by special laws.’ [140.19] The proponent explained that his motion was included almost entirely in the 1949 Bill, subsection 10), Article 232. Messrs. Trejos and Esquivel had presented it as a motion but later withdrew it, as it was said that subsection 14), Article 97, already approved, contemplated that situation. However, both subsections refer to two distinct cases.

Lic. ESQUIVEL asked Mr. Leiva whether contracts to establish new industries in the country, regulated by laws that grant all kinds of facilities to those industries so they can develop in the country, do not fall within that subsection and consequently require legislative approval. The mover clarified that the final exception solved the problem. However, Deputy Esquivel indicated that he still had certain doubts, for example, <u>regarding contracts for the exploitation of public services. A contract between the State and a bus company, for example, to transport mail, would it have to come to the Chamber for approval?</u> The mover observed that those small contracts are always governed by special laws. Most of the time, those contracts are signed not by the President himself, but by subordinate dependencies, with the interested parties. <u>His intention is that among the powers of the Executive should remain that of signing that class of administrative contracts that are not of great magnitude.</u> The public services referred to in his motion are those of great importance, such as the railways.

*Upon voting, Mr. Leiva's motion was approved* (Session No. 135).

*As can be observed, the only public service contracts that require legislative approval are those of great magnitude, within which, it is reiterated, those included in subsection 14 of constitutional article 121 are excluded, as well as the loans or other similar agreements cited in subsection 15 of article 121 of the Political Constitution, given that they are subject to specific constitutional regulations.* *Now, the constituent Mr. Leiva cites railways as an example of a large-scale contract, which could lead to the conclusion that the provisions of article 140, subsection 19 of the Political Constitution are applicable not only to such railways but also to national docks and airports, since these three assets are subject to common regulation in the last paragraph of article 121, subsection 14 of the Political Constitution. However, to explain the reason for such a reference by Deputy Leiva, the historical context in which it occurred must be understood.* *In this regard, the Office of the Attorney General of the Republic (Procuraduría General de la República), in its report rendered in action number 04-003389-0007-CO, clarified the following:* *"In accordance with the partial amendment to the Fundamental Charter of 1871, which was processed under the name of 'Prohibiting the Alienation of the Pacific Railway and Requirement of Two-Thirds of Congressional Votes to Contract Foreign Loans,' its objectives, according to the statement of legislative intent for the initiative, were the following:* *'There is a very marked current of opinion in the country that tends, out of a natural sentiment of national good, to secure the Pacific Railway and its terminal docks against the possibility that they might be alienated, and to avoid, in view of the enormous debts charged to the State, the contracting of foreign loans.* *Such a current of opinion is amply justified. Regarding the first point, because of the transcendental importance the Pacific Railway has for the country, not only as an instrument enabling an extensive and rich zone of the country, but also as an effective means of defense through the fare competition it makes possible to establish with the Atlantic Railway. Regarding the second point, because while it is true that loans are indispensable for developing the country's resources, it is also true that considering the enormous debts that burden the nation, only in exceptionally justified cases could a new contract be authorized, and consequently, that legislative authorization must be backed by two-thirds of the votes of Congress.' (See National Archives, Congress Fund, No. 17,358, folio 1).* *Regarding this constitutional reform, the then President of the Republic, Lic. Ricardo Jiménez Oreamuno, in his report of May 1, 1936, stated, as relevant, the following:* *'As an exception to what I have just expressed [about refraining from indicating certain measures because a new administration was about to be inaugurated] and only because the Constitution obliges the Executive to give an opinion when a constitutional amendment is at issue, I give my opinion on the amendment, in process, referred to in your decree of August 17 of last year. The project has two objectives: that the Pacific Railway and the terminal docks shall not leave the domain and control of the State; and that the contracting of foreign loans must be authorized by two-thirds of the votes of Congress. I do not debate whether it is absolutely prudent to oppose, whatever the circumstances, any plan that removes the operation of the railway from the hands of State employees. I accept the thesis of the project as valid; but if it is valid, it is not clear why it should not also apply to the railways and docks of the Atlantic. It is true that the latter are in foreign hands and will remain so for many years, as long as the respective concessions are alive, but, on one hand, we must assume that constitutional precepts are made to be permanent, as far as humanly possible; and, on the other hand, without the constitutional reservation that is being envisioned,* ***from tomorrow onward those lines and docks could be alienated definitively, or the effects of the current concessions could be extended from now on, or a new concession could be agreed upon for when the current ones expire.** *Therefore, it seems logical that whatever is provided for the Pacific should also apply to the Atlantic, and to new railways and docks.' (See National Archives, Congress Fund, No. 17,358, folio 10 and La Gaceta No. 101 of May 5, 1936. The bold text is not from the original).* *Because of the foregoing, a special commission of the Constitutional Congress tasked with studying the matter, after the speech by the President of the Republic, accepted, in its report of May 25, 1936, as relevant, the objection of the First Citizen, justifying its actions as follows:* *'Your Special Commission tasked with issuing a report on the draft constitutional amendment to subsections 15 and 16 of article 73, to the effect that neither the Pacific Railway nor its terminal docks may be alienated or leased directly or indirectly, nor leave in any way the domain and control of the State; and that the contracting of foreign loans requires the approval of two-thirds of the votes of Congress, has the honor to fulfill its task in the following terms:* *In accordance with article 134 of the Constitution, the draft under study received, after the required formalities, the approval of Congress in decree No. 165 of August 17, 1935, and was passed to the Executive Branch for the purposes of subsection 6 of the cited article 134.-* *The President of the Republic, in his Message sent to Congress on the 1st day of this month, gave his opinion on the amendment in process.* *Regarding the reference to the prohibition on alienating the Pacific Railway and its terminal docks, the Head of the Executive Branch opines, and we accept that opinion, that the provision should be extended to the Atlantic Railway and its terminal docks* ***and to the new railways and docks that may be built in the future on behalf of the State.-** *Consequently, we consider that the amendment could be drafted in a more general and concise form, stating that the national railways and their terminal docks are excepted from the power of alienation granted to Congress by subsection 15 of article 73.' (See National Archives, Congress Fund, No. 17,358, folio 13. The bold text is not from the original)."* *Such concern for the railways is also understandable because "the concessions granted to foreign companies were for extremely long terms, as occurred with the Panama Canal and with the Atlantic railway. In this latter case, in accordance with the Soto-Keith contract signed in 1884, which was ratified by the Legislative Branch through Law No. 2 of April 21, 1884, clause XXI,* ***the government ceded and transferred to the company, for a term of ninety-nine years, in full ownership,** *the railways already built and the one to be built between Reventazón and Cartago; additionally, the company was granted exemptions to import rolling stock and* ***was ceded** *vacant lands. Clause XXVII regulated the reversion, that is, the transfer that the Costa Rica Railway Company would make to the government upon the expiration of the ninety-nine years of the railway concession, with all its constructions and fixed and rolling stock, all of which was to be in good condition." (See the aforementioned report of the Office of the Attorney General of the Republic).* *Consequently, Deputy Leiva's reference to railways is explained by the many problems and abuses that arose in the period immediately preceding the 1949 Constituent Assembly. In reality, such concern prompted Congress, acting in its constituent capacity and through Law No. 14 of June 19, 1936, to amend article 73, subsection 15 of the Political Constitution of 1871 (corresponding to article 121, subsection 14 of the current Constitution), to the effect that regarding the exclusive authority of Congress to decree the alienation and application to public uses of the Nation's own property, an exception was made for everything concerning all national railways and docks, which could not be alienated or leased, directly or indirectly, nor leave in any way the domain and control of the State. Thus, prior to the Political Constitution of 1949, the constitutional legislator had already opted to regulate this matter by means of a special rule; later, alongside railways and docks, the constituent of '49 added airports.* *Ergo, there is a very clear and specific historical reference that the will of the '49 constituent, following the same line that amended the previous 1871 Constitution in 1936, was to regulate everything concerning railways, docks, and airports in article 121, subsection 14 of the Political Constitution. Thus, subsection 19 of article 140 of the Constitution does not apply to the contracts contemplated in subsection 14 of article 121 of the current Political Constitution.* *Note that it makes no sense to establish two rules to regulate the same situation; therefore, in the case of railways, docks, and airports, the special rule (121 subsection 14) must be applied, and not the general rule (140 subsection 19).* ***7.3)** *The systematic interpretation of articles 140 subsection 19 and 121 subsection 14 of the Political Constitution.* *From the discussion in point 7.2, we have concluded that the assets and administrative contracts regulated in article 121, subsection 14 of the Political Constitution fall outside the scope of application of article 140, subsection 19 of that same normative body, since the latter rule constitutes a special regulation for them.* *It has also been made clear that through the concession (concesión), the constitutional affirmation 'nor leave in any way the domain and control of the State' is fully complied with, as explained in point 7.1 of this judgment.* *The question of whether that concession (concesión) can be regulated through a general law, in which the Legislator sets the conditions under which the Executive may grant concessions regarding the assets indicated in article 121 subsection 14, has also been clarified by reiterated jurisprudence of this court. Indeed, as examined in point 7.1, the State cannot alienate, encumber, or lease directly or indirectly the national railways, ports, and airports in service. However, from the cited constitutional provision it is inferred that the legislator (reserve of law) can indeed regulate the concession of these assets, under the protection of the general rule contained in the first paragraph of subsection 14: 'To decree the alienation or application to public uses of the Nation's own property.' Of these two general powers of the Legislative Branch, the power to alienate is discarded in the case of railways, docks, and airports, since the last paragraph of subsection 14 of article 121 expressly prohibits such assets from leaving the domain and control of the State. Nevertheless, in the absence of an express prohibition, the figure of the concession (concesión), even under a general law, is indeed viable for allocating to public uses, including through the concession (concesión) route, the exploitation of railways, docks, and airports, provided that such assets do not leave the domain and control of the State.* This is because the legislator holds, by express constitutional mandate of the first paragraph of Article 121 subsection 14, the general power to "decree" the application to public uses of the Nation's property (first paragraph of Article 121 of the Political Constitution), so that in exercising its power to enact laws, it is constitutionally not prohibited from executing such constitutional mandate through a general concession law, in which it imposes upon the Executive Branch those positive legal conditions necessary to manage the concession of said property and safeguard its public use, which in the case of railways, docks, and airports has the additional unavoidable limit that their exploitation shall not leave the domain and control of the State.

Regarding the aforementioned point, this Chamber has already had occasion to rule in judgment number 5651-2005 of 14:41 hours on May 11, 2005:

"… in this study we are talking about two distinct concession figures, the concession of public works with public services (concesión de obra pública con servicios públicos), regulated in the Law challenged here, and the concession of management of public services (concesión de gestión de servicios públicos) regulated in the Administrative Contracting Law (Ley de Contratación Administrativa). Both involve different modalities of concession, but in any case, as already indicated, they do not violate Article 121 subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study while approval of this law was pending: (….). In the case of concessions of public works with public services, the General Law of Concession of Public Works (Ley General de Concesión de Obra Pública) applies as a framework law, and for the concession of management of public services, the Administrative Contracting Law, articles 74 and 75 applies." Indeed, the concession of railways, ports, and airports falls within the scope of coverage of Law number 7762 of April 14, 1998, General Law of Concession of Public Works with Public Services (Ley General de Concesión de Obras Públicas con Servicios Públicos), which in Article 2 provides:

"ARTICLE 2.- Coverage 1.- Any work and its exploitation are susceptible to concession when there exist reasons of public interest, which must be recorded in the case file by means of a reasoned act. Telecommunications, electricity, and health services are excepted from the application of this Law.

2.- Railways, rail lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out therein may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains pursuant to Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned in the cited docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be allocated exclusively to investments in works in the respective provinces, without being able to be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the mentioned entities, as applicable." (The bold text does not correspond to the original).

It is concluded that, in relation to railways, ports, and airports, the General Law of Concession of Public Works with Public Services becomes the general law, developed under the provisions of the first paragraph and with the limitations of the fourth paragraph, both of Article 121 subsection 14 of the Constitution, which establishes a reservation in favor of the Legislative Assembly to regulate these matters while observing the limits that the Constitution itself establishes.

Now, a new point to elucidate, which constitutes the fundamental object of this action, consists of the appellant's allegation that in the sub examine an unconstitutionality by omission has occurred, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of Articles 140 subsection 19 and 121 subsection 14 of the Political Constitution, it is inferred that in the case of administrative contracts of special scope related to national railways, docks, and airports, legislative approval is inexorably required, since the Fundamental Law did not provide for the possibility of a special law, as it does in the case of the property mentioned in subparagraphs a), b), and c) of the cited subsection 14.

In this regard, in point 7.2 it has been explained that there exists a very clear and concrete historical reference that the will of the constituent of 1949, following the same line that in 1936 reformed the previous Constitution of 1871, consisted of regulating everything concerning railways, docks, and airports in Article 121 subsection 14 of the Political Constitution. Thus, subsection 19 of Article 140 of the Constitution does not apply to the contracts contemplated in subsection 14 of Article 121 of the current Political Constitution. Note that it makes no sense to establish two special rules to regulate the same situation, so in the case of railways, docks, and airports, the special rule (121 subsection 14) must be applied, and not the general one (140 subsection 19).

Furthermore, it is certainly true that in subparagraphs a), b), and c) of subsection 14 of Article 121 of the Political Constitution, it is expressly regulated that the property contained therein may only be exploited by the Public Administration or by private parties, in accordance with the law or by special concession (concesión especial) granted for a limited time and under the conditions and stipulations established by the Legislative Assembly. On the other hand, it is equally true that the last paragraph of the cited subsection, with respect to railways, docks, and airports, fails to indicate that their exploitation may occur in accordance with the law or by special concession, contrary to what it does with the other property mentioned.

However, from such a normative situation, one cannot infer the inexorable logical consequence (from which the appellants start) that in the case of railways, docks, and airports, their concession is only viable via legislative approval for each specific case, and not through a framework law.

Firstly, as already emphasized in point 7.2 of this considering, the property and administrative contracts regulated in Article 121 subsection 14 of the Constitution are outside the scope of application of Article 140 subsection 19 of the Constitution, since they are governed by their own special provisions. Therefore, it is not possible to deduce from a relationship between Article 121 subsection 14 and Article 140 subsection 19 that in matters of concessions of railways, ports, and airports, because they are matters of great scope, each concession contract regarding those specific goods must be approved by the Legislative Assembly, given that said goods have a specific constitutional regulation (Article 121 subsection 14), with content different from that established in Article 140 subsection 19 of the Magna Carta. That is, while this latter article does provide for parliamentary approval inexorably in large-scale contracts, Article 121 subsection 14 does not.

Secondly, it is necessary to realize that the natural role of the Legislative Branch is to dedicate itself to what is exclusive to it: a deliberative task that results in the production of laws, while the Executive Branch concentrates on what most characterizes it: administrative management (within which everything concerning administrative contracting is included). Beyond those fields, an intervention by one Public Branch in a field not its own would only be feasible by express provision of the constituent or when the essential content of the jurisdictional scope of a Branch is not affected. Precisely, the renowned Costa Rican jurist Eduardo Ortiz Ortiz has emphasized that the Executive Branch is the natural representative of the State in the execution of contracts, unless there is an express rule to the contrary, which would have to be unequivocal.

Thus, the logical interpretation of the last paragraph of subsection 14 of Article 121 of the Constitution leans more toward attributing to the Executive Branch that competence most inherent to its legal nature, rather than prohibiting it, as the plaintiff claims. In other words, the fact that in relation to the goods contemplated in sub-subsections a), b), and c) of subsection 14 of Article 121 of the Political Constitution, their exploitation was provided for in accordance with the law or by special concession granted for a limited time and under the conditions and stipulations established by the Legislative Assembly, does not mean that with respect to the goods regulated in the last paragraph of the referenced article, only the second option is legally viable (that of a special concession requiring legislative approval), since, on one hand, said paragraph does not prohibit either of the two mentioned alternatives and, on the other, the possibility of a general law fosters a more adequate balance between what is legally more natural to each of the Branches: while the Parliament legislates by setting the positive legal framework for the Executive to administratively manage the concessions, the latter is entrusted with the execution of this modality of administrative contracting.

Note that the constitutional precept for the legislator was not to allow railways, docks, and airports to be alienated, leased, encumbered, or leave the domain or control of the State, without indicating by which means it should guarantee all of that. Without a doubt, the Legislative Branch exercises this power from its essential function, which is to legislate, and that is precisely what it does through a general concession law, where it sets the parameters by which the Executive Branch must also direct its essential function as administrator of the State. Thus, no delegation of functions from one Branch to another occurs; rather, each exercises its competencies and powers within the constitutional framework provided.

By virtue of the foregoing, the alleged unconstitutionality by omission of Articles 2, subsections 2) and 3), and 5, subsection 4), of the General Law of Concession of Public Works with Public Services becomes inadmissible. Upon rejecting this ground of unconstitutionality, the alleged unconstitutionality by connection of the Public Works Concession with Public Service Contract for the Design, Financing, Construction, Operation, and Maintenance of the Moín Container Terminal (Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín) must also be rejected. Justices Armijo and Cruz dissent and declare the action granted with its consequences. Justices Jinesta, Castillo, and Hernández note their concurring opinion.

Although, indeed—as the plaintiff points out—the main criticism formulated in that action No. 12-009578-0007-CO referred to a supposed omission of the challenged legal rules by not requiring a subsequent approval by the Legislative Assembly of the concession contract granted under the General Law of Concession of Public Works with Public Services, the truth is that this Tribunal conducted a profuse analysis of the content and scope of Article 121, subsection 14, of the Constitution and, contrary to what the plaintiff argued, this Chamber concluded that the challenged rules were not inconsistent with or violative of said constitutional provision, since the legal figure of the concession (concesión)—as a case of an indirect management contract, which "does not imply loss of ownership of the public good (titularidad del bien público)" and which implies that the "State continues satisfying the social need and attending to the public purpose, only instead of doing it with its own resources, it does so through a third party (the concessionaire)," regarding which, a "relationship of special subjection is established, in which the Administration exercises exorbitant powers of direction, regulation, supervision, control, and sanction to achieve the public aims"—does not transgress, prima facie, the constitutional prohibition against alienating, leasing, or encumbering, directly or indirectly, the docks, and "fully complies with the constitutional affirmation 'nor in any way leave the domain and control of the State'...," according to the reasons extensively developed in the previously transcribed vote (see, particularly, its considering VII). Considerations applicable to the present action, as there exists no reason whatsoever to justify a change in criteria.

Now, as can be inferred from a comprehensive reading of the submission brief, it is clear that the plaintiff's main objections or concerns are related, very specifically, to the public works concession with public service contract for the design, financing, construction, operation, and maintenance of the Moín container terminal, insofar as it attempts to question its necessity or suitability and matters concerning its due execution or compliance.

**IV.- OF THE CHALLENGE TO ARTICLE 18 OF THE LAW FOR THE TRANSFORMATION OF THE BOARD OF PORT ADMINISTRATION AND ECONOMIC DEVELOPMENT OF THE ATLANTIC SLOPE, LAW NO. 9764, WHICH AMENDED ARTICLE 1 OF THE ORGANIC LAW OF JAPDEVA.** The claimant again alleges a violation of Article 121, subsection 14, of the Political Constitution. However, from a reading of the challenged normative provision, it can be verified that it confirms the role or function of the Board of Port Administration and Economic Development of the Atlantic Slope as “*an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority*” and, specifically, tasks it with “*building, administering, operating, subcontracting, granting in concession, and carrying out any other financial mechanism permitted by national regulations*”, precisely so that it may “*develop port services, its own administrative management, and investments, constructions, and improvements in the maritime and river ports of the Atlantic Slope*”. In this manner, the provision establishes a legal authorization for this entity to resort to different contracting options and the application of financial mechanisms that “*national regulations permit*”, in order to thereby develop its prerogatives and functions as a port authority. It cannot be derived from said provision that it authorizes the cited entity to dispose of, lease, or encumber the docks or ports in its charge, nor to allow these to leave the domain or control of the State, not only because the text of the provision does not establish this, but because it must necessarily be integrated, interpreted, and applied in conjunction with the substantial and formal requirements imposed by the rest of the legal system, including, primarily, Article 121, subsection 14) of the Political Constitution itself, as well as the rest of the applicable regulatory framework. Specifically regarding the possibility of “*granting in concession*”, reference must be made to what was already indicated in the preceding recital (considerando), in the sense that this Chamber, in various precedents, has recognized that the legal figure of the concession—be it the public works concession with public services or the concession for the management of public services—is not incongruent with or violative of Article 121, subsection 14) of the Political Constitution; on the contrary, it is a constitutionally valid option for the indirect management of the public service, which does not imply disposing of, leasing, or encumbering the docks, nor that these leave the domain and control of the State. Thus, in vote no. 2005-05651 of 2:41 p.m. on May 11, 2005, in which similar objections related to the Costa Rican Institute of Pacific Ports were heard, this Chamber resolved:

“**V.- Object of the challenge.** The claimants deem that the acts of invitation to bid carried out by the Institute of Pacific Ports (INCOP) and by the National Concessions Council in the international tenders number 1-2001 concession for the management of public services of the Caldera terminal, 2-2001 concession for the management of public services of the Puntarenas terminal, 3-2001 concession for the management of tugboat services on the Pacific Slope, 3-2001 public works concession with public service of the Puerto Caldera bulk terminal, and 4-2001 public works concession with public service of the Puerto Caldera tuna terminal, all published in Official Gazette number 68 of April 5, 2001, as well as their subsequent award and approval; and likewise regarding articles 2 subsections 2) and 3) and 5 subsection 4) of the General Law on the Concession of Public Works with Public Services, number 7762 of April 2, 1998, are unconstitutional because they are deemed contrary to the principles of legality, legal reserve, non-delegability of functions, reasonableness, proportionality, and due process, as well as for contradicting the provisions of articles 1, 2, 3, 4, 9, 11, 39, 121 subsection 14) and 140 subsection 19), all of the Political Constitution. Regarding the challenged provisions of Law No. 7762, these read:

“ARTICLE 2.- Coverage ...

2.- Railroads, railway lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, under this law, only new works or expansions carried out therein may be granted in concession, and not the existing ones.

Seventy percent (70%) of what the Administration obtains under article 42.1 a) of this law, by reason of the new works or expansions granted in concession at the cited docks, shall be transferred to the Board of Port Administration of the Atlantic Slope and the Costa Rican Institute of Pacific Ports, as applicable, to be allocated exclusively to investments in works in the respective provinces, without being able to be used to cover administrative expenses.

Upon expiration of the term of these concessions, said works shall pass to the ownership of the aforementioned entities, as applicable.” “ARTICLE 5.- Definition and action ...

4.- It corresponds exclusively to the Executive Branch, considered under the terms of article 21.2 of the General Law of Public Administration, to award and sign the concession contracts for railroads, railway lines, docks, and international airports, both new and existing.

The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of article 2.3 of this law.” **VI.- On the merits.** The core aspect questioned by the claimants is that the challenged acts and provisions injure article 121 subsection 14), since the same cannot be the object of a concession, because the Constituent so ordered and because public domain assets are being released from their public purpose. The Chamber has repeatedly addressed this aspect and has stated:

“III. ON THE CONFLICT WITH ARTICLE 121, SUBSECTION 14 OF THE POLITICAL CONSTITUTION: It is expressed in the consultation that 'It has been questioned by some that by empowering the concessionaire to exploit the new facilities of railroads, docks, and airports, in accordance with article six, second subsection of the bill, this could be conflicting with the constitutional provision that prevents the disposal of these works, article 121, subsection 14 of our Magna Carta.' Article 6 of the Bill states: 'ARTICLE 6.- National railroads, docks, and airports, the latter while in service, cannot be disposed of, leased, nor encumbered, directly or indirectly, nor leave, in any manner, the domain and control of the State.' 'The concessions granted to build and exploit new railroad, dock, and airport facilities must be processed in accordance with this Law and approved by the Legislative Assembly, within a period not exceeding forty-five days from their submission.' 'Public services that are complementary or non-essential, located in railroads, docks, and airports, may be granted in concession.' As observed, the first paragraph of article 6 coincides with what the Constitution provides in the last paragraph of article 121, subsection 14). It is essentially an 'echo norm'. Otherwise, it must be noted that the concession for the construction and exploitation of new railroad, dock, and airport facilities is subject to a qualified procedure, since it supposes final approval by the Legislative Assembly. Except for this fact, and because in this same case the concession can be granted for a term of 'up to fifty years' (article 9 of the Bill), the institute does not differ in any way from the public works concession in general, as regulated in the Bill. Consequently, it has the following relevant characteristics: a) By way of the concession, the execution of the work is commissioned and the necessary legal powers are transmitted for it to be exploited; b) The transmission of these powers is temporary and the exploitation generally reserves to the Administration its powers of authorization, control, and surveillance; c) The ownership of the property rights and the provision of the public service are maintained by the Administration; d) The provision of the public service by the concessionaire is subordinated to the principles of national convenience, legality, generality, continuity, efficiency, adaptability, and just compensation; e) The rights and obligations of the concessionaire and, where applicable, of the subcontractors, cannot be assigned, placed in trust, or encumbered, nor can any agreement of usufruct, lease, administration, or total or partial exploitation be entered into regarding the assets subject to the concession without the prior and express consent of the granting Administration and the approval of the Comptroller General of the Republic, consent and approval that must necessarily be understood, and is so interpreted by reason of this opinion, as not being able to be given if there are constitutional or legal limits that prevent it; and f) The concession is extinguished, among other grounds, through rescission for reasons of public interest.

Returning now to the text of article 121, subsection 14) of the Constitution, whose last paragraph, as mentioned in the consultation, is what could be affected by the second paragraph of article 6 of the Bill, it is appropriate within the framework of this consultation to delimit its content. Indeed, article 121, subsection 14) contains three distinct norms, which must be clearly differentiated: a) The first, is a norm that empowers the Legislative Assembly to decree 'the disposal or application to public uses of the property of the Nation'. On one hand, this norm is unrestricted regarding all property of the Nation, and on the other, it reserves the matter to law, invalidating administrative acts of disposal or application to public uses not based on a prior law; b) The second, prescribes which assets 'may not permanently leave the domain of the State'. For those categories, which are listed in subsections a), b), and c), the restriction is total and absolute as to 'leaving the domain of the State', but immediately, the norm moderates its severity by warning that such categories of assets may be 'exploited by the public administration or by private parties' in accordance with the law or through a special concession; c) The third, is a norm that refers specifically to certain assets (railroads, docks, and national airports in service) not included in the three categories of the preceding norm. If nothing were said about these assets, they would be covered by the enabling norm with which subsection 14) begins, as has already been seen. But the existence of this specific provision implies a particular legal regime for these assets, which rigorously limits the general principle of disposal and application to public uses: such assets 'may not be disposed of, leased, nor encumbered, directly or indirectly, nor leave in any manner the domain and control of the State'. The norm alludes, in the first place, to disposal, lease, or encumbrance, but the expression 'directly or indirectly', in the rigid context of the provision may refer equally to the situation where the State proceeds by itself or through other legal entities (subjective sense), or to cases where modalities or means are used that have equivalent or similar legal consequences or effects, even if they do not technically constitute disposal, lease, or encumbrance in themselves (substantive sense). Then, this rigor is confirmed with the expression 'nor leave in any manner the domain and control of the State', an expression to which a broad coverage of hypotheses must also be given due to the vocation of the norm. **Now then: if the summary enumeration of some characteristics of the concession made before is compared with the provisions of article 121, subsection 14), the following comments are derived. The word 'disposal' entails the transmission of the domain or ownership of the thing or the ownership of a right to another person, which does not occur with the concession, since according to the terms of the Bill itself, the State retains ownership over them, to the point that it could recover them—if for reasons of public interest it so deemed—upon prior compensation to the concessionaire. It likewise differs from the figure of the lease, since as a synallagmatic contract, the lessor assures the lessee the use and enjoyment of the thing for a determined time, while the latter commits to paying a sum of money; whereas in the concession, although it is true there is a term for its exploitation, the State—as noted—can recover it regardless of the fixed term, and the economic benefit received by the concessionaire consists exclusively of the rate or sum of money paid by the users. Nor does it imply an encumbrance of the asset, as results from the articles of the Bill. In other terms, the constructed public work will always belong to the State. Hence, as a public domain asset, it will enjoy the characteristics of imprescriptibility, inalienability, and unseizability that are inherent to this type of asset. Consequently, given the prerogatives that the bill reserves to the Administration, it is not reasonable to understand that the assets subject to the concession leave or could leave—directly or indirectly—the domain and control of the State. To the above must be added the broad powers of control or oversight that the State reserves for itself, including regarding the stipend (rates for the provision of the public service) that the concessionaire will receive, which must be set by the competent bodies of the Public Administration indicated in the Bill, all on the basis of principles of justice and reasonableness, typical of public law. Hence, in the opinion of this Chamber, no infringement is observed on the part of the consulted norm with respect to article 121, subsection 14) of the Political Constitution.** "(judgment No. 3789-92) In the cited judgment, it is clearly stated that the possibility of granting assets such as docks in concession, within the parameters described by the Chamber, does not constitute a violation of the Political Constitution, since according to the nature of the “concession,” these assets are not being released from their public purpose (desafectando), as they are not being separated from the public purpose to which they are linked, therefore they do not leave the public domain, nor are they being disposed of, leased, or encumbered, so the alleged violation does not occur. Now then, in this study we are discussing two distinct types of concession, the public works concession with public services, regulated in the Law challenged here, and the concession for the management of public services regulated in the Administrative Contracting Law. Both involve different modalities of concession, but in any case, as already indicated, they do not injure article 121 subsection 14.

In fact, this Court ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was pending:

"...It is noteworthy that the Political Constitution does not distinguish between public works and public service concessions, in the terms raised in the consultation, and even though such a distinction may be advisable as a matter of good legislative technique, its omission does not imply any constitutional objection. Furthermore, the concession of public works or services is a typically administrative contract precisely because of the public nature of its object. One must not, therefore, confuse desirable legislative technique with what is constitutional or unconstitutional, since this depends on the content of the Constitution itself and on the norm challenged against it, which could even be drafted according to good legislative technique and yet be unconstitutional. Hence, the fact that a particular norm is not drafted in accordance with a specific doctrinal current or suffers from certain defects does not imply that it is unconstitutional. For all the foregoing reasons, this Chamber deems that the objections the consulting deputies make to the bill, regarding this point, are not related to issues of constitutionality, but rather to criteria of timeliness and convenience belonging to the legislator, to whom it corresponds to regulate the matter in the manner deemed most viable, clearly, without violating the Political Constitution. The Chamber further understands that the concession of public works and services referred to in this bill exempts everything relating to national security, customs control, migration, and everything having to do with the State's own functions, which are non-delegable and inalienable and can in no way be left in private hands. Thus, for example, even if an airport is granted in concession, so that the public service provided therein is carried out by a private entity, matters relating to port security, migration, and customs, among others, remain reserved exclusively to the State, without those functions being exercisable, either directly or indirectly, by private individuals. **In this Chamber's opinion, nothing prevents the Assembly, by means of a framework law, from empowering the Executive Branch to grant concessions over public assets, without requiring specific approval for each individual case, since it is understood that a general approval has been given for this purpose, in compliance with the Constitution itself.** In summary, regarding this consulted aspect, the Chamber finds no unconstitutionality whatsoever." In the case of public works concessions with public services, the General Law on Public Works Concession is applicable as a framework law, and for the concession of public service management, the Administrative Procurement Law, articles 74 and 75. Under this understanding, it is not unconstitutional for the public administration to grant concessions over these assets within the parameters that this Court has indicated. Moreover, as the petitioners themselves correctly indicate, Article 2, subsection 3, challenged herein, states that: "...In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only the new works or expansions carried out there may be concessioned, and not the existing ones.", conforming to Article 121, subsection 14; therefore, whether the questioned tenders violate that provision is a matter that must be determined through the legality review process, as we would consequently not be facing a constitutional violation, but rather a nonconformity with the application of the law.

**VII.-** The petitioners request this Court, if it declares the challenged law to be a framework law, to declare the tenders challenged herein unconstitutional because they were processed through procedures different from those established by Law 7762. Such an extreme is inappropriate for this Chamber, as what is sought constitutes the issuance of a mere legality judgment, which exceeds the competence of this Court. Of course, if the norms contemplated in the Political Constitution are at the apex of the normative order, any violation of the legal order certainly also violates the Political Constitution, but to remedy these conflicts the original constituent created the ordinary jurisdictions.

**VIII.-** Furthermore, the petitioners claim a violation of the principle of reasonableness and proportionality and of the sound management of public expenditure, questioning that the concessions will practically imply the de facto closure of INCOP and the formation of a privatization. On these aspects, the Chamber in decision No. 14.606-03 also already indicated:

"**III.- STRENGTHENING PROCESS OF INCOP.** The Deputies consider that "(...) there is no legal precept whatsoever that allows INCOP to carry out a restructuring of competences, structure, and labor of such magnitude, nor, therefore, is there authorization to pay an 'indemnification' as described" (...), thus it concerns a privatization without normative support. On this particular point, **it must be indicated that whether INCOP has sufficient legal competences and powers to determine its restructuring or modernization is an aspect of mere legality that exceeds the competences of this Court.** Nevertheless, it should be noted that the power of organization or reorganization is one of principle or virtual for any public entity other than the State. The Political Constitution guarantees, in its article 188, to every minor public entity, other than the State, a minimum or first-degree administrative autonomy, that is, the power to self-administer, without being subject to any other public entity and without needing a legal norm so ordering, to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the tasks and purposes assigned to it. In development of the constitutional text, articles 6, paragraph 2, 59, paragraph 2, and 103, paragraph 1, of the General Law of Public Administration, confer upon the head of any public entity – in the case of an autonomous institution such as INCOP, the Board of Directors – the power of self-organization and reorganization – the latter by application of the principle of parallelism of competences – to provide itself with the organizational structure most convenient for fulfilling the purposes assigned by the legal system and the guiding general principles of public services, namely effectiveness, efficiency, and adaptation to any change in the legal regime or social need they satisfy (articles 4, 225, paragraph 2, and 269, paragraph 1, of the General Law of Public Administration). **In another order of considerations, one must not confuse the privatization of public services, that is, the definitive transfer of their ownership and exercise to subjects of private law, with their indirect management by a public entity through the figure of the concessionaire, since, in this latter hypothesis, the conceding administration maintains ownership of the service and of the public domain assets necessary for its effective provision, only temporarily transferring to the concessionaire the exercise of certain powers for managing the service – with or without infrastructure – or the construction of works that will remain under public ownership** (articles 121, subsection 14, of the Political Constitution and the General Law on Concession of Public Works with Public Services)." From the foregoing, it is easily deducible that the Chamber already indicated that it does not belong to this jurisdiction to determine the convenience or otherwise of the modernization process that INCOP intends, nor to determine the suitability of the chosen means, nor the convenience of the form in which it intends to indemnify its employees, as these are matters that exceed this Court's competence.

**IX.-** Finally, regarding the matter claimed by the petitioners concerning the insufficiency of funds to comply with the 70% stipulated by Law No. 7762 because it is intended to indemnify employees with the income from the concession, which they consider contravenes Article 2, subsection 3 of that same law, this also implies a legality review, which, as explained in recital (Considerando) VIII, cannot be the object of a pronouncement by this Court.

**X.- Conclusion.** Consequently, given that from the study carried out this Court found no constitutional violation of the rights and principles claimed, the appropriate course is to dismiss it, as is hereby ordered. **Magistrates Armijo and Cruz dissent (salvan el voto) and would grant the appeal.** Considerations fully applicable to the case at bar (sub lite).

Indeed, as is evident from reading the filing brief, it can be verified that, rather than an objection to the effective possibility that the docks or ports be alienated, leased, or encumbered, or that they be allowed to leave the domain or control of the State, in light of the challenged norm, what is being questioned is the possibility that JAPDEVA might resort to an eventual "outsourcing (tercerización)" of certain services, which is alleged, on the part of the petitioner, could harm the workers who would work for the companies providing services to JAPDEVA, as their working conditions would be less favorable than those of the institution's current workers. It is alleged that this would infringe upon articles 50 and 74 of the Political Constitution, relating to the State's duty to strive for "the most adequate distribution of wealth" and the Christian principle of social justice.

Regarding this point, reference must be made to what was already indicated in the precedent previously transcribed (decision (voto) no. 2005-5651, recital (Considerando) VIII), in the sense that assessing the convenience of resorting to these mechanisms for service provision exceeds this Chamber's scope of competence. It must also be pointed out that the reform challenged in this action is framed within a process of restructuring and modernization of JAPDEVA. This Chamber has already ruled on such a process, in decision (voto) no. 2019-018505 of 11:45 a.m. on September 24, 2019, issued on the occasion of the optional legislative consultation on constitutionality formulated regarding the then bill no. 21.426, "Law for the Modernization of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva) and Protection of its Servant Personnel". On which occasion it was decided – as relevant – that:

"(...) According to the statement of reasons in the legislative record, the legislative initiative responds to the urgent need to resolve, in the short term, the serious situation of financial sustainability facing the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva). The bill has two fundamental axes: a) to reorganize and transform Japdeva from an administrative, operational, and financial point of view so that it can find its equilibrium point, based on a study that must be approved no later than two months after the law is approved, b) to facilitate the payroll reduction that will allow a return to that equilibrium point, under the following modalities: horizontal transfer of workers to other institutions under certain parameters, payment of severance benefits and incentives, and early retirement (prejubilación), also both under parameters established in the bill. According to the bill's statement of reasons:

1. As part of said reorganization, the workers of said institution may voluntarily request their horizontal transfer to institutions of the Central Administration and institutional Decentralized Administration; or, they may opt for the payment of their severance benefits plus an additional incentive, to dedicate themselves to activities outside the public sector. Both possibilities will be made effective in accordance with the parameters set forth in the bill.

2. It establishes a right to avail oneself of an early retirement regimen (régimen prejubilatorio), which will be charged to the National Budget, provided the requirements indicated in the law are met and they have not availed themselves of the additional incentive for institutional transformation. The bill also regulates aspects such as the calculation of the pre-retirement amount and its maximum cap, expiration parameters, transfer to the Invalidez, Vejez y Muerte (IVM) Regime, and the suppletory application of Law no. 7302 (General Regime of Pensions Charged to the National Budget); as well as the inter-institutional coordination between the Ministry of Labor and Social Security and the CCSS so that, through the signing of a collective insurance agreement, the insurance conditions of the former servant personnel of JAPDEVA who enjoy the early retirement benefit are regulated.

The bill consists of three chapters, the first entitled "Modernization of Japdeva" (from article 1 to 7), the second "Early Retirement Regime (Régimen Pre jubilatorio)" (from article 8 to 17), and the third "Reforms to Other Laws" (18 to 20). Furthermore, it contains five transitory provisions referring, one to the maximum period for the General Directorate of Civil Service to apply the process for carrying out horizontal transfers, as well as regarding transfers of institutions under the scope of the Budgetary Authority; a maximum period of 1 month for workers to choose and formally request one of the modalities indicated in the law, a term that, once expired, obliges the administration to begin executing the cessation of the personnel necessary to reach its point of financial equilibrium, as well as the regulation concerning the group of workers to whom the regulation applies.

(...)

**IV.- On the legal nature of JAPDEVA and its labor regime.** The legal nature of Japdeva is clearly regulated in its founding law (No. 3091 of February 18, 1963, fully reformed by No. 5337 of August 27, 1973). It is an autonomous institution, with the character of a public utility enterprise.

In its article 1 it states:

"Create the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, as an autonomous entity of the State, with the character of a public utility company." "It shall also be responsible for administering the Atlantic canalization and the lands and property that this same law grants it. It shall administer the State railway transport companies that provide services to and from the ports of the Atlantic Slope that the Executive Branch specifically contemplates in the national development plans." NOTE: The administration of the State railways was transferred to the Instituto Costarricense de Ferrocarriles (INCOFER) by its Organic Law No. 7001 of 19 September 1985 (especially by its articles 1 to 4, 36, and 45).

Article 2.- It shall promote the integral, rapid, and efficient socio-economic development of the Atlantic Slope of Costa Rica. JAPDEVA may lease, sell, award, or exploit the lands conferred upon it by this law, for the purpose of promoting the ends for which it was created, but it must first consult the criterion of the Instituto de Tierras y Colonización, a criterion from which it may not depart, except by the affirmative vote of five of the members of the Board of Directors. Within the current port area and its extension to Cieneguita and in that of new ports of the Atlantic Slope, an adjacent zone shall be determined for the installation of industries or commercial services related to port operation, which in no case may be alienated, but may be leased for fixed terms. The respective contracts shall contain a clause expressly stating that JAPDEVA may unilaterally terminate them when it needs the land for works and installations of general interest, at its discretion and without any liability.

Article 3.- As an autonomous institution of public law, JAPDEVA shall have legal personality and its own assets; it shall enjoy administrative independence in accordance with this law. It shall be governed by the decisions of its Board of Directors, whose members shall act in adherence to the Political Constitution, the pertinent laws and regulations, being totally and unavoidably responsible for their management. Relations between the Executive Branch and JAPDEVA shall be maintained through the Ministry of Public Works and Transport." Now, this type of organization is also doctrinally known as a public company-public entity; the foregoing because it was created to develop a mercantile and commercial activity under the guise of a Public Law organization and consequently its legal regime is mixed. That is, all those aspects related to the organization and the exercise of certain eminently administrative powers or competencies are governed by Administrative Law, and matters relating to business activity are governed by Private Law. On this matter, Article 3, paragraph 1, of the General Public Administration Law establishes that "Public law shall regulate the organization and activity of public entities, unless express provision to the contrary applies", meanwhile, paragraph 2 provides that "Private law shall regulate the activity of entities which, by their overall regime and the requirements of their business, may be deemed ordinary industrial or mercantile companies." This concerns, as can be seen, situations in which public entities exercise one capacity of Public Law and another of Private Law (Article 1 of the General Public Administration Law).

For its part, the Office of the Attorney General (Procuraduría General de la República) has been clear in pointing out, in the case of JAPDEVA, that the generality of its personnel do not hold the status of public servants because they do not perform public management, with the exception of the employer representatives. It concludes then that, in their great majority, their labor regime is governed by private law, with the exception of so-called managerial and superior oversight positions, which are indeed considered public servants. In that sense, a duality operates in JAPDEVA regarding service relations, given that one group of servants has common labor law applied to them, while another sector is governed by public law. (By way of example, see Opinions 260 of 03/12/1998, 369 of 31/10/2014.)

In Opinion 369-2014, with respect to what is relevant, the Office of the Attorney General (Procuraduría General de la República) stated:

"By reason of the legal nature that the legislator conferred upon JAPDEVA, its employees are not considered public servants, and are therefore governed by labor law (provided that it is not displaced by higher-order considerations of public law), as ordered by articles 3(2), 111(3), and 112(2) and (3) of the General Public Administration Law:

Article 3: "(…)

2. Private law shall regulate the activity of entities which, by their overall regime and the requirements of their business, may be deemed ordinary industrial or mercantile companies." Article 111: "(…)

3. Employees of State economic enterprises or services charged with duties subject to common law are not considered public servants." Article 112: "(…)

2. Service relations with laborers, workers, and employees who do not participate in the public management of the Administration, in accordance with paragraph 3 of Article 111, shall be governed by labor or mercantile law, as the case may be.

3. However, the legal or regulatory provisions of public law that are necessary to guarantee administrative legality and morality shall also apply to the latter, as determined by the Executive Branch by Decree.

(…)"" Nevertheless, the preceding statement is not absolute because within the decentralized entities there also exist positions that are indeed subject to the public regime, and those are the ones that participate in public management, as is inferred – a contrario sensu – from the recently referred to subsection 2) of Article 112.

The servants who participate in public management are, as indicated by the Second Chamber of the Supreme Court of Justice, "those who conduct and direct the powers of the State, the heads of autonomous institutions, executive presidencies, as well as the heads (managerial group) of State enterprises, etc." (vote No. 2007-548 of 9:45 a.m. on August 15, 2007).

In addition to what has been noted, reference is also made to Opinion No. C-293-2007 of August 27, 2007, applicable to the case under study:

"it must be noted that the reiterated case law of this Technical Consultative Body has indicated the public nature of the existing relationship at the managerial levels of banking entities, which, by reason of the nature of the functions performed, are subject to a public regime to regulate their conduct. In this regard, we have indicated:

"It is fitting to note that in that banking entity a dichotomy of employment regimes coexists; alongside the personnel governed by a mixed regime, that is, one in which common labor legislation applies provided that 'it is not displaced by higher-order considerations inherent to public law' (Ruling of the Constitutional Chamber No. 7730-2000 of 2:47 p.m. on August 30, 2000), there are certain positions under a strictly public employment regime, called by doctrine and constitutional case law 'high level', which are not workers in the true sense of the word, but rather whose service relationship is governed by administrative law and its principles, for being true public servants. (Article 112(1) of the General Public Administration Law)." In that sense, the Constitutional Chamber of the Supreme Court of Justice, in its ruling number 244-2001 of 2:46 p.m. on January 10, 2001, when referring to the situation of the high-ranking officials excluded by the INS collective bargaining agreement, held that: "... the employees of this institution cannot be considered as public officials, except in the case of managerial and superior oversight positions – to whom the public employment regime is indeed applied – thereby excluding them from common labor rules, which includes collective bargaining agreements." (the underlining is ours).

The Constitutional Court followed the same position in judgment No. 12953-2001 of 4:25 p.m. on December 18, 2001, when in its Considerando V, in fine, it held that: "it is rigorously appropriate to presume that these servants perform functions of 'Public Management' which, as the Office of the Attorney General (Procuraduría) indicates, entail 'a power of decision and oversight, at the superior level, as applicable' (folio 34) and which, therefore, configure an employment regime that is regulated entirely by public law"" (the underlining is not from the original).

Thus, the appointment, removal, powers, disciplinary and salary regime, and in general, everything concerning the service relationship of those officials is regulated by public law; besides, some of those positions are of the so-called "fixed-term" type, for which they enjoy stability in their posts, all of which creates important differences with respect to the labor personnel of that banking institution. " (Dictamen C-034-2005 of January 26, 2005, the underlining is not from the original)" (only the underlining is not from the original).

Now then, it is noted that there is no exhaustive list of the officials who participate in public management, so its determination corresponds to the Administration itself, and ultimately, to the Courts of Justice (in this line, voto N° 2010-1277 of 3:32 p.m. on September 9, 2010, issued by the Sala Segunda); however, in judgment N° 2001-12953 of 4:25 p.m. on December 18, 2001, the Sala Segunda indicated that it is feasible to **presume** that the employees excluded from collective bargaining agreements perform public management functions. Specifically, it stated:

"In this manner, based on the fact that the Collective Bargaining Agreement (Convención Colectiva) of RECOPE, in its article 4°, provides for the exclusion from its scope of application of the President, the General Manager, the General Directors, the Area Managers, the General Auditor, the Deputy General Auditor, the Advisors and Assistants to the Presidency and the General Management, the Heads of Directorate, the Secretary of Minutes of the Board of Directors, as well as those appointed to Executive Coordinator positions regardless of the functions they perform, **it is strictly necessary to presume that these employees perform 'Public Management' functions that, as the Attorney General's Office (Procuraduría) indicates, entail '...a power of decision and oversight, where applicable, superior...'** (folio 34) and that, therefore, entail an employment regime that is fully regulated by Public Law." (the boldface is not from the original).

With respect to JAPDEVA, its collective bargaining agreement in numeral 4 provides that "This Agreement shall not cover the Executive President, his Assistants and Advisors, the Managers and their Assistants, Deputy Managers, Auditor and Deputy Auditor, **because they are the officials who participate in the public management of the Administration**" (the boldface is not from the original), from which it follows, in the first place, that the Board has already carried out an analysis to specifically determine which employees participate in public management, but also, and in accordance with what is indicated here, that these must be considered **public officials, and therefore, subject to public law.** " For its part, the Sala Constitucional in judgment 2010-9928 of 3:00 p.m. on June 9, 2010, indicated:

**"VI.- UNCONSTITUTIONALITY OF ARTICLE 3°, SUBSECTION A), OF THE CONTENTIOUS-ADMINISTRATIVE PROCEDURE CODE.** (...) Thus, by way of example and without claiming to be exhaustive, the labor jurisdiction must hear and resolve – even if the matter is related to the administrative conduct or function exercised by a public entity – extremes that are typically or materially labor-related, such as the appropriateness or not and the calculation for the payment of the Christmas bonus (aguinaldo), vacations, notice period and severance pay (auxilio de cesantía), matters concerning the recognition of a retirement or pension or professional risks, disputes arising in the field of individual and collective Labor Law (e.g. economic-social conflicts), everything related to the exercise of the right to strike or work stoppage, etc. In the same sense, **<u>it is imperative to recognize that in the case of employees in charge of tasks subject to the common law of public companies or economic services developed by a public administration or of simple laborers, workers, or employees who do not participate in the public management of the respective public entity, that is, those whom the doctrine calls "workers of the public administration" (trabajadores de la administración pública), the disputes that arise must be heard and resolved by the labor jurisdiction, as they are not, in the strict sense, a public official, servant, or employee (articles 111, paragraph 2°, and 112, paragraph 2°, of the Ley General de la Administración Pública),</u>** given that any conduct emanating from the public entity in such a context will not be subject to the administrative legal regime nor can it be considered, materially, as an administrative-legal relationship.(…)”.

What was resolved by the Sala allows for a differentiation between the public employment regime and the private employment regime of the Administration. In the former, figures such as statutory regimes (article 191 of the Carta Magna), the right to full stability (for permanent appointees) or relative stability (for interim servants), the right to reinstatement (which is only exceptional in the private regime) prevail, among other manifestations that do not occur in the latter and that allow both frameworks to be distinguished. Although within the private employment of a public company-public entity, whose workers do not participate in public management, as ordered by subsection 3 of the aforementioned mandate 112 ibid., principles of public law may operate by integration to guarantee "administrative legality and morality," such complementarity does not make those relationships proper to public employment, as it is clear that they remain of a different nature. All of which reinforces the existence of a **mixed-nature employment regime.** It is important to be clear on the above for the purposes of determining whether it is possible for the legislator to mandatorily determine the reduction of the payroll through restructuring of a decentralized institution to achieve its financial equilibrium, and if so, under what parameters it may do so.

**V.- On constitutional jurisprudence regarding administrative restructuring.** The Costa Rican state has already had several restructuring processes in the public sector in the past for which legislation has been enacted. Regarding these matters – which on occasion have been appealed before the Sala Constitucional –, jurisprudence has considered that restructuring is possible in the case of forced reduction of services, whether due to a lack of funds or to achieve a better organization thereof.

However, the application of these processes requires adherence to a series of prior requirements set forth – in most cases – in the legislation, as occurs in the case of the Estatuto de Servicio Civil and its Reglamento, by which the absolute respect for the constitutional rights of the employees is sought.

In this regard, the Sala Constitucional has indicated:

**"Article 192 of the Constitución Política empowers the Public Administration to order the restructuring of the various dependencies that comprise it, in order to achieve its best performance and organization, for which it may order not only the elimination and reclassification of positions, but also the transfer of officials to different posts, provided that due process is observed(...) The power to mandatorily transfer or reduce public officials is intrinsic to the State, which may put into practice - always provided that the established procedure to agree on reorganization is respected - the necessary measures to organize its different dependencies to achieve their better functioning... " (Voto No. 4246-94)** Likewise, this Sala has indicated that administrative restructuring processes must be subject to real needs:

"**It must also be taken into account that the so-called restructurings or reorganizations must be based on real and duly proven needs in order to avoid abuses by employers, who, under an apparent justification, violate the rights of the employees, who are presumed – the weaker party – in the relationship, and are unable to exercise immediate administrative or judicial action to stop this type of abuse. Therefore, every reorganization process must count on the participation of all those dependencies required for the making of the final decision**." (Judgment 3288-94) In the same sense, judgment 00602-2001 stated:

**"In addition to them, the Sala has also indicated that in a public employment relationship, the projection of the right to work protected by article 56 of the constitution contains, as one of its postulates in favor of the worker, that of stability in the job, and it cannot be ignored that this is what allows the employee to access a series of social and economic benefits that enable their academic and labor advancement, providing them with the necessary security for their personal development and that of the family nucleus that depends on them, which actually makes effective the meaning of the right to work as an individual guarantee and obligation to society, in the expression used by the constitutional text; for which reason the employees can only be removed by way of exception, in the case of a justified cause for dismissal, or in the case of forced reduction of services, one of the cases being precisely the restructuring processes to which an institution may be subjected, the latter also being in accordance with the principles derived from article 192 of the Constitución Política, but precisely because it is an exception to the constitutional guarantee of stability for the worker, its application by the administration must be executed <u>with absolute objectivity, transparency and seriousness,</u> and hence the requirement for qualified technical studies that can validate the decision-making, based on a coherent and effective model.**" In the case of the consulted bill, the legislator empowers JAPDEVA in its article 2 to determine the administrative, operational, and financial structure suitable for its correct functioning, as well as to carry out the technical studies and the necessary actions to maintain the workers it requires to guarantee the continuity of the entity and the financial equilibrium, in the short and long term, in such a way that it exempts it from submitting to the existing procedures and regulations for the public sector, but on the other hand, subjects it to the condition that the decisions adopted **be grounded in technical studies**. As can be observed from the legislative discussions, both the Contraloría General de la República and the Minister of Hacienda confirm that, from a financial point of view, JAPDEVA presents an imbalance that makes it unsustainable for the future and compromises the payment capacity of the employees of that entity in its current formation (see Tomo II fs 358-394; 409-412; Tomo III fs 725 ff; Tomo X 2573 ff), confirmed by the authorities of JAPDEVA (fs. Tomo II 395-408; 473-719). The economic studies are clear that the institution's income is far inferior to its expenditures and its future capacity to assume the entirety of the current payroll, given the commencement of operations of APM Terminals, the concession contract (contrato de concesión), and the Ministerial directives adopted regarding it.

In that sense, the Sala considers that although the technical studies will determine what the future structure shall be according to the business model and the institutional reorganization plan, together with the strategic plan and the new technical studies, for the provision not to be unconstitutional **by its effects**<u>,</u> <u>in the case of public employees (servidores públicos)</u> and the administrative, operational, and financial structure adopted, **there must be an absolute connection between both, such that it is demonstrated that they respond to real, duly proven needs**, in order to avoid abuses, according to the jurisprudence cited above. In no way can it be interpreted that the requirement for technical studies referred to in the norm, because they are ex post, means a blank check for the administration to arbitrarily determine either the public employees who must remain or be eliminated, or the administrative, operational, and financial structure that the entity must have in the future. In this sense, this Sala clarifies that for the measure not to result in an unconstitutionality by its effects, **no dismissal of public employees (servidores públicos) may be initiated until the technical study referred to in article 2 of the consulted bill is completed, and due process has been granted to those persons who would be affected by a potential dismissal.** Every final act must also be duly grounded in the respective technical study.

The case of workers subject to the common law regime is different, because they will be governed by the provisions of the Código de Trabajo and the Collective Bargaining Agreement (Convención Colectiva) as applicable, and with respect to the workers of said regime, **the degree of stability guaranteed by article 192 of the Constitución Política to public employees (servidores públicos) does not operate**.

Naturally, in order to carry out **a dismissal without employer liability (despido sin responsabilidad patronal)** within this segment of workers, all established legal provisions must be fully complied with.

Likewise, those workers who enjoy special union protection (fuero especial sindical) may not be forcibly dismissed without following the procedures established in the legislation, nor may the precautionary measures or resolutions issued by the courts of justice in cases brought before them be disregarded.

In the case of **dismissal with employer liability (despido con responsabilidad patronal)**, for those workers subject to the ordinary legal regime, who have not wished to voluntarily avail themselves of any of the modalities of horizontal mobility, incentives, or early retirement established by the law, the procedures of labor legislation must also be complied with, including the payment of the corresponding legal benefits as stipulated by the legal system.

The Chamber considers that the consulted transitional provision does not in any way empower the entity to carry out automatic dismissals, since in the case of public servants, positions may only be eliminated in accordance with technical studies, following due process, without being able to do so beforehand, and in the case of workers subject to the ordinary legal regime, who are the majority, they may be dismissed with employer liability with full payment of their legal benefits as provided for in labor legislation, if they did not wish to voluntarily avail themselves of any of the modalities of horizontal transfer, incentives, or early retirement established in the law. Likewise, without employer liability, only a person who commits a serious misconduct may be dismissed, as established by the rules of ordinary law.

**VI-. Regarding the alleged violation of the administrative autonomy of Japdeva.** The petitioners allege that there is a possible unconstitutionality in the competence that the Legislative Assembly would be arrogating to itself through this norm, in order to substitute for the Administration, for the purpose of disposing of its human and financial resources and proceeding to order the dismissal of its officials from Japdeva.

In this regard, they find a possible unconstitutionality in that Transitory Provision II of the consulted bill opposes Article 188 of the Constitution, which protects the administrative autonomy of autonomous institutions such as JAPDEVA (created by Law No. 3091 of February 23, 1963, and its amendments, Article 1). Likewise, they consider that this norm would be contrary to the principles derived from Article 9 (separation of functions and independence of the branches of State) and Article 122 (express prohibition on the Legislative Branch to co-administer), since it implies the direct intervention of the Legislative Assembly in administrative aspects of an autonomous institution by ordering the cessation of its officials.

The crucial point in this questioning would be to determine whether the legislator has constitutional powers to reorganize an autonomous institution. In this sense, it is necessary to differentiate the normative origin of the autonomous institutions contemplated in constitutional articles 188 and 189. As a first case, we have the autonomous institutions created and regulated directly by the Political Constitution, such as the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social), the University of Costa Rica (Universidad de Costa Rica), among others; and as a second case, we have the autonomous institutions of legal creation by qualified vote.

In the specific case of JAPDEVA, it is an autonomous institution of legal creation whose goals, objectives, and purposes are established by law. That is to say, its creation was by the will of the legislator, which was motivated by a need to satisfy a public purpose at a given time. Having clarified the above, we can affirm that just as the Legislative Assembly can create an autonomous institution, it can also close it—principle of implied powers—since whoever can create, can extinguish or modify its structure and its competencies, especially since in this case the public entity is financially unviable, for which there is an objective and reasonable motive. Naturally, in a state of law, no branch of government can act arbitrarily. In the case under study, as indicated above, there are financial studies from the Ministry of Finance, the Office of the Comptroller General of the Republic, and others from the institution itself that recognize the entity's impossibility of paying workers' salaries, because the business model changed with the entry of a concessionaire (APM Terminals) and without the timely measures of reactivation and adequate reorganization being taken to guarantee its financial balance. The foregoing has obliged the Executive Branch to send an extraordinary budget to pay the salaries for the coming months (file 21,475), funds that will be paid in part with debt (see the appearance of the Minister of Finance, Volume II, folios 256 and following; Comptroller General folio 358 and Comptroller's Office reports 409-412; Japdeva 395-408; Volume X Ministry of Finance report folios 2573 and following). The consulted bill proposes to facilitate the reduction of the payroll, under a series of incentives, mobility, and indemnification of the workers, according to the technical studies that the entity carries out within a maximum period of two months from the effective date of the law, to try to rescue the institution and not fall into a cessation of payments that would render it completely inoperative and to adapt it to a new business reality without having to close it. Having analyzed the consulted Transitory Provision II, in the judgment of this Chamber there is no provision that allows for the conclusion that the legislator has exceeded its constitutional competencies in the consulted norm. All specific acts of administration, from the effective date of the law—if it is adopted—will be the responsibility of JAPDEVA's officers, in accordance with the new general framework of action established by the legislator. What the law does is set a general framework, as well as deadlines and conditions for action. The micro-administration decisions, that is, the specific acts, the reorganization model to be adopted, will depend on Japdeva's own administration, according to the technical study that the law establishes.

To hold the contrary would be to affirm that the competencies and public services assigned to a decentralized public entity that enjoys political autonomy become petrified, and that the ordinary legislator could not modify or vary such competencies or public services conferred, when there is a basis for doing so. In the specific case, it would mean that Japdeva has to close given the impossibility of maintaining its payroll, given that according to what is stated in the bill—Japdeva lost 80% of its income and retains 100% of its payroll—with the paradox that the legislator could create another autonomous institution by law with other competencies, which, if done through that route and not through the modification of Japdeva, would cause great harm to the workers and to the public service since Japdeva's functions, according to its law of creation, are essential for the port and provincial development of Limón.

It cannot be lost sight of that **the Costa Rican State is unitary**, and that to more efficiently achieve the purposes, objectives, and goals established by the current legal system, it established an organizational design that provides for a central and decentralized power, in this latter case according to territorial criteria (Municipalities), as well as with specialization criteria (Autonomous Institutions).

On this subject, the Constitutional Chamber (Sala Constitucional) has stated:

**"From the constitutional point of view, it is necessary to begin by emphasizing that Costa Rica, since its inception, has been a concentrated unitary State, which means it has never had any type of political decentralization per se. The only one it has known is administrative, whether territorial—municipalities—or institutional. Therefore, any exercise aimed at distinguishing, as the appellants intend, between merely administrative decentralization and other possible forms of decentralization, the political one, is useless." (Resolution No. 4091-94 of August 9, 1994, reiterated by No. 7528-97 of November 12, 1997)** The creation of a model of administrative decentralization favors, on the one hand, the better satisfaction of local interests, as well as the provision of services and the performance of activities that require technical specialization. Despite this, and the different degree of autonomy with which the public entities that make up the decentralized administration are created, the State must seek to maintain the unity and harmony of its action.

It was with this vision that the constituent established in its Article 188 that the autonomous institutions of the State enjoy administrative independence, but are subject to the law in matters of government. Article 188 of the Political Constitution states:

**"Article 188.** The autonomous institutions of the State enjoy administrative independence and **are subject to the law in matters of government**. Their directors are responsible for their management." (emphasis added) Originally, the constitutional text did not establish the possibility of subjecting the autonomous institutions of the State to the law in matters of government, an aspect that was reformed in 1968 (Law No. 4097 of April 30, 1968), precisely to guarantee the unity of the state.

According to the jurisprudence of this Court, as of that constitutional reform, autonomous institutions do not enjoy a guarantee of unrestricted constitutional autonomy, since the law, apart from defining their competence, can subject them to directives derived from development policies that this same law entrusts to the Central Executive Branch, provided that, of course, the sphere of administrative autonomy proper is not thereby invaded. According to judgment 1999-919 of this Chamber, the background and effects of the reform itself, by reserving to those entities the matter of their own administration, excluded from their management the power of government which implies: a) the setting of purposes, goals, types of means to achieve them; b) the issuance of autonomous regulations of service or activity in accordance with the provisions normally called general policy. In this way, the reform made it constitutionally possible to subject autonomous entities in general to national planning criteria and, in particular, to subject them to the directives of a general nature issued by the central Executive Branch or bodies of the Central Administration (called upon to complement or oversee general policy). In that sense, general conditions of action that exceed the singular scope of action can be set by law. (in a similar sense, see judgment 1998-4313). The Chamber has also pointed out that "the scope of administrative autonomy would be poorly understood if it were believed that it is equivalent to the absence of all possibility of external control, as if decentralized entities were sovereign self-governed islands; a State within another." (see judgment 1998-835).

Similarly, decentralized entities are not islands from the legislator, when there are circumstances that make it necessary to safeguard public purposes. In the case under analysis, not only is the sustainability of the purposes entrusted to Japdeva in its law of creation, which are essential for the development of the province of Limón, at risk, but also the public funds that the Central Government must dedicate from citizens' taxes to meet the entity's salary payment obligations.

For the foregoing reasons, it cannot be validly alleged that there exists a violation of the division of powers, which is not at stake, nor of Article 188 of the Political Constitution." In conclusion, this Chamber did not consider as incompatible with the Constitution the possibility of subjecting JAPDEVA to the referred process of administrative modernization and restructuring—in accordance with the parameters developed in that same vote—. To which it is added, again, that assessing the convenience or necessity of the "outsourcing (tercerización)" of potential services exceeds the scope of competence of this Court. Without prejudice to pointing out, in any case, that any eventual company that provides such services to JAPDEVA in the national territory must conform, as pertinent, to the plexus of obligations provided for by the Costa Rican labor legal system, in development of the social rights and guarantees recognized in Title V of the Political Constitution.

**V.- OF THE CHALLENGE TO THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, EXPLOITATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL.** Finally, it must be reiterated that the main objections of the plaintiff are directed at questioning, in particular, the validity, necessity, and convenience of such a contract, as well as matters relating to its proper execution or fulfillment; however, as this Chamber has repeatedly indicated, this does not constitute the subject matter of an action of unconstitutionality. Thus, recently, when hearing an action filed against that same contract, this Chamber, by means of vote no.

2021-005640 at 9:15 a.m. on March 17, 2021, resolved—in relevant part—that:

"(...) *REGARDING THE INADMISSIBILITY OF THIS ACTION AGAINST THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL.* The petitioner also challenges "(...) Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Annex 3 of the PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL". Despite their arguments, the constitutional jurisdiction is not the appropriate avenue to review the content of the challenged concession contract; therefore, regarding this aspect, the action is inadmissible based on its subject matter. This is because Article 10 of the Political Constitution assigns this Chamber the task of "(...) declaring, by an absolute majority of its members, the unconstitutionality of norms of any nature and of acts subject to Public Law." Likewise, as indicated in the preceding recital (considerando), Article 73 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) specifies that "An unconstitutionality action shall be admissible: a) Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. (...)". In accordance with those provisions, it is not appropriate to file an action before this Chamber against a contract, even if it is a concession contract. In the case of the aforementioned subsection a), when referring to the possibility of challenging "other general provisions, even those originating from acts of private subjects," it should be clarified that it refers to provisions of a normative scope (for example, a regulation or a statute) and not a contractual one, since that is what correctly follows from the phrase "norms of any nature" used in constitutional Article 10. (In this regard, see votes No. 2005-13070 at 4:02 p.m. on September 22, 2005, and No. 2009-000310 at 3:18 p.m. on January 14, 2009)."

A criterion later confirmed in vote No. 2021-013132 at 9:05 a.m. on June 9, 2021, in which this Chamber stated:

"**I.- Regarding official letters SJD-126-2014 and SJD-170-2014 of the Instituto Costarricense de Turismo and its legal opinion AL-214-2014, clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Annex 3 of the Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation, and Maintenance of the Moín Container Terminal.** *Regarding the cited administrative acts and the mentioned public works concession contract with public services, it must be noted that this action is a reiteration of a previous one (case file No. 21-003621-0007-CO), filed by the same petitioner, in which this Chamber already resolved, through vote No. 2021-005640 at 9:15 a.m. on March 17, 2021—in relevant part—that:* "**III.- REGARDING THE INADMISSIBILITY OF THIS ACTION AGAINST OFFICIAL LETTERS SJD-126-2014 AND SJD-170-2014 OF THE INSTITUTO COSTARRICENSE DE TURISMO AND ITS LEGAL OPINION AL-214-2014.** *The petitioner claims to file this unconstitutionality action against "(...) official letters SJD-126-2014 and SJD-170-2014 of the Instituto Costarricense de Turismo and its legal opinion AL-214-2014 (...)". Despite the allegations of the petitioner, this action is inadmissible regarding this subject matter, given that Article 73 of the Constitutional Jurisdiction Law, in its subsections a) and b), provides the following: "Article 73.- An unconstitutionality action shall be admissible: a) Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. b) Against subjective acts of public authorities, when they infringe, by action or omission, any constitutional norm or principle, if they are not susceptible to habeas corpus or amparo remedies. (...)". Based on the foregoing, the unconstitutionality action filed against the official letters and legal opinion issued by the Instituto Costarricense de Turismo is inadmissible for failing to meet the requirements set forth in the aforementioned norm, as it is not directed against provisions of a general nature that are deemed to infringe constitutional norms and principles. In this case, the challenged official letters and legal opinion do not have a normative character, rendering the filed unconstitutionality action inadmissible for this purpose.* **IV.- REGARDING THE INADMISSIBILITY OF THIS ACTION AGAINST THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL.** *The petitioner also challenges "(...) Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Annex 3 of the PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL". Despite its arguments, the constitutional jurisdiction is not the appropriate avenue to review the content of the challenged concession contract, so regarding this aspect, the action is inadmissible based on its subject matter. This is because Article 10 of the Political Constitution assigns this Chamber the task of "(...) declaring, by an absolute majority of its members, the unconstitutionality of norms of any nature and of acts subject to Public Law." Likewise, as indicated in the preceding recital (considerando), Article 73 of the Constitutional Jurisdiction Law specifies that "An unconstitutionality action shall be admissible: a) Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. (...)". In accordance with those provisions, it is not appropriate to file an action before this Chamber against a contract, even if it is a concession contract. In the case of the aforementioned subsection a), when referring to the possibility of challenging "other general provisions, even those originating from acts of private subjects," it should be clarified that it refers to provisions of a normative scope (for example, a regulation or a statute) and not a contractual one, since that is what correctly follows from the phrase "norms of any nature" used in constitutional Article 10. (In this regard, see votes No. 2005-13070 at 4:02 p.m. on September 22, 2005, and No. 2009-000310 at 3:18 p.m. on January 14, 2009)."* *Therefore, the action was finally rejected outright (rechazó de plano) insofar as those aspects were concerned. The foregoing, upon concluding that, in the instant case, the questioned conduct was not challengeable through an unconstitutionality action, pursuant to the provisions of Article 73, subsections a) and b), of the Constitutional Jurisdiction Law. Ergo, the petitioner must abide by what was already decided on that occasion, there being no reason to justify a change of criterion.* **II.- Regarding the signing of the consolidated contract with addenda 1 and 2, called "Public Works Concession Contract with Public Service for the design, financing, construction, operation, and maintenance of the Moín Container Terminal," executed on February 13, 2012, by the Administration and the concessionaire company APM Terminals, official letters No. UE-TCM-OF-OF-01 13-2013 of October 24, 2013, from the Manager of the TCM Executing Unit (Unidad Ejecutora TCM) and No. DMP-DI-2013-0363 of November 11, 2013, from the Acting Director of Infrastructure of the Maritime Port Division (División Marítimo Portuaria), in which the design presented by the concessionaire was approved, and official letter No. UE-TCM-OF-0192-2014 of December 19, 2014, from the Board of Directors of the Consejo Nacional de Concesiones, in which the company APM Terminals de Moín S.A. was notified about the construction stage corresponding to Phase 2A of the Moín Container Terminal, effective as of January 19, 2015.** *In this second action, an attempt is made to expand the subject matter of the challenge regarding the cited public works concession contract with public service and other administrative acts related to the execution of said contract. In which case, what was already indicated in the cited vote No. 2021-005640 is fully applicable, in the sense that in the sub lite case, the circumstances provided for in Article 73, subsections a) and b), of the Constitutional Jurisdiction Law are not present.* **III.-** *In relation to what has already been indicated in the two preceding recitals (considerandos), it should be noted that, in the sub judice case, the petitioner formulates various reproaches regarding the appropriateness, convenience, and validity of the cited public works concession contract with public service, as well as a series of administrative acts related to the execution of said contract. Reproaches regarding which this Chamber has already ruled, on multiple occasions, in the sense that they correspond to issues not suitable for adjudication in this constitutional jurisdiction.* *Thus, the petitioner first questions the content of the cited contract and, in particular, the concession granted to the company APM Terminals, as they complain that a public works concession with public service was granted exclusively to the referred company for the purpose of developing and operating the new Moín Container Terminal, which, in their view, violates the provisions of various constitutional norms and principles, mainly, Article 46 of the Constitution. They particularly question that such a concession was granted, asserting that JAPDEVA already provided the respective container loading and unloading services more efficiently. They also complain that Costa Ricans are being affected by high prices and delays in the provision of port services by the mentioned company APM Terminals. Finally, they allege that this situation has plunged JAPDEVA into a serious financial crisis. It should be noted that, regarding the reproaches presented by the petitioner, in ruling No. 2013-16146 at 9:05 a.m. on December 6, 2013, this Chamber—in relevant part—held:* "**I.- Purpose of the appeal (recurso).** *The appellant comes forward in protection of the constitutional principles of free enterprise and fair competition, as well as the principle of equality, the right to work, and a living wage, because he accuses the Executive Branch (Poder Ejecutivo) of having granted—exclusively—a public works concession with public service to the company APM Terminals Central America B.V. and APM Terminals Moín S.A. for the design, financing, construction, operation, and maintenance of the new Moín Container Terminal, thereby eliminating JAPDEVA's powers to provide the most important service in the port activity of Limón, namely the handling of container ships, with the consequent decrease in income received as well as the elimination of employment sources, hindering free competition between JAPDEVA and private companies.* **II.- On the merits.** *After examining the case file (autos), the Chamber considers that the amparo appeal must be declared without merit, for the reasons that will be stated. First, if the appellant maintains any type of disagreement with clause number 9 of the public works concession contract with public service awarded to the company APM Terminals Central America B.V. and APM Terminals Moín S.A., or considers that the content of said contractual clause is arbitrary, illegal, or abusive, they must plead it in the corresponding legality avenue, as the Chamber lacks the competence to resolve this type of conflict. As this Court has held on previous occasions, "(...) the petitioner must take into account that conflicts concerning the correct interpretation of the clauses of the contracts in question, their scopes, and the obligations derived from them for the parties, as well as the provisions of the regulations governing the matter, are the proper task of such avenues, and not of this jurisdiction, as it is a matter of ordinary legality whose knowledge is outside the scope of the Chamber's competence" (see ruling 2009-015459 at 6:10 p.m. on September 29, 2009).* *Second, from the appellant's statements, it is clear that the contractual clause they challenge refers to the alleged exclusivity that the company APM Terminals Central America B.V. and APM Terminals Moín S.A. would have regarding the handling of container ships. Specifically, they complain that clause number 9 of the concession contract in mention actually grants exclusivity to a private company to provide the service that the public company JAPDEVA used to provide. <u>In this regard, the amparo appellant must be informed that the decision of whether or not to grant exclusivity to said company for the provision of that specific type of service (containers) does not, in itself, constitute an injury of constitutional relevance. As the appellant himself states, what is being eliminated is the legal authority to provide a service, due to a policy decision by the Administration. Such a type of measure corresponds to the natural space available to the Administration to exercise administrative management, inherent to its scope of competence, in accordance with its government priorities. Thus, constitutional review would only apply if, in the exercise of such competences, a fundamental right were clearly and manifestly violated, which is not the case here. The mere disagreement of the petitioner with the referred measure pertains rather to a purely political problem, rather than a juridical-constitutional one, which is why this Court is obliged to exercise self-restraint.</u>* *On the other hand, from the statements given under oath by the respondents, it is observed that on July 16, 2011, the JAPDEVA Workers' Union filed contentious-administrative proceedings (proceso contencioso administrativo) regarding the subject in dispute here, which was resolved in the first instance by the Administrative Litigation Court (Tribunal Contencioso Administrativo) through resolution number 0153-2012-VI, in which its claim was declared without merit in all its aspects. The respondents state that, subsequently, on March 28, 2012, the Union filed another contentious-administrative proceeding, which is currently being processed under case file number 12-001630-1027-CA and concerns all the events that occurred once the contract was countersigned (refrendado). According to the information provided by the respondents, said proceeding is in progress. Thus, there is even more reason to dismiss the amparo, given that the events related to the public works concession contract with public service for the design, financing, construction, operation, and maintenance of the Moín container terminal (awarded in favor of the private companies APM Terminals Central America B.V. and APM Terminals Moín S.A.) are being examined in the competent ordinary avenue.” (the underlining does not correspond to the original).* Criterion reiterated in votes No. 2014-18103 at 11:33 a.m. on October 31, 2014, and No. 2015-001659 at 9:05 a.m. on February 6, 2015. While, more recently, through vote No. 2019-001409 at 09:05 a.m. on January 25, 2019, upon hearing a similar complaint, the Chamber resolved the following:

"... the petitioner files an amparo appeal against the signatories of the 'Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation, and Maintenance of the Moín Container Terminal,' and states that the Port Authority (JAPDEVA) provides port services to container ships for the loading and unloading of containers.

He states that on February 13, 2012, the Granting Administration signed a contract with the concessionaire APM Terminal for the operation of loading and unloading of container ships, an action that deviates from the constitutional legal framework. He considers that said contract has limitations and restrictions that cause harm to users (shipping companies and stevedoring companies), because it will no longer be possible to request the provision of services for container ships before the administrations of Limón and Moín, so he requests that the referred clause (chapter 4, subsection 22) be annulled and that the appeal be granted with the consequences of law.

(...)

**I. PURPOSE OF THE APPEAL AND LACK OF JURISDICTION OF THE CHAMBER TO HEAR THE CLAIM.** In relation to the allegations and claims set forth in the First Recital, it is necessary to point out that this Chamber is not a controller of the legality of the actions or resolutions of the Administration, so it is not within its purview to review whether the claim requested by the protected party is appropriate, or whether or not it conforms to the current legal regulations, a task proper to the ordinary, administrative, or jurisdictional channels. Whether or not the challenged clause is appropriate does not constitute a matter that should be discussed in this Jurisdiction, since it does not have the capacity to violate any fundamental right, which makes it foreign to the scope of its competence and must be resolved in the ordinary, administrative, or jurisdictional channels. Therefore, any claim or discrepancy regarding the terms of the contract must be filed before the defendant authorities or in the competent jurisdictional channel, venues where the merits of the matter can be broadly discussed, the appropriate interim measures can be requested, and, eventually, their claims can be asserted. By virtue of the foregoing, the amparo is inadmissible and must be declared as such.” For its part, in ruling no. 2019-016605 of 9:40 a.m. on August 30, 2019, this Court resolved:

“From the arguments presented by the plaintiff, it is clear that his claim is for this Court to define which cargo must be operated by JAPDEVA in relation to the TCM concession; to halt the processing of draft Law No. 21426, to define the causes of the financial crisis of JAPDEVA, to determine whether or not the termination of its employees’ employment relationship is appropriate, as well as whether contractual breaches have occurred in the TCM; and to prevent the transfer of funds to JAPDEVA to liquidate it. However, such claims are not matters of constitutionality, but rather of mere legality.” **VI.- IN CONCLUSION.** As a corollary of the foregoing, the action is to be dismissed on the merits, with respect to subsections [incisos] 2) and 3) of Article 2 and subsection [inciso] 4) of Article 5 of the General Law on Concession of Public Works with Public Services, as well as ordinal 18 of the Law on the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended numeral 1 of the Organic Law of JAPDEVA. In all other respects, the action is flatly rejected.

CO10/22 shall permanently leave the domain of the State: a) The forces that may be obtained from the waters of the public domain in the national territory; b) Coal deposits, sources and deposits of petroleum, and any other hydrocarbon substances, as well as deposits of radioactive minerals existing in the national territory; c) Wireless services. The goods mentioned in subsections a), b) and c) above may only be exploited by the public administration or by private parties, in accordance with the law or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly. National railways, docks, and airports—the latter while in service—may not be sold, leased, or encumbered, directly or indirectly, nor leave the domain and control of the State in any way.” For its part, Article 140 of the Political Constitution establishes: "19) Sign administrative contracts not included in subsection 14) of Article 121 of this Constitution, subject to submitting them for the approval of the Legislative Assembly when they stipulate exemption from taxes or fees, or have as their object the exploitation of public services, resources, or natural riches of the State." It indicates that, in April 1998, the General Law on Public Works Concession with Public Services was approved, which, in its Article 2, provides: "1.- Any work and its exploitation are susceptible to concession when reasons of public interest exist, which must be recorded in the file through a reasoned act. Telecommunications, electricity, and health services are excepted from the application of this Law. 2.- Railways, rail tracks, docks, and international airports, both new and existing, as well as the services provided there, may only be granted in concession through the procedures set forth in this law. 3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones." It adds that, on February 28, 2019, APM TERMINALS began operations with its 2 berths, in accordance with point 4.1.1. 22 of the Public Works Concession Contract with Public Service for the design, financing, construction, exploitation, and maintenance of the container terminal of Moín. On March 1, 2019, the Minister of Transport, Rodolfo Méndez Mata, issued official letter DM-2019-0604, where it was indicated that the concept *fully cellular* vessel is not contained in a current regulation and, based on that interpretation, proceeded to instruct JAPDEVA to proceed to insert the programming of the vessels to be served by the TCM immediately for the current week, in adherence to technical criteria that guarantee a safe and efficient operation for both terminals (Gastón Kogan Rogan and TCM). The foregoing, to avoid economic and commercial losses for the country due to the stoppage of operations at our ports. From the list of vessels attached to the official letter, all these vessels failed to comply with the requirement of being *fully cellular container ships*; however, the minister's instruction was to send them to be served by the TCM administered by the company APM TERMINALS. On March 4, the executive president of JAPDEVA, Greivin Villegas Ruiz, sent Minister Rodolfo Méndez Mata official letter PEL-211-2019, where it was stated: "Based on the constitutional principle of legality (Articles 11 Political Constitution and 11 General Law of Public Administration; numeral 188 of the Political Constitution; duty of probity (Article 3 of Law 8422); numerals 166, 169, following and concordant of the General Law of Public Administration as well as, Articles 1, 6 subsections a) and c); 22 of the Organic Law of JAPDEVA; I respectfully find myself obligated to consider your official letter DM-2019-0700 (administrative act) as evidently and absolutely null and void, and therefore, your instruction is incompatible within the framework of the organic relationship of our represented entities (Ministry and Decentralized Entity) according to Article 99 of the General Law of Public Administration (LGAP). In general, we observe with concern that MOPT’s unilateral interpretation regarding the use of the access channel, the programming, and the type of vessel that the TCM may serve is not in accordance with the legal system.

The concession contract and the concessionaire itself acknowledge that the TCM can only serve fully cellular container ships. The situation is further aggravated when a monthly schedule of TCM operations is issued for the period from February 19 to March 19, 2019, without knowing in advance the service demand or the type of ships to be served, which is improper and contrary to the provisions of the JAPDEVA Operations Regulations. Said regulation is known and accepted by APM TERMINALS, as it forms an integral part of the concession contract. In addition to the foregoing, it is recognized that JAPDEVA, as the Port Authority, is responsible for carrying out such scheduling on a weekly basis. The illegitimate instruction issued by the MOPT in its official communication harms the autonomy of JAPDEVA and generates damages of impossible or difficult reparation, even irreversible as we have stated. Damages and losses are also generated for the port community; for example, the fact that companies such as Dole and Chiquita have stated they were forced by the Government to transfer their operations to APM under the criterion of your represented entity; this despite the fact that many of their ships are not of the Fully Cellular type. The aforementioned situation has generated financial and operational uncertainty in the companies, forcing them to make the decision to transfer their total operations to APM, which entails layoffs of their workers. In accordance with the current legal framework, I proceed to explain in detail the corresponding reasons of fact and law...". Subsequently, in that same official communication, it added that: "We share your concern that the public service be provided continuously and uninterruptedly, and therefore, as the concessionaire itself recognizes and communicated, 'all shipping lines arriving at the Limón-Moín port complex on fully cellular container ships must dock at the Moin Container Terminal'. In addition to the foregoing, all shipping lines arriving at the Limón-Moín port complex on non-fully cellular container ships must dock at the JAPDEVA Terminal. Acting otherwise—as we explained in our official communication PE-033-20 19—would represent a technical bankruptcy for JAPDEVA and, according to our projections, by the month of April of the current year, there would be no financial capacity to guarantee the continuity of port public services, Development management, the payment of salaries, social charges, and other obligations. Excuse me, Minister, but JAPDEVA finds itself obligated to act under the protection of constitutional article 188; the duty of probity (Article 3 of Law 8422); Articles 1, 6 subsections a) and c); 22 of the Organic Law of JAPDEVA and; articles 1, 4, 6, 11, 27, 59, 60, 66, 99, 100, 101 of the General Law of Public Administration and therefore disobey the instruction issued by you (Articles 107, 108 LGAP and; 3, 4 and 5 Law 8422). it is reiterated that JAPDEVA made the corresponding communication one week in advance by the Port Management so that as of March 1, the agencies or their representatives present the official documents provided by the ship's captain proving the presence of Fully Cellular Container Ships, all in accordance with the provisions of the JAPDEVA Port Operations Regulations and as the concessionaire also recognizes and accepts in its communiqué." It points out that on that same day, March 6, the press reported that President Carlos Alvarado explained that Greivin Villegas Ruiz had been dismissed, as he was not aligned with the Government. It asserts that the start of APM TERMINALS' operations was marked by serious problems. The start-up was so complicated that the Chamber of Exporters of Costa Rica sent a note addressed to the National Port Council, where several problems that the APM TERMINALS operation had experienced were presented. Faced with the problems at the start of APM TERMINAL's operations, CORBANA sent a note addressed to the National Concession Council stating: "The export sector in general faces a significant increase in export costs, including the TCM tariffs, a situation that harms the country's competitiveness, as the savings from the operator's efficiency have not and will not be passed on to the exporter. Currently, the tariffs are the most expensive in the region, placing the country at a competitive disadvantage." On May 28, 2019, the Executive Branch presented to the Legislative Assembly the bill called "Law for the modernization of the Board of Port Administration and Economic Development of the Atlantic Coast of Costa Rica (JAPDEVA) and protection of its public servants", which was processed under legislative file no. 21.426. This project proposed a series of measures for the reduction of JAPDEVA personnel (horizontal transfers to other institutions, early retirement, and voluntary labor mobility) as a direct reaction to the severe deterioration its finances were undergoing. In 2019, the press reported that, at that time, given the decrease in ship servicing at JAPDEVA, unlike the past, when the institution's payroll was paid with the income from ship servicing, the Government was subsidizing that expense, since JAPDEVA practically no longer had its own income. On June 18, 2019, the Executive Branch presented a fourth extraordinary budget to the Legislative Assembly (with modifications to the Ordinary Budget of the Republic of 2019), which was processed under legislative file 21.475.

The project, in its original version, had the purpose of incorporating resources into the budget of the Ministry of Public Works and Transport and the Pension Regimes budget title, for a total amount of ₡ 23,679,008,731.00, to address the critical financial situation of JAPDEVA already described. Regarding MOPT, said extraordinary budget (expediente no. 21.475) incorporated a transfer destined for JAPDEVA, in the amount of ₡ 21,989,765,516.00, with the objective of financing the payment of three months of payroll (which included salaries, Christmas bonus, and social contributions) for a total amount of ₡ 5,752,908,243.00, in addition to providing resources for the institution's payroll reduction plan contained in draft law no. 21.426, for an amount of ₡ 16,236,857,273.00. By mid-2019, JAPDEVA itself issued the report JAPDEVA budget execution June 30 2019.pdf, where the reduction of its income for April 2019 is shown. This, given the Government's decision to transfer the handling of container ships to be now handled by APM TERMINALS. Here it is shown that the reduction in the institution's income is dramatic and is what justifies the draft law. It points out that the absolute restriction imposed on JAPDEVA for the handling of container ships as a consequence of the administrative conduct has caused all container ships arriving at the Costa Rican Caribbean, including conventional or no fully celular ships, to have to wait in line for several hours to be handled at the two berths of the TCM of APM Terminals, while the eight berths that JAPDEVA has are empty and totally underutilized. This situation, added to the concern over the high rates charged by APM Terminals, caused five business chambers—namely: the Cámara Nacional de Agricultura y Agroindustria (CNAA), the Cámara Nacional de Productores y Exportadores de Piña (CANAPEP), the Corporación Bananera Nacional (CORBANA), the Cámara Nacional de Productores y Exportadores de Melón y Sandía (CANAPEMS) and the Cámara Nacional de Productores Independientes de Banano (APROBAN)—to send a note to the National Port Council (official communication CE-2019-1049 of June 18, 2019), in which they pointed out a series of impacts they were suffering in their economic activity and that endangered the sustainability of their activities and the country's competitiveness. Mentioned in this note were problems in the appointment systems, in the supervision of refrigeration systems, with the electrical flow of the terminal, in the computer system, and in the information systems. Also mentioned were serious congestions on Ruta 257 for access to the TCM to pick up or deliver goods. For this period, several organizations attest to layoffs at CADESA, SINTRACOBAL, and SINTRASTAFCOR. This demonstrates that the impact on workers in Limón goes beyond just JAPDEVA and is, therefore, an element to take into account when weighing the interests in the decision. It adds that, by October 2019, the Law for the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, was approved, thereby initiating a process of reducing JAPDEVA's payroll, through horizontal transfers and early retirement systems charged to the national budget, where the State had to assume onerous payments to cover the expenses of employees who previously handled containers at JAPDEVA's ports and who became unemployed when the handling of these was transferred to the TCM operated by APM TERMINALS. At the end of October 2019, during a radio interview on Monumental, the former deputy, former presidential candidate, and businessman Antonio Álvarez Desanti, indicated that the country's producers and exporters, in his case of banana, longed for the JAPDEVA era, since APM had been—according to them—a fiasco, as the export costs were extremely high, to the point of mentioning it as the most expensive port in the region.

He also indicated that it was much more inefficient than JAPDEVA. He affirmed that costs practically doubled with APM TERMINALS. On October 17, 2019, the Law Transforming the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law no. 9764, was published in La Gaceta, which, in its Article 18, modified Article 1 of its original law, with the following text: "Article 1°.- The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, is created as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of Port Authority; it shall be responsible for building, administering, operating, subcontracting, granting concessions for, and carrying out any other financial mechanism that national regulations allow, to develop port services, its own administrative management, and investments, constructions, and improvements, in the maritime and fluvial ports of the Vertiente Atlántica, with the exception of those operating under subsection h) of Article 60 of this law." Following this reform, on February 6, 2021, Andrea Centeno sent official letter PEL-15-2021 to SINTRAJAP, in which it was indicated: "Following up on the last meeting of the Restructuring Commission held at the Executive Presidency on December 21, 2020, we attach the information presented for your information. Economic situation of the organization and financial erosion according to the legal embargo (embargo) process. Projected criticality and need for resources. Exercise on the need for payroll reduction. Review of what was already indicated in the Institutional Reorganization Program regarding outsourced services and presentation made to its Board of Directors in November 2019. Cost and efficiency analysis of the identified outsourced services." With said note, an official letter titled: "Review of information and efficiency data on outsourcing (tercerización)" was attached. In this note it was indicated: "The outsourcing of services is one of the changes applied in the reorganization program according to JAPDEVA's new vision, for the optimization of the cost model and indirect generation of employment in Limón, which allows the institution: Potential payroll reduction." In November 2019, JAPDEVA published its institutional reorganization program on its website, where in its chapter titled "Institution in crisis" it pointed out: "For the year 2019, the financial situation worsens as a significant deficit is registered during the first half of the year in revenue collection. The foregoing is a result of the impact on effective revenues upon changing the business model and transferring the containerized cargo to the new Terminal de Contenedores Moín (TCM) since February 2019. Current revenues generated from port activity as of June 30, 2019, are recorded in the amount of 012,888.2 million, equivalent to 30% of the estimated annual revenue budget for the 2019 fiscal year. It should be noted that this amount also includes the servicing of some container ships which were provided services at the beginning of the year amidst the transition process with the TCM, as well as on two occasions as contingency measures due to failures presented therein." Further on, in this document, in point 2.6., titled "MAIN ACTIONS IN RELATION TO THE INSTITUTIONAL REORGANIZATION AND STRENGTHENING OF JAPDEVA", it was indicated: "iii. Given that port tariffs have not been updated since 2012, it is necessary that once the new operational processes and reallocation of human resources are implemented, a tariff study be conducted to process before ARESEP the appropriate tariffs for the provision of port services and which in turn allows the institution to cover, through an investment program, the expenses required for the investments that will need to be made. d.

The growth and development of human resources capacities is fundamental to the strategy of achieving greater institutional efficiency and effectiveness, which entails empowering the human resource consisting of the 258 officials who will remain in the fulfillment of actions and functions according to the institution's processes and subprocesses." On December 19, 2019, the Government of the Republic issued a press release acknowledging the problem of the high tariffs charged by APM TERMINALS and the impact on the export sector, which stated: "Government will negotiate with APM Terminals a possible tariff reduction." This, according to that note, is in light of the concern regarding export sector tariffs. The negotiations, according to such press release, will be led by Rodolfo Méndez Mata, in his capacity as Minister of Transport, and will involve officials from the CNC, JAPDEVA, and the concessionaire. At the end of December 2019 and the beginning of 2020, news appeared in the press regarding the possible tariff negotiation with APM TERMINALS and the Government, noting that the parties have considered a reduction of the canon (canon) charged to the concessionaire, direct payment to the concessionaire, extension of the term of the concession (concesión), and it was even mentioned that the company APM TERMINALS might be exempted from completing phases 2 and 3 of the TCM, specifically, exempting them from the obligation to build berths 3, 4, and 5 of the TCM stipulated in the concession contract (contrato de concesión). Finally, in the Presidential address given by Carlos Alvarado on May 1, 2021, he stated: "The case of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA) is complex and gives rise to much debate. The truth is that when the contract was signed in 2012 for the operation of the Terminal de Contenedores de Moín (TCM), what was concretized there was the transfer of 84% of the cargo and 80% of JAPDEVA's income to the TCM, in exchange for a canon (canon). A public business was ceded to a private party without adequate compensation, and without guarantees of better tariffs and better operation. Moreover, without a clear transition plan for JAPDEVA. Thus, when the TCM began operations in February 2019, JAPDEVA came face-to-face with the massive drop in its income while maintaining the same level of expenditure. Today, the reality is that the TCM's tariffs are more expensive than before and the terminal, two years after starting operations, is already reaching its operational saturation." The plaintiff alleges that a careful reading of subsections 2) and 3) of article 2 and subsection 4) of article 5 of Law No. 7762 of April 14, 1998, called "Ley General de Concesión de Obra Pública con Servicio Público" and, by connection, of the public works concession contract with public service (contrato de concesión de obra pública con servicio público) for the design, financing, construction, operation, and maintenance of the terminal de contenedores de Moín, shows that these are unconstitutional insofar as they violate the literal meaning of the last paragraph of subsection 14) of article 121 of the Political Constitution, by virtue of which: "National railways, docks, and airports—the latter while in service—may not be alienated, leased, or encumbered, directly or indirectly, nor leave in any form the domain and control of the State." It affirms that from the foregoing it is deduced, with all clarity, that the alluded-to assets cannot be the object of any type of transfer or concession (concesión), as is intended through Law No. 7762 and the public works concession contract with public service (contrato de concesión de obra pública con servicio público), which undoubtedly violate the fundamental norm. It is clear that the alluded-to norm cannot be interpreted in a way different from its literal meaning. While it is true that to grant a concession (concesionar) is not necessarily the same as to alienate, lease, or encumber, the constitutional norm precisely indicates first that the docks may not be alienated, leased, or encumbered, directly or indirectly; but the second part of said numeral is even more categorical, indicating that the docks also may not leave in any form the domain and control of the State.

If one turns to the definition given in Article 1 of the Concessions Law, a works concession with public service (concesión de obra con servicio público) is defined as: "*b) Works concession with public service: an administrative contract by which the Administration entrusts a third party, which may be a public, private, or mixed entity, with the design, planning, financing, construction, conservation, expansion, or repair of any public immovable property, as well as its operation, providing the services foreseen in the contract in exchange for compensation collected from the users of the work, from the beneficiaries of the service, or from counter-payments of any kind paid by the granting Administration.*" They argue that if the constitutional norm prohibits docks from leaving the domain and control of the State in any way, then, based on the preceding definition, by allowing the Administration to have a third party carry out the design, planning, financing, construction, conservation, expansion, or repair of any public immovable property, as well as its operation, providing the services foreseen in the contract, it is clear that this concession-granted asset would be partially leaving the domain and control of the State, since the public service would be provided by a third party. Thus, since granting a concession is not expressly permitted in the Constitution, the legislature cannot decree that docks may be granted in concession, as the norms challenged in this case indicate. Even if one argues that with the concession, the State does not lose ownership of the public asset, the truth is that the concession is neither expressly permitted in the Constitution, nor can the constitutional text be interpreted broadly in a matter as restrictive as the disposal of public assets. Especially since, by mandate of the Political Constitution itself, it is not permitted that "in no way" ("de ninguna manera") the docks leave the control of the State, and clearly, the concession is one manner in which the docks have been allowed to leave the State's control, since they come to be administered by a private company. The General Law on Concessions of Public Works with Public Services makes a potential exception in its Article 2, subsection 3, by stating: "*3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be granted in concession, and not existing ones.*" However, the exception stated in Article 121, final paragraph, subsection 14 of the Political Constitution is clear in establishing: "*Railroads, docks, and national airports—the latter while in service—may not be sold, leased, or encumbered, directly or indirectly, nor leave the domain and control of the State in any way.*" The Political Constitution does not make the exception that the Concessions Law does, since for the constituent, all docks, without exception, while they are in service, may not be sold, leased, or encumbered, directly or indirectly, nor leave the domain and control of the State in any way. In the case of the concession of the Container Terminal of Moín (TCM) to the company APM TERMINALS, although it could be argued that this was not a work in operation at the time of its concession, the truth is that once said Terminal was enabled, as already explained, the President of the Republic himself acknowledged that the service for all container ships that JAPDEVA was handling was transferred to be handled by APM TERMINALS. This means that, in reality, the service that JAPDEVA was already providing prior to this concession was indeed granted in concession in favor of the company APM TERMINALS, and therefore, in practice, this concession of this port work at the Limón docks for a service already being provided by JAPDEVA disrespects our Magna Carta, by allowing a port service already in operation that JAPDEVA was providing—namely, the handling of container ships that were served in the existing ports of Limón and Moín for decades—to leave the domain and control of the State.

The claimant argues that the unconstitutionality alleged goes beyond what has been argued to date in various amparo actions, since it is not a question of unconstitutionality by omission of the challenged rules, but rather of direct violation of the constitutional text, given that the servicing of container ships that JAPDEVA was already providing was granted as a concession to a private company, which was clearly and is prohibited by the Political Constitution. He accuses an infringement of the principle of constitutional legality, which warrants a declaration of unconstitutionality of the concession contract with the company APM TERMINALS and of the law that allowed that concession to occur. The claimant adds that, bearing in mind that these are strategic assets of the State, such as the docks, the literal meaning in this case is insurmountable, because although the concept of a concession did not exist at the time the Political Constitution was drafted, the fact is that this mechanism bears a very close similarity to what the Constitution expressly prohibits, given that a concession becomes an indirect way in which the asset leaves the domain and control (dominio y control) of the State, and that is precisely what the constitutional rule prohibits. He insists that a restrictive interpretation is required in this case, because the content of the rule imposes a very clear prohibition that cannot be excepted. Thus, even if the Legislative Assembly had proceeded to approve the concession through a qualified procedure, such approval would have been equally unconstitutional. So, with much greater reason, the legal rules that empower the Executive Branch, through the challenged Law, to grant concessions for the docks would be unconstitutional, because the constitutional prohibition in question is further weakened if the Executive Branch itself, with a framework law, can grant a concession over an asset that is inalienable according to the Constitution. The claimant states that it can be affirmed that there exists, as in many other cases noted by this Chamber, a kind of "constitutional reserve" (reserva constitucional). Only the Constituent Assembly can indicate how to dispose of the docks, and only if the Constituent Assembly enables the possibility of granting them in concession, could they be concessioned. This thesis being sustained is none other than the application of the content of the principle of legality to the constitutional text, understood in the sense that, in this area of public assets, whatever is not expressly permitted (to grant a concession) is therefore prohibited. He points out that this Constitutional Chamber has upheld the existence of a "constitutional reserve" (reserva constitucional) in certain matters, as is the case of vote no. 2010-011352, regarding the grounds for revocation of credentials of deputies, vote no. 2008-016099, regarding the principle of liberty, or vote no. 2013-012801, regarding the material jurisdiction of the contentious-administrative jurisdiction. In this case, since it concerns the disposal of strategic public assets, he considers that a "constitutional reserve" (reserva constitucional) also exists, which prevents the legislator —and even more so, of course, the Executive Branch— from establishing the possibility of granting a concession, not only because the Constitution does not expressly permit it, but because at the time the Political Constitution was drafted, the legal concept of concession was not known, but precisely for this reason it was stated that the docks in operation could not be leased or encumbered, directly or indirectly, nor leave the domain and control (dominio y control) of the State in any way; that is, by stating that they cannot in any way leave the control of the State, a broad, open concept is used, attempting to anticipate any legal mechanism that might be attempted in the future to violate this provision. He asserts that this prohibition on granting concessions for these strategic assets has a logic rooted in even national security, since, from the moment APM TERMINALS began operating, news reports of containers with drugs appearing in European ports from Costa Rica have become very frequent. News that, prior to APM TERMINALS beginning operations, was not heard in the media. The claimant insists that a strict interpretation of the constitutional text is what is appropriate when it comes to assets of such relevance, without ignoring that the text of the last paragraph of the rule in question is categorical: those assets—docks, airports, and railways—may not leave, in any way, the domain and control (dominio y control) of the State. He reiterates that a comprehensive analysis of section fourteen of Article 121 of the Constitution allows one to conclude, again, that the docks, airports, and railways may not leave, under any modality, the domain (dominio) of the State. The penultimate paragraph of the rule in question admits that private individuals may exploit the assets mentioned in sections a, b, and c, in accordance with the law or through a special concession, granted for a limited time and subject to the conditions and stipulations that Parliament establishes. Clearly, the second paragraph establishes that private individuals may exploit the mentioned assets; this means that when this is authorized, the rule expressly provides for it. This is the rule that the regulation implicitly establishes.

A very different situation is foreseen by the last paragraph of subsection 14) of Article 121 of the Constitution, as it does not authorize, in any way, that those assets may be exploited by private parties, because it does not permit that docks, railways, and airports may be exploited by private parties, and they cannot leave, directly or indirectly, the domain and control of the State. In accordance with this comprehensive interpretation of the text of the norm, it is confirmed that the constitutional norm in question does not authorize the State to cease having direct control over the assets mentioned in the last paragraph of subsection fourteen of constitutional Article 121. It accuses, on the other hand, that it is inconceivable and absolutely unacceptable that a private port terminal was established so that, with only two berths, it could exclusively handle all the loading and unloading of containers on the entire Costa Rican Caribbean Coast. As acknowledged by the President of the Republic Carlos Alvarado, in his speech of May 1, 2021, the provision of port service by APM Terminals was established with cost overruns that exceed JAPDEVA's rates and affected the financial capacity of such institution, rendering it incapable of guaranteeing the continuity of public port services, development management, the payment of wages, social charges, and other obligations. It asserts that, in mid-June 2019, 16 business chambers sent a letter to President Carlos Alvarado, in which they detailed a series of inefficiencies in APM Terminals' operations, among which were delays due to congestion at the port entrance and high rates. The main complaint of exporters is that the rates charged by the company APM Terminals in the country exceed prices at other ports in the region by up to $300. Exporters ensure that the price difference occurs even with other nearby ports managed by APM Terminals. In total, exporters report that they are paying around $515 for the entry and exit of a container. Furthermore, compared to Caldera, the other major port in Costa Rica, about $200 more is paid for the exit and entry of containers (full and empty). On average, about $120 million more was paid during 2019, compared to what was paid before the entry into operation of the TCM. A study conducted by Cadexco revealed that the operational costs of the TCM are considerably higher than the vast majority of ports in the hemisphere. Exporters ensure that the rate problem goes beyond paying a higher price, as it directly affects the country's competitiveness and job creation, especially in rural areas. The high rate costs of APM Terminals also affect the cost of living of Costa Ricans, by increasing the price of imported products, due to the increased importation costs of containers entering through the Atlantic. On May 1, 2021, the President of the Republic himself came to recognize that: "Today the reality is that the TCM's rates are more expensive than before and the terminal, two years after its entry into operation, is already reaching its operational saturation.". Indicates that a September 2012 study, titled "Port matters in Costa Rica and serious deficiencies of the tender for the concession on the Atlantic coast of the Container Terminal in Moín", prepared by Daniel Pacheco Arias, who was part of the group that carried out a consultancy on port matters for the Public Services Regulatory Authority (Autoridad Reguladora de los Servicios Públicos, ARESEP), executed during the second semester of 2009 and the first semester of 2010, concludes that in Costa Rica we approved port rates similar to those of some countries in Europe and Asia, although we have Latin American wages. For this reason, Daniel Pacheco ends up indicating -regarding the approved rate matter for APM TERMINALS- that: "In conclusion, if we are not going to pay here in Costa Rica like the workers of the flagship ports of the USA/Europe, rates like those of the USA/Europe should not be proposed. Rates on cargo exceeding $200 are not justified. The incongruence between wages and rates would be fatal if the concessionaire then adheres to the national minimum wage." It accuses that, definitively, the rate established by clause 11 of the contract with APM TERMINALS is far above the regional average and this has among its consequences that we lose competitiveness as a country, by making our imports and exports through the Atlantic port more expensive. The entry of APM Terminals into national territory envisioned greater modernity and efficiency compared to JAPDEVA's administration, which would translate, according to business owners, into lower costs; however, this has not happened. It argues that the foregoing allows an understanding of a practical reason of the constituent for prohibiting any figure similar to the concession of the docks.

It indicates that although it is aware of the Constitutional Chamber's jurisprudential line (línea jurisprudencial) regarding concessions and monopolies, the truth is that it also knows that the Constitutional Chamber can vary its jurisprudential line, and in fact, there are quite a few cases in the past where it has changed its jurisprudential line. Therefore, it refers again to the study carried out by Daniel Pacheco Arias, in which it was stated: "*A dissertation on monopolies will not be made here, but the long-term trends that could harm us in port matters are summarized in one paragraph. A private monopoly would have guaranteed demand (captive cargo). Cargo and tariffs determine income. In such a way that a concessionaire is tempted, as a private company, to optimize its profits by minimizing its costs, thereby affecting the quality of service. Naturally, a private monopoly is not going to do what public sector unions do, such as stopping the port and going on strike, since this would affect its income. But they can make clients (ships) wait in line, make the minimum investments and/or delay them, be stingy when responding for damages, have the minimum equipment and personnel and not the optimal (according to the best industry standards) for cargo handling, etc. In competitive environments, if a concessionaire does not serve a client well (damages, slowness, abusive charges, etc.), the client moves its cargo to another terminal and/or port; so there is a link between quality and the concessionaire's income, which persuades the concessionaire to think twice before lowering the quality of service. That is why there should not be 3-decade monopolies. Developed countries, large or small, do not have port monopolies on their coasts. Nor does any serious developing country in Latin America have them. Neither the U.S. Government nor the European Commission has allowed a shipping line or a mega-port operator to acquire local or regional monopoly power, for which they regulate permits, concessions, mergers, and acquisitions. The logical thing, and what is customary worldwide, is that in a port complex, as real demand grows, the installation of terminals by different containerized cargo operators is permitted. In this way, competition is introduced in an orderly manner. Each terminal may have one or several berths, depending on the port's traffic.*" The claimant points out that the Constitutional Chamber has carried out the analysis regarding concessions and monopolies from the perspective of public service, but the truth is that seen from outside our borders, namely, from the point of view of shipping lines and international markets, it is clear that in Costa Rica, in the Atlantic ports, there is a single provider of the container ship service, and it matters little to them whether it is a concession or not, because the truth is that these shipping companies, in Costa Rica, can only leave their containers on the Costa Rican Atlantic with a single port operator which is APM TERMINALS, and this explains the high tariffs, the low efficiency, and the poor quality of service. It agrees, then, that in competitive environments, if a concessionaire does not serve a client well (damages, slowness, abusive charges, etc.), the client moves its cargo to another terminal and/or port; so there is a link between quality and income, a situation that on the Atlantic of Costa Rica does not exist in terms of container service, since APM TERMINALS is the only company that provides this service. It alleges that this allows understanding another practical reason for the constitutional framer to prohibit any figure similar to the concession of the docks.

It further alleges that on October 17, 2019, the Law that Transforms the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, was published in La Gaceta, which in its Article 18 amended Article 1 of its original law, with the following text: "The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, is created as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for building, administering, operating, subcontracting, granting concessions for, and carrying out any other financial mechanism that national regulations allow, to develop port services, its own administrative management, and investments, constructions, and improvements, in the maritime and river ports of the Vertiente Atlántica, with the exception of those operating under subparagraph h) of Article 6 of this law." The original text of Article 1 of the Ley Orgánica de JAPDEVA stated: "The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, is created as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority; it shall be responsible for building, administering, conserving, and operating the current port of Limón and its extension to Cieneguita, as well as other maritime and river ports of the Vertiente Atlántica, with the exception of those operating under subparagraph h) of Article 60 of this law." Note how now, as of this reform of the year 2019, the regulation allows subcontracting, granting concessions for, and carrying out any other financial mechanism that national regulations allow—figures that did not exist in the original regulation—to develop services, which the original Ley Orgánica de JAPDEVA did not permit, since, prior to the reform, the Ley Orgánica de JAPDEVA was in accordance with Article 121 of the Constitución Política, which in the final paragraph of subparagraph 14 indicates: "National railways, docks, and airports—the latter while they are in service—may not be sold, leased, or encumbered, directly or indirectly, nor in any way leave the domain and control of the State." This reform introduced in the year 2019, through the Law for the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, by introducing these variations to the original text of the Ley Orgánica de JAPDEVA, is clearly allowing for an outsourcing (tercerización) of port services, as explained in the aforementioned official communication PEL15-2021, thereby disrespecting Article 121 of the Constitución Política. It reiterates that in the Presidential address given by Carlos Alvarado on May 1, 2021, it was acknowledged that 2 years after entering into operation, the Terminal is already in operational saturation. An aspect that has a simple explanation, which is that the public works concession contract with public service for the design, financing, construction, operation, and maintenance of the Moín container terminal, in its clause 4.1.1.22, indicates that phase 2 will only have 2 berthing positions. If one reads the Master Plan that was used as the basis for this concession, specifically pages 87 and 88, point 6.10 indicates that in phase 2, the new container terminal is operational. This phase begins in 2016 and lasts until 2020.

The docks for container handling are Muelle Taiwanés and the New Container Terminal with 900m of dock, and it is even indicated that: "*With an average length overall of container ships of 180m at the end of phase 2, it can be concluded that the port has 5 docks available for container handling*." According to this Master Plan, what was contemplated was that the servicing of container ships by APM TERMINALS and by JAPDEVA would coexist, which can be corroborated in its Table 6-5, specifically in point 6.9.3, visible on pages 85 and 86 of said document. Thus, in phase 2, which is where we are told we are currently, the Master Plan recognizes that there were going to be 5 berthing positions for container handling in the Atlantic, namely, the 3 of the TCM and the 2 of JAPDEVA, for a total of 1,200 linear meters of dock. This is a far cry from the 2 berthing positions that APM TERMINALS has for servicing the container ships arriving in the Atlantic. On the other hand, in point 6.10, on pages 87 and 88 of this Master Plan, it is indicated that in phase 3 the new Container Terminal is extended by an additional 600m. In phase 3 (2021 - 2030), containers are handled at Muelle Taiwanés and at the New Container Terminal of 1500m of dock, and where it is even indicated: "*Based on an average length overall of container ships of 210m at the end of phase 3, it can be deduced that the port has 7 docks available for container handling*." Note, then, that according to this Master Plan, the Moín complex would have, in phase 2A, some 5 berthing positions for servicing container ships and, as of 2021, some 7 berthing positions for container ships; however, currently, in the year 2022, in reality the country is only using the 2 berthing positions of the TCM for servicing container ships; namely, the same number of berthing positions that JAPDEVA had in 2008 specialized for that purpose. It accuses that it is clear that, with this concession, there is a flagrant disrespect for the constitutional principle of efficiency, since by disregarding the cartel and the Master Plan, it allows the approval of an absolutely illogical and irrational concession for the country, because if JAPDEVA had a total of 700 meters of dock specialized for container servicing prior to the construction of the TCM, one could not speak of an increase in the installed capacity of the port, if currently the company APM TERMINALS only has 2 berthing positions with a total of 600 linear meters of dock. It maintains that, therefore, we are no longer facing only an unconstitutionality of Article 2, subsection 2, of the General Law on Concession of Public Works with Public Services, but rather an unconstitutionality of the concession contract itself, by approving a contract that, far from increasing the installed capacity of the ports in the Atlantic, actually decreased it, since in practice JAPDEVA used the remaining positions for servicing container ships when necessary. Regarding the principles of effectiveness and efficiency, it cites ruling no. 12.330-2011 of this Chamber. It points out that it is clear that there can be no efficiency if, prior to the entry into operation of the TCM, JAPDEVA had 2 specialized positions for container handling, but could serve ships with containers at any of the remaining 10 berthing positions of the Limón-Moín port complex, and now it went to having only the 2 berthing positions of the TCM for container servicing, when the Master Plan guaranteed 5 berthing positions for specialized container servicing at this point. It accuses that, when the Government interpreted that the contract gives APM TERMINALS the exclusivity for servicing container ships, now the TCM must "choke," trying to handle one million two hundred thousand containers —which is what JAPDEVA was handling— at only 2 berthing positions, which clearly vitiates the principles of efficiency and effectiveness of the Administration. It cites once more ruling no. 12.330-2011. It points out that this vitiates the concession contract granted to the company APM TERMINALS with unconstitutionality and thus requests that it be declared. It refers, again, to the Presidential speech given by Carlos Alvarado on May 1, 2021, given that the Executive Branch is recognizing that the APM TERMINALS concession is not only more expensive for importers and that it is experiencing saturation problems, but it also recognizes that the business that JAPDEVA had was ceded to a private company, but without foreseeing how the institution was going to maintain its payroll when its income was eliminated.

It asserts that, when the container handling business belonged to JAPDEVA, the tariff was much lower for the entrepreneur, and even then it was enough for JAPDEVA to pay very competitive salaries, well above the legal minimum, to its employees; but with APM TERMINALS, the tariffs skyrocketed for users, while the salaries for the workers who now handle the loading and unloading of containers decreased compared to what JAPDEVA paid for the same work, for the officials who must have been dismissed from their jobs at the institution. Nevertheless, at SINTRAJAP it is viewed with great concern that this policy of outsourcing (tercerización) of public services continues to be promoted, even though it goes against the most adequate distribution of wealth established in article 50 of our Political Constitution, since although the institution may have a reduction in payroll costs, at the same time, the contracting companies will hire their employees with the lowest possible salary, which will allow the entrepreneur to have the greatest possible profits. That is, it is no longer guaranteeing the greatest well-being for all the inhabitants of the country, but the greatest well-being for a few entrepreneurs, who, hiring at the lowest possible cost, will be carrying out tasks that had been performed by well-remunerated JAPDEVA officials, thus guaranteeing a better and more adequate distribution of wealth.

It cites rulings Voto 2005-17612 and Voto 2007-09469 of this Chamber. The petitioner argues that it is clear that the State must guarantee production, but not at any cost, since, hand in hand, it must seek the most adequate distribution of wealth, and this implies that if an institution is already providing services directly with its own officials and these officials are receiving a comfortable salary to cover their family needs, the Government would be wrong to promote the outsourcing of the service now, since this implies that a single entrepreneur will hire the same services at the lowest possible cost, in order to achieve the greatest possible profit for himself. This violates the Christian principle of social justice referred to in ruling 1273-95 of the Constitutional Chamber. It is not dignified that the people who perform the work are those who receive the least for that labor, while a third party, namely the entrepreneur, is the one who receives more money and profit for the tasks that these workers are performing. The American Convention on Human Rights refers to the inherent dignity of the human being in its article 5, addressing the right to personal integrity—an expression repeated in clause 10 of the International Covenant on Civil and Political Rights—as well as numerals 6, relating to the prohibition of slavery and servitude, and 11, which expressly refers to the protection of honor and dignity. It points out that care must be taken if little by little we move from having well-remunerated people (officials) to well-remunerated companies that pay legal minimums to those who perform the work, because little by little undignified situations similar to those of the past are created, where business and political elites literally lived off the production and work carried out by their slaves, thus fostering a veiled slavery in this century. The dignity of the person is respected as long as they are not considered an object, in this case, an object that is given the lowest possible salary, so that third parties can profit from their work.

It alleges that here we see the logic that was embedded in the Political Constitution, in its article 50, that there be a norm that guarantees the greatest well-being for all the inhabitants of the country, not only by organizing and vigorously stimulating production, but also by guaranteeing the most adequate distribution of wealth. It cites rulings 1273-95 and 5907-2007 of this Constitutional Chamber.

It asserts that, in the case of the JAPDEVA docks, it is clear that since these have been in operation for many years, here its workers have not only contributed to the well-being of the Nation, but also, thanks to the possibility of affiliation with a union such as SINTRAJAP and having a collective bargaining agreement (convención colectiva), they have been guaranteed the best possible working conditions, including the best possible salary or remuneration according to the type of work, taking into account not only their professional expertise, but also the physical or mental effort of their labor, and also the risk of their particular work, aspects that are not always taken into account when implementing minimum wage policies and, therefore, it is clear that the policy of outsourcing (tercerización) of port services is to the detriment of these social and labor achievements, given that the new JAPDEVA workers will have to fall back on a minimum wage policy, since they will not be direct employees of JAPDEVA, but rather will be employees of a company that will seek to obtain the greatest possible profit from their work and for this will adopt a minimum wage policy, which in its view will violate the special protection granted by Article 121, subsection 14, of the Political Constitution, not only because it is a matter of national security, but because dock workers have always been JAPDEVA workers and have always had a remuneration that guarantees the greatest distribution of wealth.

It considers that the legislators were right, especially Epsy Campbell and Margarita Penón Góngora of the Partido Acción Ciudadana, when they filed an unconstitutionality action (acción de inconstitucionalidad) in 2004, alleging at that time that the norms and acts they were challenging, which sought the concession (concesión) or outsourcing (tercerización) of the Pacific docks, insofar as they considered that only through constitutional reform could the Nation's docks be released from their status, by virtue of the special protection granted by Article 121, subsection 14), of the Political Constitution. A norm which, according to the constituent deputies, must be interpreted in the sense that the docks, in no way, should leave the domain of the Nation, nor be given in exploitation to private parties. However, 17 years later, the same Partido Acción Ciudadana, in the person of Andrea Centeno, seeks to do in the Atlantic ports what 17 years ago, deputies Epsy Campbell and Margarita Penón Góngora, of that same political party, attempted to prevent in the Pacific, which can not only put the Nation's security at risk —by seeking to transfer even the security of the docks to a private company—, but also, with this, by outsourcing (tercerizar) the activity currently performed by JAPDEVA workers, who receive incomes that allow for a good distribution of wealth in the province of Limón, now there will be workers who will only receive the legal minimum with the longest possible working hours, to perform the same tasks that JAPDEVA workers perform efficiently and safely today, and this only to "lower costs" and thereby allow a few businesspeople to profit from the work their workers will perform, which will increase inequality in the country. This violates the principle of social justice.

He points out that an attempt will be made to argue that outsourcing (tercerización) is a policy aimed at rescuing JAPDEVA economically, but it was public and notorious that JAPDEVA, in 2018, at the beginning of the current Government, had a surplus that even allowed the Government to use its funds to repair the Matina dike; however, it was with the start of APM TERMINALS' operations, when the servicing of all container ships was transferred to that terminal, that JAPDEVA saw its budget reduced, its financial situation worsened, and it finally led to the Law that Transforms the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, with which the situation of the province of Limón has worsened, as it has meant the cessation of work for more than 600 direct JAPDEVA employees, people who had a decent income that fostered a good distribution of wealth, to having a company that performs the same work that JAPDEVA performed at a much higher cost for exporting and importing business owners, and with much lower salary policies than those JAPDEVA had, which has deteriorated the economic situation of the province of Limón, since the wealth is no longer being distributed among its population, but is instead leaving the country because the concessionaire is a foreign company, and if the institution's current services are outsourced, this grave situation in the province of Limón will worsen even further, since the money will go to a few business owners who are probably not even from Limón and the workers will earn only the bare minimum to subsist.

The petitioner indicates that there is an aspect to consider from the perspective of constitutional rationality, which is that as a result of the implementation of this concession to APM TERMINALS, the cost of imports and exports through the Atlantic increased, which reduced the country's competitiveness in the international market for its products; but more seriously, the TCM is at the limit of its operating capacity, since far from increasing the operating capacity of the Atlantic ports, it rather decreased. Moreover, before the implementation of such a concession, with rates much lower than the current ones for servicing container ships, the exporting and importing sector benefited from very competitive regional rates, and with this income JAPDEVA managed not only to pay its payroll of 1400 employees, but also allowed it to carry out works in the Vertiente Atlántica, such as the repair of the dike in Matina in 2018. That is, the income from servicing ships allowed the 1400 employees not only to receive a minimum salary, but also, through historic struggles and the collective bargaining agreement (convención colectiva), allowed the 1400 employees to have incomes even above the average compared to other institutions in the country, and this allowed for a better distribution of wealth in Limón and the country, since these 1400 employees mostly spent this money within Limón. With the start of APM TERMINALS' operations, JAPDEVA encountered a marked reduction in its current income and this forced the Central Government to transfer money from the central budget to the institution to finance this financial hole, as well as to modify the Organic Law of JAPDEVA to allow it to dispose of more than 900 jobs at the institution, forcing the Central Government to finance early retirements, horizontal transfers to other institutions, and all of this to allow a concession that has proven to be more expensive for the country to be maintained, since it is reducing the competitiveness of exports and imports, as well as to allow a concession that did not increase the port capacity of the Atlantic, but rather decreased it.

A final negative effect of this concession is that APM TERMINALS' revenues, given its low wage policy, are mostly profits, meaning they are substantial sums of money that leave the country as it is a foreign concession; that is, this concession fosters a negative balance of payments for the country, since millions of dollars leave the country annually as a result of the revenues this foreign concessionaire receives from its high tariffs, impoverishing not only workers and citizens in general by raising the cost of living, but also favoring an impoverishment of the country as a whole, which in the long run is causing greater inflation, greater devaluation of the colón, and is thus favoring the economic crisis the country is going through, which affects all citizens. He requests that, consequently, this acción de inconstitucionalidad be declared with merit.

2.- To substantiate his standing (legitimación), the petitioner argues that this acción de inconstitucionalidad does not require a prior judicial or administrative case, pursuant to articles 7, 50, and 89 of the Constitution, in connection with the matter under discussion in this case, and the provisions of article 75, second paragraph, of the Ley de la Jurisdicción Constitucional, because there is a manifest diffuse interest at stake, which is respect for constitutional legality regarding the proper handling of public funds. In this matter, given that the right to the proper handling of public domain assets is involved, which goes hand in hand with the proper handling of public funds, the standing (legitimación) therefore derives from the cited article 75, second paragraph, of the Ley de la Jurisdicción Constitucional. He points out, on the other hand, that a harmonious interpretation of article 60 of the Constitución Política, in relation to numerals 7, 11, and 12 of the International Covenant on Economic, Social and Cultural Rights, allows one to derive that, among the powers of unions, is included the search for decent living conditions for workers, the defense of the right of workers and their families to the enjoyment of the highest attainable standard of physical and mental health, and the improvement of all aspects of occupational and environmental hygiene. This legitimizes SINTRAJAP to file this acción, since, as a result of the way the situations of this concession have unfolded, the jobs of hundreds of JAPDEVA employees affiliated with SINTRAJAP have been affected.

3.- Article 9 of the Ley de la Jurisdicción Constitucional empowers this Chamber to reject outright or on the merits, at any time, even from its presentation, any procedural action brought before it that proves to be manifestly inadmissible, or when it considers there are sufficient grounds for rejecting it, or that it constitutes a mere reiteration or reproduction of a previous, identical or similar rejected action.

Drafted by Magistrate Castillo Víquez; and,

Considering:

I.- PURPOSE OF THE ACCIÓN. The petitioner challenges, first of all, subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as they provide:

“Article 2.- Coverage 1.- Any work and its operation are subject to concession when there are reasons of public interest, which must be recorded in the file by means of a reasoned act.

Telecommunications, electricity, and health services are excluded from the application of this Law.

2.- Railways, railroad lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out therein may be concessioned, and not the existing ones.

Seventy percent (70%) of what the granting authority (Administración) obtains pursuant to Article 42.1 a) of this law, by reason of the new works or expansions concessioned at the cited docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as appropriate, to be exclusively used for investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has expired, said works shall pass to the ownership of the aforementioned entities, as appropriate.” (emphasis not in original) “Article 5.- Definition and action:

1.- For the purposes of this law, the granting authority (Administración concedente) is understood to be the Executive Branch, public enterprises, and the territorial and institutional decentralized sector.

2.- When the object of the concession falls within the scope of competence of an organ of the Executive Branch, the National Concessions Council (Consejo Nacional de Concesiones), with the legal, technical, environmental, economic, and financial feasibility of the project having been previously demonstrated, shall be the competent technical entity to act in the procurement procedure stage and, when necessary, during the execution of the contract.

The contract shall be signed by both the Executive Branch, represented by the corresponding minister, the Minister of Finance, and the President of the Republic, and by the National Concessions Council.

3- When the object of the concession falls within the scope of competence of the decentralized sector, public enterprises, and local governments, such public entities, individually or grouped, through an agreement signed with the National Concessions Council, may agree with this body on the procedure for selecting the concessionaire and the execution of the concession contract.

4.- It corresponds exclusively to the Executive Branch, considered in the terms of Article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, railroad lines, docks, and international airports, both new and existing. The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law.

5.- Cases in which the decentralized sector or public enterprises grant concessions directly shall be governed by this law.” (emphasis not in original) It also challenges ordinal 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA), Law No.

9764 of October 15, 2019, which amended subsection 1 of the Organic Law of JAPDEVA, in order to establish—the latter—that:

"Article 1°- The Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica is created, hereinafter referred to as Japdeva, as an autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of Port Authority; it shall be responsible for constructing, administering, operating, subcontracting, granting concessions for, and undertaking any other financial mechanism permitted by national regulations, to develop port services, its own administrative management, and investments, constructions, and improvements, in the maritime and river ports of the Vertiente Atlántica, with the exception of those operating under subsection h) of Article 6° of this law. It shall administer and coordinate with any body of the Public Administration, centralized or decentralized, for the channeling of the Atlántico and the lands and assets that this same law grants it." Finally, it requests that the unconstitutionality of the public works concession contract with public service for the design, financing, construction, exploitation, and maintenance of the Moín container terminal also be declared.

II.- ON THE ADMISSIBILITY OF THIS UNCONSTITUTIONALITY ACTION. This Chamber considers that the plaintiff has sufficient standing to challenge the unconstitutionality of subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as well as article 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended subsection 1 of the Organic Law of JAPDEVA, insofar as it expressly alleges the defense of diffuse interests, regarding the "correct management of public domain assets (bienes demaniales)", given that this Court has deemed that, effectively, the defense of "assets of the constitutional public domain (bienes del dominio público constitucional)" constitutes a case of diffuse interests that grants direct standing for the filing of an unconstitutionality action (Voto 2011-2698) and that the "defense of the Nation's own patrimony, formed by all the assets that make up the public domain, constitutionally recognized in Article 121, subsection 14)" enjoys "privileged protection through the possibility that any person, based on the authorization conferred in this regard by Article 75, paragraph 2° of the Ley de la Jurisdicción Constitucional, directly files the unconstitutionality claim" (Voto 2005-05651).

Now, pursuant to Article 9 of the Ley de la Jurisdicción Constitucional, this Court may reject any proceeding on the merits, even from its presentation or in limine litis, when it considers that there are sufficient elements of judgment, which is the case in the sub lite matter, regarding such normative provisions, as will be analyzed in the following considerandos.

Specifically regarding the public works concession contract (Contrato de concesión de obra pública) with public service for the design, financing, construction, exploitation, and maintenance of the Moín container terminal, this Tribunal considers that the present action is inadmissible due to its object, therefore its outright rejection is appropriate, as will also be analyzed in the respective considerando.

III.- ON THE CHALLENGE TO SUBSECTIONS 2) AND 3) OF ARTICLE 2 AND SUBSECTION 4) OF ARTICLE 5 OF THE LEY GENERAL DE CONCESIÓN DE OBRAS PÚBLICAS CON SERVICIOS PÚBLICOS. Regarding this first aspect of the action, the plaintiff alleges that, according to an adequate interpretation or understanding of Article 121, subsection 14, final paragraph, of the Political Constitution, the application of the legal concept of concession (concesión) in the case of docks is unconstitutional, which causes the unconstitutionality of subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos. In response to such reproach, it must be noted that this Chamber has already ruled on the constitutionality of said regulations and has made express reference to the issue raised by the plaintiff. Thus, in Voto No. 2013-015693 of 16:20 hours on November 27, 2013, issued in Expediente No. 12-009578-0007-CO, this Chamber resolved that:

"IV.- Object of the action.

The petitioner challenges the apparent unconstitutionality arising from subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of Law No. 7762 of April 14, 1998, called “Ley General de Concesión de Obra Pública con Servicio Público” and, by connection, of the Concession Contract for Public Works with Public Service for the Design, Financing, Construction, Operation, and Maintenance of the Container Terminal of Moín, since the required approval of the Legislative Assembly was omitted.

The norms alluded to by the petitioner state the following:

“ARTICLE 2.- Coverage (…)

2.- Railways, railroad lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains under the provisions of Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned at the aforementioned docks, shall be transferred to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be destined exclusively for investments in works in the respective provinces, without being able to be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the aforementioned entities, as applicable” “SECTION I ADMINISTRACIÓN CONCEDENTE ARTICLE 5.- Definition and Action (…)

4.- It corresponds exclusively to the Executive Branch, considered under the terms of Article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, railroad lines, docks, and international airports, both new and existing.

The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law” The petitioner considers that an unconstitutionality by omission occurs, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of Articles 140, subsection 19, and 121, subsection 14, of the Political Constitution, it is extracted that in the case of administrative contracts of special significance related to railways, docks, and national airports, legislative approval is inexorably required, since the Fundamental Law did not provide for the possibility of a special law, as it does in the case of the assets mentioned in sections a), b), and c) of the cited subsection 14. This aspect was not previously examined by the Chamber, according to the petitioner.

Consequently, it requests the following: “(…) that in the judgment, the following be declared unconstitutional by omission: Article 2, subsections 2) and 3) and Article 5, subsection 4), both of Law 7762 of April 14, 1998 (Ley General de Concesión de Obra Pública con Servicio Público) and, by connection, the Concession Contract for Public Works with Public Service for the Design, Financing, Construction, Operation, and Maintenance of the Container Terminal of Moín, of February 13, 2012.

As a subsidiary matter, we request the Constitutional Chamber to declare that article 2, subsections 2) and 3), and article 5, subsection 4), both of Ley 7762 of April 14, 1998 (Ley General de Concesión de Obra Pública con Servicio Público), as the legal basis for the Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, of February 13, 2012, interpreted in accordance with the Law of the Political Constitution, *necessarily entail* the Legislative Approval procedure provided for in the Constitutional Legal Norm resulting from the referral of article 140, subsection 19) to article 121, subsection 14) (…).” Consequently, it is not the object of this action to determine whether article 121 of the Political Constitution prohibits a private party from exploiting legal businesses related to railroads, docks, and national airports by way of a concession (concesión), since the petitioner herself admits this possibility and only objects that the legal effectiveness of such a type of concession is not conditioned upon a subsequent legislative approval.

**VI.- Background of this Chamber.** As the parties rightly state, this Court has had the opportunity to address the issue of legislative approval in certain types of administrative contracts in prior pronouncements. First, in judgment number 3789-92 of 12:00 hours on November 27, 1992, the following was stated:

“III. REGARDING THE CONFLICT WITH ARTICLE 121, SUBSECTION 14 OF THE POLITICAL CONSTITUTION: The consultation states that ‘Some have questioned whether, by empowering the concessionaire to exploit new railroad, dock, and airport installations, in accordance with article six, second subsection of the bill, this might conflict with the constitutional provision that prohibits the alienation of these works, article 121, subsection 14 of our Magna Carta.’ Article 6 of the Bill states:

‘ARTICLE 6.- National railroads, docks, and airports, the latter while in service, may not be alienated, leased, or encumbered, directly or indirectly, nor may they, in any way, leave the ownership and control of the State.

‘The concessions granted to build and exploit new railroad, dock, and airport installations must be processed in accordance with this Law and approved by the Legislative Assembly, within a period not exceeding forty-five days from their submission.

‘Complementary or non-essential public services, located in railroads, docks, and airports, may be granted in concession.’ As can be observed, *the first paragraph of article 6 coincides with what the Constitution establishes in the last paragraph of article 121, subsection 14). It is essentially an “echo norm.”* For the rest, it should be noted that the concession for the construction and exploitation of new railroad, dock, and airport installations *is subject to a qualified procedure, since it ultimately requires approval by the Legislative Assembly*, except for this fact, and because in this same case the concession may be granted for a term of ‘up to fifty years’ (article 9 of the Bill), the institute in no way differs from the concession of public works (concesión de obra pública) in general, as regulated in the Bill” (the emphasis does not belong to the original).

As can be verified from reading that excerpt, this Court had indicated the existence of a “qualified” procedure for the case of concessions for the construction and exploitation of new railroad, dock, and airport installations, since they ultimately required approval by the Legislative Assembly. However, in judgment number 6240-93 of 14:00 hours on November 26, 1993, the Chamber varied its criterion regarding the specific point that is the object of this action:

“II.- In the consultation processed under #4171-93, consolidated with the previous one, the Deputies question article 9 of the Bill, in that *it grants powers to the Executive Branch to sign contracts for the exploration and exploitation of hydrocarbons, without subjecting them to legislative approval*.

This norm, together with that of Article 13(d), sets forth the powers of the Technical Council (Consejo Técnico) and the Director General of Hydrocarbons (Director General de Hidrocarburos), as follows: "Article 9...

• h)To approve contracts for the exploration and exploitation of hydrocarbons." "Article 13...
• d)To sign the contracts for the exploration and exploitation of hydrocarbons and submit them for the approval of the Technical Council." The Chamber (Sala) considers that, in accordance with its judgment #3789-92 of 12:00 noon on November 27, 1992, Article 121.14) of the Political Constitution (Constitución Política) contains three distinct, clearly differentiated rules: "a) The first is a norm that empowers the Legislative Assembly (Asamblea Legislativa) to decree the alienation or application to public uses of the Nation's own property. On one hand, this norm is unrestricted insofar as it refers to all of the Nation's own property, and, on the other, it reserves the matter to the law, invalidating administrative acts of alienation or application to public uses not based on a prior law; b) The second prescribes which property may never permanently leave the domain of the State. For those categories, which are set forth in subsections a), b), and c), the restriction is total and absolute regarding leaving the domain of the State, but the norm immediately moderates its severity by warning that such categories of property may be exploited by the public administration or by individuals in accordance with the law or through a special concession; c) The third is a norm that refers specifically to certain property (functioning national railways, docks, and airports) not included in the three categories of the preceding norm." Consequently, the Constitution provides two regimes for exploiting those specially protected natural resources, without any of them being able to leave the domain of the State: One, that of concessions or contracts granted by the Legislative Assembly directly, in the exercise of an original power; the other, the possibility of exploiting them by the Public Administration (Administración Pública), or of entrusting them to individuals, through a legally granted or authorized concession. Both possibilities presuppose the power of the Legislative Assembly to establish, in the specific case, or to regulate in a general law, mandatory "conditions and stipulations" in the execution of the contract—such as its temporary nature, manner of compliance, minimum obligations of the executor, etc.—which place the possibility of departing from them beyond the reach of the concessionaires or of the agreement itself of the parties. It is not idle to recall that the administrative act of concession never acquires the character or rank of law, even if it is processed and adopted as such (arts. 140.19 and especially 124.2 Constitution).

III.- Thus, one of the forms established therein, obviously foreseeing how difficult and complicated it can be to have to go to the Legislative Assembly for the approval of each individual concession contract, is that of a general regulatory law, commonly known as a "framework law" (ley marco). In this case, the Legislative Assembly vests in the Public Administration the power to grant specific concessions, a power which, of course, does not include that of completely substituting the function of the former, as will be discussed further on.

(...)

This norm vests the Executive Branch (Poder Ejecutivo) with original constitutional authority for the signing of administrative contracts, whether they are agreed upon with individuals or with other public entities—as administrative contracts that they are—in accordance with which, and also in light of the scheme of separation of powers of the Branches of State, it is a power exclusive to the Executive Branch, specifically the President together with the relevant Minister, whereas Article 121, subsection 14), in matters reserved by the Constitution itself by virtue of their capital importance, does not expressly provide for said authority when the Legislative Assembly does not opt to grant the concession itself but rather to regulate it so that the Administration may do so." (emphasis not in original) In this way, the Chamber began to recognize the possibility that the Legislative Assembly could regulate, through a general concession law, the contracting process for the approval of each individual concession contract, foreseeing how difficult and complicated it can be to have to go to the Legislative Assembly for the approval of each individual concession contract.

Thus, the Legislative Assembly would vest in the Public Administration the power to grant specific concessions.

This criterion related to the approval of a general law on administrative contracting was subsequently reiterated through judgment number 2319-98 of 17:51 hours on March 31, 1998, in which this Tribunal held the following:

"III.- ON THE MERITS OF THE QUESTIONS CONSULTED: Having clarified the points on admissibility and scope of the consultation formulated, the ruling on the merits proceeds. In summary, the consultation refers to three aspects of the Project. On one hand, it is questioned whether the consulted project is contrary to the provisions of article 121 subsection 14 of the Political Constitution, in accordance with the parameters that this Chamber has defined. In the opinion of the consultative parties, while it is possible to grant concessions for railways, docks, and airports, which are property of the Nation, it is not possible to grant an authorization to the Executive Branch for such purposes in a generic manner in the Framework Law; rather, the Legislative Assembly must authorize the contract in each individual case.

(...)

In the criterion of this Chamber, nothing prevents the Assembly, through a framework law, from empowering the Executive Branch to grant public property in concession, without a specific approval being necessary for each particular case, since it is understood that it has given a general approval for such purpose, in compliance with the Constitution itself. In summary, regarding this aspect consulted, the Chamber does not find any unconstitutionality" (the underlining does not correspond to the original) In the same vein, vote number 2005-005651 of 14:41 hours on May 11, 2005, can be cited, through which the Chamber again authorized the existence of a general law in which the Legislative Assembly could delegate to the Executive Branch the signing and approval of administrative contracts in general. In this regard, the following was stated:

"(...) In the cited judgment, it is clearly stated that the possibility of granting concessions for property such as docks, within the parameters described by the Chamber, does not constitute a violation of the Political Constitution, since in accordance with the nature of the 'concession,' these properties are not being disaffected, because they are not being separated from the public purpose to which they are linked; therefore, they do not leave the public domain, nor are they being alienated, leased, or encumbered, so the alleged violation does not occur. Now, in this study we are talking about two distinct concession figures: the public works concession with public services, regulated in the Law challenged here, and the public service management concession regulated in the Administrative Contracting Law. Both involve different modalities of concession, but in any case, as already indicated, they do not violate article 121 subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was in process:

(...)

In the case of public works concessions with public services, the General Public Works Concession Law is applicable as a framework law, and for the public service management concession, the Administrative Contracting Law, articles 74 and 75. In that understanding, it is not unconstitutional for the public administration to grant concessions for these properties within the parameters that this Tribunal has indicated. On the other hand, as the plaintiffs themselves indicate, article 2 subsection 3 challenged here states: '...

In the case of the docks of Limón, Moín, Caldera and Puntarenas, under this law, only new works or expansions carried out there may be granted under a public works concession with public service (concesión), and not the existing ones.”, in accordance with Article 121(14), so that whether the challenged bidding processes violate such provision is a matter that must be determined through the legality review process, since we would consequently not be facing a constitutional violation, but rather a disagreement with the application of the law” (emphasis not in the original).

In summary, it can be stated that the jurisprudential line regarding the issue of legislative approval for certain administrative contracts of national relevance has determined as constitutional that, through a general concession (concesión) law, the Legislative Assembly delegates to the Executive Branch the signing and final approval of administrative contracts, including those whose purpose is public property of special importance, such as those considered that way by the Constituent Assembly in Article 121(14) of the Political Constitution.

VII.- On the merits. The scope of the invoked constitutional norms. As was well indicated in recital V of this judgment, the plaintiff considers that there is an unconstitutionality by omission in Articles 2, subsections 2) and 3), and 5, subsection 4), both of Law No. 7762 “General Law of Public Works Concession with Public Service (Ley General de Concesión de Obra Pública con Servicio Público)”, in that they do not provide for the legislative approval procedure set forth in numerals 140(19) and 121(14) of the Political Constitution. In order to determine whether the petitioner is correct in their arguments, it is necessary to analyze the structure and content of the constitutional norms that the plaintiff claims are infringed, with the objective of subsequently comparing the legal norms in what they state and in what they omit with the constitutional ones, in order to determine their validity under the Law of the Constitution.

7.1) In the first place, ordinal 121(14) of the Fundamental Charter indicates the following:

“ARTICLE 121.- In addition to the other powers conferred upon it by this Constitution, it corresponds exclusively to the Legislative Assembly:

(…)

• 14)To decree the alienation or application to public uses of the Nation's own property.

The following may not permanently leave the domain of the State:

• a)The power that may be obtained from public domain waters in the national territory; b) Coal deposits, oil sources and deposits, and any other hydrocarbon substances, as well as deposits of radioactive minerals existing in the national territory; c) Wireless services; The property mentioned in subsections a), b) and c) above may only be exploited by the public administration or by private parties, in accordance with the law or through a special concession (concesión especial) granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly.

National railways, docks, and airports—the latter while they are in service—may not be alienated, leased, or encumbered, directly or indirectly, nor leave the domain and control of the State in any way.” The cited subsection is structured into three general norms (without prejudice to the existence of other more specific norms), as this Chamber has determined since its beginnings: “Article 121(14) contains three different norms, which must be clearly differentiated” (Judgment 3789-92). The first of them is found in the first paragraph of that subsection and establishes a general rule. The following two constitute exceptions to the rule. Of these, the second is contained in the second paragraph, sub-subsections a), b), and c), and the third paragraph of the subsection in question, where a distinctive regulation is established in relation to the power obtained from waters, coal deposits, oil sources and deposits, hydrocarbon substances, deposits of radioactive minerals, and wireless services.

Finally, the third norm is located in the last paragraph of the subsection and is related to national railways, docks, and airports in service.

Regarding the first norm, the Chamber has stated that; "it enables the Legislative Assembly to decree 'the alienation or the application to public uses of the Nation's own property.' On one hand, this norm is unrestricted insofar as it refers to all of the Nation's own property, and, on the other, it reserves the matter to statute, invalidating administrative acts of alienation or application to public uses not based on a prior statute." Thus, through this norm, the constituent power attributes general competencies to the Legislative Assembly over the Nation's property in two specific cases: alienation and application to public uses.

Alienation (enajenación) consists of the transfer of ownership of a good or the title to a right to a different estate. Disposition (disposición) is not synonymous with alienation; there is a genus-to-species relationship between them. Alienation is a form of disposition of the good, consisting of the displacement of the good from one estate to another. The alienation of the principal good entails that of its accessories (principle of accessoriness) and the liability of the transferor for defects and eviction. Limitations on alienation are imposed by statute or by the Constitution itself, and prevent the temporary or definitive alienation of the good. As a general rule, goods dedicated to public domain (dominio público) cannot be alienated unless there is a legal provision to the contrary.

Thus, in accordance with the provisions of the first paragraph of subsection 14 of Article 121 of the Constitution, it falls to the Legislative Assembly, in exercise of the legal reserve granted to it by the Political Constitution, to alienate, that is, to transfer the domain of the Nation's property to a third party, or to allocate them to public uses: common or special, while they remain in its estate. Public administrations only have competence in this matter based on a prior statute that expressly enables them.

The second norm of subsection 14 of Article 121 of the Constitution contains an exception to the general rule that empowers the legislator to alienate the Nation's own property. Indeed, the norm refers to goods that cannot leave the State's domain, which cannot be alienated but can be exploited by the Public Administration or by private parties in two ways: **a)** in accordance with the Law or **b)** by special concession (under the conditions and stipulations established by the Legislative Assembly). Regarding this norm, the Constitutional Chamber stated: "The second prescribes which goods 'may not definitively leave the domain of the State.' For those categories, which are enunciated in subsections a), b), and c), the restriction is total and absolute regarding 'leaving the domain of the State,' but, immediately, the norm moderates its severity by warning that such categories of goods can be 'exploited by the public administration or by private parties' in accordance with the law or by special concession." (Judgment #3789-92).

The third norm, contained in the last paragraph of subsection 14 of Article 121 of the Political Constitution, is of special relevance for the decision of the sub examine, as it refers specifically to railways, ports, and airports. Regarding this norm, the Constitutional Chamber stated in judgment number 3789-92 of 12:00 hours on November 27, 1992, repeatedly cited in the jurisprudence of this Chamber, the following:

"The third is a norm that refers specifically to certain goods (national railways, docks, and airports in service) not included in the three categories of the preceding norm.

If nothing is said about these assets, they would be covered by the enabling rule with which subsection 14) begins, as has already been seen.

But the existence of this specific provision implies a distinct legal regime for these assets, which rigorously limits the general principle of alienation and application to public uses: such assets "may not be alienated, leased, nor encumbered, directly or indirectly, nor in any way leave the ownership and control of the State." The rule alludes, in the first place, to alienation, lease, or encumbrance, but the expression "directly or indirectly," in the strict context of the provision, can refer either to the situation in which the State proceeds by itself or through other legal entities (subjective sense), or to cases in which modalities or means are employed that have equivalent or similar legal consequences or effects, even though they may not technically involve alienation, lease, or encumbrance (substantive sense).

Subsequently, this rigor is confirmed by the expression "nor in any way leave the ownership and control of the State," an expression that must also be given broad coverage of hypotheses due to the vocation of the rule.” It is deduced from the rule that the prohibition against alienating or encumbering, directly or indirectly, railways, ports, and national airports in service constitutes an exception to the rule of the first paragraph of subsection 14, which empowers the Legislative Assembly to alienate the nation’s own assets. On the contrary, the prohibition against leasing, directly or indirectly, railways, ports, and national airports serves to strengthen the second idea of the first paragraph, relating to the destination of these assets for public uses. Both prohibitions become constitutional guarantees. The first protects certain strategic assets for the Nation’s economic development, so that they in no way leave the State’s patrimony. The second protects the public use of such assets. With the first, the constitutional framer removed this competence from the Legislative Assembly and, even more so, from the Administration, and reserved the matter to the Constituent Power, such that by virtue of the principles of parallelism of forms and conservation of rank, the alienation of any of these assets requires a prior constitutional reform. With the second, the private use of such assets is prohibited.

It is logical that if the Constitution imposes the prohibition against alienating railways, ports, and airports, directly or indirectly, it also prevents them from being encumbered. The *ratio iuris* is evident: the constitution of a mortgage on these assets, as collateral for example for a public loan, would entail the risk of loss of ownership. The mortgage is not only a concept foreign to the regime of public domain assets, but, moreover, in this case it is prohibited by the fundamental rule itself.

The Constitution rejects any legal concept that involves the direct or indirect alienation of the asset. To that extent, concepts such as seizure would also be prohibited. Seizure, in *stricto sensu*, does not inexorably imply an alienation, as it responds to a security measure to prevent the owner of the thing from disposing of it; however, it entails the risk of an eventual alienation, since that precautionary measure, in the last instance, tends to ensure the forced sale of the asset when the contractual obligation it guarantees is breached. Given the constitutional prohibition, seizure would also be prohibited, insofar as it poses a risk of loss of ownership. Seizure would also be improper due to the ordinary judge's lack of competence to change the use to which the Constitution assigns these assets, and he cannot, consequently, order a seizure nor proceed with its execution.

Railways, ports, and national airports in service also cannot be the object of judicial execution; regarding them, the action of dispossession, interdicts, or possessory actions are not applicable.

Now, the Constitution establishes an absolute prohibition against alienation but in no way a total prohibition against other types of disposition of the asset (with the reservation that they not leave the ownership and control of the State in the case of railways, docks, and airports). Is concession constitutionally possible in the context of the rule?

The answer is affirmative and the ratio iuris is self-evident: the concession does not constitute an exception to the prohibition on alienation, as ownership of the asset remains with the State or the competent Administration; nor does it constitute an exception—as a lease does—to the application of said assets to public uses, to the extent that the concessionaire satisfies, through its management, the public purposes that the Administration would be responsible for fulfilling if it were to assume such public service with its own resources.

Regarding the constitutional viability of the concession based on this provision, the Chamber stated:

“…if one contrasts the brief enumeration of some characteristics of the concession made earlier with the provisions of Article 121, subsection 14), the following comments arise. The term 'alienation' (enajenación) entails the transfer of ownership or title of the thing or the right to another person, which does not occur with the concession, since according to the very terms of the Project, the State retains ownership over them, to the point that it could recover them—if for reasons of public interest it were to deem it so—upon prior indemnification to the concessionaire (…) although it is true that there is a term for its exploitation, the State—as indicated—can recover it despite the established term, and the economic benefit the concessionaire receives consists exclusively of the fee or sum of money paid by the users. Neither does it imply encumbrance of the asset, as follows from the articles of the Project. In other terms, the public work constructed will always belong to the State. Hence, as a public domain asset, it will enjoy the characteristics of imprescriptibility, inalienability, and immunity from seizure that are inherent to this type of assets.

Consequently, given the prerogatives that the project reserves to the Administration, it is not reasonable to understand that the assets subject to the concession leave or could leave—directly or indirectly—the ownership and control of the State. To the above must be added the broad powers of control or oversight that the State reserves for itself, including with regard to the stipend (fees for provision of the public service) that the concessionaire will receive, which must be fixed by the competent bodies of the Public Administration indicated in the Project, all based on principles of justice and reasonableness characteristic of public law.” (Judgment of the Constitutional Chamber number 3789-92).

Doctrinally, the concession falls within the scope of so-called indirect management contracts, since the concessionaire carries out the works or manages the services that the Public Administration is responsible for constructing or providing. The State continues satisfying the social need and attending to the public purpose, only instead of doing so with its own resources, it does so through a third party (the concessionaire). In this type of contract, the Administration cedes the construction of the work and the provision of the service, but retains ownership. The concession, which is the legal title by virtue of which the private party acts, introduces a relationship of special subjection between the concessionaire and the Administration, in which the Administration exercises exorbitant powers of direction, regulation, surveillance, control, and sanction to achieve the public objectives, without prejudice to a certain autonomy of the concessionaire to act and manage within the legal framework that the concession entails. Due to this and because it offers a service belonging to another but in its own name, the concessionaire is responsible to third parties for its actions. Obviously, it will also be administratively (fines) and civilly liable for the damages caused to the granting Administration. In short, the concession does not entail loss of ownership of the public asset and, therefore, does not constitute a violation of the prohibition on alienation contained in the fourth paragraph of subsection 14 of Article 121 of the Constitution.

The concession also differs from a lease, a form of disposition of an asset by virtue of which the lessor is obligated to deliver the leased object for a determined price and time, under conditions to be exploited by the lessee. The main effect is that through the lease, the use and enjoyment of the thing is transferred to the lessee.

In such a case, although ownership of the asset is not transferred, the truth is that the use and enjoyment of the asset in question would be reserved to the autonomy of the lessee's will; the asset would no longer be used for the benefit of Costa Ricans but rather for the lessee's own use, private, extraneous to public use.

The prohibition on leasing is not an exception to the rule on alienation established in the first paragraph of subsection 14 under analysis, because as we have seen, leasing does not compromise ownership of the asset; however, it is unconstitutional because it violates the rule that a public asset must be destined for private use. That said, it is an interpretive error to extend, by analogy, the prohibition on leasing to that of granting a concession (concesión), because in this latter figure, unlike leasing, the Administration continues to destine the asset or service to public use and continues to be responsible for satisfying the social needs pursued through the asset, only through indirect management.

With these explanations made, it is clear that through the concession (concesión), the constitutional assertion is fully satisfied that it shall "nor in any way leave the domain and control of the State." Obviously, the foregoing does not preclude a careful examination of the particular characteristics of each concession (concesión), since in the case of railways, docks, and national airports, it is prohibited not only that they leave the domain of the State, but also that they fall outside its control. The foregoing implies that the clauses of a concession (concesión) cannot reach such an extreme that the State's capacity for control over the concessionaire is materially and essentially undermined.

**7.2)** Article 140, subsection 19) of the Political Constitution stipulates the following:

"ARTICLE 140.- The following are duties and powers that belong jointly to the President and the respective Government Minister:

(…)

**19)** To sign administrative contracts not included in subsection 14) of Article 121 of this Constitution, with the reservation of submitting them to the approval of the Legislative Assembly when they stipulate an exemption from taxes or rates, or have as their purpose the exploitation of public services, natural resources, or riches of the State.

The legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime. The provisions of this subsection shall not apply to the loans or other similar agreements referred to in subsection 15) of Article 121, which shall be governed by their special rules.

(Thus added the previous paragraph by Article 2 of Law No. 5702 of June 5, 1975)" For the sake of a better understanding of the rule, we must fully identify which contracts are subject to such provisions and which contracts fall outside the scope of its regulation.

The rule establishes a general principle that could be summarized as follows: "It is the duty and power of the Executive Branch to sign administrative contracts." However, there are two types of contracts that, by express provision of subsection 19 of Article 140 of the Magna Carta, fall outside the reach of that general rule: **a)** those included in subsection 14 of constitutional numeral 121, and **b)** the loans or other similar agreements referred to in subsection 15 of Article 121 of the Political Constitution. These types of contracts are governed by their special rules and not by the provisions of cited subsection 19.

Within the contracts governed by the rule, we can find two types: those that require legislative approval and those that are perfected without legislative intervention. Within the former, we find three classes of administrative contracts: **a)** those that "stipulate an exemption from taxes or rates," **b)** those that "have as their purpose the exploitation of public services," and finally, **c)** those that have as their purpose the "natural resources or riches of the State." In this case, it falls to the Administration to promote the bidding process: the opening of the competition, the selection of offers, and the awarding of the contractor; however, such an act is valid but not effective, because for that, the approval of the Legislative Assembly is required.

Thus, approval constitutes a useful administrative act as a control technique that removes obstacles to effectiveness and whose understanding lies in the strategic relevance of the goods and resources at stake in national development. Indeed, as a consequence of such significance, the Constituent imposes the requirement of legislative approval as a reinforced guarantee or protection, founded on the principles of control, democracy, and cooperation among the Branches of Government. It is a legislative act of collaboration with the administrative function, separate from the competence of legislative creation proper: "Legislative approval of these contracts shall not give them the character of laws nor exempt them from their administrative legal regime." (Constitución Política, art. 140 inciso 19 in fine) "Legislative approval of contracts, agreements, and other acts of an administrative nature shall not give those acts the character of laws, even if done through the ordinary procedures of these." (Constitución Política, art. 124 in fine).

Regarding public services, the question arises as to whether every contract with that purpose must be submitted to legislative approval. The Chamber considers that for a better understanding of the scope of this provision, an exercise in historical reading and interpretation is essential, for which purpose the intention expressed by the Original Constituent in the Records of the National Constituent Assembly must be taken as a basis. Precisely, for this subsection, a clear and unequivocal will of the Constituent is confirmed, which is that legislative approval for contracts whose purpose is the exploitation of public services is solely referred to those involving large-scale projects of national importance. Observe the literal wording of the Constituent's intention:

"Article 2º.- Deputy LEIVA presented a motion to add a subsection to the article referring to the powers and duties of the President together with the respective Government Minister, stating as follows:

"Sign administrative contracts not covered in subsection 14) of article 97 of this Constitution, subject to submitting them to the approval of the Legislative Assembly, when they stipulate exemption from taxes or fees, or have as their purpose the exploitation of public services or the State's natural resources and wealth.

Excepted are cases governed by special laws." [140.19] The proponent explained that his motion almost entirely was included in the 1949 Draft, subsection 10), article 232. Messrs. Trejos and Esquivel had presented it as a motion, but later withdrew it, since it was said that subsection 14), article 97, already approved, contemplated that situation. However, both subsections refer to two different cases.

Mr. ESQUIVEL asked Mr. Leiva if contracts to establish new industries in the country, regulated by laws granting all kinds of facilities to those industries so that they can develop in the country, fall within that subsection and consequently require legislative approval. The proponent clarified to him that the final exception solved the problem. However, Deputy Esquivel indicated that he still had certain doubts, for example, regarding contracts for the exploitation of public services. A contract between the State and a bus company, for example, to transport mail, would it have to come to the Chamber for approval? The proponent observed that those small contracts are always governed by special laws. Most of the time, those contracts are signed, not by the President himself, but by lesser agencies, with the interested parties. His intention is that among the Executive's powers remains that of signing that type of administrative contracts that are not of great magnitude.

The public services referred to in his motion are those of great importance, such as the railways.

When Mr. Leiva's motion was put to a vote, it was approved (Minutes No. 135).

As can be observed, the only public service contracts that require legislative approval are those of great magnitude, within which, it is reiterated, those included in paragraph 14 of Article 121 of the Constitution are excluded, as well as the loans or other similar agreements cited in paragraph 15 of Article 121 of the Political Constitution, since they are subject to a particular constitutional regulation.

Now, the constituent Leiva cites, as an example of a large-scale contract, the railways, which could lead to the conclusion that what is regulated in paragraph 19 of Article 140 of the Political Constitution becomes applicable not only to such railways, but also to the national docks and airports, since these three assets are subject to a common regulation in the last paragraph of Article 121, paragraph 14 of the Political Constitution. However, to explain the reason for such a reference by Deputy Leiva, the historical context in which it occurred must be made clear.

In this regard, the Office of the Attorney General of the Republic (Procuraduría General de la República), in its report rendered in action number 04-003389-0007-CO, clarified the following:

"In accordance with the partial reform to the Fundamental Charter of 1871, which was processed under the name of 'Prohibiting the Alienation of the Pacific Railway and Requiring Two-Thirds of the Votes of Congress to Contract Loans Abroad,' we have that its objectives, according to the statement of motives of the initiative, were the following:

'There is a very marked current of opinion in the country, which tends, by a natural sentiment of national well-being, to secure the Pacific Railway and its terminal docks against the possibility of them being alienated, and to avoid, in view of the enormous debts that exist against the State, the contracting of loans abroad.

Such a current of opinion is amply justified. As to the first point, because of the transcendental importance that the Pacific Railway has for the country, not only as an enabling instrument for an extensive and rich zone of the country, but also as an effective means of defense through the rate competition that it is possible to establish against the Atlantic Railway. As to the second point, because if it is true that loans are indispensable for developing the country's resources, it is also true that, taking into account the enormous debts that burden the nation, only in an exceptionally justified case could a new contracting be authorized, and consequently that legislative authorization must be backed by the two-thirds of votes of Congress.' (See Archivos Nacionales, Fondo Congreso, n.° 17.358, folio 1).

Regarding this constitutional reform, the then President of the Republic, Lic. Ricardo Jiménez Oreamuno, in his report of May 1, 1936, stated, in the pertinent part, the following:

'As an exception to what I have just expressed [about refraining from indicating certain measures because a new administration was about to be inaugurated] and only because the Constitution obliges the Executive to express an opinion when it deals with a reform to the same, I express it with regard to the amendment, in process, to which your decree of August 17 of last year refers. The project has two objectives: that the Pacific Railway and the terminal docks do not leave the domain and control of the State; and that the contracting of loans abroad must be authorized by two-thirds of the votes of Congress. I do not discuss whether in an absolute way it is prudent to oppose, whatever the circumstances may be, any plan that takes the management of the railway out of the hands of State employees. I accept the thesis of the project as good; but if it is good, it is not seen why it should not be applied to the railways and docks of the Atlantic.' It is true that the latter and these are in foreign hands and will remain so for many years, as long as the respective concessions are alive, but, on the one hand, we must assume that constitutional precepts are made to be perennial, as far as humanly possible; and, on the other, that without the constitutional reserve that is being contemplated, **as of tomorrow those lines and docks could be definitively disposed of, or the effects of the current concessions could be extended from now on, or a new concession could be agreed to, for when the current ones expire.** It seems logical, then, that what is provided for the Pacific should also be applied to the Atlantic, and for new railroads and docks.” (See Archivos Nacionales, Fondo Congreso, No. 17,358, folio 10 and La Gaceta No. 101 of May 5, 1936. The boldface does not correspond to the original).

Because of the foregoing, a special commission of the Constitutional Congress charged with studying the issue, subsequent to the speech of the President of the Republic, accepts, in its report of May 25, 1936, in relevant part, the objection of the First Citizen, justifying its proceeding as follows: “Your Special Commission charged with reporting on the constitutional reform project to subsections 15 and 16 of Article 73 in the sense that neither the Ferrocarril al Pacífico nor its terminal docks may be disposed of or leased directly or indirectly or leave in any way the domain and control of the State; and that the contracting of loans abroad requires the approval of two-thirds of the votes of Congress, has the honor of fulfilling its charge in the following terms:

In accordance with Article 134 of the Constitution, the project under study received, after the required formalities, the approval of Congress in decree No. 165 of August 17, 1935 and was passed to the Executive Branch for the effects of subsection 6° of the cited Article 134.- The President of the Republic, in his Message sent to Congress on the 1st of the current month, gave his opinion on the amendment in process. Regarding the reference to the prohibition of disposing of the Ferrocarril al Pacífico and its terminal docks, the Head of the Executive Branch opines and we accept that opinion that the provision should be extended to the Ferrocarril al Atlántico and its terminal docks **and to the new railroads and docks that in the future may be built at the expense of the State.-** Consequently, we consider that the amendment could be drafted in a general and more concise form stating that the national railroads and the terminal docks thereof are excepted from the disposal power that subsection 15 of Article 73 grants to Congress.” (See Archivos Nacionales, Fondo Congreso, No. 17,358, folio 13. The boldface does not correspond to the original).” Such concern for the railroads is understood, furthermore, because “the concessions that were granted to foreign companies were for extremely long terms, just as happened with the Panama Canal and with the railroad to the Atlantic. In this last case, according to the Soto-Keith contract signed in 1884, which was ratified by the Legislative Branch through Law No. 2 of April 21, 1884, clause XXI, **the government ceded and transferred to the company, for the term of ninety-nine years, in full ownership,** the railroads already built and the one to be built between Reventazón and Cartago; moreover, the company was given exemptions to import rolling stock and **public lands were ceded** to it. In clause XXVII, the reversion was regulated, that is, the transfer that the Costa Rica Railroad Company would make to the government, upon the expiration of the ninety-nine years of the railroad concession, with all its constructions and fixed and rolling stock, all of which had to be in good condition.” (See the aforementioned report of the Procuraduría General de la República).

Consequently, Deputy Leiva’s reference to the railroads is explained by the multiple problems and abuses that arose in a stage immediately prior to the 1949 Constituent Assembly. In reality, such concern motivated Congress, acting in a constituent function and by Law No.

14 of June 19, 1936, amended Article 73(15) of the Political Constitution of 1871 (corresponding to numeral 121(14) of the current Constitution), in the sense that, regarding the exclusive power of Congress to decree the alienation (enajenación) and application to public uses of the Nation's own property, it excepted everything concerning all national railways and docks, which could not be alienated or leased, directly or indirectly, nor in any way leave the domain and control of the State. Thus, prior to the 1949 Political Constitution, the constitutional legislator had already opted to regulate this matter through a special rule; subsequently, alongside railways and docks, the framers of the 1949 Constitution added airports.

Ergo, there is a very clear and concrete historical reference that the will of the framers of the 1949 Constitution, following the same line that amended the previous 1871 Constitution in 1936, consisted of regulating everything concerning railways, docks, and airports in Article 121(14) of the Political Constitution. Thus, Article 140(19) of the Constitution does not apply to the contracts referred to in Article 121(14) of the current Political Constitution.

Note that it makes no sense to establish two rules to regulate the same situation, and therefore in the case of railways, docks, and airports, the special rule (121(14)) must be applied, and not the general one (140(19)).

7.3) The systematic interpretation of Articles 140(19) and 121(14) of the Political Constitution.

From what was stated in point 7.2, we have concluded that outside the scope of application of Article 140(19) of that same normative body are the property and administrative contracts regulated in Article 121(14) of the Political Constitution, since this latter provision constitutes a special regulation for those.

It has also been made clear that through the concession (concesión), the constitutional affirmation "nor in any way leave the domain and control of the State" is fully satisfied, as explained in point 7.1 of this ruling.

The question of whether that concession can be regulated by a general law, in which the Legislator sets the conditions for the Executive to grant concessions regarding the property indicated in Article 121(14), has also been clarified by the reiterated case law of this court. Indeed, as examined in point 7.1, the State cannot alienate, encumber, or lease, directly or indirectly, national railways, ports, and airports in service. However, from the cited constitutional provision, it is deduced that the legislator (reserve of law) can indeed regulate the concession of these property, under the protection of the provisions contained in the general rule of the first paragraph of subsection 14: "Decree the alienation or application to public uses of the Nation's own property." Of these two general powers of the Legislative Branch, that of alienation is ruled out in the case of railways, docks, and airports, since the last paragraph of Article 121(14) expressly prohibits such property from leaving the domain and control of the State. However, in the absence of an express prohibition, the figure of the concession, even under a general law, does make it viable to allocate the operation of railways, docks, and airports to public uses, including by way of concession, provided that such property does not leave the domain and control of the State.

This is so because the legislator holds, by express constitutional mandate of the first paragraph of Article 121 subsection 14, the general power to “decree” the application to public uses of the Nation’s assets (first paragraph of Article 121 of the Political Constitution), so that in exercising its power to enact laws, it is not constitutionally barred from executing that constitutional mandate through a general concession law, in which it imposes on the Executive Branch those positive legal conditions necessary to manage the concession (concesión) of such assets and safeguard their public use, which in the case of railways, docks, and airports additionally has the unavoidable limit that their exploitation not leave the domain and control of the State.

Regarding the aforementioned point, this Chamber has already had occasion to rule in judgment number 5651-2005 of 14:41 hours on May 11, 2005:

“… in this study we are speaking of two different concession figures, the public works concession with public services, regulated in the Law challenged here, and the public service management concession regulated in the Administrative Contracting Law. Both involve distinct modalities of concession, but which in any case, as already indicated, do not violate Article 121 subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was pending: (….). In the case of public works concessions with public services, the General Public Works Concession Law is applicable as a framework law, and for the public service management concession, the Administrative Contracting Law, Articles 74 and 75.” In effect, the concession of railways, ports, and airports falls within the scope of coverage of Law number 7762 of April 14, 1998, General Public Works Concession with Public Services Law, which in Article 2 provides:

“ARTICLE 2.- Coverage 1.- Any work and its exploitation are susceptible to concession when reasons of public interest exist, which must be recorded in the file by reasoned act.

Telecommunications, electricity, and health services are exempted from the application of this Law.

2.- Railways (ferrocarriles), railroad tracks (ferrovías), docks (muelles) and international airports, both new and existing, as well as the services provided there, may only be granted in concession (concesión) through the procedures set forth in this law.

3.- In the case of the docks (muelles) of Limón, Moín, Caldera and Puntarenas, by this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains pursuant to Article 42.1 a) of this law, by reason of the new works or expansions that are concessioned at the cited docks, shall be remitted to the Junta de la Administración Portuaria de la Vertiente Atlántica and the Instituto Costarricense de Puertos del Pacífico, as applicable, to be allocated exclusively to investments in works in the respective provinces, and may not be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the aforementioned entities, as applicable." (The bold text does not correspond to the original).

It is concluded that, in relation to railways, ports and airports, the Ley General de Concesión de Obras Públicas con Servicios Públicos comes to be the general law, developed under the provisions of the first paragraph and with the limitations of the fourth paragraph, both of constitutional numeral 121 subsection 14, which establishes a reservation in favor of the Legislative Assembly to regulate these matters observing the limits that the Constitution itself establishes.

Now then, a new point to elucidate, which constitutes the fundamental object of this action, consists of the appellant's allegation that in the sub examine an unconstitutionality by omission has come to occur, since the legislator did not provide for the final approval of such type of concession by the Legislative Assembly, given that from the relationship of Articles 140 subsection 19 and 121 subsection 14 of the Political Constitution, it is extracted that in the case of administrative contracts of special significance related to railways, docks and national airports, legislative approval is inexorably required, since the Fundamental Law did not provide for the possibility of a special law, as it does in the case of the goods mentioned in subparagraphs a), b) and c) of the cited subsection 14.

In this regard, in point 7.2 it has been explained that there is a very clear and concrete historical reference that the will of the constituent of '49, following the same line that in 1936 reformed the previous Constitution of 1871, consisted of regulating everything concerning railways, docks and airports in Article 121 subsection 14 of the Political Constitution. Thus, subsection 19 of constitutional Article 140 does not apply to the contracts contemplated in subsection 14 of ordinal 121 of the current Political Constitution. It should be noted that it makes no sense to establish two special norms to regulate the same situation, so in the case of railways, docks and airports, the special norm (121 subsection 14) must be applied, and not the general one (140 subsection 19).

In addition to the foregoing, certainly, in subparagraphs a), b) and c) of subsection 14 of Article 121 of the Political Constitution it is expressly regulated that the goods contained therein may only be exploited by the Public Administration or by private parties, in accordance with the law or through a special concession (concesión especial) granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly. On the other hand, it is equally true that the last paragraph of the cited subsection, with respect to railways, docks and airports, is silent in indicating that their exploitation may occur in accordance with the law or through a special concession, contrary to what it does with the other mentioned goods.

However, from such regulatory situation, one cannot infer the inexorable logical consequence (from which the appellants proceed) consisting of the fact that in the case of railways, docks and airports, their concession is only viable via legislative approval for each specific case, and not through a framework law.

Firstly, as was already underlined in point 7.2 of this recital (considerando), the goods and administrative contracts regulated in numeral 121 subsection 14 of the Constitution are outside the scope of application of constitutional Article 140 subsection 19, since they are governed by their own special provisions.

Furthermore, it is not possible to deduce from a relationship between section 121(14) and article 140(19) that, regarding concessions for railways, ports, and airports, since these are matters of great magnitude, each specific concession contract for those specific assets must be approved by the Legislative Assembly, given that those assets have specific constitutional regulation (section 121(14)), with content different from that established in article 140(19) of the Magna Carta. That is, while the latter article does inexorably provide for parliamentary approval in contracts of great magnitude, section 121(14) does not.

Secondly, it is necessary to realize that what is natural is for the Legislative Branch to dedicate itself to what is exclusive to it, a deliberative task that results in the production of laws, while the Executive Branch concentrates on what most characterizes it, administrative management (within which everything concerning administrative contracting is included). Beyond those fields, an intervention by any Public Branch in a field that is not its own would only be feasible by express provision of the constituent power or when the essential content of a Branch’s jurisdictional scope is not affected. Precisely, the renowned Costa Rican jurist Eduardo Ortiz Ortiz has emphasized that the Executive Branch is the natural representative of the State in entering into contracts, unless there is an express rule to the contrary, which would have to be unequivocal.

Thus, the logical interpretation of the last paragraph of section 14 of article 121 of the Constitution leans more towards attributing to the Executive Branch that competence most consubstantial with its legal nature, rather than prohibiting it, as the plaintiff claims. In other words, the fact that, in relation to the assets contemplated in sub-sections a), b), and c) of section 14, article 121 of the Political Constitution, their exploitation was foreseen in accordance with the law or by special concession granted for a limited time and under the conditions and stipulations established by the Legislative Assembly, does not mean that regarding the assets regulated in the last paragraph of the referenced article, only the second option (that of a special concession subject to legislative approval) is legally viable, since, on one hand, that paragraph does not prohibit either of the two mentioned alternatives and, on the other, the possibility of a general law fosters a more adequate balance between what is legally most natural to each of the Branches: while Parliament legislates, establishing the positive legal framework for the Executive to administratively manage concessions, the latter is entrusted with entering into this form of administrative contracting.

It should be noted that the constitutional precept for the legislator was that it should not allow railways, docks, and airports to be alienated, leased, encumbered, or removed from the domain or control of the State, without indicating by what means it should guarantee all of that. Without a doubt, the Legislative Branch exercises this attribution through its essential function, which is to legislate, and that is precisely what it does through a general concession law, where it sets the parameters by which the Executive Branch must also direct its essential function as administrator of the State. Thus, it is not a delegation of functions from one Branch to another, but rather each one exercises its competences and powers within the provided constitutional framework.

In virtue of the foregoing, the alleged unconstitutionality by omission of articles 2, subsections 2) and 3), and 5, subsection 4), of the General Law on Public Works Concessions with Public Services (Ley General de Concesión de Obras Públicas con Servicios Públicos) becomes improper. Upon dismissing this ground of unconstitutionality, equally the alleged unconstitutionality by connection of the Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal must be dismissed. Justices Armijo and Cruz dissent and would uphold the action with all its consequences. Justices Jinesta, Castillo and Hernández add a separate note.” 12-009578-0007-CO referred to an alleged omission in the challenged legal provision by not requiring a subsequent approval by the Legislative Assembly of the concession contract granted under the General Law on Concession of Public Works with Public Services, the fact is that this Tribunal carried out a thorough analysis regarding the content and scope of Article 121, subsection 14, of the Constitution and, contrary to what was argued by the plaintiff, this Chamber concluded that the challenged provision was not inconsistent with or a violation of said constitutional provision, insofar as the legal figure of the concession —as a type of indirect management contract, which "does not entail loss of ownership of the public asset" and which implies that the "State continues to satisfy the social need and attend to the public purpose, only that instead of doing so with its own resources, it does so through a third party (the concessionaire)", with respect to which, "a relationship of special subjection is established, in which the Administration exercises exorbitant powers of direction, regulation, vigilance, control, and sanction to achieve public goals"— does not transgress, prima facie, the constitutional prohibition against alienating, leasing, or encumbering, directly or indirectly, docks and "fully complies with the constitutional affirmation 'nor leave in any way the domain and control of the State'...", according to the reasons extensively developed in the previously transcribed vote (see, particularly, its Considerando VII). These considerations are applicable to the present action, as there is no reason whatsoever to justify a change in criteria.

Now, as is evident from a comprehensive reading of the filing brief, it is clear that the plaintiff's main objections or concerns relate, in a very specific manner, to the Concession Contract for public works with public service for the design, financing, construction, operation, and maintenance of the Moín Container Terminal, as they seek to question its necessity or convenience and matters regarding its due execution or compliance. Express reference will be made to this point later.

IV.- CONCERNING THE CHALLENGE TO ARTICLE 18 OF THE LAW FOR THE TRANSFORMATION OF THE JUNTA DE ADMINISTRACIÓN PORTUARIA Y DE DESARROLLO ECONÓMICO DE LA VERTIENTE ATLÁNTICA, LAW NO. 9764, WHICH AMENDED ARTICLE 1 OF THE ORGANIC LAW OF JAPDEVA. The plaintiff accuses, once again, an infringement of Article 121, subsection 14, of the Political Constitution. However, from a reading of the challenged normative provision, it can be verified that it confirms the role of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica as an “autonomous entity of the State, with the character of a public utility company, which shall assume the prerogatives and functions of a Port Authority” and, specifically, it is tasked with “building, administering, operating, subcontracting, concessioning, and performing any other financial mechanism that national regulations allow”, precisely, in order to thus be able to “develop port services, its own administrative management and investments, constructions, and improvements, in the maritime and river ports of the Vertiente Atlántica”. In this way, what the norm provides is a legal authorization so that this entity may resort to different contracting options and the application of financial mechanisms that “national regulations allow”, in order to, in this manner, be able to develop its prerogatives and functions as a port authority.

From said regulation it cannot be derived that it authorizes the aforementioned entity to dispose of, lease, or encumber the docks or ports under its charge, nor to allow them to leave the domain or control of the State, not only because the text of the regulation does not establish it, but because, necessarily, it must be integrated, interpreted, and applied in conjunction with the substantial and formal requirements imposed by the rest of the legal system, including, primarily, Article 121, subsection 14), of the Political Constitution itself, as well as the rest of the applicable regulatory framework. Regarding, specifically, the possibility of granting concessions, one must refer to what was already indicated in the preceding recital, in the sense that this Chamber, in various precedents, has recognized that the legal figure of the concession—be it a concession for public works with public services or a concession for the management of public services—is not incongruous with or violative of Article 121, subsection 14), of the Political Constitution; on the contrary, it is a constitutionally valid option for the indirect management of the public service, which does not imply disposing of, leasing, or encumbering the docks, nor that they leave the domain and control of the State. Thus, in ruling no. 2005-05651 of 14:41 hours on May 11, 2005, in which similar complaints were heard, related to the Instituto Costarricense de Puertos del Pacífico, this Chamber resolved:

"V.- Object of the challenge. The plaintiffs believe that the acts of invitation to bid conducted by the Instituto de Puertos del Pacífico (INCOP) and by the Consejo Nacional de Concesiones in international tenders number 1-2001 concession for the management of public services of the Caldera terminal, 2-2001 concession for the management of public services of the Puntarenas terminal, 3-2001 concession for the management of tugboat services on the Pacific Slope, 3-2001 concession for public works with public service of the Puerto Caldera bulk terminal, and 4-2001 concession for public works with public service of the Puerto Caldera tuna terminal, all published in La Gaceta Oficial number 68 of April 5, 2001, as well as their subsequent award and approval; and likewise regarding Articles 2 subsections 2) and 3) and 5 subsection 4) of the Ley General de Concesión de Obras Públicas con Servicios Públicos, number 7762 of April 2, 1998, are unconstitutional because they are considered contrary to the principles of legality, legal reserve, non-delegability of functions, reasonableness, proportionality, and due process, as well as for contradicting the provisions of Articles 1, 2, 3, 4, 9, 11, 39, 121 subsection 14) and 140 subsection 19), all of the Political Constitution. Regarding the challenged provisions of Law No.

7762, these provide:

“ARTICLE 2.- Scope ...

2.- Railways, railroad lines, docks, and international airports, both new and existing, as well as the services provided therein, may only be granted in concession through the procedures set forth in this law.

3.- In the case of the docks of Limón, Moín, Caldera, and Puntarenas, under this law, only new works or expansions carried out there may be concessioned, and not the existing ones.

Seventy percent (70%) of what the Administration obtains pursuant to Article 42.1 a) of this law, by reason of the new works or expansions concessioned at the cited docks, shall be remitted to the Junta de la Administración Portuaria de la Vertiente Atlántica (JAPDEVA) and the Instituto Costarricense de Puertos del Pacífico (INCOP), as applicable, to be used exclusively for investments in works in the respective provinces, without being able to be used to cover administrative expenses.

Once the term of these concessions has elapsed, said works shall pass to the ownership of the aforementioned entities, as applicable.” “ARTICLE 5.- Definition and Action ...

4.- It is exclusively the responsibility of the Executive Branch, considered in the terms of Article 21.2 of the Ley General de la Administración Pública, to award and sign the concession contracts for railways, railroad lines, docks, and international airports, both new and existing.

The docks of Moín, Limón, Puntarenas, and Caldera shall be subject to the provisions of Article 2.3 of this law.” VI.- On the merits. The core aspect challenged by the plaintiffs is that the contested acts and provisions violate Article 121, subsection 14, since they cannot be the object of a concession, because the Constituent Assembly so provided and because public domain assets are being declassified. This Chamber has repeatedly ruled on this aspect and has indicated:

“III. ON THE CONFLICT WITH ARTICLE 121, SUBSECTION 14 OF THE POLITICAL CONSTITUTION: The consultation states that 'Some have questioned the fact that by empowering the concessionaire to operate the new railway, dock, and airport facilities, in accordance with Article six, second paragraph of the bill, it could be conflicting with the constitutional provision that prevents the disposal of these works, Article 121, subsection 14 of our Magna Carta.' Article 6 of the Bill states: 'ARTICLE 6.- National railways, docks, and airports, the latter as long as they are in service, may not be disposed of, leased, or encumbered, directly or indirectly, nor in any way leave the domain and control of the State.

'The concessions granted to build and operate new railway, dock, and airport facilities must be processed in accordance with this Law and approved by the Legislative Assembly, within a period not exceeding forty-five days from their submission.

'Complementary or non-essential public services located in railways, docks, and airports may be granted in concession.' As can be observed, the first paragraph of Article 6 coincides with what the Constitution provides in the last paragraph of Article 121, subsection 14). It is essentially an 'echo norm'. Furthermore, it is important to note that the concession for the construction and operation of new railway, dock, and airport facilities is subject to a qualified procedure, since it ultimately requires approval by the Legislative Assembly. Except for this fact, and because in this same case the concession may be granted for a term of 'up to fifty years' (Article 9 of the Bill), the institute does not differ in any way from the concession of public works in general, as regulated in the Bill.

Consequently, it has the following relevant characteristics: a) By way of the concession (concesión), the execution of the work is entrusted and the necessary legal powers are transmitted for its operation; b) The transmission of those powers is temporary and the operation generally reserves to the Administration its powers of authorization, control, and oversight; c) The ownership of the property right and the provision of the public service remain with the Administration; ch) The provision of the public service by the concessionaire is subordinated to the principles of national convenience, legality, generality, continuity, efficiency, adaptability, and just compensation; d) The rights and obligations of the concessionaire and, as applicable, of the subcontractors, cannot be assigned, placed in trust, or encumbered, nor may any agreement for usufruct, lease, administration, or total or partial operation be entered into regarding the assets subject to the concession (concesión) without the prior and express consent of the granting Administration and the approval of the Contraloría General de la República, consent and approval which must be understood necessarily, and is so interpreted for the purposes of this opinion, as impossible to give if there are constitutional or legal limits that prevent it; and e) The concession (concesión) is extinguished, among other grounds, by means of rescue for reasons of public interest.

Returning now to the text of Article 121, subsection 14) of the Constitution, whose last paragraph, as mentioned in the consultation, is what could be affected by the second paragraph of Article 6 of the Bill, it is appropriate within the framework of this consultation to delimit its content. Indeed, Article 121, subsection 14) contains three distinct norms, which must be clearly differentiated: a) The first is a norm that empowers the Legislative Assembly to decree "the alienation or application to public uses of the Nation's own property". On one hand, this norm is unrestricted insofar as it refers to all the Nation's own property, and, on the other, it reserves the matter to the law, invalidating administrative acts of alienation or application to public uses not based on prior law; b) The second prescribes which assets "may not definitively leave the domain of the State". For those categories, which are set forth in subsections a), b), and c), the restriction is total and absolute regarding "leaving the domain of the State", but, immediately, the norm moderates its severity by noting that such categories of assets may be "operated by the public administration or by private parties" in accordance with the law or through a special concession (concesión especial); c) The third is a norm that refers specifically to certain assets (railways, docks, and national airports in service) not included in the three categories of the preceding norm. If nothing were said about these assets, they would be covered by the enabling norm with which subsection 14) begins, as has already been seen. But the existence of this specific provision implies a distinct legal regime for these assets, which strictly limits the general principle of alienation and application to public uses: such assets "may not be alienated, leased, nor encumbered, directly or indirectly, nor leave in any way the domain and control of the State". The norm refers, firstly, to alienation, lease, or encumbrance, but the expression "directly or indirectly", in the strict context of the provision, may refer equally to the situation in which the State proceeds by itself or through other legal entities (subjective sense), or to cases in which modalities or means are employed that have equivalent or similar legal consequences or effects, even if per se they do not technically constitute alienation, lease, or encumbrance (substantive sense). Subsequently, this rigor is confirmed by the expression "nor leave in any way the domain and control of the State", an expression which must also be given broad coverage of hypotheses due to the vocation of the norm. Now then: if the summary enumeration of some characteristics of the concession (concesión) made earlier is compared with the provisions of Article 121, subsection 14), the following comments arise. The term "alienation" (enajenación) entails the transmission of dominion or ownership of the thing or the ownership of a right to another person, which does not happen with the concession (concesión), since according to the very terms of the Bill, the State retains dominion over them, to the point that it could recover them—if for reasons of public interest it were to so deem—upon prior compensation to the concessionaire. It also differs from the figure of a lease (arrendamiento), since as a synallagmatic contract, the lessor assures the lessee the use and enjoyment of the thing for a determined time, while the latter commits to the payment of a sum of money; whereas in the concession (concesión), although it is true that there is a term for its operation, the State—as indicated—may recover it notwithstanding the established term, and the economic benefit the concessionaire receives consists exclusively of the fee or sum of money paid by the users. Nor does it imply an encumbrance (gravamen) on the asset, as results from the articles of the Bill.

In other words, the public work constructed will always belong to the State. Hence, as a public domain asset, it will enjoy the characteristics of imprescriptibility, inalienability (irrenunciabilidad), and immunity from seizure (inembargabilidad) that are inherent to this type of asset. Consequently, given the prerogatives that the project reserves for the Administration, it is not reasonable to understand that the assets subject to the concession leave or could leave—directly or indirectly—the domain and control of the State. To the foregoing must be added the broad powers of control or oversight (fiscalización) that the State reserves for itself, including regarding the stipend (tariffs for the provision of the public service) that the concessionaire will receive, which must be set by the competent bodies of the Public Administration indicated in the Project, all based on principles of justice and reasonableness inherent to public law. Hence, in the opinion of this Chamber, no violation is observed by the consulted norm with respect to Article 121, subsection 14) of the Political Constitution (Constitución Política).” (Judgment No. 3789-92) In the cited judgment, it is clearly stated that the possibility of granting concessions (concesión) for assets such as docks, within the parameters that the Chamber has described, does not constitute a violation of the Political Constitution (Constitución Política), since, in accordance with the nature of the “concession” (concesión), these assets are not being decommissioned, as they are not being separated from the public purpose to which they are linked; therefore, they do not leave the public domain, nor are they being alienated, leased, or encumbered, so the alleged violation does not occur. Now, in this study, we are speaking of two distinct concession models: the public works concession with public services, regulated in the Law challenged here, and the public service management concession, regulated in the Administrative Contracting Law (Ley de Contratación Administrativa). Both involve different modalities of concession (concesión), but in any case, as already indicated, they do not harm Article 121, subsection 14. In fact, this Tribunal ruled on the merits of this matter in the Legislative Consultation that was submitted for study, while the approval of this law was pending:

“...It should be noted that the Political Constitution (Constitución Política) does not distinguish between public works and public service concession (concesión), in the terms raised in the consultation, and even though such a distinction might be advisable as a matter of good legislative technique, its omission does not imply any constitutional objection. Furthermore, the concession of public works or services is a typically administrative contract precisely due to the public nature of its object. Desirable legislative technique must therefore not be confused with that which is constitutional or unconstitutional, since this depends on the content of the Constitution itself and the norm confronted with it, which could even be designed according to good legislative technique, yet nonetheless be unconstitutional. Hence, the fact that a given norm is not drafted in accordance with a particular doctrinal current or suffers from certain defects does not imply that it is unconstitutional. For all the foregoing reasons, this Chamber considers that the objections that the consulting deputies make to the bill, regarding this point, are not related to constitutional problems, but rather to criteria of opportunity and convenience belonging to the legislator, who is responsible for regulating the matter in the manner they deem most viable, provided, of course, that they do not violate the Political Constitution (Constitución Política). The Chamber further understands that the concession of the public works and services referred to in this bill excludes everything related to national security, customs control, migration, and everything having to do with the State's own functions, which are non-delegable and inalienable (irrenunciables) and can in no way be placed in private hands.” Thus, for example, even when an airport is granted under a concession (concesión), so that the public service provided there is performed by a private entity, matters relating to port security, migration, and customs, among others, are reserved exclusively to the State, without those functions being able to be exercised either directly or indirectly by private parties.

In the opinion of this Chamber, nothing prevents the Assembly, by means of a framework law (ley marco), from empowering the Executive Branch to grant concessions for public assets, without requiring specific approval for each particular case, since it is understood that it has given general approval for such purpose, in compliance with the Constitution itself.

In summary, regarding this consulted aspect, the Chamber finds no unconstitutionality whatsoever.” In the case of public works concessions with public services, the General Law on Concession of Public Works and Concession for the Management of Public Services, and the Administrative Contracting Law, articles 74 and 75, are applicable as a framework law. In that sense, it is not unconstitutional for the public administration to grant concessions for these assets within the parameters that this Court has indicated. On the other hand, as the plaintiffs themselves correctly indicate, Article 2, subsection 3, challenged here, states that:

"...In the case of the docks of Limón, Moín, Caldera, and Puntarenas, under this law, only new works or expansions carried out there may be concessioned, and not the existing ones.", thereby conforming to Article 121, subsection 14, so whether the questioned tenders (licitaciones) violate that provision is a matter that must be determined through the legality review process (vía de legalidad), as we would consequently not be facing a constitutional violation, but rather a disagreement with the application of the law.

VII.- The plaintiffs request this Court, should it declare the challenged law to be a framework law, to declare the tenders challenged here unconstitutional because they were processed through procedures different from those established in Law 7762. Such a point is inadmissible for the Chamber, since what is sought constitutes the issuance of a judgment on mere legality, which exceeds the competence of this Court.

Of course, if the norms contemplated in the Political Constitution are at the apex of the normative order, certainly any legal violation also violates the Political Constitution, but to remedy these conflicts the original constituent power created the ordinary jurisdictions.

VIII.- On the other hand, the plaintiffs accuse a violation of the principle of reasonableness and proportionality and the sound management of public spending, questioning that the concessions will practically imply the de facto closure of INCOP and the formation of a privatization. Regarding these aspects, the Chamber in ruling No. 14.606-03 also already indicated:

"III.- INCOP STRENGTHENING PROCESS. The Deputies consider that "(...) there is no legal precept whatsoever that allows INCOP to carry out a competence, structural, and labor restructuring of such magnitudes, and with it, there is also no authorization to pay an 'indemnification' as described" (...), thus it constitutes a privatization without normative support. On this point, it is necessary to indicate that whether INCOP has sufficient legal competencies and powers to determine its restructuring or modernization is an aspect of mere legality that exceeds the competences of this Tribunal. However, it is worth noting that the power of organization or reorganization is, in principle or virtually, inherent to any public entity other than the State. The Political Constitution guarantees, in its article 188, to every lesser public entity, distinct from the State, a minimum or first-degree administrative autonomy, that is, the power of self-administration, without subjection to any other public entity and without the need for a legal norm that so provides, in order to arrange its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the tasks and purposes assigned to it.

In developing the constitutional text, sections 6, paragraph 2, 59, paragraph 2, and 103, paragraph 1, of the General Law on Public Administration (Ley General de la Administración Pública) confer upon the head of any public entity – in the case of an autonomous institution such as INCOP, the Board of Directors – the power of self-organization and reorganization – the latter by application of the principle of parallelism of powers – to provide itself with the most suitable organizational structure for fulfilling the purposes assigned by the legal system and the general guiding principles of public services, namely effectiveness, efficiency, and adaptation to any change in the legal regime or social need they satisfy (articles 4, 225, paragraph 2, and 269, paragraph 1, of the General Law on Public Administration). In another order of considerations, the privatization of public services, that is, the definitive transfer of their ownership and exercise to private-law subjects, should not be confused with their indirect management by a public entity through the figure of the concessionaire (concesionario), since, in this hypothesis, the granting administration (administración concedente) maintains ownership of the service and of the public domain assets necessary for its effective provision, merely transferring temporarily to the concessionaire the exercise of certain powers for the management of the service – with or without infrastructure – or the construction of works that will continue to be publicly owned (article 121, subsection 14, of the Political Constitution and the General Law on Concession of Public Works with Public Services).” From the foregoing, it is easily deducible that the Chamber already indicated that it is not for this jurisdiction to determine the advisability or otherwise of the modernization process sought by INCOP, nor to determine the suitability of the means chosen, nor the advisability of the manner in which it intends to compensate its employees, as these are matters that exceed the jurisdiction of this Court.

IX.- Finally, regarding the matter claimed by the plaintiffs concerning the insufficiency of funds to comply with the 70% mandated by Law No. 7762 because it is intended to compensate employees with the concession’s revenues, which they deem contrary to Article 2, subsection 3 of that same law, this also implies a legality review, which, as explained in recital (considerando) VIII, cannot be the subject of a ruling by this Court.

X.- Conclusion. Consequently, since from the study conducted this Court found no constitutional violation of the rights and principles claimed, the appropriate course is to dismiss it, as is hereby ordered. Judges Armijo and Cruz dissent and would grant the appeal.

Considerations fully applicable to the sub lite.

Indeed, as can be inferred from reading the filing brief, it can be verified that rather than an objection to the effective possibility that the docks or ports may be alienated, leased, or encumbered, or that they may be allowed to leave the ownership or control of the State, in light of the challenged provision, what is questioned is the possibility that JAPDEVA may resort to a potential “outsourcing (tercerización)” of certain services, which is alleged by the petitioner could harm the workers who would work for the companies providing their services to JAPDEVA, as their working conditions would be less favorable than those of the institution’s current workers. It is alleged that this would violate Articles 50 and 74 of the Political Constitution, relating to the State’s duty to ensure “the most adequate distribution of wealth” and the Christian principle of social justice.

Regarding this point, reference must be made to what was already indicated in the precedent previously transcribed (vote no. 2005-5651, recital VIII), in the sense that assessing the advisability of resorting to these mechanisms for the provision of services exceeds the scope of jurisdiction of this Chamber. It should also be noted that the reform challenged in this action is part of a restructuring and modernization process of JAPDEVA.

This Chamber has already ruled on that process, in vote no. 2019-018505 of 11:45 a.m. on September 24, 2019, issued on the occasion of the optional legislative consultation of constitutionality formulated regarding the then bill no. 21.426, “Ley de Modernización de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva) y Protección de sus personas servidoras”. An opportunity in which it was resolved -as relevant- that:

“(...) According to the statement of reasons in the legislative dossier, the legislative initiative responds to the urgent need to solve in the short term the serious situation of financial sustainability facing the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva). The bill has two fundamental axes: a) reorganize and transform Japdeva from an administrative, operational, and financial point of view in such a way that it can find its break-even point, based on a study that must be approved no later than two months after the law is passed, b) facilitate the reduction of the payroll to allow a return to that break-even point, under the following modalities: horizontal transfer of workers to other institutions under certain parameters, payment of benefits and incentives, and early retirement (prejubilación), both also under parameters established in the bill. According to the bill's statement of reasons:

1. As part of said reorganization, the workers of said institution may voluntarily request their horizontal transfer to institutions of the Central Administration and institutional Decentralized Administration; or, they may opt for the payment of their benefits plus an additional incentive, to engage in activities outside the public sector. Both possibilities will be made effective according to the parameters set forth in the bill.

2. Establishes a right to avail oneself of an early retirement regime (régimen prejubilatorio), which will be charged to the National Budget, provided they meet the requirements indicated in the law and have not availed themselves of the additional incentive for institutional transformation. The bill also regulates aspects such as the calculation of the early retirement amount and its maximum cap, expiration parameters, the transfer to the Disability, Old Age, and Death Regime, and the supplementary application of Law no. 7302 (General Pension Regime Charged to the National Budget); as well as inter-institutional coordination between the Ministry of Labor and Social Security and the CCSS so that, through the signing of a collective insurance agreement, the insurance conditions of former JAPDEVA employees who enjoy the early retirement benefit are regulated.

The bill consists of three chapters, the first titled “Modernización de Japdeva” (from article 1 to 7), the second “Régimen Pre jubilatorio” (from article 8 to 17), and the third “Reformas a otras leyes” (18 to 20). Furthermore, it contains five transitory provisions that refer to, one, the maximum period for the General Directorate of the Civil Service to apply the process for carrying out horizontal transfers, as well as regarding transfers from institutions under the purview of the Budgetary Authority; a maximum period of 1 month for workers to choose and formally request one of the modalities indicated in the law, a term that once expired, obligates the administration to initiate the execution of the cessation of personnel necessary to reach its financial break-even point, as well as the regulation on the group of workers to which the regulation is applicable.

(...)

IV.- On the legal nature of JAPDEVA and its labor regime. The legal nature of Japdeva is clearly regulated in its creation law (No. 3091 of February 18, 1963, comprehensively reformed by No. 5337 of August 27, 1973). It concerns an autonomous institution (institución autónoma), with the character of a public utility company (empresa de utilidad pública).

In its article 1 it states:

"Create the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, hereinafter referred to as JAPDEVA, as an autonomous entity (ente autónomo) of the State, with the character of a public utility company." "It shall likewise be responsible for administering the Atlantic canalization and the lands and assets that this very law grants it. It shall administer the State's railway transportation enterprises that provide services to and from the ports of the Atlantic Slope (Vertiente Atlántica) that are specifically contemplated by the Executive Branch in the national development plans." NOTE: The administration of the State railways was transferred to the Instituto Costarricense de Ferrocarriles (INCOFER) by its Organic Law (Ley Orgánica) No. 7001 of September 19, 1985 (especially by its articles 1 to 4, 36, and 45).

Article 2.- It shall promote the comprehensive, rapid, and efficient socio-economic development of the Atlantic Slope (Vertiente Atlántica) of Costa Rica. JAPDEVA may lease, sell, adjudicate, or exploit the lands conferred upon it by this law, for the purpose of promoting the ends for which it was created, but it must previously consult the criterion of the Instituto de Tierras y Colonización, a criterion from which it may not deviate, except with the affirmative vote of five of the members of the Board of Administration (Consejo de Administración). Within the current port area and its extension to Cieneguita and in that of new ports of the Atlantic Slope (Vertiente Atlántica), an adjacent zone shall be determined for the installation of industries or commercial services related to port operation, which in no case may be alienated, but may be leased for fixed terms. The respective contracts shall contain a clause expressly stating that JAPDEVA may unilaterally terminate them when it needs the land for works and installations of general interest, at its discretion and without any liability.

Article 3.- As an autonomous institution (institución autónoma) of public law, JAPDEVA shall have juridical personality (personería jurídica) and its own patrimony; it shall enjoy administrative independence in accordance with this law. It shall be governed by the decisions of its Board of Administration (Consejo de Administración), whose members shall act in accordance with the Political Constitution, the pertinent laws and regulations, being totally and unavoidably responsible for their management. Relations between the Executive Branch and JAPDEVA shall be maintained through the Ministerio de Obras Públicas y Transportes." Now, this type of organization is also known doctrinally as a public enterprise-public entity (empresa pública-ente público); the foregoing because it was created to develop a mercantile and commercial activity under the guise of a Public Law organization, and consequently its legal regime is mixed. That is, all those aspects related to the organization and the exercise of certain eminently administrative powers or competencies are governed by Administrative Law, and those related to business activity by private Law.

Regarding this matter, Article 3, paragraph 1, of the Ley General de la Administración Pública establishes that "Public law shall regulate the organization and activity of public entities, unless an express provision states otherwise"; for its part, paragraph 2 provides that "Private law shall regulate the activity of entities which, by their overall regime and the requirements of their line of business, may be considered common industrial or commercial enterprises." These are, as can be seen, cases in which public entities exercise one capacity under Public Law and another under Private Law (Article 1 of the Ley General de la Administración Pública).

For its part, the Procuraduría General de la República has been clear in stating, in the case of Japdeva, that the generality of personnel in its service does not hold the status of public servants (servidores públicos) because they do not perform public management, with the exception of employer representatives. It concludes, then, that for the vast majority, their labor regime is governed by private law, with the exception of so-called managerial and senior oversight positions, which are indeed considered public servants. In this sense, a duality operates in JAPDEVA regarding service relationships, given that common labor law applies to one group of workers, while another sector is governed by public law. (By way of example, see Opinions 260 of 03/12/1998, 369 of 31/10/2014 ) In Opinion 369-2014, as relevant, the Procuraduría General de la República indicated:

"In view of the legal nature that the legislator conferred upon JAPDEVA, its employees are not considered public servants, and they are therefore governed by labor law (provided this is not displaced by superior considerations of public law), as ordered by Articles 3, subsection 2), 111, subsection 3), and 112, subsections 2) and 3) of the Ley General de la Administración Pública:

Article 3: "(…)

2. Private law shall regulate the activity of entities which, by their overall regime and the requirements of their line of business, may be considered common industrial or commercial enterprises." Article 111: "(…)

3. Employees of State companies or economic services tasked with duties subject to common law are not considered public servants." Article 112: "(…)

2.

Service relationships with workers, laborers, and employees who do not participate in the public management of the Administration, in accordance with paragraph 3 of article 111, shall be governed by labor or commercial law, as applicable.

3. However, the legal or regulatory provisions of public law that are necessary to guarantee administrative legality and morality shall also apply to the latter, as determined by Decree of the Executive Branch.

(…)

Notwithstanding, the foregoing statement is not absolute because within the decentralized entities there are also positions that are in fact subject to the public regime, and those are the ones that participate in public management, as is inferred—a contrario sensu—from the recently referenced subsection 2) of Article 112.

The servants who participate in public management are, according to what has been indicated by the Second Chamber of the Supreme Court of Justice, "those who lead and direct the branches of the State, the heads of autonomous institutions, executive presidencies, as well as the heads (managerial group) of State enterprises, etc." (ruling No. 2007-548 of 9:45 a.m. on August 15, 2007).

In addition to the foregoing, reference is also made to Opinion No. C-293-2007 of August 27, 2007, applicable to the case under study:

"It should be noted that the reiterated jurisprudence of this Technical Consultative Body has indicated the public nature of the relationship existing at the managerial levels of banking entities, which, due to the nature of the functions performed, are subject to a public regime to regulate their actions. In this regard, we have indicated:

"It is worth noting that in that banking entity a dichotomy of employment regimes coexists; alongside the personnel governed by a mixed regime, that is, where common labor legislation applies provided that 'it is not displaced by higher-order considerations inherent to public law' (Ruling of the Constitutional Chamber No. 7730-2000 of 14:47 hrs. on August 30, 2000), there are certain positions under a strictly public employment regime, termed by doctrine and constitutional jurisprudence as 'high level,' which are not workers in the true sense of the word, but rather their service relationship is governed by administrative law and its principles, as they are true public servants. (Article 112 subsection 1) of the General Public Administration Law).

In that sense, the Constitutional Chamber of the Supreme Court of Justice, in its ruling number 244-2001 of 14:46 hours on January 10, 2001, when referring to the situation of senior-level officials excluded by the collective bargaining agreement of INS, held that: "… the employees of this institution cannot be considered public officials, except for the case of managerial and senior oversight positions – to which the public employment regime does apply – thereby excluding them from common labor norms, which includes collective conventions." (the underlining is ours).

The Constitutional Court followed the same position in ruling No.

12953-2001 of 16:25 hours of December 18, 2001, when in its fifth whereas clause (considerando V), in fine, it held that: <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">it is strictly proper to presume that these employees perform functions of </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Public Management (Gestión Pública)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> which, as</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> the Attorney General's Office points out, entail </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">a power of decision and oversight, as applicable, that is superior</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(folio 34)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">and that, therefore,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; text-decoration:underline; vertical-align:sub">constitute an employment regime that is governed entirely by public law (derecho público)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">. (the underlining is not from the original).</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Thus,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">the appointment, removal, powers, disciplinary and salary regime, and in general,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">everything concerning the service relationship of those officials is regulated by public law; in addition to some of those positions being of the so-called </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">fixed-term (de período)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> type,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">for which reason they enjoy stability in their positions, all of which constitutes important differences with respect to the labor personnel of that banking institution.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(Legal Opinion C-034-2005 of January 26, 2005, the underlining is not from the original)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> (only the underlining is not from the original).</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">However, it is noted that there is no exhaustive list of officials who participate in public management (gestión pública), so its determination corresponds to the Administration (Administración) itself, and in</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> the last instance, to the Courts of Justice (in that vein, vote N</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> 2010-1277 of 15:32 hours of September 9, 2010, issued by the Second Chamber); however, in judgment N</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> 2001-12953 of 16:25 hours of December 18, 2001, the Second Chamber indicated</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">that it is feasible</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">to presume</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">that the employees excluded from the collective bargaining agreements perform functions of Public Management (Gestión Pública).</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Specifically, it stated:</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">In this way, based on the fact that RECOPE's own Collective Bargaining Agreement (Convención Colectiva), in its article 4</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">, provides for the exclusion from its scope of application of the President, the General Manager, the General Directors, the Area Managers, the General Auditor, the Deputy General Auditor, the Advisors and Assistants to the Presidency and the General Management, the Heads of Directorate, the Secretary of Minutes of the Board of Directors, as well as those appointed to Executive Coordinator positions regardless of the functions they perform,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">it is strictly proper to presume that these employees perform functions of "Public Management (Gestión Pública)" that, as the Attorney General's Office points out, entail "</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">a power of decision and oversight, as applicable, that is superior</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">"</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(folio 34) and that, therefore, entail an employment regime that is governed entirely by Public Law (Derecho Público).</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> (the bold is not from the original).</span> <span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Regarding</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">JAPDEVA, its collective bargaining agreement in clause 4 provides that </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">The Executive President, his Assistants and Advisors, the Managers and their Assistants, Deputy Managers, Auditor and Deputy Auditor shall not be covered by this Agreement,</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">as they are the officials who participate in the public management (gestión pública) of the Administration (Administración)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> (the bold is not from the original), from which it can be deduced, in the first place, that</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">the Board (Junta) has already carried out</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">an analysis to determine specifically</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">which employees participate in public management (gestión pública), and furthermore, in accordance with what has been indicated herein, that</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">these must be deemed</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">public officials (funcionarios públicos), and therefore, subject to public law (derecho público).</span> For its part, the Constitutional Chamber, in judgment 2010-9928 of 3:00 p.m. on June 9, 2010, indicated:

"**VI.- UNCONSTITUTIONALITY OF ARTICLE 3, SUBSECTION A), OF THE CONTENTIOUS-ADMINISTRATIVE PROCEDURAL CODE.** (...) Thus, by way of example and without intending to be exhaustive, the labor jurisdiction must hear and resolve – even if the matter is related to the administrative conduct or function exercised by a public entity – typically or materially labor-related issues, such as the appropriateness or not and the calculation for the payment of the year-end bonus (aguinaldo), vacations, notice period and severance pay (preaviso y auxilio de cesantía), matters concerning the recognition of a retirement or pension or professional risks, disputes that arise in the field of individual and collective Labor Law (e.g., conflicts of an economic-social nature), everything relating to the exercise of the right to strike or work stoppage, etc. In the same vein, **it is necessary to recognize that, regarding employees in charge of activities subject to the common law of public companies or economic services developed by a public administration, or mere laborers, workers, or employees who do not participate in the public management of the respective public entity, that is, those whom the doctrine calls “workers of the public administration,” the disputes that arise must be heard and resolved by the labor jurisdiction, since they are not, in the strict sense, a public official, servant, or employee (articles 111, paragraph 2, and 112, paragraph 2, of the Ley General de la Administración Pública),** given that any conduct emanating from the public entity, in such context, will not be subject to the administrative legal regime, nor can it be materially considered an administrative-legal relationship. (...)".

What was resolved by the Chamber allows for a differentiation between the public and private employment regime of the Administration. In the former, figures such as statutory regimes (article 191 of the *Carta Magna*), the right to full stability (for permanent employees) or relative stability (for interim servants or employees), the right to reinstatement (which is only exceptional in the private regime), among other manifestations that do not concur in the latter and that allow both frameworks to be demarcated, prevail. Although within the private employment of a public company-public entity, whose workers do not participate in public management, as ordered by subsection 3 of the aforementioned mandate 112 ibidem, principles of public law may operate by integration to guarantee "administrative legality and morality," such complementarity does not make those relationships typical of public employment, as it is clear that they remain of another moral nature. All of which reinforces the existence of **a mixed-nature employment regime.** The foregoing is important to be clear about for purposes of determining whether it is possible for the legislator to mandatorily determine the reduction of the payroll (planilla) through a restructuring (reestructuración) of a decentralized institution to achieve its financial balance, and if so, under what parameters it can do so.

**V.- On constitutional jurisprudence regarding administrative restructurings (reestructuraciones administrativas).** The Costa Rican state has already undergone several restructuring processes in the public sector in the past, for which legislation has been issued.

Regarding these matters—which have at times been brought before the Sala Constitucional—the case law has considered that restructuring (reestructuración) is possible in the event of a forced reduction of services, whether due to lack of funds or to achieve a better organization thereof.

However, the application of these processes requires compliance with a series of prior requirements set forth—in the majority of cases—in legislation, as occurs with the Civil Service Statute and its Regulations, thereby pursuing the aim of guaranteeing absolute respect for the constitutional rights of the employees.

In this respect, the Sala Constitucional has indicated:

“Article 192 of the Constitución Política empowers the Public Administration to order the restructuring of the various dependencies that comprise it, for the purpose of achieving their better performance and organization, for which it may order not only the elimination and reclassification of positions, but also the transfer of officials to different posts, provided that due process is observed (...) The power to forcibly transfer or reduce public officials is intrinsic to the State, which may implement—provided the established procedure for agreeing to a reorganization is respected—the necessary measures in order to organize its different dependencies to achieve their better functioning... “(Voto No.4246-94) Similarly, this Chamber has pointed out that administrative restructuring processes must be subject to real needs:

“It must also be taken into account that so-called restructurings or reorganizations must be based on real and duly proven needs in order to avoid abuses on the part of employers, who under an apparent justification violate the rights of employees, who by their very position – as the weaker party – within the relationship, are unable to exercise immediate administrative or judicial action to stop this type of abuse. Therefore, every reorganization process must include the participation of all those dependencies required for making the final decision.” (Sentencia 3288-94) In the same vein, sentencia 00602-2001 stated:

“In addition to these, the Chamber has also pointed out that in a public employment relationship, the projection of the right to work protected by Article 56 of the Constitution contains, as one of its postulates in favor of the worker, that of stability in the position, without it being possible to ignore that this is what allows the employee to access a series of social and economic benefits that enable their academic and professional advancement, providing them the necessary security for their personal development and that of the family nucleus that depends on them, which truly effectuates the meaning of the right to work as an individual guarantee and an obligation to society, in the expression used by the constitutional text; for which reason employees may only be removed by way of exception, due to a justified cause for dismissal, or in the case of a forced reduction of services, one of the cases precisely being the restructuring processes to which an institution may be subjected, the latter being, moreover, in accordance with the principles derived from Article 192 of the Constitución Política, but precisely because it is an exception to the constitutional guarantee of stability for the worker, its application by the administration must be executed with absolute objectivity, transparency and seriousness, and hence the requirement of qualified technical studies that can validate decision-making, based on a coherent and effective model.” In the case of the draft law consulted, the legislator empowers in its Article 2, JAPDEVA to determine the adequate administrative, operational, and financial structure for its correct functioning, as well as to carry out the technical studies and actions necessary to maintain the working personnel it requires to guarantee the continuity of the entity and the financial equilibrium, in the short and long term, in such a way that it exempts it from submitting to the existing procedures and regulations for the public sector, but on the other hand, subjects it to the condition that the decisions adopted be based on technical studies.

As can be observed from the legislative discussions, both the Contraloría General de la República and the Minister of Finance confirm that, from a financial standpoint, Japdeva presents an imbalance that makes it unsustainable in the future and compromises the payment capacity of the employees of that entity in its current configuration (see Volume II pages 358-394; 409-412; Volume III pages 725 et seq.; Volume X 2573 et seq.), confirmed by the authorities of Japdeva (pages Volume II 395-408; 473-719). The economic studies are clear that the institution's revenues are far lower than its expenses and its future capacity to assume the entirety of the current payroll, given the commencement of operations of APM Terminals, the concession contract, and the Ministerial directives adopted regarding it.

In that sense, this Chamber considers that although the technical studies would determine what the future structure should be according to the business model and the institutional reorganization plan, in conjunction with the strategic plan and the new technical studies, so that the provision is not unconstitutional by its effects, in the case of public employees and the administrative, operational, and financial structure adopted, there must exist an absolute connection between both such that it is demonstrated that they respond to real, duly proven needs in order to avoid abuses, according to the jurisprudence cited above. In no way can it be interpreted that the requirement for technical studies referred to in the norm, because they are ex post, means a blank check for the administration to whimsically determine either the public employees who are to remain or be eliminated, or the administrative, operational, and financial structure that the entity shall have in the future. In that sense, this Chamber clarifies that for the measure not to result in unconstitutionality by its effects, no dismissal of public employees can be initiated until the technical study referred to in Article 2 of the consulted legislative bill is concluded and due process has been given to those persons who would be affected by an eventual dismissal. Furthermore, every final act must be duly grounded in the respective technical study.

The case of workers subject to the common law regime is different, because these shall be governed by the provisions of the Labor Code and the Collective Bargaining Agreement as applicable, and regarding the workers of said regime, the degree of stability guaranteed by Article 192 of the Political Constitution to public employees does not operate. Naturally, in order to carry out a dismissal without employer liability in this segment of workers, all established legal provisions must be fulfilled.

Likewise, workers who enjoy special union immunity (fuero especial sindical) may not be forcibly dismissed without following the procedures established in the legislation, nor may precautionary measures or resolutions issued by the courts of justice in cases brought before them be disrespected.

In the case of dismissal with employer liability, for those workers subject to the common law regime who did not wish to voluntarily avail themselves of any of the modalities of horizontal mobility, incentives, or early retirement established by the law, the procedures specific to labor legislation must equally be fulfilled, including the payment of the corresponding legal benefits within what the legal system stipulates.

This Chamber considers that the consulted transition provision in no part empowers the entity to carry out automatic dismissals, since in the case of public employees, positions may only be suppressed in accordance with the technical studies, after due process, without being able to do so beforehand, and in the case of employees subject to the common law regime, who are the majority, they may be dismissed with employer liability with full payment of their legal benefits as provided in labor legislation, if they did not wish to voluntarily avail themselves of any of the modalities of horizontal transfer, incentives, or early retirement established in the law. Likewise, without employer liability, only a person who commits serious misconduct may be dismissed, as established by the rules of common law.

VI-.

Regarding the alleged violation of the administrative autonomy (autonomía administrativa) of Japdeva.

The petitioners allege that there is a possible unconstitutionality in the competence that the Legislative Assembly would be arrogating to itself through this norm, to substitute the Administration, with the purpose of disposing of its human and financial resources and proceeding to order the dismissal of its officials from Japdeva.

In this sense, they find a possible unconstitutionality in that Transitory Provision II of the bill under consultation opposes Article 188 of the Magna Carta, which safeguards the administrative autonomy (autonomía administrativa) of autonomous institutions (instituciones autónomas) such as JAPDEVA (created by Law No. 3091 of February 23, 1963, and its reforms, Article 1). Likewise, they consider that this norm would be contrary to the principles derived from Article 9 (separation of functions and independence of the branches of State) and Article 122 (express prohibition on the Legislative Branch from co-administering), since it implies the direct intervention of the Legislative Assembly in administrative aspects of an autonomous institution by ordering it to terminate its officials.

The crucial point in this questioning would be to determine whether the legislator has constitutional powers to reorganize an autonomous institution. In this sense, it is necessary to differentiate the normative origin of the autonomous institutions (instituciones autónomas) contemplated in constitutional Articles 188 and 189. As a first scenario, we have the autonomous institutions created and regulated directly by the Political Constitution, such as the Caja Costarricense del Seguro Social, the Universidad de Costa Rica, among others; and as a second scenario, we have the autonomous institutions of legal creation by qualified vote.

In the specific case of JAPDEVA, it is an autonomous institution of legal creation whose goals, objectives, and purposes are set by law. That is, its creation was by the will of the legislator, which was motivated by a need to satisfy a public purpose at a specific time. Having clarified the above, we can affirm that just as the Legislative Assembly can create an autonomous institution, it can also close it —principle of implied powers (principio de los poderes implícitos)—, for whoever can create, can extinguish or modify its structure and its competencies, especially since in this case the public entity is financially unviable, for which there is an objective and reasonable motive. Naturally, in a state of law, no power can act arbitrarily. In the case under study, as indicated above, there are financial studies from the Ministry of Finance, the Contraloría General de la República, and others from the institution itself that recognize the entity's impossibility of paying salaries to the workers, because the business model changed with the entry of a concessionaire (APM Terminals) and without the appropriate reactivation and reorganization measures being taken in a timely manner to guarantee its financial balance. The foregoing has obliged the Executive Branch to send an extraordinary budget to pay salaries for the coming months (file 21,475), funds that will be paid in part with debt (see appearance of the Minister of Finance, Volume II, pages 256 et seq.; Comptroller General 358 and reports from the Contraloría 409-412; Japdeva 395-408; Volume X, Ministry of Finance report, pages 2573 et seq.). The bill under consultation proposes to facilitate the reduction of the payroll (reducción de planilla), under a series of incentives, mobility, and compensation for the workers, in accordance with the technical studies to be carried out by the entity within a maximum period of two months from the law's entry into force, in order to attempt to rescue the institution and not fall into a cessation of payments that would render it completely inoperative and to adapt it to a new business reality without having to close it. Having analyzed Transitory Provision II under consultation, in the opinion of this Chamber there is no provision that allows concluding that the legislator has exceeded its constitutional competencies in the norm under consultation. All concrete acts of administration, from the entry into force of the law —if it were to be adopted— will be the responsibility of the officers of JAPDEVA, in accordance with the new general framework of action set by the legislator. What the law does is set a general framework, as well as deadlines and conditions for action. The decisions of micro-administration, that is, the concrete acts, the reorganization model to be adopted, will depend on the administration of Japdeva itself, according to the technical study that the law establishes.

To argue the contrary would be to affirm that the competencies and public services assigned to a decentralized public entity that enjoys political autonomy are petrified, such that the ordinary legislator could not modify or vary such conferred competencies or public services, when there is a basis to do so.

In the specific case, it would mean that Japdeva would have to close down, given the impossibility of maintaining its payroll, since, as stated in the bill, -Japdeva lost 80% of its income and retains 100% of its payroll-, with the paradox that the legislator can create another autonomous institution by law with other powers, which if done through that route and not by modifying Japdeva, would cause great harm to the workers and the public service, since Japdeva's functions, according to its law of creation (ley de creación), are essential for the port development and the development of the province of Limón.

It cannot be overlooked that the Costa Rican State is unitary, and that to more efficiently achieve the purposes, objectives, and goals set by the current legal system, it established an organizational design that establishes a central and decentralized power, in the latter case according to territorial criteria (Municipalities), as well as specialization criteria (Autonomous Institutions).

On this subject, the Constitutional Chamber (Sala Constitucional) has indicated:

"From a constitutional point of view, it is necessary to begin by emphasizing that Costa Rica, since its inception, has been a concentrated unitary State, which means it has never had any type of political decentralization (descentralización política) properly speaking. The only one it has known is administrative, whether territorial –municipalities– or institutional. Thus, any exercise aimed at distinguishing, as the appellants intend, between merely administrative decentralization (descentralización meramente administrativa), and other possible forms of decentralization, such as political, is useless." (Resolution No. 4091-94 of August 9, 1994, reiterated by No. 7528-97 of November 12, 1997) The creation of a model of administrative decentralization (descentralización administrativa) favors, on the one hand, the better satisfaction of local interests, as well as the provision of services and the performance of activities that require technical specialization. Despite this, and the varying degree of autonomy with which the public entities that make up the decentralized administration are created, the State must seek to maintain the unity and harmony of its action.

It was with that vision that the constituent established in its Article 188 that the autonomous institutions of the State enjoy administrative independence but are subject to the law in matters of government. Article 188 of the Political Constitution states:

"Article 188. The autonomous institutions of the State enjoy administrative independence and are subject to the law in matters of government. Their directors are responsible for their management." (the underlining is not from the original) Originally, the constitutional text did not establish the possibility of subjecting the autonomous institutions of the State to the law in matters of government, an aspect that was reformed in 1968 (Law No. 4097 of April 30, 1968), precisely to guarantee the unity of the state.

According to the jurisprudence of this Tribunal, as of that constitutional reform, autonomous institutions do not enjoy a guarantee of unrestricted constitutional autonomy, since the law, apart from defining their competence, can subject them to directives derived from development policies that the law itself entrusts to the Central Executive Branch, provided, of course, that this does not invade the sphere of administrative autonomy (autonomía administrativa) properly speaking. According to ruling 1999-919 of this Chamber, the antecedents and effects of the reform itself, by reserving to those entities the matter of their own administration, excluded from their management the power of government which implies: a) the setting of purposes, goals, types of means to achieve them; b) the issuance of autonomous service or activity regulations in accordance with provisions normally called general policy.

In this way, the reform made it constitutionally possible to subject autonomous entities in general to national planning criteria and, in particular, to subject them to general directives issued by the central Executive Branch or by organs of the Central Administration (called upon to complement or oversee general policy). In that sense, general conditions of action that exceed the singular scope of action may be established by law. (in a similar sense, see judgment 1998-4313). The Chamber has also indicated that "the scope of administrative autonomy would be poorly understood if it were believed that it equates to the absence of all possibility of external control, as if decentralized entities were islands governed by sovereign self-government; a State within another." (see judgment 1998-835).

Similarly, decentralized entities are not islands before the legislator, when circumstances exist that require safeguarding public purposes. In the case under analysis, not only is the sustainability of the purposes entrusted to Japdeva in its creation law, essential for the development of the province of Limón, at risk, but also the public funds that the Central Government must allocate from citizens' taxes to meet the entity's salary payment obligations.

For the foregoing reasons, it cannot be validly alleged that there is a violation of the separation of powers, which is not at stake, nor of Article 188 of the Political Constitution." In conclusion, this Chamber did not deem it incompatible with the Constitution to subject JAPDEVA to the aforementioned process of administrative modernization and restructuring—in accordance with the parameters developed in that same ruling. In addition, once again, it exceeds the scope of competence of this Court to assess the advisability or necessity of the "outsourcing (tercerización)" of potential services. Notwithstanding noting, in any case, that any eventual company that provides such services to JAPDEVA in the national territory must comply, as pertinent, with the set of obligations provided for by the Costa Rican labor legal system, in development of the social rights and guarantees recognized in Title V of the Political Constitution.

V.- ON THE CHALLENGE TO THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL. Finally, it must be reiterated that the main reproaches of the plaintiff are directed at questioning, in particular, the validity, necessity, and advisability of such contract, as well as matters regarding its proper execution or compliance; however, as this Chamber has repeatedly indicated, this does not constitute the object of an unconstitutionality action. Thus, recently, when hearing an action filed against that same contract, this Chamber, through ruling no.

2021</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">-</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">005640 of 9:15 a.m. on March 17, 2021, resolved -in pertinent part- that:</span></p><p style="margin:0pt 35.5pt 21.5pt; text-align:justify; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">(...)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">REGARDING THE INADMISSIBILITY OF THIS ACTION AGAINST THE PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> The claimant also challenges</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“(</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">9 of Annex 3</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">of the PUBLIC WORKS CONCESSION CONTRACT WITH PUBLIC SERVICE FOR THE DESIGN, FINANCING, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE MOÍN CONTAINER TERMINAL</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Despite its arguments, the constitutional jurisdiction is not the appropriate avenue to review the content of the challenged concession contract, and therefore regarding this aspect the action is inadmissible due to its subject matter. This is because Article 10 of the Political Constitution assigns this Chamber the task of</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">(</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">) declaring, by an absolute majority of its members, the unconstitutionality of provisions of any nature and of acts subject to Public Law</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Likewise, as stated in the preceding recital, Article 73 of the Constitutional Jurisdiction Law specifies that</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">An action of unconstitutionality shall lie: a) Against laws and other general provisions, including those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. (</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">In accordance with those provisions, it is not possible to bring an action before this Chamber against a contract, even if it is a concession contract (contrato de concesión). In the case of subsection a) cited above, when referring to the possibility of challenging</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">other general provisions, including those originating from acts of private subjects</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">, it must be clarified that this refers to provisions of a normative scope (for example, a regulation or a statute) and not a contractual one, since that is what correctly follows from the phrase</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">provisions of any nature</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">used in constitutional Article 10. (In this regard, see rulings no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">2005-13070 of 4:02 p.m. on September 22, 2005 and no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">2009-000310 of 3:18 p.m. on January 14, 2009).</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">”</span></p><p style="margin-top:21.5pt; margin-left:1.55pt; margin-bottom:21.5pt; text-indent:35.5pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">Criterion subsequently confirmed, in ruling no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub"> 2021-013132</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">of 9:05 a.m. on June 9, 2021, in which this Chamber stated:</span></p><p style="margin:21.5pt 35.5pt 0pt; text-indent:14.2pt; text-align:justify; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">I.- Regarding official letters SJD-126-2014 and SJD-170-2014 of the Costa Rican Tourism Institute and its legal opinion AL-214-2014, clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Annex 3 of the Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">Regarding the aforementioned</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">administrative acts and</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">the mentioned</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">concession contract (contrato de concesión)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">for public works with public services, it must be noted that this action is</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">a</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">reiteration of a previous one (file no. 21-003621-0007-CO), filed by the same claimant, in which</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">this Chamber already</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">ruled, by means of ruling no.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">2021-005640 of 9:15 a.m. on March 17, 2021 -in pertinent part-, that:</span></p><p style="margin:0pt 35.5pt; text-indent:14.2pt; text-align:justify; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">III.- REGARDING THE INADMISSIBILITY OF THIS ACTION AGAINST OFFICIAL LETTERS SJD-126-2014 AND SJD-170-2014 OF THE COSTA RICAN TOURISM INSTITUTE AND ITS LEGAL OPINION AL-214-2014.</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">The claimant states that he is filing this action of unconstitutionality against</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">“(</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">) official letters SJD-126-2014 and SJD-170-2014 of the Costa Rican Tourism Institute and its legal opinion AL-214-2014 (</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">)</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">”</span><span style="font-family:'TIMES NEW ROMAN'; font-size:9.33pt; font-style:italic; vertical-align:sub">.</span></p> Despite the allegations of the petitioner, this action is inadmissible with respect to this object, given that Article 73 of the Ley de la Jurisdicción Constitucional, in subsections a) and b), provides the following: "Article 73.- The acción de inconstitucionalidad shall be available: a) Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. b) Against subjective acts of public authorities, when they infringe, by action or omission, any constitutional norm or principle, if they are not susceptible to the remedies of habeas corpus or amparo. (…)". Based on the foregoing, the acción de inconstitucionalidad filed against the official letters and legal opinion issued by the Instituto Costarricense de Turismo is inadmissible for failing to meet the requirements set forth in the aforementioned rule, since it is not directed against provisions of a general nature that are deemed to infringe constitutional norms and principles. In this case, the impugned official letters and legal opinion do not have a normative character, making the acción de inconstitucionalidad filed for such purpose inadmissible.

IV.- ON THE INADMISSIBILITY OF THIS ACTION AGAINST THE CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN. The petitioner also challenges "(…) Clauses 4.1.1-22), 5.2.2 subsections 11) and 12), 8.5.2, 9.1 and Additional Measure No. 9 of Anexo 3 of the CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN". Despite their arguments, the constitutional jurisdiction is not the appropriate avenue to review the content of the impugned concession contract, and therefore, with respect to this aspect, the action is inadmissible due to its object. This is because Article 10 of the Constitución Política assigns to this Chamber the task of "(…) declaring, by absolute majority of its members, the unconstitutionality of norms of any nature and of acts subject to Public Law". Likewise, as indicated in the preceding considerando, Article 73 of the Ley de la Jurisdicción Constitucional specifies that "The acción de inconstitucionalidad shall be available: a) Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. (…)". In accordance with those provisions, an action cannot be brought before this Chamber against a contract, even if it involves a concession contract. In the case of subsection a) cited, when referring to the possibility of challenging "other general provisions, even those originating from acts of private subjects", it should be clarified that this refers to provisions of normative scope (for example, a regulation or a statute) and not contractual scope, since that is what rightly follows from the phrase "norms of any nature" used in constitutional article 10. (In this regard, see votes no. 2005-13070 of 16:02 hours on September 22, 2005, and no. 2009-000310 of 15:18 hours on January 14, 2009)." Therefore, the action was ultimately rejected outright regarding those extremes. The foregoing, upon concluding that, in the specific case, the questioned conduct was not challengeable through an acción de inconstitucionalidad, as provided in Article 73, subsections a) and b), of the Ley de la Jurisdicción Constitucional. Ergo, the petitioner must abide by what was already decided on that occasion, as there is no reason justifying a change of criterion.

II.- Regarding the signing of the consolidated contract with addenda 1 and 2, called "Contrato de Concesión de Obra Pública con Servicio Público para el diseño, financiamiento, construcción, explotación y mantenimiento de la Terminal de Contenedores de Moín", carried out on February 13, 2012, by the Administration and the concessionaire company APM Terminals, official letters no. UE-TCM-OF-OF-01 13-2013 of October 24, 2013, from the Manager of the TCM Executing Unit, and no. DMP-DI-2013-0363 of November 11, 2013, from the Acting Director of the Infrastructure Division of the Maritime Port Division, in which the design submitted by the concessionaire was approved, and official letter no. UE-TCM-OF-0192-2014 of December 19, 2014, from the Board of Directors of the National Concessions Council, in which the company APM Terminals de Moín S.A. was notified of the construction stage corresponding to Phase 2A of the Moín Container Terminal, effective as of January 19, 2015. In this second action, the aim is to expand the object of the challenge regarding the cited public works concession contract with public service and other administrative acts related to the execution of such contract. In which case, what was already indicated in the cited vote no. 2021-005640 is fully applicable, in the sense that in the sub lite the assumptions provided for in article 73, subsections a) and b), of the Constitutional Jurisdiction Law are not configured.

III.- In relation to what was already indicated in the two preceding recitals, it should be noted that, in the sub judice, the petitioner formulates various objections regarding the origin, convenience, and validity of the cited public works concession contract with public service, as well as a series of administrative acts linked to the execution of said contract. Objections on which this Chamber has already ruled, on multiple occasions, in the sense that they correspond to issues that are not appropriate to resolve in this constitutional jurisdiction.

Thus, the petitioner first questions the content of the cited contract and, in particular, the concession granted to the company APM Terminals, as he claims that a public works concession with public service was granted exclusively to the referred company for the purpose of developing and operating the new Moín Container Terminal, which in his view violates what is established in various constitutional norms and principles, mainly, article 46 of the Constitution. He particularly questions that such a concession was granted since he asserts that JAPDEVA was already providing the respective container loading and unloading services more efficiently. He also claims that Costa Ricans are being affected by high prices and delays in the provision of port services by the aforementioned company APM Terminals. Finally, he alleges that this situation has plunged JAPDEVA into a serious financial crisis. It should be noted that, regarding the objections raised by the petitioner, in judgment No. 2013-16146 of 9:05 a.m. on December 6, 2013, this Chamber -in what is relevant- considered:

"I.- Object of the appeal. The appellant comes in protection of the constitutional principle of free enterprise and fair competition, as well as the principle of equality, right to work, and a living wage, as he accuses the Executive Branch of having granted -exclusively- a public works concession with public service to the company APM Terminals Central America B.V. and APM Terminals Moín S.A.

for the design, financing, construction, operation and maintenance of the new Container Terminal of Moín, thereby suppressing JAPDEVA’s powers to provide the most important service in the port activity of Limón, namely the handling of container ships, with the consequent reduction in revenue received as well as the elimination of sources of employment, hindering free competition between JAPDEVA and private companies.

II.- On the merits. After examining the case file, the Chamber considers that the amparo appeal must be dismissed, for the reasons that will be stated. In the first place, if the appellant maintains any type of disagreement with clause number 9 of the public works concession with public service contract awarded to the company APM Terminals Central America B.V. and APM Terminals Moín S.A., or considers that the content of said contractual clause is arbitrary, illegal or abusive, he must assert it in the corresponding legality venue, as the Chamber lacks the competence to resolve this type of dispute. As this Court has held on previous occasions, “…the petitioner must take into account that disputes concerning the correct interpretation of the clauses of the contracts in question, their scope and the obligations arising therefrom for the parties, as well as what is provided by the regulations governing the matter, are the proper work of such venues, and not of this jurisdiction, since it is a problem of ordinary legality whose knowledge is outside the scope of competence of the Chamber” (see judgment 2009-015459 at 6:10 p.m. on September 29, 2009).

Secondly, from the appellant's statements it is extracted that the contractual clause he challenges refers to the alleged exclusivity that the company APM Terminals Central America B.V. and APM Terminals Moín S.A. would have regarding the handling of container ships. Specifically, he claims that clause number 9 of the aforementioned concession contract actually grants exclusivity to a private company to provide the service that the public company JAPDEVA provided. In this regard, it is necessary to clarify to the protected party that the decision to have granted or not exclusivity to said company for the provision of that specific type of service (containers), does not in itself constitute an injury of constitutional relevance. As the appellant himself indicates, what is being eliminated is the legal power to provide a service, this due to a decision of opportunity by the Administration. Such a measure corresponds to the natural space available to the Administration to exercise administrative management, inherent to its scope of competence, in accordance with its government priorities. Thus, constitutionality control would only apply if, in the exercise of such competencies, a fundamental right were evidently and manifestly violated, a question that does not occur in the present case. The mere disagreement of the claimant with the referred measure pertains rather to a purely political problem, before a legal-constitutional one, a reason for which this Court is obliged to apply self-restraint.

Furthermore, from the statements given under oath by the respondents, it is observed that on July 16, 2011, the Union of Workers of JAPDEVA filed an administrative contentious proceeding, referring to the issue in dispute here, which was resolved in the first instance by the Administrative Contentious Court through resolution number 0153-2012-VI, in which its lawsuit was declared dismissed on all counts. The respondents state that, subsequently, on March 28, 2012, the Union filed yet another administrative contentious proceeding, which is currently being processed under case file number 12-001630-1027-CA and deals with all the events that occurred once the contract was countersigned. According to what was reported by the respondents, said proceeding is pending. This being the case, there is even more reason for the dismissal of the amparo, given that the facts related to the public works concession with public service contract for the design, financing, construction, operation and maintenance of the container terminal of Moín (awarded in favor of the private companies APM Terminals Central America B.V. and APM Terminals Moín S.A.), are being examined in the competent ordinary venue” (the underlining does not correspond to the original).

A criterion reiterated in votes no. 2014-18103 at 11:33 a.m. on October 31, 2014 and no. 2015-001659 at 9:05 a.m. on February 6, 2015. While, more recently, by vote no.

2019-001409 of 09:05 hours on January 25, 2019, upon hearing a similar claim, the Chamber resolved as follows:

“... the appellant files an amparo action against the signatories of the ‘Public Works Concession Contract with Public Service for the Design, Financing, Construction, Operation and Maintenance of the Moín Container Terminal,’ and states that the Port Authority (JAPDEVA) provides port services to container ships for the loading and unloading of containers. It states that on February 13, 2012, the Granting Administration entered into a contract with the concessionaire APM Terminal for the operation of loading and unloading container ships, an action that departs from the constitutional legal framework. It considers that said contract has limitations and restrictions that cause harm to users (shipping companies and stevedoring companies), because it will no longer be possible to request the provision of services for container ships at the intendancies of Limón and Moín, and therefore requests that the referred clause (chapter 4, subsection 22) be annulled and that the action be granted with the legal consequences.

(...)

I.OBJECT OF THE ACTION AND LACK OF JURISDICTION OF THE CHAMBER TO HEAR THE CLAIM. Regarding the arguments and claims set forth in the First Resultando, it must be noted that this Chamber is not a controller of the legality of the actions or resolutions of the Administration, such that it is not its role to review whether the claim requested by the amparo petitioner is appropriate, or whether it conforms to current legal regulations or not, a task proper to ordinary, administrative or jurisdictional channels. The appropriateness or not of the questioned clause does not constitute a matter to be discussed in this Jurisdiction, since it does not have the virtue of violating any fundamental right, and thus it falls outside the scope of its competence and must be resolved through ordinary, administrative or jurisdictional channels. Therefore, any claim or discrepancy regarding the terms of the contract must be raised before the respondent authorities or in the competent jurisdictional venue, forums in which the merits of the matter may be discussed broadly, the applicable precautionary measures requested, and, eventually, the claims asserted. By virtue of the foregoing, the amparo action is inadmissible and must be declared as such.”

For its part, in vote no. 2019-016605 of 09:40 hours on August 30, 2019, this Court resolved:

“From the arguments put forth by the claimant, it is clear that his claim is for this Court to define which cargo must be operated by JAPDEVA in relation to the TCM concession; to halt the processing of Bill No. 21426, to define the causes of the financial crisis at JAPDEVA, to determine whether or not the termination of its employees' employment relationship is appropriate, as well as whether contractual breaches have occurred in the TCM; and to prevent the transfer of funds to JAPDEVA to liquidate it. However, such claims are not matters of constitutionality, but of mere legality.” VI.- IN CONCLUSION. As a corollary to the foregoing, the action must be rejected on the merits with respect to subsections 2) and 3) of Article 2 and subsection 4) of Article 5 of the General Law on Concession of Public Works with Public Services, as well as numeral 18 of the Law for the Transformation of the Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended numeral 1 of the Organic Law of JAPDEVA. In all other respects, the action is rejected outright.

VII.- DOCUMENTATION PROVIDED TO THE CASE FILE. The parties are warned that if they have provided any paper document, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this judgment.

Otherwise, all material not removed within this period shall be destroyed, in accordance with the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Corte Plena in session N° 27-11 of August 22, 2011, article XXVI and published in Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session N° 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

The action is rejected on the merits, with respect to subsections 2) and 3) of article 2 and subsection 4) of article 5 of the Ley General de Concesión de Obras Públicas con Servicios Públicos, as well as ordinal 18 of the Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Law No. 9764, which amended numeral 1 of the Ley Orgánica de JAPDEVA. In all other respects, the action is rejected outright.

Resolución N° 4491-2010 SETENA. San José, at the tenth hour and fifty minutes of the twenty-seventh day of August, two thousand ten. Denial of Environmental Viability for the project of fractional development (fraccionamiento) to be used for human settlements (urbanizaciones) called "Residencial Santa Elena," file (expediente) No. D1-1820-2007-SETENA, located in the district of Rivas, canton of Pérez Zeledón, to be developed by Desarrollos del Valle del General, Limitada, cédula de persona jurídica No. tres-cero ciento cuarenta y dos-ciento noventa y siete mil setecientos sesenta y dos (3-0142-297762).

<p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:10.5pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:7pt; vertical-align:sub">Luis Fdo.</span></p> Salazar A.</span></p></td></tr><tr><td style="padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:10.5pt; background-color:#ffffff"><img src="data:image/png;base64,iVBORw0KGgoAAAANSUhEUgAAAKQAAABKCAYAAAA1+/+zAAAABGdBTUEAALGPC/xhBQAAAAlwSFlzAAAOwwAADsMBx2+oZAAABXJJREFUeF7t3E0oZW8cB3Cv462GBWEYobwksVNiMYamJpMsJBulLITC6l/KxigzWylKpEzKQmIaGzOR8prNX1gIG8ICec1bOP//7+l3LsY59+XcGT2e+/3UM3Of33nOc26d75xz7rnnjpcGIIm7u7t/EEiQBgIJUkEgQSoIJEgFgQSpIJA <p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; line-height:150%; widows:2; orphans:2; font-size:14pt; background-color:#ffffff"><span style="font-family:TAHOMA; font-size:9.33pt; vertical-align:sub; -aw-import:spaces">&#xa0;</span><span style="font-family:TAHOMA; font-size:9.33pt; vertical-align:sub">K0GJA1DPFRI61 </span></p><div style="-aw-headerfooter-type:footer-primary; clear:both"><p style="margin-top:0pt; margin-bottom:0pt; text-align:right; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub">EXPEDIENTE N</span><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub">°</span><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub"> </span><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; font-weight:bold; vertical-align:sub">22-009133-0007-CO </span></p><p style="margin-top:0pt; margin-bottom:1pt; background-color:#ffffff"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; vertical-align:sub; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:1pt; margin-bottom:0pt; text-align:center; border-top:0.75pt solid #000000; background-color:#ffffff; -aw-border-top:0pt single"><span style="font-family:'TIMES NEW ROMAN'; font-size:5.33pt; vertical-align:sub">Telephones: 2549-1500 / 800-SALA-4TA (800-7252-482).</span></p></div>

Revisión del Documento  Res. Nº 2022016950 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las diez horas veinticinco minutos del veinte de julio de dos mil veintidos .

Acción de inconstitucionalidad promovida por Antonio Wells Medina, mayor, casado, administrador de empresas, portador de la cédula 7090995, en su condición personal y de secretario general del Sindicato de Trabajadores de JAPDEVA, contra los incisos 2) y 3) del artículo 2 y el inciso 4) del artículo 5 de la Ley General de Concesión de Obras Públicas con Servicios Públicos, el ordinal 18 de la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, que modificó el numeral 1 de la Ley Orgánica de JAPDEVA y el Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín.

Resultando:

1.- Por escrito recibido en esta Sala a las 12:53 horas del 29 de abril de 2022, el accionante solicita que se declare la inconstitucionalidad de los incisos 2) y 3) del artículo 2 y el inciso 4) del artículo 5 de la Ley General de Concesión de Obras Públicas con Servicios Públicos, el ordinal 18 de la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, que modificó el numeral 1 de la Ley Orgánica de JAPDEVA y el Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín. Señala, el accionante, que el artículo 121 de la Constitución Política reza: "Además de las otras atribuciones que le confiere esta Constitución, corresponde exclusivamente a la Asamblea Legislativa: (...) 14) Decretar la enajenación o la aplicación a usos públicos de los bienes propios de la Nación. No podrán salir definitivamente del dominio del Estado: a) Las fuerzas que puedan obtenerse de las aguas del dominio público en el territorio nacional; b) Los yacimientos de carbón, las fuentes y depósitos de petróleo, y cualesquiera otras sustancias hidrocarburadas, así como los depósitos de minerales radioactivos existentes en el territorio nacional; c) Los servicios inalámbricos. Los bienes mencionados en los apartes a), b) y c) anteriores sólo podrán ser explotados por la administración pública o por particulares, de acuerdo con la ley o mediante concesión especial otorgada por tiempo limitado y con arreglo a las condiciones y estipulaciones que establezca la Asamblea Legislativa. Los ferrocarriles, muelles y aeropuertos nacionales -estos últimos mientras se encuentren en servicio- no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado.” Por su parte, el artículo 140 de la Constitución Política establece: "19) Suscribir los contratos administrativos no comprendidos en el inciso 14) del artículo 121 de esta Constitución, a reserva de someterlos a la aprobación de la Asamblea Legislativa cuando estipulen exención de impuestos o tasas, o tengan por objeto la explotación de servicios públicos, recursos o riquezas naturales del Estado." Indica que, en abril de 1998, se aprobó la Ley General de Concesión de Obras Públicas con Servicios Públicos que, en su artículo 2, dispone: "1.- Toda obra y su explotación son susceptibles de concesión cuando existan razones de interés público, que deberán constar en el expediente mediante acto razonado. Se exceptúan de la aplicación de esta Ley las telecomunicaciones, la electricidad y los servicios de salud. 2.- Los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes, así como los servicios que ahí se presten, únicamente podrán ser otorgados en concesión mediante los procedimientos dispuestos en esta ley. 3.- En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes." Añade que, el 28 de febrero de 2019, APM TERMINALS inició operaciones con sus 2 puestos de atraque, de conformidad al punto 4.1.1. 22 del Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín. El 1 de marzo de 2019, el ministro de Transportes, Rodolfo Méndez Mata, emitió el oficio DM-2019-0604, donde se indicó que el concepto buque fully cellular no está contenido en una norma vigente y, a partir de dicha interpretación, procedió a instruir a JAPDEVA para que se proceda a insertar la programación de los buques a ser atendidos por la TCM de forma inmediata correspondiente a la semana en curso, en apego a los criterios técnicos que garanticen una operación segura y eficiente para ambas terminales (Gastón Kogan Rogan y TCM). Lo anterior, para evitar pérdidas económicas y comerciales para el país por la paralización de operaciones de nuestros puertos. Del listado de buques que se anexó al oficio, todos estos buques incumplían el requerimiento de ser fully cellular container ships; no obstante, la instrucción del ministro era la de remitirlos para ser atendidos por parte de la TCM que administra la empresa APM TERMINALS. El día 4 de marzo, el presidente ejecutivo de JAPDEVA, Greivin Villegas Ruiz, remitió al ministro Rodolfo Méndez Mata el oficio PEL-211-2019, donde se indicó: "Con base en el principio constitucional de legalidad (artículos 11 Constitución Política y 11 Ley General de la Administración Pública; ordinal 188 de la Constitución Política; deber de probidad (artículo 3 de la Ley 8422); numerales 166, 169, siguientes y concordantes de la Ley General de la Administración Pública así como, artículos 1, 6 inciso a) y c); 22 de la Ley Orgánica de JAPDEVA; respetuosamente me veo en la obligación de considerar como evidente y absolutamente nulo su oficio DM-2019-0700 (acto administrativo) y por lo tanto, su instrucción es incompatible en el marco de la relación orgánica de nuestras representadas (Ministerio y Ente Descentralizado) según el artículo 99 de la Ley General de la Administración Pública (LGAP). De manera general observamos con preocupación que la interpretación unilateral del MOPT sobre el uso del canal del acceso, la programación y el tipo de buque que puede atender la TCM, no es conforme con el ordenamiento jurídico. El contrato de concesión y el mismo concesionario reconocen que la TCM sólo puede atender buques porta contenedores de tipo fully cellular. La situación se agrava más cuando se instruye una programación mensual de las operaciones de la TCM para el período del 19 de febrero al 19 de marzo del 2019, sin conocer de antemano la demanda de servicio ni el tipo buques que serán atendidos, lo cual es improcedente y contrario a lo establecido en el Reglamento de Operaciones de JAPDEVA. Dicho reglamento es conocido y aceptado por APM TERMINALS, toda vez que forma parte integral del contrato de concesión. Amén de lo anterior se reconoce que JAPDEVA, como Autoridad Portuaria, le corresponde realizar dichas programaciones semanalmente. La instrucción ilegítima emitida por el MOPT en su oficio lesiona la autonomía de JAPDEVA y genera daños de imposible o difícil reparación, incluso irreversibles como lo hemos externado. Ante la comunidad portuaria se generan igualmente daños y perjuicios por ejemplo; el hecho de que compañías como Dole y Chiquita han manifestado haber sido obligadas por el Gobierno a trasladar sus operaciones a APM amparado al criterio de su representada; ello a pesar que muchos de sus buques no son del tipo Fully Cellular. La anterior situación ha generado incertidumbre financiera y operativa en las compañías obligándolas a tomar la decisión de trasladar sus operaciones totales a APM y ello implica despidos de sus trabajadores. En concordancia con el marco jurídico vigente procedo a explicar con detalle las razones de hecho y derecho correspondientes...". Luego, en ese mismo oficio se añadió que: "Compartimos su preocupación para que el servicio público se preste de manera continua e ininterrumpida y entonces, así como lo reconoce y comunicó el mismo concesionario, "todas las navieras que arriben al complejo portuario de Limón-Moín en barcos fully cellular container ships deberán atracar en la Terminal de Contenedores de Moin". Amén de lo anterior todas las navieras que arriben al complejo portuario de Limón-Moín en barcos no fully cellular container ships, deberán atracar en la Terminal de JAPDEVA. Actuar de manera contraria — como lo explicamos en nuestro oficio PE-033-20 19- representaría una quiebra técnica para JAPDEVA y de acuerdo con nuestras proyecciones, para el mes de abril del año en curso no se tendría la capacidad financiera para garantizar la continuidad de los servicios públicos portuarios, la gestión del Desarrollo, el pago de salarios, cargas sociales y las demás obligaciones. Disculpe señor Ministro pero JAPDEVA se ve en la obligación de actuar amparada en el numeral 188 constitucional; deber de probidad (artículo 3 de la Ley 8422); artículos 1, 6 inciso a) y c); 22 de la Ley Orgánica de JAPDEVA y; numerales 1, 4, 6, 11, 27, 59, 60, 66, 99, 100, 101 de la Ley General de la Administración Pública y por tanto desobedecer la instrucción por usted girada (artículos 107, 108 LGAP y; 3, 4 y 5 Ley 8422). se reitere que JAPDEVA realizó la comunicación correspondiente con una semana de anticipación por parte de la Gerencia Portuaria para que a partir del 1 de marzo las agencias o sus representantes presenten los documentos oficiales aportados por el capitán del buque que comprueben la presencia de buques Fully Celular Container Ships, todo de conformidad con lo que establece el Reglamento de Operaciones Portuarias de JAPDEVA y como igualmente lo reconoce y acepta el concesionario en su comunicado." Señala que ese mismo día, 6 de marzo, en los medios de prensa se informó que el presidente Carlos Alvarado explicó que Greivin Villegas Ruiz había sido destituido, pues no estaba alineado con el Gobierno. Asevera que el inicio de labores de APM TERMINALS estuvo marcado por graves problemas. El arranque fue tan complicado que la Cámara de Exportadores de Costa Rica envió una nota dirigida al Consejo Portuario Nacional, donde se expusieron varios problemas que había tenido la operación de la empresa APM TERMINALS. Ante los problemas de inicio de operación de APM TERMINAL, CORBANA envió una nota dirigida al Consejo Nacional de Concesiones donde se indicó: "El sector exportador en general enfrenta un incremento significativo en los costos de exportación, entre ellos las tarifas de la TCM, situación que lesiona la competitividad del país, por cuanto los ahorros de la eficiencia del operador no se han y no serán trasladados al exportador. En la actualidad, las tarifas se constituyen en las más caras de la región, ubicando al país en desventaja competitiva." El 28 de mayo de 2019, el Poder Ejecutivo presentó ante la Asamblea Legislativa el proyecto de ley denominado "Ley de modernización de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (JAPDEVA) y protección de sus personas servidoras", que se tramitó mediante el expediente legislativo nro. 21.426. Este proyecto planteaba una serie de medidas para la reducción del personal de JAPDEVA (traslados horizontales a otras instituciones, prejubilación y movilidad laboral voluntaria) como reacción directa al grave deterioro que presentaban sus finanzas. En el año 2019 salió en medios de prensa que, en aquel momento, ante la disminución de atención de buques en JAPDEVA, a diferencia del pasado, donde la planilla de la institución se pagaba con los ingresos de la atención de buques, el Gobierno estaba subsidiando ese gasto, pues JAPDEVA ya prácticamente no tenía ingresos propios. El 18 de junio de 2019, el Poder Ejecutivo presentó a la Asamblea Legislativa un cuarto presupuesto extraordinario (con modificaciones al Presupuesto Ordinario de la República de 2019), que se tramitó mediante expediente legislativo 21.475. El proyecto, en su versión original, tenía la finalidad de incorporar recursos en el presupuesto de Ministerio de Obras Públicas y Transportes y del Título presupuestario de Regímenes de Pensiones, por un monto total de ₡ 23.679.008.731,00, para hacer frente a la crítica situación financiera de JAPDEVA ya descrita. Respecto al MOPT, dicho presupuesto extraordinario (expediente nro. 21.475) incorporaba una transferencia destinada a JAPDEVA, por un monto de ₡ 21.989.765.516,00, con el objetivo de financiar el pago de tres meses de la planilla (que incluía salarios, aguinaldo y contribuciones sociales) por un monto total de ₡ 5.752.908.243,00, además de dotar de recursos para el plan de reducción de la planilla de la institución contenido en el proyecto de ley nro. 21.426, por un monto de ₡16.236.857.273,00. Para mediados de 2019, la propia JAPDEVA emitió el Informe ejecución del presupuesto JAPDEVA 30 de junio 2019.pdf, donde se muestra la reducción de sus ingresos para abril de 2019. Esto, ante la decisión del Gobierno de pasar la atención de los buques porta contenedores a ser atendidos ahora por APM TERMINALS. Acá se muestra que la reducción en los ingresos de la institución es dramática y es lo que viene a justificar el proyecto de ley. Acusa que la restricción absoluta impuesta a JAPDEVA para la atención de barcos porta contenedores como consecuencia de la conducta administrativa, ha ocasionado que todos los barcos porta contenedores que arriban al Caribe costarricense, incluyendo los convencionales o no fully celular, deban hacer fila por varias horas para ser atendidos en los dos puestos de atraque de la TCM de APM Terminals, mientras que los ocho puestos de atraque con que cuenta JAPDEVA se encuentran vacíos y totalmente subutilizados. Esta situación, sumada a la preocupación por las elevadas tarifas que cobra APM Terminals, provocó que cinco cámaras empresariales -a saber: la Cámara Nacional de Agricultura y Agroindustria (CNAA), la Cámara Nacional de Productores y Exportadores de Piña (CANAPEP), la Corporación Bananera Nacional (CORBANA), la Cámara Nacional de Productores y Exportadores de Melón y Sandía (CANAPEMS) y la Cámara Nacional de Productores Independientes de Banano (APROBAN)- remitieran una nota al Consejo Portuario Nacional (oficio CE-2019-1049 del 18 de junio de 2019), en que señalaban una serie de afectaciones que estaban sufriendo en su actividad económica y que ponían en peligro la sostenibilidad de sus actividades y la competitividad del país. Se mencionaban, en esta nota, problemas en los sistemas de citas, en la supervisión de los sistemas de refrigeración, con el flujo eléctrico de la terminal, en el sistema informático y en los sistemas de información. También se mencionaron graves congestionamientos en la Ruta 257 para el acceso a la TCM para retirar o entregar mercaderías. Para este período, varias organizaciones certifican despidos en CADESA, SINTRACOBAL y SINTRASTAFCOR. Donde se demuestra que la afectación a los trabajadores en Limón va más allá de solo JAPDEVA y es, por ende, un elemento para tomar en cuenta a la hora de ponderar los intereses en la decisión. Agrega que, para octubre de 2019, se aprobó la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, con lo cual, se inició un proceso de reducción de la planilla de JAPDEVA, por medio de traslados horizontales y sistemas de prejubilación con cargo al presupuesto nacional, donde el Estado debió de asumir pagos onerosos, para cubrir los gastos de los empleados que antes se dedicaban al manejo de contenedores en los puertos de JAPDEVA y que quedaron cesantes al trasladarse la atención de estos a la TCM operada por APM TERMINALS. A finales de octubre de 2019, durante una entrevista radial en Monumental, el ex diputado, ex candidato presidencial y empresario Antonio Álvarez Desanti, indicó que los productores y exportadores del país, en su caso de banano, añoraban las épocas de JAPDEVA, pues APM había resultado -según ellos- un fiasco, pues los costos de exportación eran altísimos, al punto de mencionarlo como el puerto más caro de la región. También indicó que era mucho más ineficiente que JAPDEVA. Afirmó que los costos prácticamente se duplicaron con APM TERMINALS. El 17 de octubre de 2019, se publicó en La Gaceta la Ley que Transforma la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, que, en su artículo 18, modificó el artículo 1 de su ley original, con el siguiente texto: "Artículo 1°.- Se crea la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, en adelante denominada JAPDEVA, como ente autónomo del Estado, con carácter de empresa de utilidad pública, que asumirá las prerrogativas y funciones de Autoridad Portuaria; se encargará de construir, administrar, operar, subcontratar, concesionar y realizar cualquier otro mecanismo financiero que la normativa nacional permita, para desarrollar los servicios portuarios, su propia gestión administrativa y las inversiones, construcciones y mejoras, en los puertos marítimos y fluviales de la Vertiente Atlántica, con la salvedad de los que operen al amparo del inciso h) del artículo 60 de esta ley." A partir de esta reforma, el día 6 de febrero de 2021, Andrea Centeno remitió a SINTRAJAP el oficio PEL-15-2021, en el que se indica: "En seguimiento a la pasada reunión de la Comisión de Reestructuración realizada en la Presidencia Ejecutiva el día 21 de diciembre 2020, adjuntamos la información presentada para su información. Situación económica de la organización y erosión financiera según proceso legal de embargo. Criticidad proyectada y necesidad de recursos. Ejercicio de necesidad de reducción de planilla. Repaso de lo ya indicado en el Programa de Reorganización Institucional sobre servicios tercerizados y presentación realizada a su Junta Directiva en Noviembre 2019. Análisis de costos y eficiencia de los servicios tercerizados identificados." Con dicha nota, se adjuntó un oficio titulado: "Repaso de información y datos de eficiencia sobre tercerización." En esta nota se indicó: "La tercerización de servicios, es uno de los cambios aplicados en el programa de reorganización según la nueva visión de JAPDEVA, para la optimización del modelo de costos y generación indirecta de empleo en Limón, lo cual permite a la institución: Potencial reducción de planilla." En noviembre de 2019, JAPDEVA publicó en su página web su programa de reorganización institucional, donde en su capítulo titulado "Institución en crisis" señaló: "Para el año 2019 la situación financiera se agrava al registrarse un déficit significativo durante el primer semestre del año en la recaudación de ingresos. Lo anterior producto de la afectación en los ingresos efectivos al cambiar el modelo de negocios y trasladarse la carga contenerizada a la nueva Terminal de Contenedores Mohín (TCM) desde febrero 2019. Los ingresos corrientes generados de la actividad portuaria al 30 de junio del 2019 se registran por la suma de 012.888,2 millones equivalentes a un 30% del presupuesto anual de ingresos estimados para el ejercicio económico 2019. Cabe señalar que este monto incluye además aún la atención de algunos buques porta contenedores a los cuales se les brindó servicios a inicio de año en medio del proceso de transición con la TCM, así como, en dos ocasiones como medidas de contingencia ante fallos presentados en ésta." Más adelante, en este documento, en el punto 2.6., titulado "PRINCIPALES ACCIONES EN RELACIÓN CON LA REORGANIZACIÓN INSTITUCIONAL Y FORTALECIMIENTO DE JAPDEVA", se indicó: "iii. Dado que las tarifas portuarias no se actualizan desde el año 2012, es necesario que una vez implementados los nuevos procesos operativos y reasignación del recurso humano, se proceda a realizar el estudio tarifario para gestionar ante la ARESEP las tarifas acordes para la prestación de los servicios portuarios y que a su vez le permita a la institución cubrir mediante un programa de inversión, los gastos requeridos para las inversiones que se necesitaran realizar. d. El crecimiento y el desarrollo de las capacidades de los recursos humanos es fundamental en la estrategia de alcanzar mayor eficiencia y eficacia institucional, lo que con lleva potenciar el recurso humano constituido por los 258 funcionarios que se mantendrán en el cumplimiento de las acciones y funciones de acuerdo a los procesos y subprocesos de la institución." El 19 de diciembre de 2019, el Gobierno de la República emitió un comunicado de prensa en el que se reconoce el problema de las altas tarifas que cobra APM TERMINALS y la afectación al sector exportador, el cual indicó: "Gobierno negociará con APM Terminals posible reducción de tarifas." Esto, según dicha nota, ante la preocupación respecto de las tarifas del sector exportador. Las negociaciones, según tal comunicado, serán lideradas por Rodolfo Méndez Mata, en su calidad de ministro de Transportes, y donde participarán funcionarios del CNC, JAPDEVA y la concesionaria. A finales de diciembre de 2019 y principios del 2020, ha salido en medios de prensa, noticias relacionadas con la posible negociación de tarifas con APM TERMINALS y el Gobierno, donde se manifiesta que las partes han valorado disminución del canon a cargo de la concesionaria, pago directo a la concesionaria, extensión del plazo de la concesión e, incluso, se habla de la exoneración a la empresa APM TERMINALS de terminar 2 y 3 de la TCM, a saber, exonerarles la obligación de realizar los puestos de atraque 3, 4 y 5 de la TCM estipuladas en el contrato de concesión. Finalmente, en el discurso Presidencial dado por Carlos Alvarado el 1 de mayo de 2021, se indicó: "El caso de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA) es complejo y da para mucho debate. Lo cierto es que al firmarse el contrato en 2012 para el funcionamiento de la Terminal de Contenedores de Moín (TCM), lo que se concretó ahí fue el traslado del 84% de la carga y el 80% de los ingresos de JAPDEVA a la TCM, a cambio de un canon. Se cedió un negocio público a un privado sin una compensación adecuada, y sin garantías de mejores tarifas y mejor operación. Además sin un plan claro de transición de JAPDEVA. Así, al iniciar operaciones la TCM en febrero 2019, JAPDEVA se topa de frente con la caída masiva de sus ingresos y manteniendo el mismo nivel de gasto. Hoy la realidad es que las tarifas de la TCM son más caras que antes y la terminal, a dos años de su entrada en operación, está ya llegando a su saturación operativa." Alega, el accionante, que si se da una lectura cuidadosa de los incisos 2) y 3) del artículo 2 y el inciso 4) del ordinal 5 de la Ley nro. 7762 del 14 de abril de 1998, denominada "Ley General de Concesión de Obra Pública con Servicio Público" y, por conexión, del Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, operación y mantenimiento de la terminal de contenedores de Moín, estos son inconstitucionales en cuanto lesionan el sentido literal del último párrafo del inciso 14) del artículo 121 de la Constitución Política, en cuya virtud: "Los ferrocarriles, muelles y aeropuertos nacionales -estos últimos mientras se encuentran en servicio- no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado". Afirma que de lo anterior se deduce, con toda claridad, que los bienes aludidos no pueden ser objeto de algún tipo de traspaso o de concesión, como se pretende por medio de la Ley nro. 7762 y el contrato de concesión de obra pública con servicio público, los cuales sin duda vulneran la norma fundamental. Es claro que la norma aludida no puede ser interpretada de modo distinto a su sentido literal. Si bien es cierto que concesionar no es necesariamente lo mismo que enajenar, arrendar o gravar, justamente la norma constitucional lo que indica es primero que los muelles no podrán ser enajenados, arrendados ni gravados, directa o indirectamente; pero la segunda parte de dicho numeral es aún más categórica, al indicar que tampoco los muelles podrán salir en forma alguna del dominio y control del Estado. Si se va a la definición dada en el artículo 1 de la Ley de Concesiones, se define a la concesión de obra con servicio público como: "b) Concesión de obra con servicio público: contrato administrativo por el cual la Administración encarga a un tercero, el cual puede ser persona pública, privada o mixta, el diseño, la planificación, el financiamiento, la construcción, la conservación, la ampliación o la reparación de cualquier bien inmueble público, así como su explotación, prestando los servicios previstos en el contrato a cambio de contraprestaciones cobradas a los usuarios de la obra, a los beneficiarios del servicio o de contrapartidas de cualquier tipo pagadas por la Administración concedente." Sostiene que si la norma constitucional prohíbe que los muelles puedan salir en forma alguna del dominio y control del Estado, entonces, con base en la definición anterior, al permitir la Administración que un tercero realice tanto el diseño, la planificación, el financiamiento, la construcción, la conservación, la ampliación o la reparación de cualquier bien inmueble público, así como su explotación, prestando los servicios previstos en el contrato, es claro que este bien concesionado estaría saliendo en parte del dominio y control del Estado, pues el servicio público lo estaría prestando un tercero. Así las cosas, al no estar expresamente permitido concesionar en la Constitución, el legislador no puede disponer que los muelles puedan ser concesionados, como indican las normas impugnadas en este caso. Aunque se argumente que con la concesión el Estado no pierde la titularidad del bien público, es lo cierto que ni la concesión está expresamente permitida en la Constitución, ni se puede llegar a interpretar el texto constitucional, en una materia tan restrictiva como es la disposición de bienes públicos, de una forma amplia. Máxime que, por mandato de la propia Constitución Política, no se permite que de "ninguna manera" los muelles salgan del control del Estado y, claramente, la concesión es una manera en que se ha permitido que los muelles salgan del control del Estado, pues pasan a ser administrados por una empresa particular. La Ley General de Concesión de Obras Públicas con Servicios Públicos hace una posible salvedad, en su artículo 2, inciso 3, al indicar: "3.- En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes." No obstante, la salvedad dada en el artículo 121 de la Constitución Política, en el párrafo final del inciso 14, es clara al establecer: "Los ferrocarriles, muelles y aeropuertos nacionales -estos últimos mientras se encuentren en servicio- no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado." La Constitución Política no hace la salvedad que sí hace la Ley de Concesiones, pues, para el constituyente, del todo los muelles, sin excepción, mientras se encuentren en servicio, no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado. En el caso de la concesión de la TCM a la empresa APM TERMINALS, aunque se podría alegar que esta no era una obra en operación al momento de su concesión, lo cierto es que una vez que se habilitó dicha Terminal, como ya se explicó, el propio presidente de la República reconoció que se trasladó la atención de todos los buques porta contenedores que estaba atendiendo JAPDEVA para ser atendidos por APM TERMINALS, lo que significa que, en realidad, el servicio que ya brindaba JAPDEVA, previo a dicha concesión, sí fue concesionado a favor de la empresa APM TERMINALS, por lo que, en la práctica, esta concesión de esta obra portuaria de los muelles de Limón de un servicio que ya se estaba brindando por JAPDEVA irrespeta nuestra Carta Magna, al permitir salir del dominio y control del Estado un servicio portuario en operación que ya brindaba JAPDEVA, como lo era la atención de los buques porta contenedores que eran atendidos en los puertos de Limón y Moín existentes por décadas. Argumenta, el accionante, que la inconstitucionalidad que se alega va más allá de lo argumentado hasta ahora en diferentes acciones de inconstitucionalidad, pues no se está hablando de una inconstitucionalidad por omisión de las normas impugnadas, sino por violación directa al texto constitucional, dado que, la atención de los buques porta contenedores que ya estaba brindando JAPDEVA, fue concesionada a favor de una empresa privada, lo que claramente estaba y está prohibido por la Constitución Política. Acusa una infracción al principio de legalidad constitucional, que amerita la declaratoria de inconstitucionalidad del contrato de concesión a la empresa APM TERMINALS y de la ley que permitió que se diera esa concesión. Agrega, el accionante, que teniendo presente que se trata de bienes estratégicos del Estado, como lo son los muelles, la literalidad en este caso es infranqueable, porque si bien el concepto de una concesión no existía al momento de redacción de la Constitución Política, lo cierto es que esta figura tiene similitud muy cercana con lo que expresamente prohíbe la Constitución, dado que, la concesión es una especie de arrendamiento, pues la concesión se convierte en una forma indirecta en la que el bien sale del dominio y control del Estado, y es justamente lo que prohíbe la norma constitucional. Insiste que se impone en este caso una interpretación restrictiva, porque el contenido de la norma impone una prohibición muy clara que no puede ser excepcionada. De forma tal que, aun cuando la Asamblea Legislativa hubiera procedido a aprobar la concesión por medio de un procedimiento calificado, tal aprobación hubiera resultado igualmente inconstitucional. Así que, con mucha más razón, serían inconstitucionales las normas legales que facultan al Poder Ejecutivo, por medio de la Ley impugnada, a concesionar los muelles, porque se debilita aún más la prohibición constitucional de comentario, si es el mismo Poder Ejecutivo, con una ley marco, que puede concesionar un bien que es inalienable según la Constitución. Manifiesta, el accionante, que puede afirmarse que existe, como en otros muchos casos señalados por esta Sala, una especie de "reserva constitucional". Solo el Constituyente puede indicar la forma de disponer de los muelles y solo si el Constituyente habilita la posibilidad de darlos en concesión, se podrían concesionar. Esta tesis que se sustenta no es otra que la aplicación del contenido del principio de legalidad al texto constitucional, entendido en el sentido de que, en esta materia de bienes públicos, lo que no está expresamente permitido (concesionar), entonces está prohibido. Señala que esta Sala Constitucional ha sustentado la existencia de "reserva constitucional" en ciertas materias, como es el caso del voto nro. 2010-011352, referente a las causales de cancelación de credenciales a diputados, el voto nro. 2008-016099, respecto del principio de libertad, o el voto nro. 2013-012801, sobre la competencia material de la jurisdicción contencioso administrativa. En este caso, como se trata de la disposición de bienes públicos estratégicos, considera que también existe una "reserva constitucional" que le impide al legislador —y más que por supuesto también al Poder Ejecutivo- establecer la posibilidad de concesionar, no solo porque la Constitución no lo permite expresamente, sino porque al momento de redacción de la Constitución Política, el concepto jurídico de concesión no se conocía, pero justamente por eso se indicó que los muelles en operación no podían ser ni arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado; es decir, al indicarse que no pueden salir de alguna manera del control del Estado, se utiliza un concepto abierto amplio, intentando adelantarse a cualquier figura jurídica que se pudiera intentar utilizar en el futuro para violentar esta disposición. Asevera que esta prohibición de concesionar estos bienes estratégicos tiene una lógica de seguridad incluso nacional, ya que, desde que entró a operar APM TERMINALS, las noticias de que están apareciendo contenedores con drogas en puertos europeos desde Costa Rica se han vuelto muy frecuentes. Noticias que, previo a la entrada en operación de APM TERMINALS, no se escuchaban en los medios. Insiste, el accionante, que la interpretación estricta del texto constitucional es lo que procede cuando de bienes de tanta relevancia se trata, sin desconocer que el texto del último párrafo de la norma comentada es tajante: esos bienes, muelles, aeropuertos y ferrocarriles no pueden salir, en forma alguna, del dominio y control del Estado. Reitera que un análisis integral del apartado catorce del artículo 121 de la Constitución permite concluir, nuevamente, que los muelles, aeropuertos y ferrocarriles no pueden salir, bajo ninguna modalidad, del dominio del Estado. El penúltimo párrafo de la norma comentada admite que los particulares puedan explotar los bienes mencionados en los apartados a, b y c, conforme a la ley o mediante concesión especial, otorgada por tiempo limitado y con arreglo a las condiciones y estipulaciones que establezca el Parlamento. Claramente el párrafo segundo establece que los particulares puedan explotar los bienes mencionados; esto significa, que cuando esto se autoriza, la norma lo prevé expresamente. Esta es la regla que implícitamente establece la norma. Situación muy diferente prevé el último párrafo inciso 14) del artículo 121 de la Constitución, pues no autoriza, de ninguna forma, que esos bienes puedan ser explotados por particulares, porque no admite que muelles, ferrocarriles y aeropuertos puedan ser explotados por particulares, y no pueden salir, directa o indirectamente, del dominio y control del Estado. Conforme a esta interpretación integral del texto de la norma, se confirma que la norma constitucional comentada, no autoriza que el Estado deje de tener directo control sobre los bienes que menciona el último párrafo del inciso catorce del artículo 121 constitucional. Acusa, por otra parte, que es inconcebible y absolutamente inaceptable que se estableciera una terminal portuaria privada para que, con sólo dos puestos de atraque, de manera exclusiva, se hiciese cargo de toda la carga y descarga de contenedores en todo el Litoral Caribeño costarricense. Como lo reconoció el presidente de la República Carlos Alvarado, en su discurso del 1 de mayo de 2021, la prestación del servicio portuario por parte de APM Terminals se estableció con sobrecostos que superan las tarifas de JAPDEVA y afectó la capacidad financiera de tal institución, volviéndola incapaz de garantizar la continuidad de servicios públicos portuarios, la gestión del desarrollo, el pago de salarios, cargas sociales y demás obligaciones. Asevera que, a mediados del mes de junio de 2019, 16 cámaras empresariales enviaron una carta al presidente Carlos Alvarado, en la cual detallaron una serie de ineficiencias en las operaciones de APM Terminals, entre las que se encontraban demoras por la congestión en la entrada al puerto y altas tarifas. La principal queja de los exportadores es que las tarifas cobradas por la empresa APM Terminals en el país superan hasta por $300 a los precios en otros puertos de la región. Los exportadores aseguran que la diferencia de precios se da hasta con otros puertos cercanos administrados por APM Terminals. En total, los exportadores reportan que están pagando alrededor de $515 dólares por ingreso y salida de contenedor. Además, en comparación con Caldera, el otro puerto de importancia en Costa Rica, se pagan alrededor de $200 dólares más por la salida y entrada de contenedores (llenos y vacíos). En promedio, se ha pagado alrededor de $120 millones de más durante el 2019, en comparación con lo que se pagaba antes de la entrada en operación de la TCM. Un estudio hecho por Cadexco, arrojó que los costos de operación de la TCM son considerablemente más altos que la gran mayoría de los puertos del hemisferio. Los exportadores aseguran que la problemática de las tarifas va más allá de pagar un precio más alto, pues se afecta de manera directa la competitividad del país y la generación de empleo, sobre todo en zonas rurales. Los altos costos tarifarios de APM Terminals también afectan al costo de vida de los costarricenses, al aumentar el precio de los productos importados, al incrementarse los costos de importación de los contenedores que ingresan por el Atlántico. El 1 de mayo de 2021, el propio presidente de la República vino a reconocer que: "Hoy la realidad es que las tarifas de la TCM son más caras que antes y la terminal, a dos años de su entrada en operación, está ya llegando a su saturación operativa.". Indica que en un estudio de septiembre del año 2012, titulado "Materia portuaria en Costa Rica y graves deficiencias de la licitación para la concesión en la costa atlántica de la Terminal de Contenedores en Moín", confeccionado por Daniel Pacheco Arias, quien fue parte del grupo que realizó una consultoría en materia portuaria para la Autoridad Reguladora de los Servicios Públicos (ARESEP), ejecutada durante el segundo semestre del año 2009 y primer semestre del año 2010, se concluye que en Costa Rica aprobamos tarifas portuarias similares a las de algunos países de Europa y Asia, aunque tenemos salarios latinoamericanos. Por esto, Daniel Pacheco termina indicando -respecto del tema tarifario aprobado para APM TERMINALS- que: "En conclusión, si no se va a pagar aquí en Costa Rica como a los trabajadores de los puertos insignia de EEUU/ Europa, que no se planteen tarifas como las de EEUU/ Europa. No se justifican tarifas a la carga por encima de los $ 200. La incongruencia entre salarios y tarifas sería fatal si el concesionario se atiene luego al salario mínimo nacional." Acusa que, en definitiva, la tarifa que establece la cláusula 11 del contrato con APM TERMINALS está muy por encima del promedio regional y esto tiene entre sus consecuencias que perdemos competitividad como país, al encarecer nuestras importaciones y exportaciones por el puerto Atlántico. La entrada de APM Terminals al territorio nacional vislumbraba mayor modernidad y eficiencia en comparación con la administración de JAPDEVA, lo que se traduciría, según los empresarios, en costos más bajos; sin embargo, esto no se ha dado. Argumenta que lo anterior permite entender una razón práctica del constituyente al prohibir cualquier figura similar a la concesión de los muelles. Indica que si bien conoce la línea jurisprudencial de la Sala Constitucional respecto de las concesiones y los monopolios, lo cierto es que también conoce que la Sala Constitucional puede variar su línea jurisprudencial e, incluso, existen bastantes casos en el pasado donde ha cambiado su línea jurisprudencial. Por lo que remite nuevamente al estudio realizado por Daniel Pacheco Arias, en donde se indicó: "No se va hacer acá una disertación sobre los monopolios, pero se resumen en un párrafo las tendencias a largo plazo que podrían perjudicarnos en materia portuaria. Un monopolio privado tendría la demanda garantizada (carga cautiva). La carga y las tarifas determinan los ingresos. De forma tal que un concesionario se ve tentado como empresa privada, a optimizar sus ganancias por la vía de minimizar sus costos, afectando con ello la calidad del servicio. Naturalmente un monopolio privado no va a hacer lo que hacen los sindicatos del sector público, como parar el puerto y hacer huelgas, ya que esto afectaría sus ingresos. Pero si pueden poner los clientes (barcos) a hacer fila, hacer las mínimas inversiones y/o retardarlas, ser tacaños a la hora de responder por daños, tener el equipo y el personal mínimo y no el óptimo (de acuerdo a los mejores estándares de la industria) para la manipulación de la carga, etc. En ambientes de competencia, si un concesionario no atiende bien a un cliente (daños, lentitud, cobros abusivos, etc.), el cliente pasa su carga a otra terminal y/o puerto; de manera que hay un vínculo entre calidad e ingresos del concesionario, lo que persuade al concesionario a pensárselo dos veces antes de bajar la calidad del servicio. Por eso es que no debe haber monopolios a 3 décadas. Los países desarrollados, grandes o pequeños, no tienen monopolios portuarios en sus costas. Tampoco los tiene ningún país serio de América Latina en vías de desarrollo. Ni el Gobierno de los EEUU, ni la Comisión Europea, han permitido que una línea naviera o un mega-operador portuario adquiera poder monopólico local o regional, para lo cual regulan los permisos, las concesiones, las fusiones y las adquisiciones. Lo lógico y lo que se acostumbra a nivel mundial, es que en un complejo portuario conforme va creciendo la demanda real se va permitiendo la instalación de terminales de distintos operadores de carga contenedorizada. De esta forma se va introduciendo de forma ordenada la competencia. Cada terminal puede tener uno o varios puestos de atraque, dependiendo del tráfico del puerto." Señala, el accionante, que la Sala Constitucional ha realizado el análisis respecto de las concesiones y los monopolios desde la óptica del servicio público, pero lo cierto es que visto desde afuera de nuestras fronteras, a saber, desde el punto de vista de las líneas navieras y los mercados internacionales, es claro que en Costa Rica, en los puertos del Atlántico, existe un único oferente del servicio de atención de buques porta contenedores, y poco interesa para ellos si es una concesión o no, pues lo cierto es que estas empresas navieras, en Costa Rica únicamente pueden dejar sus contenedores en el Atlántico costarricense en un único operador portuario que es APM TERMINALS, y esto explica las altas tarifas, la poca eficiencia y la baja calidad del servicio. Coincide, entonces, que en ambientes de competencia, si un concesionario no atiende bien a un cliente (daños, lentitud, cobros abusivos, etc.), el cliente pasa su carga a otra terminal y/o puerto; de manera que hay un vínculo entre calidad e ingresos, situación que en el Atlántico de Costa Rica no existe en materia de atención de contenedores, pues APM TERMINALS es la única empresa que brinda este servicio. Alega que esto permite entender otra razón práctica del constituyente de prohibir cualquier figura similar a la concesión de los muelles. Alega, por otra parte, que el 17 de octubre de 2019 se publicó en La Gaceta la Ley que Transforma la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, que en su artículo 18 modificó el artículo 1 de su ley original, con el siguiente texto: "Se crea la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, en adelante denominada JAPDEVA, como ente autónomo del Estado, con carácter de empresa de utilidad pública, que asumirá las prerrogativas y funciones de Autoridad Portuaria; se encargará de construir, administrar, operar, subcontratar, concesionar y realizar cualquier otro mecanismo financiero que la normativa nacional permita, para desarrollar los servicios portuarios, su propia gestión administrativa y las inversiones, construcciones y mejoras, en los puertos marítimos y fluviales de la Vertiente Atlántica, con la salvedad de los que operen al amparo del inciso h) del artículo 6 de esta ley." El texto original del artículo 1 de la Ley Orgánica de JAPDEVA establecía: "Créase la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, en adelante denominada JAPDEVA, como ente autónomo del Estado, con carácter de empresa de utilidad pública, que asumirá las prerrogativas y funciones de Autoridad Portuaria; se encargará de construir, administrar, conservar y operar el puerto actual de Limón y su extensión a Cieneguita, así como otros puertos marítimos y fluviales de la Vertiente Atlántica, con la salvedad de los que operen al amparo del inciso h) del artículo 60 de esta ley." Nótese como ahora, a partir de esta reforma del año 2019, la norma permite subcontratar, concesionar y realizar cualquier otro mecanismo financiero que la normativa nacional permita -figuras que no existían en la norma original- para desarrollar los servicios, que antes la propia Ley Orgánica de JAPDEVA no permitía, pues, previo a la reforma, la Ley Orgánica de JAPDEVA era acorde con el artículo 121 de la Constitución Política, que en el párrafo final del inciso 14 indica: "Los ferrocarriles, muelles y aeropuertos nacionales -estos últimos mientras se encuentren en servicio- no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado." Esta reforma introducida en el año 2019, mediante la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, al introducir estas variaciones del texto original de Ley Orgánica de JAPDEVA, claramente está permitiendo que se dé una tercerización de los servicios portuarios, conforme se explica en el mencionado oficio PEL15-2021, irrespetando con esto el artículo 121 de la Constitución Política. Reitera que, en el discurso Presidencial dado por Carlos Alvarado el 1 de mayo de 2021, se reconoce que a 2 años de entrada en operación, ya la Terminal esté en saturación operativa. Aspecto que tiene una simple explicación y es que el Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín, en su punto 4.1.1. 22, indica que la fase 2 solo contará con 2 puestos de atraque. Si se lee el Plan Maestro que se utilizó de base para esta concesión, específicamente a páginas 87 y 88, en el punto 6. 10 se indica que en la fase 2, la nueva terminal de contenedores está operacional. Esta fase comienza en 2016 y dura hasta el 2020. Los muelles para el manejo de contenedores son Muelle Taiwanés y Nuevo Terminal de contenedores con 900m de muelle e, incluso, se indica que: "Con una eslora promedio de los porta contenedores de 180m al final de la fase 2, se puede concluir que el puerto tiene disponible 5 muelles para la manipulación de contenedores." Según este Plan Maestro, lo que se contemplaba era que coexistiría la atención de los buques porta contenedores por parte de APM TERMINALS y por JAPDEVA, lo cual puede corroborarse en su Tabla 6-5, específicamente en el punto 6.9.3., visible a página 85 y 86 de dicho documento. Así las cosas, en la fase 2, que es en la que se nos dice que estamos en la actualidad, el Plan Maestro reconoce que se iban a tener 5 puestos de atraque para el manejo de contenedores en el Atlántico, a saber, los 3 de la TCM y los 2 de JAPDEVA, para un total de 1200 metros lineales de muelle. Algo muy lejano a los 2 puestos de atraque que tiene APM TERMINALS para la atención de los buques porta contenedores que llegan al Atlántico. Por otra parte, en el punto 6.10, a páginas 87 y 88 de este Plan Maestro, se indica que en la fase 3 se extiende el nuevo Terminal contenedores con 600m adicionales. En la fase 3 (2021 - 2030) los contenedores se manejan en el Muelle Taiwanés y en el Nuevo Terminal contenedores de 1500m de muelle y donde incluso se indica: "Con base en una eslora promedio de los buques porta contenedores de 210m al final de la fase 3, se puede deducir que el puerto tiene disponible 7 muelles para la manipulación de contenedores." Nótese así, que según este Plan Maestro, el complejo Moín tendría en la fase 2 A, unos 5 puestos de atraque para la atención de buques porta contenedores y, a partir del 2021, unos 7 puestos de atraque para buques porta contenedores; no obstante, en la actualidad, en el año 2022, en realidad el país solo está utilizando los 2 puestos de atraque de la TCM para la atención de buques porta contenedores; a saber, la misma cantidad de puestos de atraque que tenía JAPDEVA en el año 2008 especializados para dicho fin. Acusa que es claro que, con esta concesión, existe un flagrante irrespeto al principio de eficiencia constitucional, pues al irrespetarse el cartel y el Plan Maestro, se permite aprobar una concesión absolutamente ilógica e irracional para el país, pues si JAPDEVA tenía un total de 700 metros de muelle especializados para la atención de contenedores previo a la construcción de la TCM, no se podría hablar de un aumento de la capacidad instalada del puerto, si en la actualidad la empresa APM TERMINALS solo posee 2 puestos de atraque con un total de 600 metros lineales de muelle. Sostiene que, por ende, ya no solo se está ante una inconstitucionalidad del articulo 2, inciso 2, de la Ley General de Concesión de Obras Públicas con Servicios Públicos, sino que ante una inconstitucionalidad del propio contrato de concesión, al aprobarse un contrato que lejos de aumentar la capacidad instalada de los puertos en el Atlántico, en realidad la disminuyó, pues en la práctica JAPDEVA utilizaba los restantes puestos para la atención de buques porta contenedores cuando era necesario. Sobre los principios de eficacia y eficiencia, cita la sentencia de esta Sala nro. 12.330-2011. Señala que es claro que no se puede tener eficiencia, si de previo a la entrada de operación de la TCM, JAPDEVA tenía 2 puestos especializados para manejo de contenedores, pero podía atender buques con contenedores en cualquiera de los restantes 10 puestos de atraque del complejo portuario Limón-Moín, y ahora se pasó a tener solo los 2 puestos de atraque de la TCM para la atención de contenedores, cuando el Plan Maestro garantizaba para este momento 5 puestos de atraque para la atención especializada de contenedores. Acusa que al interpretar el Gobierno que el contrato le da a APM TERMINALS la exclusividad de la atención de buques de contenedores, ahora la TCM debe de "atragantarse", intentando atender un millón doscientos mil contenedores -que era lo que JAPDEVA estaba manejando- en tan solo 2 puestos de atraque, lo que claramente vicia los principios de eficiencia y eficacia de la Administración. Cita nuevamente el voto nro. 12.330-2011. Señala que esto vicia de inconstitucionalidad el contrato de concesión dado a la empresa APM TERMINALS y así pide que sea declarado. Remite, otra vez, al discurso Presidencial dado por Carlos Alvarado el 1 de mayo del 2021, dado que, el Poder Ejecutivo está reconociendo que la concesión de APM TERMINALS no solo es más costosa para los importadores e importadores y que está con problemas de saturación, sino que reconoce que el negocio que hacía JAPDEVA fue cedido a una empresa privada, pero sin prever la forma en que la institución iba a mantener a su planilla al eliminársele los ingresos. Asevera que, cuando el negocio de manejo de contenedores era de JAPDEVA, la tarifa era mucho menor para el empresario, y aún así daba para que JAPDEVA pagara salarios muy competitivos y muy por encima del mínimo de ley a sus colaboradores; pero, con APM TERMINALS, las tarifas se dispararon para los usuarios, pero los salarios para los trabajadores que atienden ahora la carga y descarga de contenedores disminuyeron respecto de lo que pagaba JAPDEVA por la misma labor, para los funcionarios que debieron de ser cesados de sus puestos de trabajo en la institución. No obstante, en SINTRAJAP se ve con gran preocupación que esta política de tercerización de servicios públicos se continúa fomentando, pese a que va en detrimento del más adecuado reparto de la riqueza establecido en el artículo 50 de nuestra Constitución Política, pues si bien la institución podrá tener una reducción de costos en planilla, a la vez, las empresas contratantes contratarán a sus colaboradores con el menor salario posible, lo que le permitará al empresario tener las mayores ganancias posibles. Es decir, ya no se está garantizando el mayor bienestar a todos los habitantes del país, sino el mayor bienestar de unos pocos empresarios, quienes, contratando al menor costo posible, estarán realizando labores que habían estado efectuando funcionarios de JAPDEVA bien remunerados, garantizando así un mejor y más adecuado reparto de la riqueza. Cita los votos 2005-17612 y 2007-09469 de esta Sala. Alega, el accionante, que es claro que el Estado debe de garantizar la producción, pero no a cualquier costo, pues, de la mano, debe de procurarse el más adecuado reparto de la riqueza, y esto implica que si una institución ya está brindando servicios de forma directa con sus propios funcionarios y estos funcionarios están recibiendo un salario holgado para sufragar sus necesidades familiares, mal haría el Gobierno en propiciar que ahora el servicio sea tercerizado, ya que esto implica que un único empresario contratará al menor costo posible los mismos servicios, para así lograr él el mayor lucro posible. Con esto se violenta el principio cristiano de justicia social del que habla la sentencia 1273-95 de Sala Constitucional. No es digno que las personas que realicen los trabajos sean quienes menos reciban por dicha labor, mientras que un tercero, a saber el empresario, sea quien reciba más dinero y lucro por las labores que están realizando estos trabajadores. La Convención Americana sobre Derechos Humanos hace referencia a la dignidad inherente al ser humano en su artículo 5, al tratar el derecho a la integridad personal -expresión que repite el ordinal 10 del Pacto Internacional de Derechos Civiles y Políticos-, así como los numerales 6, relativo a la prohibición a la esclavitud y servidumbre, y 11, que se se refiere de forma expresa a la protección de la honra y de la dignidad. Señala que debe tenerse cuidado si poco a poco se va pasando de tener personas (funcionarios) bien remunerados, a empresas bien remuneradas que pagan mínimos de ley para quienes realizan las labores, pues poco a poco se crean situaciones indignas similares a las del pasado, donde élites empresariales y políticas literalmente vivían de la producción y el trabajo que realizaban sus esclavos, fomentándose así una esclavitud solapada en este siglo. La dignidad de la persona se respeta en el tanto no se le considere como un objeto, en este caso, un objeto al que se le da el menor salario posible, para que terceras personas, puedan lucrar de su trabajo. Alega que acá vemos la lógica que quedó inmersa en la Constitución Política, en su artículo 50, de que exista una norma que garantice el mayor bienestar a todos los habitantes del país, no solo organizando y estimulando la producción de forma enérgica, sino que garantizando también el más adecuado reparto de la riqueza. Citas las sentencias 1273-95 y 5907-2007 de esta Sala Constitucional. Afirma que, en el caso de los muelles de JAPDEVA, es claro que al estar estos en operación desde hace muchos años, acá sus trabajadores no solo han contribuido al bienestar de la Nación, sino que, además, gracias a la posibilidad de afiliación a un sindicato como SINTRAJAP y tener una convención colectiva, se les ha garantizado las mejores condiciones de trabajo posibles, incluyendo el mejor salario o remuneración posible de acuerdo al tipo de trabajo, tomando en cuenta no solo su expertiz profesional, sino también el esfuerzo físico o mental de su labor, y también el riesgo de su labor particular, aspectos que no siempre se toman en cuenta a la hora de realizar las políticas de salarios mínimos y, por ende, es claro que la política de tercerización de los servicios portuarios va en detrimento de estos logros sociales laborales, dado que, los nuevos trabajadores de JAPDEVA deberán de replegarse a una política de salarios mínimos, ya que no serán empleados directos de JAPDEVA, sino que serán empleados de una empresa que procurará obtener el mayor lucro posible de su trabajo y para esto adoptará una política salarial mínima, lo que a su juicio violentará la protección especial que otorga el artículo 121, inciso 14, de la Constitución Política, no solo por ser un tema de seguridad nacional, sino porque los trabajadores de los muelles siempre lo han sido de JAPDEVA y siempre han tenido una remuneración que garantice la mayor distribución de la riqueza. Considera que tenían razón los y las legisladoras, especialmente Epsy Campbell y Margarita Penón Góngora del Partido Acción Ciudadana, cuando interpusieron en el año 2004 una acción de inconstitucionalidad, alegando en aquel momento que las normas y actos que impugnaban, que pretendían la concesión o tercerización de los muelles del Pacífico, en cuanto consideraban que solo por la vía de la reforma constitucional se podían desafectar los muelles de la Nación, en virtud de la protección especial que otorga el artículo 121, inciso 14), de la Constitución Política. Norma que, según los diputados constituyentes, debe interpretarse en el sentido de que los muelles, de ninguna manera, deben salir del dominio de la Nación, ni darse en explotación a particulares. No obstante, 17 años después, el mismo Partido Acción Ciudadana, en la persona de Andrea Centeno, busca hacer en los puertos del Atlántico, lo que hace 17 años, las diputadas Epsy Campbell y Margarita Penón Góngora, de ese mismo partido político, intentaban evitar en el Pacífico, lo que no solo puede poner en riesgo la seguridad de la Nación -al pretender trasladar incluso la seguridad de los muelles a una empresa privada-, sino que, con esto, al tercerizar la actividad que actualmente realizan los trabajadores de JAPDEVA, quienes reciben ingresos que permiten una buena distribución de la riqueza en la provincia de Limón, ahora se pasará a tener trabajadores quienes solo recibirán el mínimo de ley con las jornadas de trabajo más extensas posibles, para realizar las mismas labores que hoy realizan los trabajadores de JAPDEVA de forma eficiente y segura, y esto solo para "bajar costos" y con esto permitir que pocas personas empresarias lucren del trabajo que realizarán sus trabajadores, lo que aumentará la desigualdad en el país. Esto violenta el principio de justicia social. Señala que se intentará indicar que la tercerización es una política encaminada a rescatar económicamente a JAPDEVA, pero fue público y notorio que JAPDEVA, en el 2018, al inicio del actual Gobierno, tenía un superávit que incluso permitió al Gobierno utilizar de sus fondos para reparar el dique de Matina; pero es con la entrada en operación de APM TERMINALS, al trasladarse la atención de todos los buques porta contenedores a dicha terminal, que JAPDEVA vio reducido su presupuesto, se agravó su situación financiera y finalmente devino en la Ley que Transforma la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, con la cual se ha agravado la situación de la provincia de Limón, pues ha implicado el cese de trabajo de más de 600 trabajadores directos de JAPDEVA, personas que tenían un ingreso digno que propiciaba una buena distribución de la riqueza, a tener una empresa que realiza la misma labor que realizaba JAPDEVA a un costo mucho mayor para los empresarios exportadores e importadores, y con políticas salariales mucho menores a las que tenía JAPDEVA, lo que ha desmejorado la situación económica de la provincia de Limón, pues ya la riqueza no se está distribuyendo en su población, sino que se está yendo del país al ser el concesionario una empresa extranjera, y de tercerizarse los actuales servicios de la institución, esta grave situación de la provincia de Limón se agravará aún mas, pues el dinero se irá a pocos empresarios que probablemente ni siquiera sean de Limón y los trabajadores ganarán tan solo el mínimo para subsistir. Indica, el accionante, que existe un aspecto a tomar en cuenta desde la perspectiva de la racionalidad constitucional y es que producto de la puesta en marcha de esta concesión a APM TERMINALS, se encareció el costo de las importaciones y exportaciones por el Atlántico, lo que le restó competitividad al país en el mercado internacional de sus productos; pero lo más grave, es que la TCM está al límite de su capacidad operativa, pues lejos de aumentarse la capacidad operativa de los puertos del Atlántico, más bien se disminuyó. Pero, además, antes de la puesta en marcha de tal concesión, con tarifas mucho menores a las actuales, para la atención de buques porta contenedores, se beneficiaba al sector exportador e importador con tarifas regionales muy competitivas, y con estos ingresos JAPDEVA lograba no solo pagar su planilla de 1400 funcionarios, sino que se permitía realizar obras en la Vertiente Atlántica, como la reparación del dique en Matina en el año 2018. Es decir, los ingresos producto de la atención de buques, permitía que los 1400 funcionarios no solo recibieran un salario mínimo, sino que permitía que a través de luchas históricas y de la convención colectiva, los 1400 funcionarios tuvieran ingresos incluso por encima al promedio respecto de otras instituciones del país, y esto permitía una mejor distribución de la riqueza en Limón y el país, pues estos 1400 funcionarios invertían este dinero en su mayoría dentro de Limón. Con la entrada en operación de APM TERMINALS, JAPDEVA topó con una marcada reducción de sus ingresos corrientes y esto obligó al Gobierno Central a transferir dinero del presupuesto central a la institución para financiar este hueco financiero, así como modificar la Ley Orgánica de JAPDEVA para permitirle disponer de mas de 900 puestos de trabajo de la institución, forzando al Gobierno Central a financiar jubilaciones anticipadas, movilidades horizontales a otras instituciones, y todo esto para permitir que se mantenga una concesión que ha demostrado ser más cara para el país, pues está restando competitividad a las exportaciones e importaciones, así como para permitir una concesión que no incrementó la capacidad portuaria del Atlántico, sino que la disminuyó. Un último efecto negativo de esta concesión es que los ingresos de APM TERMINALS, al tener una política salarial baja, en su mayoría son utilidades, es decir, son cuantiosas sumas de dinero que salen del país al ser una concesión extranjera; es decir, esta concesión fomenta una balanza negativa de pagos para el país, pues, anualmente salen millones de dólares del país producto de los ingresos que recibe este concesionario extranjero por sus altas tarifas, empobreciendo ya no solo a los trabajadores y ciudadanos en general por elevar el costo de vida, sino que favorece un empobrecimiento del país como un todo, lo que a la larga está provocando una mayor inflación, una mayor devaluación del colón y está favoreciendo así la crisis económica que atraviesa el país, que afecta tanto a los ciudadanos. Solicita que, en consecuencia, se declare con lugar la presente acción de inconstitucionalidad.

2.- A efectos de fundamentar su legitimación, el accionante alega que la presente acción de inconstitucionalidad no requiere un caso previo, judicial, o administrativo, conforme lo establecen los artículos 7, 50 y 89 constitucionales, en vinculación con la materia que se discute en el presente asunto, y lo dispuesto en el artículo 75, segundo párrafo, de la Ley de la Jurisdicción Constitucional, por haber un manifiesto interés difuso de por medio, que es el respeto de legalidad constitucional respecto del correcto manejo de fondos públicos. En el presente asunto, al estar de por medio el derecho a el correcto manejo de bienes demaniales, lo que va de la mano con el correcto manejo de fondos públicos, la legitimación proviene entonces del citado artículo 75, párrafo segundo, de la Ley de la Jurisdicción Constitucional. Señala, por otra parte, que una interpretación armónica del artículo 60 de la Constitución Política, en relación con los numerales 7, 11 y 12 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, permite derivar que, entre las potestades de los sindicatos, se incluye la búsqueda de condiciones de existencia dignas para los trabajadores, la defensa del derecho de los trabajadores y sus familias al disfrute del más alto nivel posible de salud física y mental y el mejoramiento en todos sus aspectos de la higiene del trabajo y del medio ambiente. Lo que legitima a SINTRAJAP para la interposición de la presente acción, pues, producto de la forma en que se han dado las situaciones de esta concesión, se han afectado los trabajos de cientos de funcionarios de JAPDEVA afiliados a SINTRAJAP.

3.- El artículo 9 de la Ley de la Jurisdicción Constitucional faculta a la Sala a rechazar de plano o por el fondo, en cualquier momento, incluso desde su presentación, cualquier gestión que se presente a su conocimiento que resulte ser manifiestamente improcedente, o cuando considere que existen elementos de juicio suficientes para rechazarla, o que se trata de la simple reiteración o reproducción de una gestión anterior igual o similar rechazada.

Redacta el Magistrado Castillo Víquez; y,

Considerando:

I.- OBJETO DE LA ACCIÓN. La parte accionante impugna, en primer lugar, los incisos 2) y 3) del artículo 2 y el inciso 4) del artículo 5 de la Ley General de Concesión de Obras Públicas con Servicios Públicos, en cuanto disponen:

“Artículo 2.- Cobertura 1.- Toda obra y su explotación son susceptibles de concesión cuando existan razones de interés público, que deberán constar en el expediente mediante acto razonado. Se exceptúan de la aplicación de esta Ley las telecomunicaciones, la electricidad y los servicios de salud.

2.- Los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes, así como los servicios que ahí se presten, únicamente podrán ser otorgados en concesión mediante los procedimientos dispuestos en esta ley.

3.- En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes.

El setenta por ciento (70%) de lo que la Administración obtenga por lo dispuesto en el artículo 42.1 a) de esta ley, en razón de las obras nuevas o ampliaciones que se concesionen en los citados muelles, será girado a la Junta de la Administración Portuaria de la Vertiente Atlántica y el Instituto Costarricense de Puertos del Pacífico, según corresponda, para ser destinado exclusivamente a inversiones en obras de las respectivas provincias, sin que pueda utilizarse para cubrir gastos administrativos.

Transcurrido el plazo de estas concesiones, dichas obras pasarán a la titularidad de los entes mencionados, según corresponda.” (el destacado no corresponde al original) “Artículo 5.- Definición y actuación:

1.- Para los efectos de esta ley, se entiende por Administración concedente el Poder Ejecutivo, las empresas públicas y el sector descentralizado territorial e institucional.

2.- Cuando el objeto de la concesión se encuentre dentro del ámbito de competencia de un órgano del Poder Ejecutivo, el Consejo Nacional de Concesiones, demostrada previamente la factibilidad legal, técnica, ambiental, económica y financiera del proyecto, será la entidad técnica competente para actuar en la etapa de procedimiento de contratación y, cuando sea necesario durante la ejecución del contrato.

El contrato será suscrito tanto por el Poder Ejecutivo, representado por el ministro del ramo, el ministro de Hacienda y el presidente de la República, como por el Consejo Nacional de Concesiones.

3- Cuando el objeto de la concesión se encuentre dentro del ámbito de competencia del sector descentralizado, las empresas públicas y los gobiernos locales, tales entes públicos, de manera individual o agrupada, mediante convenio suscrito con el Consejo Nacional de Concesiones, podrán convenir con este órgano el procedimiento de selección del concesionario y la ejecución del contrato de concesión.

4.- Corresponde exclusivamente al Poder Ejecutivo, considerado en los términos del artículo 21.2 de la Ley General de la Administración Pública, adjudicar y suscribir los contratos de concesión de los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes. Los muelles de Moín, Limón, Puntarenas y Caldera estarán sometidos a lo que dispone el artículo 2.3 de la presente ley.

5.- Los casos en que el sector descentralizado o las empresas públicas concesionen directamente, se regirán por esta ley.” (el destacado no corresponde al original) También impugna el ordinal 18 de la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica (JAPDEVA), Ley nro. 9764 de 15 de octubre de 2019, que modificó el numeral 1 de la Ley Orgánica de JAPDEVA, a efectos de establecer -este último- que:

“Artículo 1°- Se crea la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, en adelante denominada Japdeva, como ente autónomo del Estado, con carácter de empresa de utilidad pública, que asumirá las prerrogativas y funciones de Autoridad Portuaria; se encargará de construir, administrar, operar, subcontratar, concesionar y realizar cualquier otro mecanismo financiero que la normativa nacional permita, para desarrollar los servicios portuarios, su propia gestión administrativa y las inversiones, construcciones y mejoras, en los puertos marítimos y fluviales de la Vertiente Atlántica, con la salvedad de los que operen al amparo del inciso h) del artículo 6° de esta ley.

Administrará y coordinará con cualquier órgano de la Administración Pública, centralizada o descentralizada, para la canalización del Atlántico y las tierras y bienes que esta misma ley le otorga.” Finalmente, solicita que también se declare la inconstitucionalidad del Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín.

II.- DE LA ADMISIBILIDAD DE LA PRESENTE ACCIÓN DE INCONSTITUCIONALIDAD. Considera esta Sala que la parte actora ostenta legitimación suficiente para demandar la inconstitucionalidad de los incisos 2) y 3) del artículo 2 y el inciso 4) del artículo 5 de la Ley General de Concesión de Obras Públicas con Servicios Públicos, así como el ordinal 18 de la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, que modificó el numeral 1 de la Ley Orgánica de JAPDEVA, en cuanto alega, expresamente, la defensa de intereses difusos, respecto del “correcto manejo de bienes demaniales”, pues, este Tribunal ha estimado que, efectivamente, la defensa de “bienes del dominio público constitucional” constituye un supuesto de intereses difusos que otorga legitimación directa para la interposición de una acción de inconstitucionalidad (voto nro. 2011-2698) y que la “defensa del patrimonio propio de la Nación, formado por la totalidad de los bienes que conforman el dominio público, reconocido constitucionalmente en el artículo 121 inciso 14)”, goza “de protección privilegiada mediante la posibilidad de que cualquier persona, basada en la autorización que al respecto confiere el artículo 75 párrafo 2° de la Ley de la Jurisdicción Constitucional, interponga directamente la demanda de inconstitucionalidad” (voto nro. 2005-05651).

Ahora bien, a tenor del artículo 9 de la Ley de la Jurisdicción Constitucional, este Tribunal puede rechazar por el fondo cualquier gestión, incluso, desde su presentación o in limine litis, cuando considere que existen suficientes elementos de juicio, lo que así ocurre en el sub lite, respecto de tales disposiciones normativas, como se analizará en los siguientes considerandos.

En lo referente, específicamente, al Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín, considera este Tribunal que la presente acción resulta inadmisible en razón de su objeto, por lo procede su rechazo de plano, como así se analizará también en el respectivo considerando.

III.- DE LA IMPUGNACIÓN DE LOS INCISOS 2) Y 3) DEL ARTÍCULO 2 Y EL INCISO 4) DEL ARTÍCULO 5 DE LA LEY GENERAL DE CONCESIÓN DE OBRAS PÚBLICAS CON SERVICIOS PÚBLICOS. En cuanto a este primer extremo de la acción, el accionante alega que, conforme a una adecuada interpretación o comprensión del artículo 121, inciso 14, párrafo final, de la Constitución Política, resulta inconstitucional la aplicación de la figura jurídica de la concesión en el caso de los muelles, lo que provoca la inconstitucionalidad de los incisos 2) y 3) del artículo 2 y el inciso 4) del artículo 5 de la Ley General de Concesión de Obras Públicas con Servicios Públicos. Frente a tal reproche, debe señalarse que esta Sala ya se ha pronunciado respecto de la constitucionalidad de dicha normativa y se ha hecho expresa referencia al tema formulado por la parte accionante. Así, en el voto nro. 2013-015693 de las 16:20 horas del 27 de noviembre de 2013, emitido en el expediente nro. 12-009578-0007-CO, esta Sala resolvió que:

“IV.- Objeto de la acción. El accionante impugna la aparente inconstitucionalidad que se deriva de los incisos 2) y 3) del artículo 2 y el inciso 4) del ordinal 5 de la Ley Nº 7762 del 14 de abril de 1998, denominada “Ley General de Concesión de Obra Pública con Servicio Público” y, por conexión, del Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, toda vez que se omitió la requerida aprobación de la Asamblea Legislativa.

Las normas aludidas por el promovente indican lo siguiente:

“ARTÍCULO 2.- Cobertura (…)

2.- Los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes, así como los servicios que ahí se presten, únicamente podrán ser otorgados en concesión mediante los procedimientos dispuestos en esta ley.

3.- En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes.

El setenta por ciento (70%) de lo que la Administración obtenga por lo dispuesto en el artículo 42.1 a) de esta ley, en razón de las obras nuevas o ampliaciones que se concesionen en los citados muelles, será girado a la Junta de la Administración Portuaria de la Vertiente Atlántica y el Instituto Costarricense de Puertos del Pacífico, según corresponda, para ser destinado exclusivamente a inversiones en obras de las respectivas provincias, sin que pueda utilizarse para cubrir gastos administrativos.

Transcurrido el plazo de estas concesiones, dichas obras pasarán a la titularidad de los entes mencionados, según corresponda” “SECCIÓN I ADMINISTRACIÓN CONCEDENTE ARTÍCULO 5.- Definición y actuación (…)

4.- Corresponde exclusivamente al Poder Ejecutivo, considerado en los términos del artículo 21.2 de la Ley General de la Administración Pública, adjudicar y suscribir los contratos de concesión de los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes.

Los muelles de Moín, Limón, Puntarenas y Caldera estarán sometidos a lo que dispone el artículo 2.3 de la presente ley” Estima el accionante que se da una inconstitucionalidad por omisión, puesto que el legislador no previo la aprobación final de tal tipo de concesión por parte de la Asamblea Legislativa., toda vez que de la relación de los artículos 140 inciso 19 y 121 inciso 14 de la Constitución Política, se extrae que en el caso de contratos administrativos de especial envergadura relacionados con ferrocarriles, muelles y aeropuertos nacionales, se requiere inexorablemente de la aprobación legislativa, toda vez que la Ley Fundamental no previó la posibilidad de una ley especial, como si lo hace en el caso de los bienes mencionados en los apartes a), b) y c) del citado inciso 14. Tal aspecto no fue examinado con anterioridad por la Sala, según el accionante.

En consecuencia, solicita lo siguiente: “(…) que en sentencia se declaren inconstitucionales por omisión: el artículo 2 incisos 2) y 3) y el artículo 5 inciso 4), ambos de la Ley 7762 de 14 de abril de 1998 (Ley General de Concesión de Obra Pública con Servicio Público) y, por conexión, el Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, del 13 de febrero de 2012. De forma subsidiaria solicitamos a la Sala Constitucional declarar que el artículo 2 incisos 2) y 3) y el artículo 5 inciso 4), ambos de la Ley 7762 de 14 de abril de 1998 (Ley General de Concesión de Obra Pública con Servicio Público), en cuanto fundamento jurídico del Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín, del 13 de febrero de 2012, entendidos conforme al Derecho de la Constitución Política, conllevan necesariamente el trámite de Aprobación Legislativa previsto en la Norma Jurídica Constitucional resultante de la remisión del artículo 140 inciso 19) al artículo 121 inciso 14) (…)”.

Por consiguiente, no es objeto de esta acción, si el artículo 121 de la Constitución Política prohíbe que por vía de concesión, un particular pueda explotar negocios jurídicos referidos a ferrocarriles, muelles y aeropuertos nacionales, toda vez que la misma parte recurrente admite esta posibilidad y solo objeta que la eficacia jurídica de tal tipo de concesión no esté condicionada a una ulterior aprobación legislativa.

VI.- Antecedentes de esta Sala. Como bien lo manifiestan las partes, este Tribunal ha tenido oportunidad de referirse en anteriores pronunciamientos sobre el tema de la aprobación legislativa en cierto tipo de contratos administrativos. En primer término, en la sentencia número 3789-92 de las 12:00 horas del 27 de noviembre de 1992, se indicó lo siguiente:

“III. SOBRE EL ROCE CON EL ARTICULO 121, INCISO 14 DE LA CONSTITUCION POLITICA: Se expresa en la consulta que "Se ha cuestionado por algunos el hecho de que al facultarse al concesionario a explotar las nuevas instalaciones de ferrocarriles, muelles y aeropuertos, de conformidad con el artículo sexto, inciso segundo del proyecto, se podría estar rozando con la disposición constitucional que impide la enajenación de estas obras, artículo 121, inciso 14 de nuestra Carta Magna".

El artículo 6 del Proyecto dice:

"ARTICULO 6.- Los ferrocarriles, muelles y aeropuertos nacionales, estos últimos mientras se encuentren en servicio, no pueden ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir, de ninguna forma del dominio y control del Estado.

"Las concesiones que se otorguen para construir y explotar nuevas instalaciones de ferrocarriles, muelles y aeropuertos deben ser tramitadas de acuerdo con esta Ley y aprobadas por la Asamblea Legislativa, en un tiempo no mayor de cuarenta y cinco días a partir de su presentación.

"Pueden darse en concesión, los servicios públicos complementarios o no esenciales, situados en ferrocarriles, muelles y aeropuertos." Como se observa, el primer párrafo del artículo 6 coincide con lo que la Constitución dispone en el último párrafo del artículo 121, inciso 14). Es en lo esencial una "norma eco". En lo demás, hay que destacar que la concesión para la construcción y explotación de nuevas instalaciones de ferrocarriles, muelles y aeropuertos se sujeta a un procedimiento calificado, puesto que supone finalmente la aprobación por la Asamblea Legislativa, Salvo por este hecho, y porque en este mismo caso la concesión puede otorgarse por un plazo de "hasta cincuenta años" (artículo 9 del Proyecto), el instituto en nada difiere de la concesión de obra pública en general, tal como se regula en el Proyecto” (lo destacado no corresponde al original) Como puede constatarse de la lectura de ese extracto, este Tribunal había señalado la existencia de un procedimiento “calificado” para el caso de las concesiones para la construcción y explotación de nuevas instalaciones de ferrocarriles, muelles y aeropuertos, toda vez que suponían finalmente la aprobación por la Asamblea Legislativa. Empero, ya en la sentencia número 6240-93 de las 14:00 horas del 26 de noviembre de 1993, la Sala varía de criterio en lo que concierne al extremo objeto de esta acción:

“II.- En la consulta tramitada bajo el #4171-93, acumulada a la anterior, los Diputados cuestionan el artículo 9 del Proyecto, en cuanto confiere potestades al Poder Ejecutivo para la suscripción de contratos de exploración y explotación de hidrocarburos, sin someterlos a aprobación legislativa. Esta norma, junto con la del 13 inciso d), señalan las atribuciones del Consejo Técnico y del Director General de Hidrocarburos, como sigue: "Artículo 9...

• h)Aprobar los contratos para la exploración y explotación de hidrocarburos".

"Artículo 13...

• d)Firmar los contratos de exploración y explotación de hidrocarburos y someterlos a la aprobación del Consejo Técnico." La Sala estima que, de conformidad con su sentencia #3789-92 de las 12:00 horas del 27 de noviembre de 1992, el artículo 121.14) de la Constitución Política contiene tres reglas distintas claramente diferenciadas: " a) La primera, es una norma que habilita a la Asamblea Legislativa para decretar la enajenación o la aplicación a usos públicos de los bienes propios de la Nación». Por una parte, esta norma es irrestricta en cuanto se refiere a todos los bienes propios de la Nación, y, por otra, reserva a la ley la materia, invalidando actos administrativos de enajenación o aplicación a usos públicos no fundados en ley previa; b) La segunda, prescribe qué bienes no podrán salir definitivamente del dominio del Estado». Para esas categorías, que están enunciadas en los incisos a), b) y c), la restricción es total y absoluta en cuanto a salir del dominio del Estado», pero, de inmediato, la norma modera su severidad advirtiendo que tales categorías de bienes pueden ser explotados por la administración pública o por particulares» de acuerdo con la ley o mediante concesión especial; c) La tercera, es una norma que se refiere específicamente a ciertos bienes (ferrocarriles, muelles y aeropuertos nacionales en servicio) no incluidos en las tres categorías de la norma precedente".

En consecuencia, la Constitución prevé dos regímenes para explotar esos recursos naturales especialmente protegidos, sin que ninguno de ellos puedan salir del dominio del Estado: Uno, el de las concesiones o contratos otorgados por la Asamblea Legislativa directamente, en uso de una competencia originaria; el otro, su posibilidad sea de explotarlos, por la Administración Pública, sea de encomendarlos a particulares, mediante concesión legalmente otorgada o autorizada. Ambas posibilidades presuponen la competencia de la Asamblea Legislativa para fijar en el caso concreto, o bien regular en una ley general, "condiciones y estipulaciones" imperativas en la ejecución del contrato -como su naturaleza temporal, forma de cumplimiento, obligaciones mínimas del ejecutor, etc.-, las cuales sitúan fuera del alcance de los concesionarios o del acuerdo mismo de las partes, la posibilidad de apartarse de ellas. No es ocioso recordar que el acto administrativo de concesión no adquiere nunca carácter ni rango de ley, aunque sea tramitado y adoptado como tal, (arts. 140.19 y especialmente 124.2 Constitución).

III.- Así pues, una de las formas allí establecidas, obviamente previendo lo difícil y complicado que puede resultar el tener que acudir a la Asamblea Legislativa para la aprobación de cada contrato de concesión individual, es la de una ley general regulatoria del proceso de contratación, comúnmente conocida como "ley marco". En este caso, la Asamblea Legislativa inviste en la Administración Pública la potestad de otorgar concesiones específicas, competencia que, claro está, no comprende la de sustituir del todo la función de la primera, como se dirá adelante (…)

Esta norma inviste al Poder Ejecutivo de competencia constitucional originaria para la suscripción de los contratos administrativos, sea que se convengan con particulares o con otros entes públicos -como contratos administrativos que son-, de conformidad con lo cual, y también a la luz del esquema de separación de funciones de los Poderes del Estado, es potestad privativa del Poder Ejecutivo, específicamente el Presidente conjuntamente con el Ministro del ramo, mientras que el artículo 121 inciso 14), en las materias reservadas por la propia Constitución en virtud de su importancia capital, no dispone expresamente dicha competencia, cuando la Asamblea Legislativa no opte por otorgar ella misma la concesión, sino por regularla a efecto de que lo haga la Administración” (lo destacado no es del original) De este modo, la Sala empezó a reconocer la posibilidad de que la Asamblea Legislativa regulara mediante una ley general de concesión, el proceso de contratación para la aprobación de cada contrato de concesión individual, previendo lo difícil y complicado que puede resultar el tener que acudir a la Asamblea Legislativa para la aprobación de cada contrato de concesión individual. Así, la Asamblea Legislativa investiría en la Administración Pública la potestad de otorgar concesiones específicas.

Este criterio relacionado con la aprobación de una ley general en materia de contratación administrativa, fue reiterado posteriormente a través de la sentencia número 2319-98 de las 17:51 horas del 31 de marzo de 1998, en donde este Tribunal sostuvo lo siguiente:

“III.- SOBRE EL FONDO DE LAS CUESTIONES CONSULTADAS: Aclarados los puntos sobre admisibilidad y alcances de la consulta formulada, procede el pronunciamiento sobre el fondo. En síntesis, la consulta se refiere a tres aspectos del Proyecto. Por un lado, se cuestiona si el proyecto consultado es contrario a lo dispuesto en el artículo 121 inc 14 de la Constitución Política, de conformidad con los parámetros que esta Sala ha definido. En el criterio de los consultantes, si bien es posible dar en concesión los ferrocarriles, muelles y aeropuertos, que son bienes de la Nación, no es posible, otorgar una autorización al Poder Ejecutivo para tales efectos en forma genérica en la Ley Marco, sino que la Asamblea Legislativa debe autorizar el contrato en cada caso individual.

(…)

A criterio de esta Sala, nada impide que por medio de una ley marco, la Asamblea faculte al Poder Ejecutivo para que de en concesión bienes públicos, sin que sea necesario una aprobación concreta para cada caso en particular, pues se entiende que ha dado una aprobación general para tal efecto, en cumplimiento de la propia Constitución. En resumen, en cuanto a este aspecto consultado, la Sala no encuentra inconstitucionalidad alguna” (lo subrayado no corresponde al original) En el mismo sentido, puede citarse el voto número 2005-005651 de las 14:41 horas del 11 de mayo de 2005, mediante el cual la Sala nuevamente autorizó la existencia de una ley general en la que la Asamblea Legislativa pudiera delegar en el Poder Ejecutivo la suscripción y aprobación de los contratos administrativos en general. Al respecto, se dijo lo siguiente:

“(…) En la sentencia citada queda claramente expuesto que la posibilidad de dar en concesión bienes como los muelles, en los parámetros que ha descrito la Sala, no constituye una vulneración a la Constitución Política, pues de conformidad con la naturaleza de la “concesión” no se están desafectando estos bienes, pues no se les está separando del fin público al cual están vinculados, por ende no salen del dominio público, tampoco se están enajenando, arrendando ni gravando, de manera que no se produce la vulneración acusada. Ahora bien, en este estudio estamos hablando de dos figuras de concesión distintas, la concesión de obra pública con servicios públicos, regulada en la Ley aquí impugnada, y la concesión de gestión de servicios públicos regulada en la Ley de Contratación Administrativa. Ambas, implican modalidades distintas de concesión, pero que en todo caso, como ya se indicó no lesionan el artículo 121 inciso 14. De hecho este Tribunal se manifestó sobre el fondo de este asunto en la Consulta Legislativa que fue sometida a estudio, estando en trámite la aprobación de esta ley:

(...)

En el caso de las concesiones de obra pública con servicios públicos es aplicable como ley marco, la Ley General de Concesión de Obra Pública y la concesión de gestión de servicios públicos, la Ley de Contratación Administrativa, artículos 74 y 75. En ese entendido, no es inconstitucional que la administración pública concesione estos bienes en los parámetros que este Tribunal ha señalado. Por otro lado, como bien indican los mismos accionantes, el artículo 2 inciso 3 aquí impugnado señala que: “... En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes.”, ajustándose al artículo 121 inciso 14, por lo que de violentar tal disposición las licitaciones cuestionadas, es un asunto que debe ser determinado en la vía de legalidad, pues no estaríamos en consecuencia ante una violación constitucional, sino ante una disconformidad con la aplicación de la ley” (lo destacado no es del original) En síntesis, se puede afirmar que la línea jurisprudencial en torno al tema de la aprobación legislativa para ciertos contratos administrativos de relevancia nacional, ha determinado como constitucional que por una ley general de concesión, la Asamblea Legislativa delegue en el Poder Ejecutivo la suscripción y aprobación definitiva de contratos administrativos, incluso aquellos que tuvieran por objeto bienes públicos de especial importancia, como los considerados de esa manera por el Constituyente en el artículo 121 inciso 14) de la Carta Política.

VII.- Sobre el fondo. Los alcances de las normas constitucionales invocadas. Como bien se indicó en el considerando V de esta sentencia, el accionante estima que existe una inconstitucionalidad por omisión en los artículos 2 incisos 2) y 3), y 5 inciso 4), ambos de la Ley Nº 7762 “Ley General de Concesión de Obra Pública con Servicio Público”, en cuanto no prevén el trámite de aprobación legislativa previsto en los numerales 140 inciso 19) y 121 inciso 14) de la Constitución Política. A efectos de determinar si la parte promovente lleva razón en sus alegatos, es preciso analizar la estructura y contenido de las normas constitucionales que el accionante asegura resultan infringidas, con el objetivo de confrontar posteriormente las normas legales en lo que dicen y en lo que omiten con las constitucionales a fin de determinar su validez a la luz del Derecho de la Constitución.

7.1) En primer lugar, el ordinal 121 inciso 14) de la Carta Fundamental indica lo siguiente:

“ARTÍCULO 121.- Además de las otras atribuciones que le confiere esta Constitución, corresponde exclusivamente a la Asamblea Legislativa:

(…)

• 14)Decretar la enajenación o la aplicación a usos públicos de los bienes propios de la Nación.

No podrán salir definitivamente del dominio del Estado:

• a)Las fuerzas que puedan obtenerse de las aguas del dominio público en el territorio nacional; b) Los yacimientos de carbón, las fuentes y depósitos de petróleo, y cualesquiera otras sustancias hidrocarburadas, así como los depósitos de minerales radioactivos existentes en el territorio nacional; c) Los servicios inalámbricos; Los bienes mencionados en los apartes a), b) y c) anteriores sólo podrán ser explotados por la administración pública o por particulares, de acuerdo con la ley o mediante concesión especial otorgada por tiempo limitado y con arreglo a las condiciones y estipulaciones que establezca la Asamblea Legislativa.

Los ferrocarriles, muelles y aeropuertos nacionales - éstos últimos mientras se encuentren en servicio- no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma del dominio y control del Estado” El inciso citado se estructura en tres normas generales (sin perjuicio de la existencia de otras normas más específicas), como lo ha determinado la Sala desde sus inicios: “el artículo 121, inciso 14) contiene tres normas distintas, que deben ser claramente diferenciadas” (Sentencia 3789-92). La primera de ellas se encuentra en el párrafo primero de dicho inciso y estatuye una regla general. Las dos siguientes constituyen excepciones a la regla. De ellas, la segunda está contenida en los párrafos segundo sub incisos a), b), y c), y tercero del inciso en mención, donde se establece una regulación distintiva en relación con las fuerzas que se obtengan de las aguas, los yacimientos de carbón, las fuentes y depósitos de petróleo, las sustancias hidrocarburadas, los depósitos de minerales radiactivos y los servicios inalámbricos. Por último, la tercera norma se localiza en el último párrafo del inciso y está referida a los ferrocarriles, muelles y aeropuertos nacionales en servicio.

Concerniente a la primera norma, la Sala ha dicho que; “habilita a la Asamblea Legislativa para decretar "la enajenación o la aplicación a usos públicos de los bienes propios de la Nación". Por una parte, esta norma es irrestricta en cuanto se refiere a todos los bienes propios de la Nación, y, por otra, reserva a la ley la materia, invalidando actos administrativos de enajenación o aplicación a usos públicos no fundados en ley previa”. Así, el constituyente, a través de esta norma, le atribuye competencias generales a la Asamblea Legislativa sobre los bienes de la Nación en dos supuestos concretos: la enajenación y la aplicación a usos públicos.

La enajenación consiste en la transmisión de la propiedad de un bien o la titularidad de un derecho a un patrimonio distinto. Disposición no es sinónimo de enajenación, existe entre ellas una relación de género a especie. La enajenación es una forma de disposición del bien, consistente en el desplazamiento del bien de un patrimonio a otro. La enajenación del bien principal acarrea la de los accesorios (principio de accesoriedad) y la responsabilidad del tradens por vicios y evicción. Las limitaciones a la enajenación vienen dadas por ley o por la propia Constitución, e impiden la enajenación temporal o definitiva del bien. Por regla general, los bienes afectos al dominio público no se pueden enajenar salvo disposición legal en contrario.

Así las cosas, de conformidad con lo dispuesto por el párrafo primero del inciso 14 del artículo 121 constitucional, compete a la Asamblea Legislativa, en ejercicio de la reserva de ley que le otorga la Constitución Política, enajenar, esto es, trasladar el dominio de los bienes de la Nación a un tercero, o afectarlos a usos públicos: común o especiales, mientras continúen en su patrimonio. Las administraciones públicas solo tienen competencia en esta materia a partir de ley previa que expresamente las habilite.

La segunda norma del inciso 14 del numeral 121 constitucional contiene una excepción a la regla general que faculta al legislador para enajenar los bienes propios de la Nación. En efecto, la norma se refiere a los bienes que no pueden salir del dominio del Estado, que no pueden ser enajenados pero sí explotados por la Administración Pública o los particulares de dos formas: a) de acuerdo con la Ley o b) mediante concesión especial (con arreglo a las condiciones y estipulaciones que establezca la Asamblea Legislativa). En relación con esta norma, la Sala Constitucional expresó: “La segunda, prescribe qué bienes no "podrán salir definitivamente del dominio del Estado". Para esas categorías, que están enunciadas en los incisos a), b) y c), la restricción es total y absoluta en cuanto a "salir del dominio del Estado", pero, de inmediato, la norma modera su severidad advirtiendo que tales categorías de bienes pueden ser "explotados por la administración pública o por particulares" de acuerdo con la ley o mediante concesión especial.” (Sentencia #3789-92).

La tercera norma, contenida en el último párrafo del inciso 14 del artículo 121 de la Constitución Política, resulta de especial relevancia para la decisión del sub examine, por cuanto se refiere específicamente a los ferrocarriles, puertos y aeropuertos. Sobre esta norma, la Sala Constitucional expresó en la sentencia número 3789-92 de las 12:00 horas del 27 de noviembre de 1992, de reiterada cita en la jurisprudencia de esta Sala, lo siguiente:

“La tercera, es una norma que se refiere específicamente a ciertos bienes (ferrocarriles, muelles y aeropuertos nacionales en servicio) no incluidos en las tres categorías de la norma precedente. Si sobre estos bienes nada se dijera, los cubriría la norma de habilitación con que el inciso 14) comienza, como ya se ha visto.

Pero la existencia de esta disposición específica implica un régimen jurídico propio para estos bienes, que limita el principio general de enajenación y aplicación a usos públicos de una manera rigurosa: tales bienes "no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado".

La norma alude, en primer lugar, a enajenación, arrendamiento o gravamen, pero la expresión "directa o indirectamente", en el contexto rígido de la disposición puede referirse lo mismo a la situación en que el Estado procede por sí o por medio de otras entidades jurídicas (sentido subjetivo), o a los casos en que se emplean modalidades o medios que tengan consecuencia o efectos jurídicos equivalentes o similares, aunque per se no supongan técnicamente enajenación, arrendamiento o gravamen (sentido sustantivo).

A continuación, este rigor se confirma con la expresión "ni salir en forma alguna del dominio y control del Estado", expresión esta a la que también hay que dar una amplia cobertura de hipótesis por la vocación de la norma.” Se deduce de la norma que la prohibición de enajenar o gravar directa o indirectamente los ferrocarriles, puertos y aeropuertos nacionales en servicio, constituye una excepción a la regla del párrafo primero del inciso 14 que faculta a la Asamblea Legislativa para enajenar los bienes propios de la Nación. Por el contrario, la prohibición de arrendar directa o indirectamente los ferrocarriles, puertos y aeropuertos nacionales viene a fortalecer la segunda idea del párrafo primero, relativa al destino de estos bienes a usos públicos. Ambas prohibiciones devienen en garantías constitucionales. La primera tutela ciertos bienes estratégicos para el desarrollo económico de la Nación, a fin de que de ninguna manera salgan del patrimonio del Estado. La segunda tutela el uso público de tales bienes. Con la primera, el constituyente sustrajo de la Asamblea Legislativa y, con mayor razón, de la Administración esta competencia y reserva la materia al Poder Constituyente, por lo que en virtud de los principios de paralelismo de las formas y conservación del rango, para la enajenación de alguno de estos bienes se requiere reforma constitucional previa. Con la segunda se prohíbe el uso privado de tales bienes.

Resulta lógico que si la Constitución impone la prohibición de enajenar los ferrocarriles, puertos y aeropuertos, directa o indirectamente, también impida que se graven. La ratio iuris es evidente: la constitución de una hipoteca sobre estos bienes, como garantía por ejemplo de un crédito público, traería aparejado el riesgo de pérdida de la titularidad. La hipoteca no solo es una figura extraña al régimen de los bienes dominicales, sino que, además, en este caso está prohibida por la propia norma fundamental.

La Constitución rechaza cualquier figura jurídica que suponga la enajenación directa o indirecta del bien. En esa medida, también estarían prohibidas figuras como el embargo. Este, en stricto sensu, no implica inexorablemente una enajenación, pues responde a una medida de seguridad para evitar que el titular de la cosa disponga de ella; no obstante, apareja el riesgo de una eventual enajenación, ya que esa medida cautelar, en última instancia, tiende a asegurar la ejecución forzosa del bien, cuando se incumple la obligación contractual que garantiza. Dada la prohibición constitucional, el embargo también estaría prohibido, por cuanto supone riesgo para la pérdida de la titularidad. El embargo también vendría improcedente por la incompetencia del juez ordinario para cambiar el destino del bien que la Constitución les confiere y no puede, por consiguiente, ordenar un embargo ni proceder a su ejecución.

Los ferrocarriles, puertos y aeropuertos nacionales en servicio, tampoco pueden ser objeto de ejecución judicial, respecto de ellos no procede la acción de despojo, interdictos o acciones posesorias.

Ahora bien, la Constitución establece una prohibición de enajenación absoluta pero de ninguna manera una prohibición total para otro tipo de disposición del bien (a reserva de que no salgan del dominio y control del Estado en el caso de ferrocarriles, muelles y aeropuertos). ¿Es constitucionalmente posible la concesión en el contexto de la norma? La respuesta es afirmativa y la ratio iuris cae por su propio peso: la concesión no constituye una excepción a la prohibición de enajenación, la titularidad del bien continúa en poder del Estado o de la Administración competente; y tampoco supone una excepción –como si lo es el arrendamiento- a la aplicación de dichos bienes a usos públicos, en la medida que el concesionario satisfaga con su gestión los fines públicos que correspondería cumplir a la Administración, si esta asumiera tal servicio público con sus propios recursos.

En lo atinente a la viabilidad constitucional de la concesión con fundamento en esta norma, la Sala expresó:

“…si se confronta la sumaria enumeración de algunas características de la concesión que se hizo antes, con lo dispuesto en el artículo 121, inciso 14), se derivan los siguientes comentarios. El vocablo "enajenación" importa la transmisión del dominio o propiedad de la cosa o la titularidad de un derecho a otra persona, lo que no sucede con la concesión, pues de acuerdo con los propios términos del Proyecto, el Estado conserva el dominio sobre ellos, al punto de que podría recuperarlos -si por razones de interés público así lo llegara a estimar- previa indemnización al concesionario (…) si bien es cierto existe un plazo para su explotación, el Estado -como se señaló- puede recuperarlo no obstante el plazo fijado, y el beneficio económico que recibe el concesionario, consiste exclusivamente en el canon o suma de dinero que abonan los usuarios. Tampoco implica gravamen del bien, como resulta de los artículos del Proyecto. En otros términos, la obra pública construida será siempre del Estado. De ahí que como bien de dominio público, gozará de las características de imprescriptibilidad, irrenunciabilidad e inembargabilidad que le son propias a este tipo de bienes.

En consecuencia, dadas las prerrogativas que el proyecto reserva a la Administración, no es razonable entender que los bienes objeto de la concesión salgan o puedan salir -directa o indirectamente- del dominio y control del Estado. A lo anterior hay que añadir los amplios poderes de control o fiscalización que el Estado se reserva para sí, incluso en lo referente al estipendio (tarifas por prestación del servicio público) que recibirá el concesionario, el cual deberá fijarse por los organismos competentes de la Administración Pública que se señalan en el Proyecto, todo sobre la base de principios de justicia y razonabilidad, propios del derecho público.”(Sentencia de la Sala Constitucional número 3789-92).

Doctrinalmente, la concesión se enmarca dentro de los denominados contratos de gestión indirecta, toda vez que el concesionario realiza las obras o gestiona los servicios que le corresponde construir o prestar a la Administración Pública. El Estado continúa satisfaciendo la necesidad social y atendiendo el fin público, solo que en lugar de hacerlo con sus propios recursos, lo hace a través de un tercero (el concesionario). En este tipo de contratos, la Administración cede la construcción de la obra y la prestación del servicio, pero retiene la titularidad. La concesión, que es el título jurídico en virtud del cual el particular actúa, introduce entre el concesionario y la Administración una relación de especial sujeción, en la que la Administración ejerce potestades exorbitantes de dirección, regulación, vigilancia, control y sanción para lograr los cometidos públicos, sin perjuicio de cierta autonomía del concesionario para actuar y gestionar dentro del marco jurídico que la concesión supone. Debido a ello y a que ofrece un servicio ajeno pero en nombre propio, al concesionario le corresponde responder ante terceros por sus actuaciones. Obviamente, también responderá administrativa (multas) y civilmente por los daños y perjuicios que cauce a la Administración concedente. En definitiva, la concesión no supone pérdida de titularidad del bien público y, por ende, no constituye una trasgresión a la prohibición de enajenar contenida en el párrafo cuarto del inciso 14 del artículo 121 constitucional.

La concesión también difiere del arrendamiento, forma de disposición de un bien, en virtud de la cual el arrendador se obliga a la entrega del objeto arrendado por un precio y tiempo determinado, en condiciones de ser explotada por el arrendatario. El efecto principal es que mediante el arrendamiento se transfiere el uso y goce de la cosa al arrendatario. En tal caso, aunque la titularidad del bien no se transfiere, lo cierto es que el uso y goce del bien en cuestión quedaría reservado a la autonomía de la voluntad del arrendatario, el bien ya no se usaría en beneficio de los costarricenses sino para un uso propio del arrendatario, privado, extraño al uso público.

La prohibición de arrendar no es una excepción a la regla de enajenación establecida en el párrafo primero del inciso 14 bajo análisis, porque como ya vimos, el arrendamiento no compromete la titularidad del bien; empero, si resulta inconstitucional porque violenta la regla de que un bien público se destine a un uso privado. Ahora bien, es un error interpretativo extender por analogía la prohibición de arrendar a la de dar en concesión, porque en esta figura, a diferencia del arrendamiento, la Administración sigue destinando el bien o el servicio al uso público y sigue siendo responsable por la satisfacción de las necesidades sociales que con el bien se persiguen, solo que a través de la gestión indirecta.

Hechas esas explicaciones, queda claro que mediante la concesión se cumple plenamente la afirmación constitucional “ni salir en forma alguna del dominio y control del Estado”.

Obviamente, lo anterior no obsta un examen atento de las características particulares de cada concesión, toda vez que en el caso de ferrocarriles, muelles y aeropuertos nacionales, no solo se prohíbe que salgan del dominio del Estado, sino también que queden fuera de su control. Lo anterior implica que las cláusulas de una concesión no pueden llegar a tal extremo que materialmente se enerve de manera esencial la capacidad de control del Estado sobre el concesionario.

7.2) El artículo 140 inciso 19) de la Constitución Política estipula lo siguiente:

“ARTÍCULO 140.- Son deberes y atribuciones que corresponden conjuntamente al Presidente y al respectivo Ministro de Gobierno:

(…)

• 19)Suscribir los contratos administrativos no comprendidos en el inciso 14) del artículo 121 de esta Constitución, a reserva de someterlos a la aprobación de la Asamblea Legislativa cuando estipulen exención de impuestos o tasas, o tengan por objeto la explotación de servicios públicos, recursos o riquezas naturales del Estado.

La aprobación legislativa a estos contratos no les dará carácter de leyes ni los eximirá de su régimen jurídico administrativo. No se aplicará lo dispuesto en este inciso a los empréstitos u otros convenios similares, a que se refiere el inciso 15) del artículo 121, los cuales se regirán por sus normas especiales.

(Así adicionado el párrafo anterior por el artículo 2 de Ley No.5702 de 5 de junio de 1975)” En aras de una mejor comprensión de la norma, debemos identificar plenamente cuáles contratos están sometidos a tales disposiciones, y qué contratos quedan fuera del ámbito de su regulación.

La norma establece una regla general que se podría sintetizar así: “Son deberes y atribuciones del Poder Ejecutivo suscribir los contratos administrativos”. Sin embargo, hay dos tipos de contratos que por disposición expresa del inciso 19 del artículo 140 de la Carta Magna quedan fuera del alcance de esa regla general: a) los comprendidos en el inciso 14 del numeral 121 constitucional, y b) los empréstitos u otros convenios similares, a que se refiere el inciso 15 del artículo 121 de la Constitución Política. Estos tipos de contratos se rigen por sus normas especiales y no por lo dispuesto en el inciso 19 citado.

Dentro de los contratos regidos por la norma podemos encontrar dos tipos: los que requieren aprobación legislativa y los que se perfeccionan sin la intervención legislativa. Dentro de los primeros encontramos tres clases de contratos administrativos: a) los que “estipulen exención de impuestos o tasas”, b) “o tengan por objeto la explotación de servicios públicos”, y finalmente, c) los que tienen por objeto los “recursos o riquezas naturales del Estado.” En este caso corresponde a la Administración impulsar el proceso licitatorio: la apertura del concurso, la selección de las ofertas y la adjudicación del contratista; empero, tal acto es válido pero no eficaz, porque para ello se requiere la aprobación de la Asamblea Legislativa. De este modo, la aprobación constituye un acto administrativo útil como técnica de control que remueve obstáculos de eficacia y cuya inteligencia recae en la relevancia estratégica de los bienes y recursos en juego en el desarrollo nacional. En efecto, como consecuencia de tal significado, el Constituyente impone el requisito de la aprobación legislativa en tanto garantía o tutela reforzada, fundada en los principios de control, democrático y de cooperación entre los Poderes Públicos. Es un acto legislativo de colaboración con la función administrativa, ajeno a la competencia de creación legislativa propiamente dicha: “La aprobación legislativa a estos contratos no les dará carácter de leyes ni los eximirá de su régimen jurídico administrativo.” (Constitución Política, artículo 140 inciso 19 in fine) “La aprobación legislativa de contratos, convenios y otros actos de naturaleza administrativa, no dará a esos carácter de leyes, aunque se haga a través de los trámites ordinarios de éstas”. (Constitución Política, artículo 124 in fine).

En relación con los servicios públicos surge la duda de si todo contrato que tenga ese objeto debe ser sometido a la aprobación legislativa. Estima la Sala que para una mejor comprensión de los alcances de esta disposición, es indispensable un ejercicio de lectura e interpretación histórica, para cuyo efecto se debe tener como base la intención plasmada por el Constituyente Originario en las Actas de la Asamblea Nacional Constituyente. Precisamente, para este inciso se constata una voluntad clara e inequívoca del Constituyente, la cual consiste en que la aprobación legislativa para contratos que tengan por objeto la explotación de servicios públicos, está referida únicamente a aquellos que contemplen proyectos de gran envergadura y trascendencia nacional. Obsérvese la literalidad de la intención del Constituyente:

“Artículo 2º.- El Diputado LEIVA presentó moción para que se agregue un inciso al artículo que se refiere a las atribuciones y deberes del Presidente conjuntamente con el respectivo Ministro de Gobierno, que diga así:

“Suscribir los contratos administrativos no comprendidos en el inciso 14) del artículo 97 de esta Constitución, a reserva de someterlos a la aprobación de la Asamblea Legislativa, cuando estipulen exención de impuestos o tasas, o tengan por objeto la explotación de servicios públicos o de recursos y riquezas naturales del Estado.

Exceptúense los casos regidos por leyes especiales”. [140.19] El proponente explicó que su moción casi íntegramente la incluía el Proyecto del 49, inciso 10), artículo 232. Los señores Trejos y Esquivel la tenían presentada como moción, pero luego la retiraron, por cuanto se dijo que el inciso 14), artículo 97, ya aprobado, contemplaba esa situación. Sin embargo, ambos incisos se refieren a dos casos distintos.

El Licenciado ESQUIVEL le preguntó al señor Leiva si no caen dentro de ese inciso y en consecuencia necesitan aprobación legislativa, los contratos para establecer en el país industrias nuevas, regulados por leyes que otorgan toda clase de facilidades a esas industrias, a efecto de que se puedan desarrollar en el país. El mocionante le aclaró que la excepción final solucionaba el problema. Sin embargo, el Diputado Esquivel indicó que aún le quedaban ciertas dudas, por ejemplo, en cuanto a contratos para la explotación de servicios públicos. Un contrato entre el Estado y una empresa de autobuses, por ejemplo, para transportar el correo, ¿tendrá que venir a la Cámara para su aprobación? El mocionante observó que esos contratos pequeños están siempre regidos por leyes especiales. La mayor parte de las veces esos contratos los suscriben, no el propio Presidente, sino dependencias menores, con los interesados. Su intención es que entre las facultades del Ejecutivo quede la de suscribir esa clase de contratos administrativos que no son de gran envergadura. Los servicios públicos a que se refiere su moción son los de gran importancia, como los ferrocarriles.

Puesta a votación la moción del señor Leiva, fue aprobada (Acta No. 135) Como se observa, los únicos contratos de servicios públicos que requieren de la aprobación legislativa, son los de gran envergadura, dentro de los cuales, se reitera, están excluidos los comprendidos en el inciso 14 del numeral 121 constitucional, y los empréstitos u otros convenios similares citados en el inciso 15 del artículo 121 de la Constitución Política, toda vez que ellos están sujetos a una normativa constitucional particular.

Ahora bien, el constituyente Leiva cita, como ejemplo de un contrato de gran envergadura, a los ferrocarriles, lo que podría llevar a la conclusión de que lo regulado en el numeral 140 inciso 19 de la Constitución Política, deviene aplicable no solo a tales ferrocarriles, sino también a los muelles y aeropuertos nacionales, toda vez que estos tres bienes son objeto de una regulación común en el último párrafo del ordinal 121 inciso 14 de la Constitución Política. Sin embargo, para explicar el porqué de tal referencia por parte del diputado Leiva, se debe tener claro el contexto histórico en que se dio.

Al respecto, la Procuraduría General de la República, en su informe rendido en la acción número 04-003389-0007-CO, aclaró lo siguiente:

“De conformidad con la reforma parcial a la Carta Fundamental de 1871, la cual se tramitó bajo el nombre de “Prohibir la Enajenación del Ferrocarril del Pacífico y Exigencia de Dos Tercios de Votos del Congreso para Contratar Empréstitos en el Exterior”, tenemos que sus objetivos, según la exposición de motivos de la iniciativa, eran los siguientes:

“Hay un corriente de opinión muy marcada en el país, que tiende, por un sentimiento natural de bien nacional, a asegurar el Ferrocarril al Pacífico y sus muelles terminales contra la posibilidad de que puedan ser enajenados, y a evitar, en vista de las deudas enormes que existen al cargo del Estado, la contratación de empréstitos en el exterior.

Tal corriente de opinión está ampliamente justificada. En cuanto al primer punto, por la trascendental importancia que tiene para le país el Ferrocarril al Pacífico, no solamente como instrumento habilitador de una extensa y rica zona del país, sino también como medio efectivo de defensa por la competencia de tarifas que es dable establecer al Ferrocarril del Atlántico. En cuanto al segundo punto, porque si es cierto que los empréstitos son indispensables para desenvolver los recursos del país, también lo es que tomando e cuanta las enormes deudas que agobian la nación, solo en caso excepcionalmente justificado podría autorizarse una nueva contratación, y en consecuencia esa autorización legislativa debe ir respaldada por los dos tercios de votos del Congreso.” (Véase Archivos Nacionales, Fondo Congreso, n.° 17.358, folio 1).

Sobre esta reforma constitucional, el entonces Presidente de la República, el Lic. Ricardo Jiménez Oreamuno, en su informe del 1° de mayo de 1936, manifestó, en lo que interesa, lo siguiente:

“Como excepción a lo que acabo de expresar [de abstenerse de indicar ciertas medidas a causa de que estaba en vísperas de inaugurarse una nueva administración] y sólo porque la Constitución obliga al Ejecutivo a externar parecer, cuando se trata de reforma a la misma, lo externo en cuanto a la enmienda, en proceso, a que se refiere vuestro decreto de 17 de agosto del año próximo pasado. Dos objetos tiene el proyecto: que el Ferrocarril del Pacífico y los muelles terminales no salgan del dominio y control del Estado; y que la contratación de empréstitos en el exterior debe ser autorizada por las dos terceras partes de los votos del Congreso. NO discuto si de un modo absoluto sea prudente oponerse, cualesquiera que sean las circunstancias, a todo plan que saque el manejo del ferrocarril de manos del empleados del Estado. Doy por buena la tesis del proyecto; pero si ella es buena, no se ve por qué no se aplique a los ferrocarriles y a los muelles del Atlántico. Es verdad que aquél y éstos están en manos ajenas y así seguirán durante muchos años, mientras las respectivas concesiones estén vivas, pero, por una parte, hemos de suponer que los preceptos constitucionales se dan para que sean perennes, hasta donde sea humanamente posible; y, por otra, que sin la reserva constitucional que se tiene en mira, desde mañana se podrían enajenar aquellas líneas y muelles, de un modo definitivo, o prorrogar desde ahora los efectos de las actuales concesiones, o consentir en una nueva concesión, para cuando venzan las vigentes. Parece, entonces, lógico que lo que de disponga para el Pacífico, se aplique también para el Atlántico, y para nuevos ferrocarriles y muelles.” (Véase Archivos Nacionales, Fondo Congreso, n.° 17.358, folio 10 y La Gaceta n.° 101 del 5 de mayo de 1936. Las negritas no corresponden al original).

A causa de lo anterior, una comisión especial del Congreso Constitucional encargada de estudiar el tema, con posterioridad al discurso del señor Presidente de la República, acoge, en su dictamen del 25 de mayo de 1936, en lo que interesa, la objeción del Primer Ciudadano, justificando de la siguiente manera su proceder:

“Vuestra Comisión Especial encargada de dictaminar sobre el proyecto de reforma constitucional a los incisos 15 y 16 del artículo 73 en el sentido de que ni el Ferrocarril al Pacífico ni los muelles terminales del mismo puedan ser enajenados ni arrendados directa o indirectamente ni salir en forma alguna del dominio y control del Estado; y de que la contratación de empréstitos en el exterior requiera la aprobación de las dos terceras partes de votos del Congreso, tiene el honor de cumplir su encargo en los siguientes términos:

De acuerdo con el artículo 134 de la Constitución el proyecto en estudio recibió, previas las formalidades del caso las aprobación del Congreso en el decreto N° 165 de 17 de agosto de 1935 y fue pasado al Poder Ejecutivo para los efectos del inciso 6° del citado artículo 134.- El señor Presidente de la República, en su Mensaje enviado al Congreso el día 1° de los corrientes, externó su parecer sobre la enmienda en trámite.

En cuanto a la referencia a la prohibición de enajenar el Ferrocarril al Pacífico y sus muelles terminales, el Jefe del Poder Ejecutivo opina y nosotros acogemos ese parecer que la disposición debe hacerse extensiva al Ferrocarril al Atlántico y sus muelles terminales y a los nuevos ferrocarriles y muelles que en lo futuro se construyan por cuenta del Estado.- En consecuencia, consideramos que la enmienda podría redactarse en una forma general y más concisa diciendo que los ferrocarriles nacionales y los muelles terminales de los mismos quedan exceptuados de la facultad de enajenación que el inciso 15 del artículo 73 otorga al Congreso.” (Véase Archivos Nacionales, Fondo Congreso, n.° 17.358, folio 13. Las negritas no corresponden al original).” Tal preocupación por los ferrocarriles se entiende, además, porque “las concesiones que se otorgaban a las compañías extranjeras eran por plazo sumamente largos, tal y como ocurrió con el Canal de Panamá y con el ferrocarril al Atlántico. En este último caso, de acuerdo con el contrato Soto-Keith firmado en 1884, el cual fue ratificado por el Poder Legislativo mediante Ley N.° 2 de 21 de abril de 1884, cláusula XXI, el gobierno cedía y traspasaba a la compañía, por el término de noventa y nueve años, en plena propiedad, los ferrocarriles construidos y el que se construiría entre Reventazón y Cartago; además se le daban a la empresa exenciones para importar el material rodante y se le ceden terrenos baldíos. En la cláusula XXVII se regulaba la reversión, o sea el traspaso que la Compañía del Ferrocarril de Costa Rica haría al gobierno, al vencerse los noventa y nueve años de la concesión del ferrocarril, con todas sus construcciones y material fijo y rodante, todo lo cual debería hallarse en buen estado.” (Ver informe de la Procuraduría General de la República supracitado).

Por consiguiente, la referencia del diputado Leiva a los ferrocarriles se explica por los múltiples problemas y abusos que surgieron en una etapa inmediata anterior a la Constituyente de 1949. En realidad, tal preocupación motivó que el Congreso, actuando en función constituyente y por Ley No. 14 de 19 de junio de 1936, modificare el artículo 73 inciso 15 de la Constitución Política de 1871 (correspondiente al numeral 121 inciso 14 de la Constitución actual), en el sentido de que en relación con la atribución exclusiva del Congreso de decretar la enajenación y aplicación a usos públicos de los bienes propios de la Nación, se exceptuaba lo concerniente a todos los ferrocarriles y muelles nacionales, los que no podían ser enajenados ni arrendados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado. De esta forma, con anterioridad a la Constitución Política de 1949, el legislador constituyente ya había optado por regular dicha materia por medio de una norma especial; luego, junto a los ferrocarriles y muelles, el constituyente del 49 agregó los aeropuertos.

Ergo, existe una referencia histórica muy clara y concreta de que la voluntad del constituyente del 49, siguiendo la misma línea que en 1936 reformó la anterior Constitución de 1871, consistió en regular todo lo concerniente a ferrocarriles, muelles y aeropuertos en el artículo 121 inciso 14 de la Constitución Política. Así, el inciso 19 del artículo 140 constitucional no se aplica a los contratos contemplados en el inciso 14 del ordinal 121 de la Constitución Política vigente.

Adviértase que carece de sentido establecer dos normas para regular una misma situación, por lo que en el caso de ferrocarriles, muelles y aeropuertos se debe aplicar la norma especial (121 inciso 14), y no la general (140 inciso 19).

7.3) La interpretación sistemática de los artículos 140 inciso 19 y 121 inciso 14 de la Constitución Política.

De lo expuesto en el punto 7.2, hemos concluido que fuera del ámbito de aplicación del artículo 140 inciso 19 de ese mismo cuerpo normativo se encuentran los bienes y contratos administrativos regulados en el numeral 121 inciso 14 de la Constitución Política, toda vez que esta última norma constituye una regulación especial para aquellos.

También ha quedado claro que mediante la concesión se cumple plenamente la afirmación constitucional “ni salir en forma alguna del dominio y control del Estado”, conforme a lo explicado en el punto 7.1 de esta sentencia.

La cuestión de si esa concesión puede ser regulada mediante una ley general, en la que el Legislador fija las condiciones para que el Ejecutivo pueda conferir concesiones respecto de los bienes indicados en el artículo 121 inciso 14, también ha quedado esclarecida por reiterada jurisprudencia de este tribunal. En efecto, como se examinó en el punto 7.1, el Estado no puede enajenar, gravar ni arrendar directa o indirectamente los ferrocarriles, puertos y aeropuertos nacionales en servicio. No obstante, de la citada disposición constitucional se deduce que el legislador (reserva de ley) sí puede regular la concesión de estos bienes, al amparo de lo dispuesto en la regla general contenida del párrafo primero del inciso 14 “Decretar la enajenación o la aplicación a usos públicos de los bienes propios de la Nación”. De estas dos atribuciones generales del Poder Legislativo, la de enajenar está descartada en el caso de ferrocarriles, muelles y aeropuertos, toda vez que el último párrafo del inciso 14 artículo 121 expresamente prohíbe que tales bienes salgan del dominio y control del Estado. Empero, ante la ausencia de una prohibición expresa, la figura de la concesión, incluso al amparo de una ley general, sí resulta viable destinar a usos públicos, incluso por la vía de la concesión, la explotación de ferrocarriles, muelles y aeropuertos, a reserva de que tales bienes no salgan del dominio y control del Estado. Esto es así porque el legislador ostenta, por expreso mandato constitucional del primer párrafo del artículo 121 inciso 14, la atribución general de “decretar” la aplicación a usos públicos de los bienes de la Nación (primer párrafo del ordinal 121 de la Constitución Política), de modo que en ejercicio de su potestad de emitir leyes, constitucionalmente no le está vedada la posibilidad de ejecutar tal mandato constitucional por medio de una ley general de concesión, en la que le imponga al Poder Ejecutivo aquellas condiciones jurídico positivas necesarias para gestionar la concesión de dichos bienes y resguardar el uso público de los mismos, lo que en el caso de ferrocarriles, muelles y aeropuertos adicionalmente tiene como límite insoslayable que su explotación no salga del dominio y control del Estado.

En cuanto al mencionado punto, esta Sala ya ha tenido ocasión de pronunciarse en la sentencia número 5651-2005 de 14:41 horas de 11 de mayo de 2005:

“… en este estudio estamos hablando de dos figuras de concesión distintas, la concesión de obra pública con servicios públicos, regulada en la Ley aquí impugnada, y la concesión de gestión de servicios públicos regulada en la Ley de Contratación Administrativa. Ambas, implican modalidades distintas de concesión, pero que en todo caso, como ya se indicó no lesionan el artículo 121 inciso 14. De hecho este Tribunal se manifestó sobre el fondo de este asunto en la Consulta Legislativa que fue sometida a estudio, estando en trámite la aprobación de esta ley: (….). En el caso de las concesiones de obra pública con servicios públicos es aplicable como ley marco, la Ley General de Concesión de Obra Pública y la concesión de gestión de servicios públicos, la Ley de Contratación Administrativa, artículos 74 y 75.” En efecto, la concesión de ferrocarriles, puertos y aeropuertos se encuentra dentro del ámbito de cobertura de la Ley número 7762 de 14 de abril de 1998, Ley General de Concesión de Obras Públicas con Servicios Públicos, que en el artículo 2 dispone:

“ARTÍCULO 2.- Cobertura 1.- Toda obra y su explotación son susceptibles de concesión cuando existan razones de interés público, que deberán constar en el expediente mediante acto razonado. Se exceptúan de la aplicación de esta Ley las telecomunicaciones, la electricidad y los servicios de salud.

2.- Los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes, así como los servicios que ahí se presten, únicamente podrán ser otorgados en concesión mediante los procedimientos dispuestos en esta ley.

3.- En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes.

El setenta por ciento (70%) de lo que la Administración obtenga por lo dispuesto en el artículo 42.1 a) de esta ley, en razón de las obras nuevas o ampliaciones que se concesionen en los citados muelles, será girado a la Junta de la Administración Portuaria de la Vertiente Atlántica y el Instituto Costarricense de Puertos del Pacífico, según corresponda, para ser destinado exclusivamente a inversiones en obras de las respectivas provincias, sin que pueda utilizarse para cubrir gastos administrativos.

Transcurrido el plazo de estas concesiones, dichas obras pasarán a la titularidad de los entes mencionados, según corresponda.” (La negrita no corresponde al original).

Se concluye, que en relación con los ferrocarriles, puertos y aeropuertos, la Ley General de Concesión de Obras Públicas con Servicios Públicos, viene a ser la ley general, desarrollada al amparo de lo dispuesto por el párrafo primero y con las limitantes del párrafo cuarto, ambos del numeral 121 inciso 14 constitucional, que establece una reserva a favor de la Asamblea Legislativa para regular estas materias observando los límites que la propia Constitución establece.

Ahora bien, un nuevo punto por dilucidar, que constituye el objeto fundamental de esta acción, consiste en el alegato de la parte recurrente de que en el sub examine se ha venido a dar una inconstitucionalidad por omisión, puesto que el legislador no previó la aprobación final de tal tipo de concesión por parte de la Asamblea Legislativa., toda vez que de la relación de los artículos 140 inciso 19 y 121 inciso 14 de la Constitución Política, se extrae que en el caso de contratos administrativos de especial envergadura relacionados con ferrocarriles, muelles y aeropuertos nacionales, se requiere inexorablemente de la aprobación legislativa, toda vez que la Ley Fundamental no previó la posibilidad de una ley especial, como sí lo hace en el caso de los bienes mencionados en los apartes a), b) y c) del citado inciso 14.

Al respecto, en el punto 7.2 ha quedado explicado que existe una referencia histórica muy clara y concreta de que la voluntad del constituyente del 49, siguiendo la misma línea que en 1936 reformó la anterior Constitución de 1871, consistió en regular todo lo concerniente a ferrocarriles, muelles y aeropuertos en el artículo 121 inciso 14 de la Constitución Política. Así, el inciso 19 del artículo 140 constitucional no se aplica a los contratos contemplados en el inciso 14 del ordinal 121 de la Constitución Política vigente. Adviértase que carece de sentido establecer dos normas especiales para regular una misma situación, por lo que en el caso de ferrocarriles, muelles y aeropuertos se debe aplicar la norma especial (121 inciso 14), y no la general (140 inciso 19).

Amén de lo anterior, ciertamente, en los apartes a), b) y c) del inciso 14 del artículo 121 de la Constitución Política se regula expresamente que los bienes ahí contenidos solo pueden ser explotados por la Administración Pública o por particulares, de acuerdo con la ley o mediante concesión especial otorgada por tiempo limitado y con arreglo a las condiciones y estipulaciones que establezca la Asamblea Legislativa. Por otro lado, igualmente cierto es que el último párrafo del citado inciso, con respecto a ferrocarriles, muelles y aeropuertos es omiso en indicar que su explotación puede darse de acuerdo con la ley o mediante concesión especial, contrario a lo que hace con los otros bienes mencionados.

Sin embargo, a partir de tal situación normativa, no se puede colegir la inexorable consecuencia lógica (de que parten los recurrentes) consistente en que en el caso de ferrocarriles, muelles y aeropuertos únicamente sea viable su concesión vía aprobación legislativa para cada caso concreto, y no a través de una ley marco.

Primeramente, como ya se subrayó en el punto 7.2 de este considerando, los bienes y contratos administrativos regulados en el numeral 121 inciso 14 de la Constitución están fuera del ámbito de aplicación del artículo 140 inciso 19 constitucional, toda vez que se rigen por sus propias disposiciones especiales. Luego, no es posible deducir de una relación entre el ordinal 121 inciso 14 y el artículo 140 inciso 19, que en materia de concesiones de ferrocarriles, puertos y aeropuertos, por tratarse de cuestiones de gran envergadura, cada contrato de concesión respecto de esos bienes en específico deba ser aprobado por la Asamblea Legislativa, toda vez que dichos bienes cuentan con una regulación constitucional específica (el ordinal 121 inciso 14), de contenido diverso al estatuido en el numeral 140 inciso 19 de la Carta Magna. Es decir, mientras este último artículo sí prevé la aprobación parlamentaria de manera inexorable en contratos de gran envergadura, el 121 inciso 14 no lo hace.

En segundo lugar, es necesario percatarse de que lo natural es que el Poder Legislativo se dedique a lo que le es exclusivo, una labor deliberativa que redunda en la producción de leyes, mientras que el Poder Ejecutivo se concentre en aquello que más lo caracteriza, la gestión administrativa (dentro de lo que se incluye todo lo concerniente a la contratación administrativa). Allende de esos campos, una intervención de algún Poder Público en un campo que no le sea propio, solo resultaría factible por disposición expresa del constituyente o cuando no se afecte el contenido esencial del ámbito competencial de un Poder. Precisamente, el reconocido tratadista costarricense Eduardo Ortiz Ortiz ha subrayado que el Poder Ejecutivo es el representante natural del Estado en la celebración de contratos, salvo norma expresa en contrario que tendría que ser inequívoca.

Así las cosas, la interpretación lógica del último párrafo del inciso 14 del artículo 121 constitucional se inclina más por atribuirle al Poder Ejecutivo aquella competencia más consustancial a su naturaleza jurídica, antes que por prohibírsela, como pretende la parte accionante. Dicho de otra forma, el hecho de que en relación con los bienes contemplados en los sub incisos a), b) y c) del inciso 14 ordinal 121 de la Constitución Política se haya previsto su explotación de acuerdo con la ley o mediante concesión especial otorgada por tiempo limitado y con arreglo a las condiciones y estipulaciones que establezca la Asamblea Legislativa, no significa que con respecto a los bienes regulados en el último párrafo del numeral de referencia solo resulte jurídicamente viable la segunda opción (la de una concesión especial de aprobación legislativa), toda vez que, por un lado, dicho párrafo no prohíbe ninguna de las dos alternativas mencionadas y, por el otro, la posibilidad de una ley general propicia un balance más adecuado entre aquello que le resulta jurídicamente más natural a cada uno de los Poderes: mientras que el Parlamento legisla fijando el marco jurídico positivo para que el Ejecutivo gestione administrativamente las concesiones, a este último se le encomienda la celebración de esta modalidad de contratación administrativa.

Obsérvese que el precepto constitucional para el legislador fue que no permitiera que los ferrocarriles, muelles y aeropuertos fueron enajenados, arrendados, gravados, ni salieran del dominio o control del Estado, sin indicarle por cuál medio debía garantizar todo eso. Sin duda alguna esta atribución la ejerce el Poder Legislativo desde su función esencial que es legislar y eso es precisamente lo que hace a través de una ley general de concesión, donde fija los parámetros por los cuales el Poder Ejecutivo deberá encaminar también su función esencial de administrador del Estado. De manera que no se produce una delegación de funciones de un Poder hacia otro, sino que cada uno ejerce sus competencias y potestades dentro del marco constitucional previsto.

En virtud de lo expuesto, deviene improcedente la alegada inconstitucionalidad por omisión de los artículos 2, incisos 2) y 3), y 5, inciso 4), de la Ley General de Concesión de Obras Públicas con Servicios Públicos. Al desecharse este motivo de inconstitucionalidad, igualmente debe desestimarse la alegada inconstitucionalidad por conexión del Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín. Los Magistrados Armijo y Cruz salvan el voto y declaran con lugar la acción con sus consecuencias. Los Magistrados Jinesta, Castillo y Hernández ponen nota.” Aunque, efectivamente -como así lo hace ver el accionante-, el principal reproche formulado en esa acción nro. 12-009578-0007-CO se refería a una supuesta omisión de la normativa legal impugnada al no exigir una ulterior aprobación de la Asamblea Legislativa del contrato de concesión otorgado al amparo de la Ley General de Concesión de Obras Públicas con Servicios Públicos, lo cierto es que este Tribunal realizó un profuso análisis en cuanto al contenido y alcances del artículo 121, inciso 14, constitucional y, distinto a lo argumentado por el accionante, este Sala concluyó que la normativa impugnada no era incongruente o violatoria de dicha disposición constitucional, en tanto que la figura jurídica de la concesión -como un supuesto de contrato de gestión indirecta, que "no supone pérdida de titularidad del bien público" y que implica que el "Estado continúa satisfaciendo la necesidad social y atendiendo el fin público, solo que en lugar de hacerlo con sus propios recursos, lo hace a través de un tercero (el concesionario)", respecto del cual, se establece "una relación de especial sujeción, en la que la Administración ejerce potestades exorbitantes de dirección, regulación, vigilancia, control y sanción para lograr los cometidos públicos"- no transgrede, prima facie, la prohibición constitucional de enajenar, arrendar o gravar, directamente o indirectamente, los muelles y «cumple plenamente la afirmación constitucional “ni salir en forma alguna del dominio y control del Estado...», conforme a las razones ampliamente desarrolladas en el voto previamente transcrito (véase, particularmente, su considerando VII). Consideraciones aplicables a la presente acción, por no existir motivo alguno que justifique variar de criterio.

Ahora bien, según se desprende de la lectura integral del escrito de interposición, es claro que los principales reparos u objeciones del accionante se relacionan, de forma muy específica, con el Contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín, en tanto pretende cuestionar su necesidad o conveniencia y lo referente a su debida ejecución o cumplimiento. Sobre tal extremo se hará expresa referencia más adelante.

IV.- DE LA IMPUGNACIÓN AL ARTÍCULO 18 DE LA LEY DE TRANSFORMACIÓN DE LA JUNTA DE ADMINISTRACIÓN PORTUARIA Y DE DESARROLLO ECONÓMICO DE LA VERTIENTE ATLÁNTICA, LEY NRO. 9764, QUE MODIFICÓ EL ARTÍCULO 1 DE LA LEY ORGÁNICA DE JAPDEVA. El accionante acusa, nuevamente, una infracción al artículo 121, inciso 14, de la Constitución Política. Sin embargo, de la lectura de la disposición normativa impugnada se puede verificar que esta viene a confirmar el papel o rol de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica como “ente autónomo del Estado, con carácter de empresa de utilidad pública, que asumirá las prerrogativas y funciones de Autoridad Portuaria” y, específicamente, se le encarga el “construir, administrar, operar, subcontratar, concesionar y realizar cualquier otro mecanismo financiero que la normativa nacional permita”, justamente, para así poder “desarrollar los servicios portuarios, su propia gestión administrativa y las inversiones, construcciones y mejoras, en los puertos marítimos y fluviales de la Vertiente Atlántica”. De esta forma, la norma lo que prevé es una habilitación jurídica para que esta entidad pueda recurrir a distintas opciones de contratación y de aplicación de mecanismos financieros que “la normativa nacional permita”, para, de esta manera, poder desarrollar sus prerrogativas y funciones como autoridad portuaria. De dicha norma no se puede derivar que esta autorice a la citada entidad a enajenar, arrendar o gravar los muelles o puertos a su cargo, ni permitir que estos salgan del dominio o control del Estado, no solo porque el texto de la norma no lo establece, sino porque, necesariamente, la misma debe integrarse, interpretarse y aplicarse de consuno con los requerimientos sustanciales y formales impuestos por el resto del ordenamiento jurídico, incluido, primeramente, el propio artículo 121, inciso 14), de Constitución Política, así como el resto del marco normativo aplicable. En lo referente, específicamente, a la posibilidad de “concesionar”, debe remitirse a lo ya indicado en el considerando anterior, en el sentido que esta Sala, en diversos precedentes, ha reconocido que la figura jurídica de la concesión -sea la concesión de obra pública con servicios públicos o concesión de gestión de servicios públicos- no resulta incongruente o violatoria del artículo 121, inciso 14), de la Constitución Política; por el contrario, resulta una opción constitucionalmente válida de gestión indirecta del servicio público, que no implica enajenar, arrendar o gravar los muelles, ni que estos salgan del dominio y control del Estado. Así, en el voto nro. 2005-05651 de las 14:41 horas del 11 de mayo de 2005, en que se conoció de reproches similares, relacionados con el Instituto Costarricense de Puertos del Pacífico, esta Sala resolvió:

“V.- Objeto de la impugnación. Los accionantes estiman que los actos de invitación a concursar realizados por el Instituto de Puertos del Pacífico (INCOP) y por el Consejo Nacional de Concesiones en las licitaciones internacionales número 1-2001 concesión de gestión de servicios públicos de la terminal de Caldera, 2-2001 concesión de gestión de servicios públicos de la terminal de Puntarenas, 3-2001 concesión de gestión de servicios de remolcadores en la Vertiente del Pacífico, 3-2001 concesión de obra pública con servicio público de la terminal granelera Puerto Caldera y 4-2001 concesión de obra pública con servicio público de la terminal atunera de Puerto Caldera, todas publicadas en La Gaceta Oficial número 68 del cinco de abril del dos mil uno, así como su posterior adjudicación y refrendo; y de igual modo respecto de los artículos 2 incisos 2) y 3) y 5 inciso 4) de la Ley General de Concesión de Obras Públicas con Servicios Públicos, número 7762 del dos de abril de mil novecientos noventa y ocho, son inconstitucionales por estimarlos contrarios a los principios de legalidad, reserva de ley, indelegabilidad de funciones, razonabilidad, proporcionalidad y debido proceso, así como por contradecir lo dispuesto en los artículos 1, 2, 3, 4, 9, 11, 39, 121 inciso 14) y 140 inciso 19), todos de la Constitución Política. En lo que respecta a las disposiciones impugnadas de la Ley No. 7762, éstas disponen:

“ARTÍCULO 2.- Cobertura ...

2.- Los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes, así como los servicios que ahí se presten, únicamente podrán ser otorgados en concesión mediante los procedimientos dispuestos en esta ley.

3.- En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes.

El setenta por ciento (70%) de lo que la Administración obtenga por lo dispuesto en el artículo 42.1 a) de esta ley, en razón de las obras nuevas o ampliaciones que se concesionen en los citados muelles, será girado a la Junta de la Administración Portuaria de la Vertiente Atlántica y el Instituto Costarricense de Puertos del Pacífico, según corresponda, para ser destinado exclusivamente a inversiones en obras de las respectivas provincias, sin que pueda utilizarse para cubrir gastos administrativos.

Transcurrido el plazo de estas concesiones, dichas obras pasarán a la titularidad de los entes mencionados, según corresponda.” “ARTÍCULO 5.- Definición y actuación ...

4.- Corresponde exclusivamente al Poder Ejecutivo, considerado en los términos del artículo 21.2 de la Ley General de la Administración Pública, adjudicar y suscribir los contratos de concesión de los ferrocarriles, las ferrovías, los muelles y los aeropuertos internacionales, tanto nuevos como existentes.

Los muelles de Moín, Limón, Puntarenas y Caldera estarán sometidos a lo que dispone el artículo 2.3 de la presente ley.” VI.- Sobre el fondo. El aspecto medular cuestionado por los accionantes es que los actos y disposiciones impugnadas lesionan el artículo 121 inciso 14), toda vez que los mismos no pueden ser objeto de concesión, porque así lo dispuso el Constituyente y porque se están desafectando bienes de dominio público. La Sala en reiteradas ocasiones se ha manifestado sobre este aspecto y ha señalado:

“III. SOBRE EL ROCE CON EL ARTICULO 121, INCISO 14 DE LA CONSTITUCION POLITICA: Se expresa en la consulta que "Se ha cuestionado por algunos el hecho de que al facultarse al concesionario a explotar las nuevas instalaciones de ferrocarriles, muelles y aeropuertos, de conformidad con el artículo sexto, inciso segundo del proyecto, se podría estar rozando con la disposición constitucional que impide la enajenación de estas obras, articulo 121, inciso 14 de nuestra Carta Magna".

El articulo 6 del Proyecto dice: "ARTICULO 6.- Los ferrocarriles, muelles y aeropuertos nacionales, estos últimos mientras se encuentren en servicio, no pueden ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir, de ninguna forma del dominio y control del Estado.

"Las concesiones que se otorguen para construir y explotar nuevas instalaciones de ferrocarriles, muelles y aeropuertos deben ser tramitadas de acuerdo con esta Ley y aprobadas por la Asamblea Legislativa, en un tiempo no mayor de cuarenta y cinco días a partir de su presentación.

"Pueden darse en concesión, los servicios públicos complementarios o no esenciales, situados en ferrocarriles, muelles y aeropuertos." Como se observa, el primer párrafo del artículo 6 coincide con lo que la Constitución dispone en el último párrafo del artículo 121, inciso 14). Es en lo esencial una "norma eco". En lo demás, hay que destacar que la concesión para la construcción y explotación de nuevas instalaciones de ferrocarriles, muelles y aeropuertos se sujeta a un procedimiento calificado, puesto que supone finalmente la aprobación por la Asamblea Legislativa, Salvo por este hecho, y porque en este mismo caso la concesión puede otorgarse por un plazo de "hasta cincuenta años" (artículo 9 del Proyecto), el instituto en nada difiere de la concesión de obra pública en general, tal como se regula en el Proyecto. En consecuencia, tiene las siguientes características relevantes: a) Por la vía de la concesión se encarga la ejecución de la obra y se transmiten los poderes jurídicos necesarios para que se la explote; b) La transmisión de esos poderes es temporal y la explotación en general reserva a la Administración sus facultades de autorización, control y vigilancia; c) La titularidad del derecho de propiedad y de la prestación del servicio público se mantienen en cabeza de la Administración; ch) La prestación del servicio público por parte del concesionario se subordina a los principios de conveniencia nacional, legalidad, generalidad, continuidad, eficiencia, adaptabilidad y justa retribución; d) Los derechos y obligaciones del concesionario y, en su caso, de los subcontratistas, no pueden ser cedidos, fideicometidos o gravados, ni puede celebrarse ningún convenio de usufructo, arrendamiento, administración o explotación total o parcial sobre los bienes objeto de la concesión sin el consentimiento previo y expreso de la Administración concedente y la aprobación de la Contraloría General de la República, consentimiento y aprobación que ha de entenderse necesariamente, y así se interpreta con motivo de esta opinión, que no pueden darse si hay límites constitucionales o legales que lo impidan; y e) La concesión se extingue, entre otras causales, mediante el rescate por causa de interés público.

Volviendo ahora al texto del artículo 121, inciso 14) constitucional, cuyo último párrafo, como se menciona en la consulta, es el que podría verse afectado por el segundo párrafo del artículo 6 del Proyecto, conviene en el marco de esta consulta, delimitar su contenido. En efecto, el artículo 121, inciso 14) contiene tres normas distintas, que deben ser claramente diferenciadas: a) La primera, si una norma que habilita a la Asamblea Legislativa para decretar "la enajenación o la aplicación a usos públicos de los bienes propios de la Nación". Por una parte, esta norma es irrestricta en cuanto se refiere a todos los bienes propios de la Nación, y, por otra, reserva a la ley la materia, invalidando actos administrativos de enajenación o aplicación a usos públicos no fundados en ley previa; b) La segunda, prescribe qué bienes no "podrán salir definitivamente del dominio del Estado". Para esas categorías, que están enunciadas en los incisos a), b) y c), la restricción es total y absoluta en cuanto a "salir del dominio del Estado", pero, de inmediato, la norma modera su severidad advirtiendo que tales categorías de bienes pueden ser "explotados por la administración pública o por particulares" de acuerdo con las ley o mediante concesión especial; c) La tercera, es una norma que se refiere específicamente a ciertos bienes (ferrocarriles, muelles y aeropuertos nacionales en servicio) no incluidos en las tres categorías de la norma precedente. Si sobre estos bienes nada se dijera, los cubriría la norma de habilitación con que el inciso 14) comienza, como ya se ha visto. Pero la existencia de esta disposición específica implica un régimen jurídico propio para estos bienes, que limita el principio general de enajenación y aplicación a usos públicos de una manera rigurosa: tales bienes "no podrán ser enajenados, arrendados ni gravados, directa o indirectamente, ni salir en forma alguna del dominio y control del Estado". La norma alude, en primer lugar, a enajenación, arrendamiento o gravamen, pero la expresión "directa o indirectamente", en el contexto rígido de la disposición puede referirse lo mismo a la situación en que el Estado procede por sí o por medio de otras entidades jurídicas (sentido subjetivo), o a los casos en que se emplean modalidades o medios que tengan consecuencia o efectos jurídicos equivalentes o similares, aunque per se no supongan técnicamente enajenación, arrendamiento o gravamen (sentido sustantivo). A continuación, este rigor se confirma con la expresión "ni salir en forma alguna del dominio y control del Estado", expresión esta a la que también hay que dar una amplia cobertura de hipótesis por la vocación de la norma. Ahora bien: si se confronta la sumaria enumeración de algunas características de la concesión que se hizo antes, con lo dispuesto en el artículo 121, inciso 14), se derivan los siguientes comentarios. El vocablo "enajenación" importa la transmisión del dominio o propiedad de la cosa o la titularidad de un derecho a otra persona, lo que no sucede con la concesión, pues de acuerdo con los propios términos del Proyecto, el Estado conserva el dominio sobre ellos, al punto de que podría recuperarlos -si por razones de interés público así lo llegara a estimar- previa indemnización al concesionario. Difiere igualmente de la figura del arrendamiento, pues como contrato sinalagmático que es, el arrendante asegura al arrendatario el uso y disfrute de la cosa por un tiempo determinado, mientras que el último se compromete al pago de una suma de dinero; en tanto en la concesión, si bien es cierto existe un plazo para su explotación, el Estado -como se señaló- puede recuperarlo no obstante el plazo fijado, y el beneficio económico que recibe el concesionario, consiste exclusivamente en el canon o suma de dinero que abonan los usuarios. Tampoco implica gravan del bien, como resulta de los artículos del Proyecto. En otros términos, la obra pública construida será siempre del Estado. De ahí que como bien de dominio público, gozará de las características de imprescriptibilidad, irrenunciabilidad e inembargabilidad que le son propias a este tipo de bienes. En consecuencia, dadas las prerrogativas que el proyecto reserva a la Administración, no es razonable entender que los bienes objeto de la concesión salgan o puedan salir -directa o indirectamente- del dominio y control del Estado. A lo anterior hay que añadir los amplios poderes de control o fiscalización que el Estado se reserva para sí, incluso en lo referente al estipendio (tarifas por prestación del servicio público) que recibirá el concesionario, el cual deberá fijarse por los organismos competentes de la Administración Pública que se señalan en el Proyecto, todo sobre la base de principios de justicia y razonabilidad, propios del derecho público. De ahí que en opinión de esta Sala, no se observa infracción alguna por parte de la norma consultada con respecto al artículo 121, inciso 14) de la Constitución Política.”(sentencia No. 3789-92) En la sentencia citada queda claramente expuesto que la posibilidad de dar en concesión bienes como los muelles, en los parámetros que ha descrito la Sala, no constituye una vulneración a la Constitución Política, pues de conformidad con la naturaleza de la “concesión” no se están desafectando estos bienes, pues no se les está separando del fin público al cual están vinculados, por ende no salen del dominio público, tampoco se están enajenando, arrendando ni gravando, de manera que no se produce la vulneración acusada. Ahora bien, en este estudio estamos hablando de dos figuras de concesión distintas, la concesión de obra pública con servicios públicos, regulada en la Ley aquí impugnada, y la concesión de gestión de servicios públicos regulada en la Ley de Contratación Administrativa. Ambas, implican modalidades distintas de concesión, pero que en todo caso, como ya se indicó no lesionan el artículo 121 inciso 14. De hecho este Tribunal se manifestó sobre el fondo de este asunto en la Consulta Legislativa que fue sometida a estudio, estando en trámite la aprobación de esta ley:

“...Es de notar, que la Constitución Política no hace distingo entre obra pública y concesión de servicio público, en los términos en que se plantea en la consulta, y aun cuando esa distinción, pueda ser aconsejable en una buena técnica legislativa, su omisión no implica reparo de constitucionalidad alguno. Además, la concesión de obras o servicio público es un contrato típicamente administrativo precisamente por la naturaleza pública del objeto. No debe entonces confundirse la técnica legislativa deseable con lo constitucional o inconstitucional, ya que esto depende del contenido de la propia Constitución y de la norma que se enfrente a ella, la cual podría incluso estar diseñada conforme a una buena técnica legislativa, pero no obstante, ser inconstitucional. De allí que, el hecho de que una determinada norma no esté redactada conforme con una determinada corriente doctrinaria o adolezca de ciertos defectos, ello no implica que sea inconstitucional. Por todo lo anterior esta Sala, estima, que los reparos que los diputados consultantes hacen al proyecto de ley, en cuanto a este punto, no se relacionan con problemas de constitucionalidad, sino con criterios de oportunidad y conveniencia del propio legislador, a quien corresponde regular la materia de la forma que le parezca más viable, claro está, sin violar la Constitución Política. La Sala entiende además que la concesión de las obras y servicios públicos a que se refiere este proyecto de ley, exceptúa todo aquello relativo a la seguridad nacional, control aduanero, migración y todo aquello que tenga que ver con funciones propias del Estado, las que son indelegables e irrenunciables y en modo alguno pueden quedar en manos privadas. Así por ejemplo, aun cuando un aeropuerto sea dado en concesión, para que el servicio público que ahí se preste sea realizado por un ente privado, lo relativo a la seguridad portuaria, migración y aduanas entre otros, queda reservado exclusivamente al Estado, sin que puedan ser ejercidas esas funciones ni directa ni indirectamente por los particulares. A criterio de esta Sala, nada impide que por medio de una ley marco, la Asamblea faculte al Poder Ejecutivo para que de en concesión bienes públicos, sin que sea necesario una aprobación concreta para cada caso en particular, pues se entiende que ha dado una aprobación general para tal efecto, en cumplimiento de la propia Constitución. En resumen, en cuanto a este aspecto consultado, la Sala no encuentra inconstitucionalidad alguna.” En el caso de las concesiones de obra pública con servicios públicos es aplicable como ley marco, la Ley General de Concesión de Obra Pública y la concesión de gestión de servicios públicos, la Ley de Contratación Administrativa, artículos 74 y 75. En ese entendido, no es inconstitucional que la administración pública concesione estos bienes en los parámetros que este Tribunal ha señalado. Por otro lado, como bien indican los mismos accionantes, el artículo 2 inciso 3 aquí impugnado señala que: “...En el caso de los muelles de Limón, Moín, Caldera y Puntarenas, por esta ley, únicamente podrán ser concesionadas las obras nuevas o las ampliaciones que ahí se realicen y no las existentes.”, ajustándose al artículo 121 inciso 14, por lo que de violentar tal disposición las licitaciones cuestionadas, es un asunto que debe ser determinado en la vía de legalidad, pues no estaríamos en consecuencia ante una violación constitucional, sino ante una disconformidad con la aplicación de la ley.

VII.- Los accionantes solicitan a este Tribunal que en caso de declarar que la ley impugnada sea una ley marco, declare inconstitucionales las licitaciones aquí impugnadas por haber sido tramitadas por procedimientos diversos a los que establece la Ley 7762. Tal extremo resulta improcedente para la Sala, pues lo pretendido constituye la emisión de un juicio de mera legalidad, lo que excede la competencia de este Tribunal. Por supuesto que si en la cúspide del orden normativo se encuentran las normas que contempla la Constitución Política, ciertamente cualquier vulneración de orden legal violenta también la Constitución Política, pero para remediar estos conflictos el constituyente originario creó las jurisdicciones comunes.

VIII.- Por otro lado los accionantes acusan que se violenta el principio de razonabilidad y proporcionalidad y el buen manejo del gasto público, cuestionando que las concesiones van a implicar prácticamente el cierre de facto del INCOP y la conformación de una privatización. Sobre estos aspectos la Sala en la sentencia No. 14.606-03 también ya indicó:

“III.- PROCESO DE FORTALECIMIENTO DEL INCOP. Los Diputados estiman que “ (...) no existe precepto legal alguno que permita al INCOP realizar una reestructuración competencial, estructural y laboral de tales magnitudes, con ello, tampoco existe autorización para pagar una “indemnización” como la descrita” (...), por lo que se trata de una privatización sin sustento normativo. Sobre este particular, es menester indicar que si el INCOP cuenta con competencias y facultades legales suficientes para determinar su reestructuración o modernización es un aspecto de mera legalidad que excede las competencias de este Tribunal. No obstante, cabe indicar que la potestad de organización o reorganización es de principio o virtual para cualquier ente público distinto al Estado. La Constitución Política le garantiza, en su ordinal 188, a todo ente público menor, distinto del Estado, una autonomía administrativa mínima o de primer grado, esto es, la potestad de auto-administrarse, sin sujeción a ningún otro ente público y sin necesidad de una norma legal que así lo disponga, para disponer de sus recursos humanos, materiales y financieros de la forma que lo estime más conveniente para el cumplimiento eficaz y eficiente de los cometidos y fines que tiene asignados. En desarrollo del texto constitucional los ordinales 6°, párrafo 2°, 59, párrafo 2°, y 103, párrafo 1°, de la Ley General de la Administración Pública, le confieren al jerarca de cualquier ente público –en el caso de una institución autónoma como el INCOP, la Junta Directiva- la potestad de auto organización y reorganización –esta última por aplicación del principio del paralelismo de las competencias- para dotarse de la estructura orgánica más conveniente para el cumplimiento de los fines asignados por el ordenamiento jurídico y de los principios generales rectores de los servicios públicos de la eficacia, eficiencia y adaptación a todo cambio en el régimen legal o necesidad social que satisfacen (artículos 4°, 225, párrafo 2°, y 269, párrafo 1°, de la Ley General de la Administración Pública). En otro orden de consideraciones, no debe confundirse la privatización de los servicios públicos, esto es, la transferencia definitiva de su titularidad y ejercicio a sujetos de derecho privado con su gestión indirecta por un ente público a través de la figura del concesionario, puesto que, en esta hipótesis la administración concedente mantiene la titularidad del servicio y de los bienes de dominio público necesarios para su prestación efectiva, siendo que, únicamente, le transfiere temporalmente al concesionario el ejercicio de algunas potestades para la gestión del servicio -con o sin infraestructura- o la construcción de obras que seguirán siendo de titularidad pública (artículos 121, inciso 14, de la Constitución Política y Ley General de Concesión de Obras Públicas con Servicios Públicos).” De lo expuesto es fácilmente colegible que la Sala ya señaló que no corresponde en esta jurisdicción determinar la conveniencia o no del proceso de modernización que pretende el INCOP, como tampoco determinar la idoneidad del medio elegido, ni la conveniencia de la forma en que pretende indemnizar a sus empleados, por tratarse de asuntos que exceden la competencia de este Tribunal.

IX.- Finalmente, respecto al asunto reclamado por las accionantes en cuanto a la insuficiencia de fondos para cumplir con el 70% que dispone la Ley No. 7762 porque se pretende indemnizar a los empleados con los ingresos de la concesión, lo que estima contraría el artículo 2 inciso 3 de esa misma ley, ello también implica un control de legalidad, que como se explicó en el considerando VIII, no puede ser objeto de pronunciamiento de este Tribunal.

X.- Conclusión. En consecuencia, siendo que del estudio realizado este Tribunal no encontró violación constitucional a los derechos y principios reclamados, lo procedente es desestimarla, como en efecto se ordena. Los magistrados Armijo y Cruz salvan el voto y declaran con lugar el recurso.” Consideraciones plenamente aplicables al sub lite.

Incluso, según se desprende de la lectura del escrito de interposición, se puede verificar que más que un reparo a la posibilidad efectiva que se enajenen, arrienden o graven los muelles o puertos o que se permita que estos salgan del dominio o control del Estado, a la luz de la norma impugnada, lo que se cuestiona es la posibilidad que JAPDEVA pueda recurrir a una eventual “tercerización” de ciertos servicios, lo que se alega, por parte del accionante, podría perjudicar a los trabajadores que laborarían para las empresas que prestarían sus servicios a JAPDEVA, en tanto sus condiciones laborales serían menos favorables que las de los trabajadores actuales de la institución. Se alega que con esto se infringirían los artículos 50 y 74 de la Constitución Política, relativos al deber del Estado de procurar por “el más adecuado reparto de la riqueza” y el principio cristiano de justicia social.

En cuanto a este punto, debe remitirse a lo ya indicado en el precedente previamente transcrito (voto nro. 2005-5651, considerando VIII), en el sentido que excede el ámbito de competencia de este Sala el valorar la conveniencia de recurrir a estos mecanismos para la prestación de los servicios. También debe señalarse que la reforma cuestionada en esta acción, se enmarca dentro de un proceso de reestructuración y modernización de JAPDEVA. Esta Sala ya se pronunció sobre tal proceso, en el voto nro. 2019-018505 de las 11:45 horas del 24 de setiembre de 2019, emitido con ocasión de la consulta legislativa facultativa de constitucionalidad formulada respecto del entonces proyecto de ley nro. 21.426, “Ley de Modernización de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva) y Protección de sus personas servidoras”. Oportunidad en que se resolvió -en lo que interesa- que:

“(...) Según consta en la exposición de motivos del expediente legislativo, la iniciativa legislativa responde a la necesidad urgente de resolver a corto plazo la grave situación de sostenibilidad financiera que presenta la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica de Costa Rica (Japdeva). El proyecto de ley tiene dos ejes fundamentales: a) reorganizar y transformar Japdeva desde el punto de vista administrativo, operativo y financiero de tal forma que pueda encontrar su punto de equilibrio, esto con base en un estudio que deberá estar aprobado a más tardar dos meses después de aprobada la ley, b) facilitar la reducción de la planilla que permita retornar a ese punto de equilibrio, bajo las siguientes modalidades: traslado horizontal de trabajadores a otras instituciones bajo determinados parámetros, pago prestaciones e incentivos y prejubilación, también ambos bajo parámetros establecidos en el proyecto de ley. Según la exposición de motivos del proyecto:

Como parte de dicha reorganización, las personas trabajadoras de dicha institución podrán solicitar voluntariamente su traslado horizontal a instituciones de la Administración Central y Descentralizada institucional; o bien, podrán optar por el pago de sus prestaciones más un incentivo adicional, para dedicarse a actividades ajenas al sector público. Ambas posibilidades se harán efectivas de acuerdo con los parámetros fijados en el proyecto de ley.

Establece un derecho a acogerse a un régimen prejubilatorio, que se hará con cargo al Presupuesto Nacional, siempre y cuando cumplan con los requisitos indicados en la ley y no se hayan acogido al incentivo adicional por transformación institucional. El proyecto también regula aspectos como el cálculo del monto de prejubilación y su tope máximo, parámetros de caducidad, el traslado al Régimen de Invalidez, Vejez y Muerte, y la aplicación supletoria de la Ley no. 7302 (Régimen General de Pensiones con Cargo al Presupuesto Nacional); así como la coordinación interinstitucional entre el Ministerio de Trabajo y Seguridad Social y la CCSS para que, mediante la suscripción de un convenio de aseguramiento colectivo, se regulen las condiciones de aseguramiento de las personas ex servidoras de JAPDEVA que gocen del beneficio de prejubilación.

El proyecto de ley consta de tres capítulos, el primero titulado “Modernización de Japdeva” (del artículo 1 al 7), el segundo “Régimen Pre jubilatorio” (del artículo 8 al 17) y el tercero “Reformas a otras leyes” (18 a 20). Además, contiene cinco disposiciones transitorias que se refieren, una al plazo máximo para que la Dirección General del Servicio Civil aplique el proceso para realizar traslados horizontales, así como respecto a los traslados de instituciones bajo el ámbito de la Autoridad Presupuestaria; plazo máximo de 1 mes para que las personas trabajadoras escojan y soliciten formalmente una de las modalidades señaladas en la ley, término que una vez vencido, obliga a la administración a iniciar la ejecución del cese del personal necesario para llegar a su punto de equilibrio financiero, así como la regulación sobre el grupo de personas trabajadoras a las que resulta aplicable la normativa.

(...)

IV.- Sobre la naturaleza jurídica de JAPDEVA y su régimen laboral. La naturaleza jurídica de Japdeva está claramente regulada en su ley de creación (Nº 3091 de 18 de febrero de 1963, reformada íntegramente por la Nº. 5337 de 27 de agosto de 1973). Se trata de una institución autónoma, con carácter de empresa de utilidad pública. En su artículo 1 señala:

"Créase la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, en adelante denominada JAPDEVA, como ente autónomo del Estado, con carácter de empresa de utilidad pública." “Se encargará asimismo de administrar la canalización del Atlántico y las tierras y bienes que esta misma ley le otorga. Administrará las empresas de transporte ferroviario del Estado que presten servicios de y hacia los puertos de la Vertiente Atlántica que específicamente contemple el Poder Ejecutivo en los planes nacionales de desarrollo.

NOTA: La administración de los ferrocarriles del Estado fue transferida al Instituto Costarricense de Ferrocarriles (INCOFER) por su Ley Orgánica Nº 7001 de 19 de setiembre de 1985 (en especial por sus artículos 1 a 4, 36 y 45).

Artículo 2º.- Promoverá el desarrollo socio-económico integral, rápido y eficiente de la Vertiente Atlántica de Costa Rica. JAPDEVA podrá arrendar, vender, adjudicar o explotar las tierras que le confiere esta ley, con el propósito de promover los fines para los que ha sido creada, pero deberá consultar previamente el criterio del Instituto de Tierras y Colonización, criterio del que no se podrá apartar, si no es con el voto afirmativo de cinco de los miembros del Consejo de Administración. Dentro del área portuaria actual y su extensión a Cieneguita y en la de nuevos puertos de la Vertiente Atlántica, se determinará una zona adyacente para la instalación de industrias o servicios comerciales relacionados con la operación portuaria, que en ningún caso podrá ser enajenada, pero sí dar en arriendo por plazos determinados. Los respectivos contratos llevarán una cláusula en la que expresamente conste que unilateralmente JAPDEVA puede darlos por terminados cuando necesitare el terreno para obras e instalaciones de interés general, a su juicio y sin responsabilidad alguna.

Artículo 3º.- Como institución autónoma de derecho público, JAPDEVA tendrá personería jurídica y patrimonio propio; gozará de independencia administrativa de acuerdo con esta ley. Se regirá por las decisiones de su Consejo de Administración, cuyos miembros actuarán con apego a la Constitución Política, a las leyes y reglamentos pertinentes, siendo responsables de su gestión en forma total e ineludible. Las relaciones entre el Poder Ejecutivo y JAPDEVA se mantendrán a través del Ministerio de Obras Públicas y transportes.” Ahora bien, este tipo de organización también es conocida doctrinariamente como una empresa pública-ente público; lo anterior por cuanto fue creada para desarrollar una actividad mercantil y comercial bajo la veste de una organización de Derecho Público y en consecuencia su régimen jurídico es mixto. Es decir, todos aquellos aspectos relacionados a la organización y el ejercicio de ciertas potestades o competencias eminentemente administrativas, se rigen por el Derecho administrativo y en lo relativo a la actividad empresarial por el Derecho privado. Sobre este particular, el artículo 3°, párrafo 1°, de la Ley General de la Administración Pública establece que “El derecho público regulará la organización y actividad de los entes públicos, salvo norma expresa en contrario”, por su parte, el párrafo 2° dispone que “El derecho privado regulará la actividad de los entes que por su régimen de conjunto y los requerimientos de su giro pueden estimarse como empresas industriales o mercantiles comunes”. Se trata, como se ve, de supuestos en que los entes públicos ejercitan una capacidad de Derecho público y otra de Derecho privado (artículo 1° de la Ley General de la Administración Pública).

Por su parte, la Procuraduría General de la República ha sido clara en señalar, en el caso de Japdeva, que la generalidad del personal a su servicio no ostenta la condición de servidores públicos porque no realizan gestión pública, con excepción de los representantes patronales. Concluye que entonces que en su gran mayoría, su régimen laboral se rige por el derecho privado con excepción de los llamados puestos gerenciales y de fiscalización superior que sí son considerados servidores públicos. En ese sentido en JAPDEVA opera una dualidad en lo que respecta a las relaciones de servicio, dado que a un grupo de servidores les es aplicado el derecho laboral común, mientras que otro sector es regido por el derecho público. (a manera de ejemplo ver Dictámenes 260 del 03/12/1998, 369 del 31/10/2014 ) En el Dictamen 369-2014, en lo que interesa, la Procuraduría General de la República señaló:

“En razón de la naturaleza jurídica que el legislador le confirió a JAPDEVA, sus empleados no se consideran servidores públicos, por lo que se rigen por el derecho laboral (siempre y cuando éste no se vea desplazado por consideraciones de orden superior del derecho público), según lo ordenan los artículos 3 inciso 2), 111 inciso 3) y 112 incisos 2) y 3) de la Ley General de la Administración Pública:

Artículo 3: “(…)

2. El derecho privado regulará la actividad de los entes que por su régimen de conjunto y los requerimientos de su giro puedan estimarse como empresas industriales o mercantiles comunes.” Artículo 111: “(…)

3. No se consideran servidores públicos los empleados de empresas o servicios económicos del Estado encargados de gestiones sometidas al derecho común.” Artículo 112: “(…)

2. Las relaciones de servicios con obreros, trabajadores y empleados que no participan de la gestión pública de la Administración, de conformidad con el párrafo 3°, del artículo 111, se regirán por el derecho laboral o mercantil, según los casos.

3. Sin embargo, se aplicarán también a estos últimos las disposiciones legales o reglamentarias de derecho público que resulten necesarias para garantizar la legalidad y moralidad administrativa, conforme lo determine por Decreto el Poder Ejecutivo.

(…)” No obstante, el anterior enunciado no es absoluto debido a que dentro de los entes descentralizados existen también puestos que sí se encuentran sometidos al régimen público, y son aquellos que participan de la gestión pública, según se desprende -a contrario sensu- del recién referido inciso 2) del artículo 112.

Los servidores que participan de la gestión pública son, de acuerdo a lo indicado por la Sala Segunda de la Corte Suprema de Justicia, “quienes conducen y dirigen los poderes del Estado, los jerarcas de instituciones autónomas, presidencias ejecutivas, así como los jerarcas (grupo gerencial) de las empresas del Estado, etc.” (voto N° 2007-548 de las 9:45 horas del 15 de agosto del 2007).

En adición a lo señalado, se remite también al Dictamen N° C-293-2007 del 27 de agosto del 2007, aplicable al caso sometido a estudio:

“debe señalarse que la reiterada jurisprudencia de este Órgano Técnico Consultivo ha señalado el carácter público de la relación existente en los niveles gerenciales de las entidades bancarias, los cuales en razón de la naturaleza de las funciones desempeñadas, se encuentran sometidos a un régimen público para regular su actuación. Al respecto, hemos indicado:

“Es dable señalar que en esa entidad bancaria coexiste una dicotomía de regímenes de empleo; junto al personal regido por un régimen mixto, es decir, en el que se aplica la legislación laboral común siempre que “no se vea desplazada por consideraciones de orden superior propias del derecho público” (Fallo de la Sala Constitucional No.7730-2000 de las 14:47 hrs. del 30 de agosto del 2000), se encuentran ciertos puestos en régimen de empleo estrictamente público, denominados por la doctrina y por la jurisprudencia constitucional de “alto nivel” , que no son trabajadores en el auténtico sentido de la palabra, sino que su relación de servicio se encuentra regida por el derecho administrativo y sus principios, por ser verdaderos servidores públicos. (Artículo 112 inciso 1) de la Ley General de la Administración Pública).

En ese sentido, la Sala Constitucional de la Corte Suprema de Justicia en su fallo número 244-2001 de las 14:46 horas del 10 de enero del 2001, al referirse a la situación de los funcionarios del nivel superior que excluía la convención colectiva de trabajo del INS sostuvo que: “… los empleados de esta institución no pueden ser considerados como funcionarios públicos, salvo el caso de los puestos gerenciales y de fiscalización superior – a quienes sí se les aplica el régimen de empleo público – con lo cual se les excluye de las normas laborales de orden común, lo que incluye las convenciones colectivas.” (el subrayado es nuestro).

Igual posición siguió el Tribunal Constitucional en la sentencia No. 12953-2001 de las 16: 25 horas del 18 de diciembre del 2001, cuando en su considerando V, in fine, sostuvo que: “resulta de rigor presumir que estos servidores realizan funciones de “Gestión Pública” que, como señala la Procuraduría, entrañan “un poder de decisión y fiscalización, en su caso, superiores” (folio 34) y que, por ende, configuran un régimen de empleo que se encuentra regulado íntegramente por el derecho público”. (el subrayado no es del original).

Así, tanto el nombramiento, remoción, atribuciones, régimen disciplinario y salarial, y en general, todo lo concerniente a la relación de servicio de esos funcionarios se encuentra regulado por el ordenamiento público; amén de ser algunos de esos puestos de los denominados “de período”, por lo que gozan de estabilidad en sus cargos, todo lo cual hace diferencias importantes con respecto al personal laboral de esa institución bancaria. “ (Dictamen C-034-2005 del 26 de enero del 2005, el subrayado no es del original)” (solo el subrayado no es del original).

Ahora bien, se advierte que no existe una lista taxativa de los funcionarios que participan de la gestión pública, por lo que su determinación corresponde a la propia Administración, y en última instancia, a los Tribunales de Justicia (en esa línea, voto N° 2010-1277 de las 15:32 horas del 9 de setiembre del 2010, dictada por la Sala Segunda); sin embargo, en la sentencia N° 2001-12953 de las 16:25 horas del 18 de diciembre del 2001, la Sala Segunda señaló que es factible presumir que los servidores excluidos de las convenciones colectivas realizan funciones de gestión Pública. Concretamente indicó:

“De esta manera, partiendo del hecho de que la propia Convención Colectiva de RECOPE, en su artículo 4°, dispone excluir de su ámbito de aplicación al Presidente, el Gerente General, los Directores Generales, los Gerentes de Area, el Auditor General, el Subauditor General, los Asesores y Asistentes de la Presidencia y la Gerencia General, los Jefes de Dirección, el Secretario de Actas de la Junta Directiva, así como quienes están nombrados en plaza de Coordinadores Ejecutivos con independencia de las funciones que realicen, resulta de rigor presumir que estos servidores realizan funciones de "Gestión Pública" que, como señala la Procuraduría, entrañan "…un poder de decisión y fiscalización, en su caso, superiores…" (folio 34) y que, por ende, conllevan un régimen de empleo que se encuentra regulado íntegramente por el Derecho Público.” (la negrita no es del original).

En lo que respecta a JAPDEVA, su convención colectiva en el numeral 4 dispone que “No serán cubiertos por esta Convención el Presidente Ejecutivo, sus Asistentes y Asesores, los Gerentes y sus Asistentes, Subgerentes, Auditor y Sub-Auditor, por ser los funcionarios que participan de la gestión pública de la Administración” (la negrita no es del original), de lo que se desprende en primer término que la Junta ya efectuó un análisis para determinar en forma puntual cuáles servidores participan de la gestión pública, pero además, y de conformidad con lo aquí señalado, que éstos deben reputarse como funcionarios públicos, y por ende, sujetos al derecho público. “ Por su parte, la Sala Constitucional en la sentencia 2010-9928 de las 15:00 del 9 de junio de 2010, indicó:

“VI.- INCONSTITUCIONALIDAD DEL ARTÍCULO 3°, INCISO A), DEL CÓDIGO PROCESAL CONTENCIOSO-ADMINISTRATIVO. (…) Así, a modo de ejemplo y sin pretensión de exhaustividad, la jurisdicción laboral deberá conocer y resolver –aunque el tema se encuentre relacionado con la conducta o función administrativa ejercida por un ente público- extremos típica o materialmente laborales, tales como la procedencia o no y el cálculo para el pago del aguinaldo, vacaciones, preaviso y auxilio de cesantía, lo concerniente al reconocimiento de una jubilación o pensión o los riesgos profesionales, las controversias que se susciten en el ámbito del Derecho laboral individual y colectivo (v. gr. conflictos de carácter económico-social), de todo lo relativo al ejercicio del derecho a la huelga o el paro, etc. En igual sentido, se impone reconocer que tratándose de empleados encargados de gestiones sometidas al derecho común de empresas públicas o de servicios económicos desarrollados por una administración pública o de simples obreros, trabajadores o empleados que no participan de la gestión pública del respectivo ente público, esto es, de los que la doctrina denomina “trabajadores de la administración pública”, las controversias surgidas deben ser conocidas y resueltas por la jurisdicción laboral, al no tratarse, en sentido estricto, de un funcionario, servidor o empleado público (artículos 111, párrafo 2°, y 112, párrafo 2°, de la Ley General de la Administración Pública), dado que, cualquier conducta emanada del ente público, en tal contexto, no estará sometida al régimen jurídico administrativo y tampoco podrá ser reputada, materialmente, como una relación jurídico-administrativa.(…)”.

Lo resuelto por la Sala permite hacer una diferenciación entre el régimen de empleo público y el privado de la Administración. En el primero, imperan figuras como regímenes estatutarios (artículo 191 de la Carta Magna), derecho de estabilidad plena (en propietarios) o relativa (en servidoras o servidores interinos), derecho de reinstalación (que es solo excepcional en el régimen privado), entre otras manifestaciones que no concurren en el segundo y que permiten deslindar ambos marcos. Si bien dentro del empleo privado de una empresa pública-ente pública, cuyos trabajadores no participen de la gestión pública, según lo ordena el inciso 3 del citado mandato 112 ibídem, pueden operar por integración principios del derecho público para garantizar "la legalidad y moral administrativas", tal complementariedad no hace que esas relaciones sean propias del empleo público, pues es claro que siguen siendo de otra naturaleza moral. Todo lo cual viene a reforzar la existencia de un régimen de empleo de naturaleza mixta.

Lo anterior es importante tenerlo claro para efectos de determinar si es posible que el legislador determine forzosamente la disminución de planilla mediante reestructuración de una institución descentralizada para lograr su equilibrio financiero y si es así, bajo qué parámetros puede hacerlo.

V.- Sobre la jurisprudencia constitucional en materia de reestructuraciones administrativas.

El estado costarricense ha tenido ya varios procesos de reestructuraciones en el sector público en el pasado para las cuales se ha emitido legislación. Sobre estos temas -que en ocasiones se han recurrido ante la Sala Constitucional-, la jurisprudencia ha considerado que es posible hacer reestructuración en el caso de reducción forzosa de servicios, ya sea por falta de fondos o para conseguir una mejor organización de los mismos.

Sin embargo, la aplicación de estos procesos exige la sujeción a una serie de requerimientos previos plasmados -la mayoría de los casos- en la legislación, como ocurre en el caso del Estatuto de Servicio Civil y su Reglamento, con lo cual se persigue garantizar el absoluto respeto a los derechos constitucionales de los servidores.

Al respecto, la Sala Constitucional ha indicado:

“El artículo 192 de la Constitución Política faculta a la Administración Pública para disponer la reestructuración de las diversas dependencias que la componen, con el fin de alcanzar su mejor desempeño y organización, para lo cual podrá ordenar no sólo la eliminación y recalificación de las plazas, sino el traslado de los funcionarios a cargos diversos, siempre y cuando se observe el debido proceso(...) La facultad de trasladar o reducir forzosamente a los funcionarios públicos es intrínseca del Estado, el cual podrá poner en práctica - siempre y cuando se respete el procedimiento establecido para acordar reorganización-, las medidas necesarias o fin de organizar sus diferentes dependencias para conseguir un mejor funcionamiento de las mismas... “( Voto No.4246-94) De igual forma, esta Sala ha señalado que los procesos de reestructuración administrativa deberán estar sujetos a necesidades reales:

“Debe de tomarse en cuenta, además que las llamadas reestructuraciones o reorganizaciones deben de estar basadas en necesidades reales y debidamente probadas a fin de evitar abusos de parte de los empleadores, que bajo una justificación aparente conculcan los derechos de los servidores, los cuales por suposición – más débil- dentro de la relación, quedan imposibilitados de ejercer una acción administrativa o judicial inmediata para detener este tipo de abusos. Por ello, todo proceso de reorganización deberá contar con la participación de todas aquellas dependencias que se requieran para la toma de la decisión final”. (Sentencia 3288-94) En el mismo sentido la sentencia 00602-2001 señaló:

“Además de ellos, la Sala también ha señalado que en una relación de empleo público, la proyección de derecho al trabajo protegido por el artículo 56 constitucional contiene, como uno de sus postulados a favor del trabajador el de la estabilidad en el puesto, sin que pueda desconocerse que ello es lo que permite al servidor acceder a una serie de beneficios sociales y económicos que posibilitan su superación académica y laboral, proporcionándole la seguridad necesaria para su desarrollo personal y del núcleo familiar que de él depende, lo que efectiviza realmente el sentido del derecho al trabajo como garantía individual y obligación con la sociedad, en la expresión utilizada por el texto constitucional; motivo por el cual los servidores sólo pueden ser removidos por vía de excepción, ante una causal de despido justificado, o en el caso de reducción forzosa de servicios, siendo uno de los casos precisamente los procesos de reestructuración a que puede someterse una institución, encontrándose esto último, además en consonancia con los principios que se derivan del artículo 192 de la Constitución Política, pero justamente por ser una excepción a la garantía constitucional de estabilidad para el trabajador, su aplicación por parte de la administración debe ser ejecutada con absoluta objetividad, transparencia v seriedad, y de ahí la exigencia de estudios técnicos calificados que puedan validar la toma de decisiones, con base en un modelo coherente y efectivo." En el caso del proyecto de ley consultado, el legislador faculta en su artículo 2, a Japdeva para determinar la estructura administrativa, operativa y financiera adecuada para su correcto funcionamiento, así como realizar los estudios técnicos y las acciones necesarias para mantener las personas trabajadoras que requiera para garantizar la continuidad del ente y el equilibrio financiero, en el corto y largo plazo, de tal forma que la abstrae de someterse a los procedimientos y regulaciones existentes para el sector público, pero por otra parte, la sujeta a que las decisiones que se adopten estén fundadas en estudios técnicos. Según se puede observar de las discusiones legislativas, tanto la Contraloría General de la República, como la Ministra de Hacienda, confirman que, desde el punto de vista financiero, Japdeva presenta un desequilibrio que la hace insostenible a futuro y compromete la capacidad de pago de las personas servidoras de ese ente en su conformación actual (ver Tomo II fs 358-394; 409-412; tomo III fs 725 y ss; Tomo X2573y ss), confirmado por las autoridades de Japdeva ( fs. Tomo II 395-408; 473-719). Los estudios económicos son claros en que los ingresos de la institución son muy inferiores a sus egresos y a su capacidad futura de asumir la totalidad de la planilla actual, dada la entrada en funcionamiento de APM Terminals, el contrato de concesión y las directrices Ministeriales adoptadas en torno a ésta.

En ese sentido, estima la Sala que si bien los estudios técnicos determinaran cuál ha de ser la estructura futura de acuerdo al modelo de negocios y el plan de reorganización institucional, en conjunto con el plan estratégico y los nuevos estudios técnicos, para que la disposición no sea inconstitucional por sus efectos, en el caso de los servidores públicos y la estructura administrativa, operativa y financiera que se adopte, tiene que existir una conexidad absoluta entre ambos de tal forma que se demuestre que obedecen a necesidades reales debidamente probadas a fin de evitar abusos, según la jurisprudencia supra citada. De ninguna manera puede interpretarse que la exigencia de estudios técnicos a que se refiere la norma, por ser ex post, significa un cheque en blanco para que la administración determine en forma antojadiza, ni los servidores públicos que han de permanecer o eliminarse, ni la estructura administrativa, operativa y financiera que al futuro ha de tener el ente. En ese sentido, esta Sala aclara que para que la medida no resulte en una inconstitucionalidad por sus efectos, no se puede iniciar ningún despido de los servidores públicos, hasta que no esté concluido el estudio técnico a que se refiere el artículo 2 del proyecto de ley consultado, se haya dado debido proceso a aquellas personas que resultarían afectadas con un eventual despido. Todo acto final deberá además estar debidamente fundado en el estudio técnico respectivo.

Distinto es el caso de los trabajadores sometidos al régimen de derecho común, porque éstos se regirán por las disposiciones del Código de Trabajo y la Convención Colectiva en lo que corresponda y respecto a los trabajadores de dicho régimen no opera el grado de estabilidad que garantiza el artículo 192 de la Constitución Política a los servidores públicos. Naturalmente que para poder hacer un despido sin responsabilidad patronal en este segmento de trabajadores, deberá cumplirse con la totalidad de las disposiciones legales establecidas.

Asimismo no podrá despedirse forzosamente a aquellos trabajadores que gocen de fuero especial sindical, sin seguirse los procedimientos establecidos en la legislación, ni irrespetarse las medidas cautelares o resoluciones que los tribunales de justicia emitan con ocasión de casos sometidos a su conocimiento.

En el caso del despido con responsabilidad patronal, para aquellos trabajadores sometidos al régimen de derecho común, que no hayan querido acogerse voluntariamente a alguna de las modalidades de movilidad horizontal, incentivos o prejubilación que establece la ley, igualmente deberá cumplirse con los procedimientos propios de la legislación laboral, incluido el pago de las prestaciones legales correspondientes dentro de lo que estipula el ordenamiento jurídico.

Considera la Sala que el transitorio consultado no faculta en ninguna parte al ente a hacer despidos automáticos, pues en el caso de los servidores públicos sólo podrán suprimirse las plazas en concordancia con los estudios técnicos, previo debido proceso, sin que se puedan hacer antes, y en el caso de los servidores sometidos al régimen de derecho común, que son la mayoría, podrán ser despedidos con responsabilidad patronal con el pago total de sus prestaciones legales conforme lo dispuesto en la legislación laboral, si no quisieron acogerse voluntariamente a ninguna de las modalidades de traslado horizontal, incentivos o prejubilación establecidos en la ley. Asimismo, sin responsabilidad patronal, únicamente podrá despedirse a quien incurra en una falta grave, conforme lo establecen las reglas del derecho común.

VI-. Sobre la alegada violación a la autonomía administrativa de Japdeva.

Alegan los consultantes que existe una posible inconstitucionalidad de la competencia que se estaría arrogando la Asamblea Legislativa mediante esta norma, para sustituir a la Administración, con la finalidad de disponer de sus recursos humanos y financieros y proceder a ordenar el despido de sus funcionarios de Japdeva.

En este sentido, encuentran una posible inconstitucionalidad al oponerse el transitorio II del proyecto consultado, al artículo 188 de la Carta Magna que resguarda la autonomía administrativa de las instituciones autónomas como JAPDEVA (creada por la Ley No. 3091 de 23 de febrero de 1963 y sus reformas. artículo 1). Asimismo, consideran que esta norma sería contraria a los principios derivados del artículo 9 (separación de funciones e independencia de los poderes del Estado) y el artículo 122 (prohibición expresa al Poder Legislativo de coadministrar), ya que implica la intervención directa de la Asamblea Legislativa en aspectos administrativos de una institución autónoma al ordenarle el cese de sus funcionarios.

El punto neurálgico en este cuestionamiento, sería determinar si el legislador tiene potestades constitucionales para reorganizar una institución autónoma. En este sentido, se hace necesario diferenciar el origen normativo de las instituciones autónomas contempladas en los numerales 188 y 189 constitucionales. Como primer supuesto, tenemos las instituciones autónomas creadas y reguladas directamente por la Constitución Política, como lo son la Caja Costarricense del Seguro Social, la Universidad de Costa Rica, entre otras; y como segundo supuesto, tenemos las instituciones autónomas de creación legal mediante votación calificada.

En el caso concreto de JAPDEVA, se trata de una institución autónoma de creación legal cuyas metas, objetivos y fines se encuentran fijados por ley. Es decir, su creación fue por voluntad del legislador, la cual estuvo motivada por una necesidad de satisfacer un fin público en un tiempo determinado. Aclarado lo anterior, podemos afirmar que así como la Asamblea Legislativa puede crear una institución autónoma puede también cerrarla -principio de los poderes implícitos-, pues quien puede crear, puede extinguir o modificar su estructura y sus competencias, máxime que en este caso la entidad pública es financieramente inviable, por lo que hay un motivo objetivo y razonable. Naturalmente que en un estado de derecho, no puede ningún poder actuar arbitrariamente. En el caso en estudio, como se indicó supra, existen estudios financieros del Ministerio de Hacienda, la Contraloría General de la República y otros de la propia institución que reconocen la imposibilidad del ente de pagar salarios a los trabajadores, porque el modelo de negocio cambió con la entrada de un concesionario (APM Terminals) y sin que oportunamente se tomaran las medidas de reactivación y reorganización adecuadas para garantizar su equilibrio financiero. Lo anterior, ha obligado al Poder Ejecutivo a enviar un presupuesto extraordinario para pagar los salarios por los próximos meses (expediente 21,475), dineros que se pagarán en parte con deuda (ver comparecencia de la Ministra de Hacienda Tomo II fs 256 y ss; Contralora General 358 y informes Contraloría 409-412; Japdeva 395-408; Tomo X informe Ministerio de Hacienda fs. 2573 y ss). El proyecto que se consulta propone facilitar la reducción de planilla, bajo una serie de incentivos, movilidad e indemnización de los trabajadores, conforme los estudios técnicos que haga el ente en un plazo máximo de dos meses a partir la vigencia de la ley, para procurar rescatar la institución y no caer en cesación de pagos que lo haga completamente inoperante y lo adapte a una nueva realidad de negocios sin tener que cerrarlo. Analizado el transitorio II consultado, a juicio de esta Sala no existe ninguna disposición que permita concluir que el legislador ha excedido sus competencias constitucionales en la norma consultada. Todos los actos concretos de administración, a partir de la vigencia de la ley -de llegar a adoptarse- serán responsabilidad de los personeros de JAPDEVA, de acuerdo al nuevo marco general de actuación fijado por el legislador. Lo que hace la ley es fijar un marco general, así como plazos y condiciones de actuación. Las decisiones de micro administración, es decir los actos concretos, modelo de reorganización a adoptar, dependerán de la propia administración de Japdeva, según el estudio técnico que establece la ley.

Sostener lo contrario sería afirmar que las competencias y servicios públicos asignados a un ente público descentralizado que goce de autonomía política quedan petrificados, siendo que el legislador ordinario no podría modificar o variar tales competencias o servicios públicos conferidos, cuando exista fundamento para hacerlo. En el caso concreto significaría que tiene que cerrar Japdeva ante la imposibilidad de mantener su planilla, dado que según se expone en el proyecto, -Japdeva perdió el 80% del ingreso y conserva el 100% de la planilla-, con la paradoja que si puede el legislador crear otra institución autónoma por ley con otras competencias, lo cual de hacerse por esa vía y no por modificación de Japdeva, ocasionaría un gran perjuicio a los trabajadores y al servicio público ya que las funciones de Japdeva, según su ley de creación son esenciales para el desarrollo portuario y de la provincia de Limón.

No puede perderse de vista que el Estado costarricense es unitario, y que para alcanzar de forma más eficiente los fines, objetivos y metas que fija el ordenamiento jurídico vigente estableció un diseño organizacional que establece un poder central y descentralizado, en este último caso conforme a criterios territoriales (Municipalidades), así como también con criterios de especialización (Instituciones Autónomas).

Sobre este tema, la Sala Constitucional ha señalado:

"Desde el punto de vista constitucional, es necesario comenzar por recalcar que Costa Rica, desde su nacimiento ha sido un Estado unitario concentrado, lo cual quiere decir que no ha tenido nunca ningún tipo de descentralización política propiamente dicha. La única que ha conocido, es la administrativa, sea esta territorial –municipios– o institucional. De manera que es inútil todo ejercicio tendente a distinguir, como pretenden los recurrentes, entre descentralización meramente administrativa, y otras formas posibles de descentralización, la política." (Resolución Nº 4091-94 de 9 de agosto de 1994, reiterada por la Nº 7528-97 de 12 de noviembre de 1997) La creación de un modelo de descentralización administrativa favorece, por una parte, la mejor satisfacción de los intereses locales, como también la prestación de servicios y la realización de actividades que requieren de especialización técnica. A pesar de ello, y del distinto grado de autonomía con que se crean los entes públicos que conforman la administración descentralizada, el Estado debe procurar mantener la unidad y armonía de su acción.

Con esa visión fue que el constituyente estableció en su artículo 188 que las instituciones autónomas del Estado gozan de independencia administrativa, pero están sujetas a la ley en materia de gobierno. El artículo 188 de la Constitución Política señala:

“Artículo 188. Las instituciones autónomas del Estado gozan de independencia administrativa y están sujetas a la ley en materia de gobierno. Sus directores responden por su gestión.” (lo subrayado no es del original) Originalmente el texto constitucional no establecía la posibilidad de someter a las instituciones autónomas del Estado a la ley en materia de gobierno, aspecto que fue reformado en 1968 (Ley No. 4097 de 30 de abril de 1968), precisamente para garantizar la unidad del estado.

Según ha señalado la jurisprudencia de este Tribunal, a partir de esa reforma constitucional, las instituciones autónomas no gozan de una garantía de autonomía constitucional irrestricta, toda vez que la ley a parte de definir su competencia, puede someterlas a directrices derivadas de políticas de desarrollo que esta misma encomiende al Poder Ejecutivo Central, siempre que, desde luego, no se invada con ello la esfera de la autonomía administrativa propiamente dicha. Según la sentencia 1999-919 de esta Sala, los antecedentes y efectos de la propia reforma, al reservar a esas entidades la materia de su propia administración excluyó de su gestión la potestad de gobierno que implica: a) la fijación de fines, metas, tipos de medios para realizarlas; b) la emisión de reglamentos autónomos de servicio o actividad acorde con las disposiciones normalmente llamadas de política general. De esta manera la reforma hizo constitucionalmente posible someter a las entidades autónomas en general a los criterios de planificación nacional y en particular, someterlas a las directrices de carácter general dictadas desde el Poder Ejecutivo central o de órganos de la Administración Central (llamados a complementar o fiscalizar la política en general. En ese sentido, se pueden fijar por ley condiciones generales de actuación que excedan el ámbito singular de actuación. (en sentido similar ver sentencia 1998-4313). También ha señalado la Sala que “se estaría entendiendo mal el alcance de la autonomía administrativa si se creyese que ella equivale a la ausencia de toda posibilidad de control externo, como si las entidades descentralizadas fuesen islas regidas por un autogobierno soberano; un Estado dentro de otro.” (ver sentencia 1998-835).

De igual forma, las entidades descentralizadas no son islas frente al legislador, cuando existen circunstancias que obligan a salvaguardar fines públicos. En el caso en análisis, no sólo está en riesgo la sostenibilidad de los fines encomendados a Japdeva en su ley de creación, esenciales para el desarrollo de la provincia de Limón, sino además de los fondos públicos que el Gobierno Central tiene que dedicar de los impuestos de los ciudadanos para cumplir con las obligaciones de pago de los salarios del ente.

Por las razones anteriores, no puede alegarse válidamente que exista una violación a la división de poderes, la cual no está en juego, ni al artículo 188 de la Constitución Política." En conclusión, esta Sala no estimó como incompatible con la Constitución la posibilidad de someter a JAPDEVA al referido proceso de modernización y reestructuración administrativa -conforme a los parámetros desarrollados en ese mismo voto-. A lo que se añade, nuevamente, que excede el ámbito de competencia de este Tribunal el valorar la conveniencia o necesidad de “tercerización” de potenciales servicios. Sin perjuicio de señalar, en todo caso, que una eventual empresa que preste tales servicios a JAPDEVA en el territorio nacional, deberá ajustarse, en lo pertinente, al plexo de obligaciones previstas por el ordenamiento jurídico laboral costarricense, en desarrollo de los derechos y garantías sociales reconocidos en el Título V de la Constitución Política.

V.- DE LA IMPUGNACIÓN DEL CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, EXPLOTACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN. Finalmente, debe insistirse que los principales reproches del accionante se dirigen a cuestionar, en particular, la validez, necesidad y conveniencia de tal contrato, así como lo referente a su debida ejecución o cumplimiento; sin embargo, como ha indicado esta Sala, de forma reiterada, ello no constituye objeto de acción de inconstitucionalidad. Así, recientemente, al conocer de una acción interpuesta contra ese mismo contrato, esta Sala, mediante voto nro. 2021-005640 de las 9:15 horas del 17 de marzo de 2021, resolvió -en lo que interesa- que:

“(...) SOBRE LA INADMISIBILIDAD DE ESTA ACCIÓN CONTRA EL CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN. La parte accionante impugna también “(…) las Cláusulas 4.1.1-22), 5.2.2 incisos 11) y 12), 8.5.2, 9.1 y la Medida Adicional N° 9 del Anexo 3° del CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN”. Pese a sus argumentos, la jurisdicción constitucional no es la vía apropiada para revisar el contenido del contrato de concesión impugnado, por lo que en cuanto a este aspecto la acción es improcedente en razón de su objeto. Esto, toda vez que, el artículo 10 de la Constitución Política asigna a esta Sala la tarea de “ (…) declarar, por mayoría absoluta de sus miembros, la inconstitucionalidad de las normas de cualquier naturaleza y de los actos sujetos al Derecho Público”. Asimismo, tal como se indicó en el considerando anterior, el artículo 73 de la Ley de la Jurisdicción Constitucional precisa que “Cabrá la acción de inconstitucionalidad: a) Contra las leyes y otras disposiciones generales, incluso las originadas en actos de sujetos privados, que infrinjan, por acción u omisión, alguna norma o principio constitucional. (…)”. De conformidad con esas disposiciones, no cabe plantear una acción ante esta Sala contra un contrato, no obstante se trate de un contrato de concesión. En el caso del inciso a) precitado, al referirse a la posibilidad de combatir “otras disposiciones generales, incluso las originadas en actos de sujetos privados”, cabe aclarar que se refiere a disposiciones de alcance normativo (por ejemplo, un reglamento o un estatuto) y no contractual, ya que es eso lo que rectamente se sigue a partir de la frase “normas de cualquier naturaleza” que utiliza el ordinal 10 constitucional. (En este sentido, véanse los votos nº 2005-13070 de las 16:02 horas del 22 de setiembre del 2005 y n° 2009-000310 de las 15:18 horas del 14 de enero de 2009).”

Criterio confirmado luego, en el voto nro. 2021-013132 de las 9:05 horas del 9 de junio de 2021, en que esta Sala señaló:

“I.- Respecto de los oficios SJD-126-2014 y SJD-170-2014 del Instituto Costarricense de Turismo y su criterio legal AL-214-2014, las cláusulas 4.1.1-22), 5.2.2 incisos 11) y 12), 8.5.2, 9.1 y la Medida Adicional nro. 9 del Anexo 3 del Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín. En lo referente a los citados actos administrativos y el mencionado contrato de concesión de obra pública con servicios público, debe indicarse que esta acción es una reiteración de una anterior (expediente nro. 21-003621-0007-CO), interpuesta por el mismo accionante, en que esta Sala ya resolvió, mediante voto nro. 2021-005640 de las 9:15 horas del 17 de marzo de 2021 -en lo que interesa-, que:

“III.- SOBRE LA INADMISIBILIDAD DE ESTA ACCIÓN CONTRA LOS OFICIOS SJD-126-2014 Y SJD-170-2014 DEL INSTITUTO COSTARRICENSE DE TURISMO Y SU CRITERIO LEGAL AL-214-2014. El accionante dice interponer esta acción de inconstitucionalidad contra “(…) los oficios SJD-126-2014 y SJD-170-2014 del Instituto Costarricense de Turismo y su criterio legal AL-214-2014 (…)”. Pese a las alegaciones de la parte gestionante, esta acción es improcedente en cuanto a este objeto, dado que el artículo 73 de la Ley de la Jurisdicción Constitucional en sus incisos a) y b), dispone lo siguiente:“Artículo 73.- Cabrá la acción de inconstitucionalidad: a) Contra las leyes y otras disposiciones generales, incluso las originadas en actos de sujetos privados, que infrinjan, por acción u omisión, alguna norma o principio constitucional. b) Contra los actos subjetivos de las autoridades públicas, cuando infrinjan, por acción u omisión, alguna norma o principio constitucional, si no fueren susceptibles de los recursos de hábeas corpus o de amparo.(…)”. Con base en lo anterior, la acción de inconstitucionalidad planteada contra los oficios y criterio legal emitidos por el Instituto Costarricense de Turismo resulta inadmisible por no cumplir con los presupuestos previstos en la norma precitada, pues no está dirigida contra disposiciones de carácter general que se estime infringen normas y principios constitucionales. En este caso, los oficios y criterio legal impugnados no tienen carácter normativo, resultando improcedente con tal propósito la acción de inconstitucionalidad planteada.

IV.- SOBRE LA INADMISIBILIDAD DE ESTA ACCIÓN CONTRA EL CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN. La parte accionante impugna también “(…) las Cláusulas 4.1.1-22), 5.2.2 incisos 11) y 12), 8.5.2, 9.1 y la Medida Adicional N° 9 del Anexo 3° del CONTRATO DE CONCESIÓN DE OBRA PÚBLICA CON SERVICIO PÚBLICO PARA EL DISEÑO, FINANCIAMIENTO, CONSTRUCCIÓN, OPERACIÓN Y MANTENIMIENTO DE LA TERMINAL DE CONTENEDORES DE MOÍN”. Pese a sus argumentos, la jurisdicción constitucional no es la vía apropiada para revisar el contenido del contrato de concesión impugnado, por lo que en cuanto a este aspecto la acción es improcedente en razón de su objeto. Esto, toda vez que, el artículo 10 de la Constitución Política asigna a esta Sala la tarea de “(…) declarar, por mayoría absoluta de sus miembros, la inconstitucionalidad de las normas de cualquier naturaleza y de los actos sujetos al Derecho Público”. Asimismo, tal como se indicó en el considerando anterior, el artículo 73 de la Ley de la Jurisdicción Constitucional precisa que “Cabrá la acción de inconstitucionalidad: a) Contra las leyes y otras disposiciones generales, incluso las originadas en actos de sujetos privados, que infrinjan, por acción u omisión, alguna norma o principio constitucional. (…)”. De conformidad con esas disposiciones, no cabe plantear una acción ante esta Sala contra un contrato, no obstante se trate de un contrato de concesión. En el caso del inciso a) precitado, al referirse a la posibilidad de combatir “otras disposiciones generales, incluso las originadas en actos de sujetos privados”, cabe aclarar que se refiere a disposiciones de alcance normativo (por ejemplo, un reglamento o un estatuto) y no contractual, ya que es eso lo que rectamente se sigue a partir de la frase “normas de cualquier naturaleza” que utiliza el ordinal 10 constitucional. (En este sentido, véanse los votos n°2005-13070 de las 16:02 horas del 22 de setiembre del 2005 y n°2009-000310 de las 15:18 horas del 14 de enero de 2009).” Por lo que, finalmente, se rechazó de plano la acción en cuanto a tales extremos. Lo anterior, al concluirse que, en la especie, las conductas cuestionadas no eran impugnables mediante acción de inconstitucionalidad, conforme a lo previsto en el artículo 73, incisos a) y b), de la Ley de la Jurisdicción Constitucional. Ergo, el accionante deberá estarse a lo ya resuelto en tal oportunidad, al no existir motivo que justifique variar de criterio.

II.- En cuanto a la suscripción del contrato consolidado con las adendas 1 y 2, denominado “Contrato de Concesión de Obra Pública con Servicio Público para el diseño, financiamiento, construcción, explotación y mantenimiento de la Terminal de Contenedores de Moín”, realizada el 13 de febrero de 2012, por la Administración y la empresa concesionaria APM Terminals, los oficios nro. UE-TCM-OF-OF-01 13-2013 del 24 de octubre de 2013 del Gerente de la Unidad Ejecutora TCM y nro. DMP-DI-2013-0363 del 11 de noviembre de 2013 del Director a. i. de Infraestructura de la División Marítimo Portuaria, en que se aprobó el diseño presentado por la concesionaria, y el oficio nro. UE-TCM-OF-0192-2014 del 19 de diciembre de 2014 de la Junta Directiva del Consejo Nacional de Concesiones, en que se notificó a la empresa APM Terminals de Moín S.A. sobre la etapa de construcción correspondiente a la Fase 2A de la Terminal de Contenedores de Moín, con rige a partir del 19 de enero de 2015. En esta segunda acción, se pretende ampliar el objeto de impugnación en lo referente al citado contrato de concesión de obra pública con servicio público y otros actos administrativos relacionados con la ejecución de tal contrato. En cuyo caso, resulta plenamente aplicable lo ya indicado en el citado voto nro. 2021-005640, en sentido que en el sub lite no se configuran los supuestos previstos en el artículo 73, incisos a) y b), de la Ley de la Jurisdicción Constitucional.

III.- En relación con lo ya indicado en los dos considerandos anteriores, debe destacarse que, en el sub judice, el accionante formula diversos reproches relativos a la procedencia, conveniencia y validez del citado contrato de concesión de obra pública con servicio público, así como de una serie actos administrativos vinculados con la ejecución de dicho contrato. Reproches respecto de los que ya se ha pronunciado esta Sala, en múltiples ocasiones, en el sentido que corresponden a temas que no procede dilucidar en esta jurisdicción de constitucionalidad.

Así, el accionante cuestiona en primer lugar el contenido del citado contrato y, en particular, la concesión otorgada la empresa APM Terminals, en tanto reclama que se otorgara de manera exclusiva a la referida empresa una concesión de obra pública con servicio público con el fin de desarrollar y explotar la nueva Terminal de Contenedores de Moín, lo que a su parecer violenta lo establecido en diversas normas y principios constitucionales, principalmente, el artículo 46 constitucional. Cuestiona, particularmente, que se otorgara tal concesión en tanto afirma que JAPDEVA ya prestaba los respectivos servicios de la carga y descarga de contenedores de forma más eficiente. También reclama que los costarricenses se están viendo afectados por los altos precios y atrasos en la prestación de servicios portuarios por la mencionada empresa APM Terminals. Finalmente, alega que esta situación ha sumido a JAPDEVA en una grave crisis financiera. Debe señalarse que, respecto a los reproches expuestos por el accionante, en la sentencia No. 2013-16146 de las 9:05 horas del 6 de diciembre de 2013, esta Sala -en lo que interesa- estimó:

“I.- Objeto del recurso. El recurrente acude en resguardo del principio constitucional de libre empresa y competencia leal, así como el principio de igualdad, derecho al trabajo y salario digno, pues acusa que el Poder Ejecutivo otorgó -de manera exclusiva- una concesión de obra pública con servicio público a la empresa APM Terminals Central America B.V. y APM Terminals Moín S.A. para el diseño, financiamiento, construcción, explotación y mantenimiento de la nueva Terminal de Contenedores de Moín, suprimiendo con ello las facultades de JAPDEVA para brindar el servicio más importante en la actividad portuaria de Limón, como lo es la atención de barcos contenedores, con la consecuente disminución en los ingresos percibidos así como la eliminación de fuentes de empleo, obstaculizando la libre competencia entre JAPDEVA y las empresas privadas.

II.- Sobre el fondo. Luego de examinados los autos, la Sala estima que se debe declarar sin lugar el recurso de amparo, por las razones que se dirán. En primer término, si el recurrente mantiene algún tipo de disconformidad con la cláusula número 9 del contrato de concesión de obra pública con servicio público adjudicado a la empresa APM Terminals Central America B.V. y APM Terminals Moín S.A., o bien, considera que el contenido de dicha cláusula contractual resulta arbitrario, ilegal o abusivo, deberá alegarlo en la vía de legalidad correspondiente, por carecer la Sala de las competencias para dirimir este tipo de conflictos. Como lo ha sostenido este Tribunal en anteriores ocasiones, “(…) debe tomar en cuenta la petente, que los conflictos atinentes a la correcta interpretación de las cláusulas de los contratos en cuestión, de sus alcances y de las obligaciones que de ellas se derivan para las partes, así como lo dispuesto por la normativa que rige la materia, es labor propia de tales vías, y no de esta jurisdicción, pues se trata de un problema de legalidad ordinaria cuyo conocimiento es ajeno al ámbito de competencia de la Sala”(ver sentencia 2009-015459 de las 18:10 horas del 29 de setiembre de 2009).

En segundo lugar, de las manifestaciones del recurrente se extrae que la cláusula contractual que impugna hace referencia a la alegada exclusividad que tendría la empresa APM Terminals Central America B.V. y APM Terminals Moín S.A., en cuanto a la atención de barcos contenedores se refiere. En concreto reclama que la cláusula número 9 del contrato de concesión en mención, en realidad lo que hace es brindar exclusividad a una empresa privada para que preste el servicio que daba la empresa pública JAPDEVA. Al respecto, es preciso aclararle al amparado que la decisión de haberle entregado o no la exclusividad a dicha empresa para la prestación de ese tipo de servicio en concreto (contenedores), no constituye por sí misma una lesión de relevancia constitucional. Como indica el propio recurrente, lo que se está suprimiendo es la facultad legal de brindar un servicio, esto debido a una decisión de oportunidad por parte de la Administración. Tal tipo de medida corresponde al espacio natural de que dispone la Administración para ejercer la gestión administrativa, consustancial a su ámbito competencial, de acuerdo con sus prioridades de gobierno. De esta forma, el control de constitucionalidad solo se aplicaría en caso de que en el ejercicio de tales competencias, de manera evidente y manifiesta se vulnerara algún derecho fundamental, cuestión que en la especie no ocurre. La mera disconformidad de la parte accionante con la referida medida atañe más bien a un problema puramente político, antes que a uno jurídico-constitucional, motivo por el que este Tribunal está obligado a aplicar autocontención.

Por otro lado, de las manifestaciones dadas bajo juramento por los recurridos se aprecia que el 16 de julio de 2011, el Sindicato de Trabajadores de JAPDEVA interpuso proceso contencioso administrativo, referido al tema aquí en disputa, el cual fue resuelto en primera instancia por el Tribunal Contencioso Administrativo mediante resolución número 0153-2012-VI, en la que se declaró sin lugar su demanda en todos los extremos. Los recurridos afirman que, posteriormente, el 28 de marzo de 2012, el Sindicato presentó de nuevo otro proceso contencioso administrativo, el cual actualmente se tramita en el expediente número 12-001630-1027-CA y versa sobre todos los hechos que se dieron una vez refrendado el contrato. Según lo informado por los accionados, dicho proceso se encuentra en trámite. Así las cosas, con mucha más razón procede la desestimatoria del amparo, en vista de que los hechos relacionados con el contrato de concesión de obra pública con servicio público para el diseño, financiamiento, construcción, explotación y mantenimiento de la terminal de contenedores de Moín (adjudicado a favor de las empresas privadas APM Terminals Central America B.V. y APM Terminals Moín S.A.), se encuentran siendo examinados en la vía ordinaria competente” (el subrayado no corresponde al original).

Criterio reiterado en los votos nro. 2014-18103 de las 11:33 horas del 31 de octubre de 2014 y nro. 2015-001659 de las 9:05 horas del 6 de febrero de 2015. Mientras que, de forma más reciente, mediante voto nro. 2019-001409 de las 09:05 horas del 25 de enero de 2019, al conocer de un reclamo similar, la Sala resolvió lo siguiente:

“... la parte recurrente interpone recurso de amparo contra los firmantes del “Contrato de Concesión de Obra Pública con Servicio Público para el Diseño, Financiamiento, Construcción, Operación y Mantenimiento de la Terminal de Contenedores de Moín”, y manifiesta que la Autoridad Portuaria (JAPDEVA) presta servicios portuarios a los buques portacontenedores para el manejo de la carga y descarga de contenedores. Refiere que el 13 de febrero de 2012, la Administración Concedente suscribió un contrato con la concesionaria APM Terminal para la operación de la carga y descarga de los barcos portacontenedores, actuación que se aparta del marco jurídico constitucional. Considera que dicho contrato posee limitaciones y restricciones que causan una afectación a los usuarios (navieras y estibadoras), debido a que no se podrá solicitar más la prestación de servicios para barcos portacontenedores ante las intendencias de Limón y Moín, por lo que solicita se anule la cláusula referida (capítulo 4, inciso 22) y se declare con lugar el recurso con las consecuencias de ley.

(...)

I.OBJETO DEL RECURSO E INCOMPETENCIA DE LA SALA PARA CONOCER EL RECLAMO. En relación con los alegatos y pretensiones expuestas en el Resultando primero, se impone advertir que esta Sala no es un contralor de la legalidad de las actuaciones o resoluciones de la Administración, de modo que no le compete revisar si la pretensión requerida por el amparado es procedente, o si se ajusta o no a la normativa legal vigente, labor propia de la vía común, administrativa o jurisdiccional. La procedencia o no de la cláusula cuestionada no constituye un asunto que deba discutirse en esta Jurisdicción, puesto que no tiene la virtud de vulnerar derecho fundamental alguno, por lo que resulta ajeno al ámbito de su competencia que debe dirimirse en la vía común, administrativa o jurisdiccional. Por lo anterior, cualquier reclamo o discrepancia respecto a los términos del contrato, deberá ser planteado ante las autoridades recurridas o en la vía jurisdiccional competente, sedes en las cuales podrá, en forma amplia discutir el fondo del asunto, solicitar las medidas cautelares del caso y, eventualmente, hacer valer sus pretensiones. En virtud de lo anterior, el amparo resulta inadmisible y así debe declararse”.

Por su parte, en el voto nro. 2019-016605 de las 9:40 horas del 30 de agosto de 2019, este Tribunal resolvió:

“De los argumentos expuestos por el accionante, se desprende que su pretensión es que este Tribunal defina cuál carga debe ser operada por JAPDEVA en relación con la concesión de TCM; que se detenga el trámite del proyecto de Ley No. 21426, que se definan las causas de la crisis financiera de JAPDEVA, se determine si procede o no la terminación de la relación de trabajo de sus empleados, así como si se han producido incumplimientos contractuales en la TCM; e impedir el traslado de fondos hacia JAPDEVA para liquidarla. Sin embargo, tales pretensiones no son materia de constitucionalidad, sino de mera legalidad.” VI.- EN CONCLUSIÓN. Como corolario de lo anterior, procede rechazar por el fondo la acción, respecto de los incisos 2) y 3) del artículo 2 y el inciso 4) del artículo 5 de la Ley General de Concesión de Obras Públicas con Servicios Públicos, así como el ordinal 18 de la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, que modificó el numeral 1 de la Ley Orgánica de JAPDEVA. En lo demás, se rechaza de plano la acción.

VII.- DOCUMENTACIÓN APORTADA AL EXPEDIENTE. Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión N° 27-11 del 22 de agosto del 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión N° 43-12 celebrada el 3 de mayo del 2012, artículo LXXXI.

Por tanto:

Se rechaza por el fondo la acción, respecto de los incisos 2) y 3) del artículo 2 y el inciso 4) del artículo 5 de la Ley General de Concesión de Obras Públicas con Servicios Públicos, así como el ordinal 18 de la Ley de Transformación de la Junta de Administración Portuaria y de Desarrollo Económico de la Vertiente Atlántica, Ley nro. 9764, que modificó el numeral 1 de la Ley Orgánica de JAPDEVA. En lo demás, se rechaza de plano la acción.

Fernando Castillo V.

Paul Rueda L.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

Rosibel Jara V.

Jose Roberto Garita N.

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